Sei sulla pagina 1di 162

~TRODUCTION

TO
LAW
By

ROLANDO A~REZ
LL.B., San Beda College
Founding and Managing Partner,
Suarez, Paredes, Zamora & Suarez Law Offices;
Law Practitioner and Professar of Law
Author: Principles, Comments and Cases in Constitutional Law I;
Principles, Comments' and Cases in Constitutional Law II;
Agrarian Reform and Social Legislation;
Comparative Study: Roman Law and Philippine Law, First
and Second Editions; Introduction to Law, First, Second
and Third Editions; Notes and Coniments, Proclamation No.3
and The Provisional Constitution of the Philippines;
Agrarian Reforrri,- Co~peratives and Taxation;
A Mile to Go {or Genuin:I;and Reform in the Philippines;
Statutory Construction; Torts and Damages

FOURTH EDITION

Publlshed & Dlstrlbuted by

t.IPHR
RECEIVEQ -u

.
8

~ ~

fJATf
'

l\,

TABLE OF CONTENTS

>

<l.

..

Acknowledgment .............................................. ......................


Dedication ~~:~., ..................................;........
Preface to the Fo11:rth Edition .........': ............................. ;........

Chapterr


111

v
vii

) ,

''j

LAW, ITS CO:NEPT ANI> CLASSIFICATION


Definition of law ............. ,..~~,.~.-.'",'"'"
Classification of law ...............................................................
Sources oflaw ............................................................ ~...........

l
2
4

Chapter II
.1',

'

WORLD'S LEGAL SYSTEM .


!'

'~

The three prevailing legai system ............. :.........................


Roman Law ................................................................ ~............
Value and importance ofRoman.Law ..................................
Politica! History of Rome ........... ;; ............................... ,..,,.,.
Common law ................................ ;.o; : ; ;;;......
Mohammedan law .............................. ;.................... ~ ...........
Blending of Legai Systems in the Philippines ...................

6
.:7
.7
9
14
14
.14

'

Chap.ter III
LAW AND ITS APPI,.ICATION
Court's duty to decide every case .; .... :..................................
Application of laws ........... .................... .................................
Statutory construction, its c~ncept, purpose, and effect ...
Construction distinguished from interpretation .................
Meaning of the rule: "One must iilterpret first before
he construes" :... ;.. ;.. ;:......................................... ;......... :.....
Intrinsic aids distinguished from: extrinsic aids ................
Purpose of interpretation and coristruction ... i.: .. ;...............
ix

16
17
17
17
18
18
18

When is it necessary and not necess11ry ,to interpret


and con~?truct? .~: .. ;.... :.. :.. :........... ~ .. ~:.:~: .......................... .
Who interprets the law and who.dete;rmii~es
legislative_ ~ntent? ........ , .............. :....
Which prevails ..:.__ the letter of the law or the spirit
ofthe law? ..................................................................... .
Aids in interpretation and construction ............................. .
Simplification of the rule regarding the use
of extrinsic aids ............................................................ .

,T ..........................

ChapterVI

18

19
19
20
24

ChapteriV
THE LEGAL PROFESSION AND
THE QUALIFICATIONS AND PROCEDURE
FOR ADMISSION TO THE
PRACTICE OF LAW
Qualificaton for admission to the practice of law ............. .
First requirement .................................................................. .
Second requirement .............................................................. .
Purpose of imposing said requirements .............................. .
Procedure for admission to the practice of law .................. .
Consequence of failure to pass said examination .............. .
Practice of law is more of a privilege than a right ............ .
Practice of law is a profession and not a business ............ .
The duties of a lawyer .......................................................... .
Lawyer's compellsation .......... :.............................................. .
Disciplinary power over attorneys ....................................... .
Integrated Bar of the Philippines .................................. ,.... ..
Integration of the bar defined ............................................... .
Legal an d constitutional basis ............................................ ..
Supporting arguments in support of constitutionality
and legality ................................ ;.................................. .

26
26
27

28
28
29
29
30

31
31
32
33
33
33

33

chapterV
PERSONS
Concept of a person ............................. ,................. ;.............. ..
Capacity ................................................................................. .
When does the personality of a natural person begin? .... ..
When does the personality of a private corporation
(private juridical person) begin? ................................ ..
When is a fetus considered horn? ........................................ .
x

35

36

37
38
38

CONCEPT AND NATURE OF MARRIAGE


Concept ................................................................................... .
Definition of marriage ......................................................... ..
Requisites of a valid marriage ............................................ ..
Essential requisites ............................................................... .
. .
l
F ormal requ1s1tes .................................................. ,............... ..
Requirements if any or both of the contracting parties
are between 18 and 21 years old and if any
or both are not emancipated by marriage .................. .
Requirement if any of the contracting parties is
between 21 and 25 years old ...................................... ..
Effect if marriage is celebrated within the three (3)
months period on the basis of a marriage license
issued in violation of the said period ......................... ..
Authority of the solemnizing officer .................................... .
Marriage license .................................................................... .
Formalities of marriage ....................................................... ..
Void and voidable marriage ................................................ ..
What marriages are void from the beginning? ................. ..
What are other voi d marriages? ......................................... ..
Essential requisites: (l) Legai capacity and (2)
consent freely given ....... ~ ............................................. ..
What constitutes fraud as a ground for
annulment of marriage ................................................ .
Effect of annulment of voidable marriage .......................... .
Status of children born-out ofmarriages ab initio ............ .
Status of children horn out of voidable marriages ............ .
Restrictions and precautions to be observed by
the court in issuing the decree of annulment.. .......... .
Legal separation ................................................................... ..
Grounds for legal separation ............................................... .
Within what time should an action for legai
separation be filed? .............................. ;...................... ..
Evidence required as basis for judgment in
action for legal separation ........................................... .
What is adultery? .................................................................. .
What is concubinage? ........................................................... .
Requisites for legal separation ............................................ .
Effects of legal separation ................................................... ..
Effects after filing of the petition (Art. 61, FC) ................ ..
xi

42
42
43

44
45

46
47
47
47
48
48
48
50
50
55
56

57
57
58
58
58
58
59
. 59
60
60
60

61
61

Effects during pendency of legai separation


(Art. 49, FC) ..... ;............................................................ .
Effects of the decree of legai separation
(Art. 63, FC) .................................................................. .
Effects during the proceeding for legal separation
or of annulment of marriage ...................................... ..
Parent;1l authority is exercised by the parent
designated by the court (Art. 213, FC) ....................... .
Effect of reconciliation of the parties
(Aris. 65 and 66, FC) ....................................................
In case of breach of mutuai obligation or
mutuai help and support ............................................. .
In case of breach of mutuai obligation to observe
respect an d fidelity ....................................................... .
As regards the obligation of the spouse to live together ... .
Absolute divorce .................................................................... .
Conjugal partnership of gains ............................................. .
Definition of paraphernal property ..................................... .
Rights and Obligation Between Husband and Wife .......... .
What are the duties of husband and wife? ......................... .
Scope of duty to live together .............................................. .
Mutuai respect and fidelity .................................................. .
Mutuai help an d support ...................................................... .

~:~~~reg::q~!xa:~i::;:ri;;b;
gratuit~ title? ............................................................ .
What is a mamage settlement? .......................................... .
Who are the parties to a marriage settlement? .................
Systems that may be adopted by the parties to
govern their property relations ................................... .
What systems govern? .......................................................... .
In the absence of marriage settlement, or when
the agreed regime is void, what governs the
property relations between husband and wife? ......... .
Concept of donation propter nuptias ................................... .
Requisites of donation propter nuptias ............................... .
Distinctions between donation propter nuptias
and ordinary donation .................................................. .
Rights and Obligations Between Husband and Wife
Common to husband and wife ..................................... .
To livc together .....................................: ................................ .
Wife may establish a separate domicile .............................. .
Other consequences of marriage .......................................... .

xii

ChapterVII
62
62
62
63

THEFAMILY
Family defined .. .. .... .. .. .. ... .. .. ..... ... ..... .. .... .. ... .. ... .. ... .. ... ... .........
Family suits are discouraged .... ... .. .. .. .. ... .......... ..... ... .. .. .. ......
Family home defined .............................................................
Advantages of a family home................................................

74
74
74
75

Chapter VIII
63
63
64
64
65
65
66
66
66
66
66
67
67
67
68
68

68
69

69
70
70
70

71
72
72

73

PROPERTY
Property defined .....................................................................
Principal classification of property .. .. ... .. .......... ..... ....... ........
Classification of real or immovable properties.. ..... .. .... ..... ..
Movable or personal properties ... .. .. ........ .. .. .. .... .. .................
Definition an d concept of ownership ... ... .... .. ... .... .. ........... .. ..
Extent of ownership ... .. .. .. ... .. ... ....... .. .. ... ... .. .. ...... .. ..... .... ........
Ownership of a hidden treasure ...........................................
Definition of hidden treasure ... ... .. .. .. .. .... .. .. .. ... ...... ....... .. ......
Modes of acquiring ownership ... ..... .... .. .... .. .. .. .... .. ... .. ...........
Attributes of ownership .........................................................
Important articles of the New Civil Code on
ownership an d possession .. ....... .. ... .. ....... ......... .. .. .... .. ...
Effects of possession ..... .. ... ....... .. ..... .. .. ... ... .... ... ... ..... .... ... ......

76
77
77
79
79
80
81
82
82
84
85
87

Chapter IX

GENERAL PRINCIPLES ABOUT CONTRACTS


AND OBLIGATIONS
Elements of a contract ... ... ... .... ... .. .. .. .. ... ... .. .. .. .... ..... ....... .... ...
When is a contract perfected? ...............................................
Can the contracting parties agree on
any term or condition? ......... :........................................
Basic principles to remember apout contracts ..... .. ......... ... .
Conce p t of obligation ... .. ... ... .... ... .. .. ..... ... .. .............. .. ......... .....
Sources of obligation ...... .. .... .... ... .... .. .. .. ... ... .. .. ... ... ....... ..... .. ...
Nature an d effects of obligations ..... .. ... .. ........ ... ......... ..........
Obligation of a perso n obliged to give something .... ... .. ......
Obligation to give a determinate thing ................................
When is a thing specific or determinate and when
is it generic or indeterminate? .....................................
Effect of obligation to deliver a specific thing
and a generic thing ....... ;...............................................
xiii

90
91
91
92
98
99
99
99
100
100
100

Effect of obligation ................................................................ .


Effect of obligation not to do ................................................ .
Debtor is in default from the time of demand ................... .
Effect if there is frau d, negligence or delay ....................... .
Kinds of damages .................................................................. .
Responsibility arising from fraud (dolo) ............................. .
Responsibility arising from negligence (culpa) .................. .
Kinds of culpa ........................................................................ .
Distinctions between culpa contractual, culpa
aquiliana and culpa criminal ..... ;................................ .
Is a person responsible for those events which could
not be foreseen, or which though foreseen
are inevitable? ............................................................... .
Kinds of obligation ................................................................ .
Definition and illustration ............... ,................................... .
Extinguishment of obligations ............................................. .

101
101
101
102
102
102
102
103
103
104
104
104
106

ChapterX
SPECIAL CONTRACTS
Sale .......................: ................................................................ .
Agency .................................................................................... .
Partnership ............................................................................ .
Loan ........................................................................................ .
Pledge an d mortgage ............................................................ .
Antichresis .................... ~ ........................................................ .
Common carriers .................................................................... .

110
114
119
121
123
124
125

Actual example of an acknowledgment of a will ................ .


Qualifications of witnesses to notarial wills ...................... .
A will can be revoked or altered .......................................... .
In case of supplement or alteration ........... :........................ .
In case of revocation ............................................................. .

134
135
135
135
136

ChapterXII
TORTS AND DAMAGES '
Definition of a quasi-delict ................................................... .
Requisites of a quasi-delict .................................................. .
Quasi-delict is a civil wrong ................................................. .
The act or omission must be without intent
to cause damage ........................................................... .
If there is no intention to cause damage ............................ .
Distinctions ............................................................................ .
What is negligence? .............................................................. .
What is the test to determine negligence? ......................... .
Degree of care of negligence that is required ..................... .
What are the defenses that can be interposed
in quasi-delict? .............................................................. .
Old cases ............................................................................... .
New cases ............................................................................... .

138
139
139
139
139
140
140
142
142
143
144
148

Chapter XIII
POLITICAL LAW AND THE CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES

ChapterXI
SUCCESSION
Conce pt and definition of succession ................................... .
What inheritance includes ................................................... .
Kinds of succession ............................................................... .
What is a will? ....................................................................... .
Characteristics of a will ........................................................ .
Wl.o can make a will? ........................................................... .
When is a person of sound mind? ........................................ .
Wills allowed under the New Civil Code ............................ .
Requisites of a valid will ..................................................... ..
Actual example of an attestation clause ............................. .
Actual example of attestation clause where testator
caused some other perso n to write his name ............. .
xiv

129
129
130
130
130
131
131
131
131
133
133

Definition ............................................................................... .
Constitution ........................................................................... .
Basic ptiriciples of the Constitution .................................... .
Classifications of the Constitution and its definitions ...... .
The 1987 Constitution may be changed ............................. .
Due Process of Law .............................................................. ..
Procedura! Due Process in Administrative Proceedings .. ..
Search an d Seizure ............................................................... .
Privacy of Communication and Correspondence ................ .
Freedom of Speech and of the Press ................................... .
Freedom of Re ligion .............................................................. .
Liberty of a bo de and Travel ................................................. .
Right to Information ............................................................. .
Right of Association .............................................................. .
Taking of Private Property for Public U se ......................... .
xv

163
165
165
166

171
173
178
179
179
180
181
182
182
184
185

Prohibition against impairment of obligation


of contracts ................................................................... ..
Free access to courts and quasi-judicial bodies
an d adequate legai assistance ..................................... .
Right to remain silent and to have competent
an d independent counsel ............................................. .
Right to bail ...................................................... :................... ..
Due Process in Criminal Proceedings ................................ ..
Habeas Corpus ...................................................................... ..
Speedy disposition of cases before ali judicial,
quasi-judicial or administrative bodies ...................... .
Rights against self-incrimination ........................................ .
Freedom of politica! belief and freedom against
involuntary servitude .................................................. ..
Right against excessive fines, degrading or
inhuman punishments ................................................. .
Right against imprisonment for debt or non-payment
of poli tax ...................................................................... .
Double Jeopardy ................................................................... ..
Right against ex post facto law and Bill of Attainder ........ .
Police Power ......................................................................... ..
Power of Emine n t Domain ................................................... .
Power of Taxation ................................................................. .
Similarities and distinctions of the three inherent
powers of the State ...................................................... ..
What is impeachment? ........................................................ ..
Who are the impeachable officials under the
1987 Constitution? ....................................................... .
What are the grounds for impeachment? .......................... ..
Procedure of impeachment .................................................. ..
Who can file a complaint for impeachment? ...................... .
Can an impeachment proceeding be initiated against
the same official more than once within a period
of one (l) year? ............................................................... .
Who has the sole power and authority to decide ali
cases of impeachment? ................................................. .
What is the nature of the impeachment proceedings? ...... .
What rules apply in an impeachment proceeding? ............ .
What is needed in order to convict the person subject
of impeachment? ........................................................... .
What is the effect of a judgment in case
of impeachment? ........................................................... .
xvi

186
188
190
191
192
193
194
195
196
196
196
197
198
200
200
200
200
202
202
202
206
206

206
207
207
208

Can President Estrada be prosecuted in case


h e is acquitted? ............................................................. .

208

CbapterXIV

CRIMINAL LAW

Historical Background ......................................................... ..


Classica! school of thought ................................................... .
Positivist school of thought .................................. ;.............. ..
Criminallaw .......................................................................... .
Basic principles of criminallaw .......................................... .
Who incurs criminal liability? ............................................ ..
Stages in the commission of felonies .................................. ..
Notes ...................................................................................... .
Enumeration of ali circumstances that modify
or affect criminal liability ............................................ .
What is Habitual Intoxication? ........................................... ..
What is Illiteracy? ................................................................. .
Who are principals? ............................................................. ..
Who are accomplices? ........................................................... .
Who are accessories? ............................................................. .
Modification of the penalty for the violation of
B.P. Big. 22 ..................................................................... ,

213
213
213
213
214
214
215
215
215
219
219
220
220
221
227

CbapterXV

REMEDIAL LAW

Attachment ............................................................................ .
Preliminary Injunction ......................................................... .
Grounds of issuance of Preliminary Injunction ................ ..
Receivership ........................................................................... .
When to appoint a receiver? ............................................... ..
Replevin ................................................................................. .
Alimony Pendente Lite ........................................................ ..
Special Civil Action .............................................................. ..
Special Proceedings ............................................................... .
Criminal Procedure ............................................................... .
Evidence ................................................................................. .

2G8
208
xvii

234
234
234
235
235
235
236
236
240
260
271

ChapterXVI
LABOR LAW AND SOCIAL LEGISLATION
Labor laws de fin ed ................................................................ .
Social legislation defined ...................................................... .
Distinction Between Labor Laws and Social Legislation .. .
Labor Laws ............................................................................ .
Generai Provisions of the Labor Code of the Philippines ..
Emancipation of tenants ...................................................... .
Regulation of recruitment an d placement activities ......... .
Employment of non-resident aliens ..................................... .
Conditions of employment .................................................... .
National Labor Relations Commission (NLRC) ................. .
U nfair labor practices ........................................................... .
Strikes and lockouts ............................................................. .
Termination of employment ................................................. .
Retirement from the service ................................................ .
Thirteenth-month pay .......................................................... .
New Social Security Law (SSS) ........................................... .
New Government Service Insurance Act (GSIS) ................ .
Comprehensive Agrarian Reform Law ................................ .

276
277
277
277
277

278
279
280
281
288
290
293
296
299
299
301
306
308

Chapter l
LAW, ITS CONCEPT ANO CLASSIFICATION
IMPORTANT TOPICS IN TIDS CHAPTER:
l.

Definiton of law

2.

Classification of law
(a)
(b)

3.

Natural Law
Positive Law

Sources of Law
(a)
(b)
(c)
(d)

Legislation
Preceden t
Custom
Court Decision

DISCUSSION
1.

DEFINITION OF LAW

The term "law," in its broadest sense, means any rule of action
or norm of conduct applicable .to all kinds of action and to all objects
of creation. In this sense therefore, it includes all Iaws, whether
they refer to state Iaw, physicai Iaw, divine Iaw and others.
In a strict legai sense, Iaw is defined as a ruie of conduct, just
and obligatory, Iaid down by legitimate authority for common
observance and benefit. (Sanchez Roman, 23) Based on this
definition, Iaw has the following elements:
l.

xviii

lt is a rule of conduct - Laws serve as guides of an


individuai in reiation to his fellowmen and to his community;
l

INTRODUCTION TO LAW

2.

Law must be just - The chapter on human relations is


now precisely embedded in the New Civil Code in order
to obtain stability of the social order. Laws, as guides for
human conduct, "should run as golden threads through
society, to the end that law may approach its supreme
ideai which is the sway and dominance of justice" (Report
ofthe Code Commission, page 39);

Divine Law

3.

It must be obligatory - If laws are not enforced, the


purpose for which they are intended will not be served;

Public Law

4.

Laws must bE? prescribed by legitimate authority - lflaws


are not prescribed by legitimate authority, the people
could not be expected to observe them. Authority to make
laws is conferred upon those duly chosen by the sovereign
will of the people. This is in consonance with Section l,
Article 2 of the Philippine Constitution which says that
"sovereignty resides in the people and all government
authority emanates from them";

5.

2.

LAW, ITS CONCEPT AND CLASSIFICATION

a. Divine Positive Law, i. e.,


Ten Commandments.
b. Divine Human Positive
Law, i':e., Commandments of the Church.

a. Constitutional Law is the fundamentallaw of


the land which defines
the powers of the government.

B.

Laws must be ordained for the common benefit - This


recognizes the famous Latin maxim of "Salus Populi Est
Suprema Lex" - the welfare of the people is the supreme
law. Laws should be applied not only to a particular group
of citizens. They are supposed to be applied equally to
all citizens regardless of their religion, politica! persuasion, or status in life.

CLASSIFICATION OF LAW

NATURAL LAW- This Moral Law - Set of rules which


law derives its force and
establishes what is right and
authority from God. It is
what is wrong as dictated by
superior to other laws. lt is
the human conscience and as
binding to the whole world,
inspired by the eternai law.
in all countries and at ali
times.

POSITIVE LAW

b. Administrative Law that law which fixes the


organization and determines the competence
of the administrative
authorities and which
regulates the methods by
which the functions of
the government are
performed.
c. lnternational Law body of rules which regulates the community of
nations.

Physical Law - Universal rule


of action that governs the
conduct and movement of
things which are non-free
and material.
A.

~ 1

Private Law - Body of rules


which creates duties, rights
and obligations, and the
means and methods of
settng courts in motion for
the enforcement of a right or
of a redress of wrong. (Word$
and Phrases, Vol. 24, 337)
a. Substantive private
law - those rules which
declare legai relations of
litigants when the courts
have been properly moved

INTRODUCTION TO LAW

to action upon facts duly


presented to them. (24
Words and Phrases, 337)

b. Procedural or adjective private law refers to the means and


methods of setting the
courts in motion, making
the fact known to them
and effectuating their
judgments.
3.

SOURCES OF LAW

Law is derived from different sources, namely: (l) legislation;


(2) precedent; (3) custom; and (4) court decision.
(a) LEGISLA.TION- Before the declaration ofMartial Law
in the Philippines on September 21, 1972, the power to legislate
laws is vested in the Congress of the Philippines which consists of
the Senate and the House ofRepresentatives. Upon the imposition
of Martial Law and after the dissolution of the old Congress, the
power to legislate law is vested in the President of the Philippines.
This is the reason why the President issued presidential decrees
and letters of instructions. When the Batasang Pambansa was
organized, legislative power is principally vested in this body
although the President, under and by virtue of what is known as
Amendment No. 6, continued to issue decrees when the exigency
of the situation requires and in case of other emergencies. Among
many others, this is one of the dictatorial acts that was severely
questioned by s0.verallawyers and critics of the past regime. Now,
after the People's Revolt on February 22-25, 1986, and in accordance
with the wishes and the will of the sovereign Filipino people, the
three branches of government operating under the doctrine of
separation of powers are restored, with each department being
committed to do its utmost share in bringing about a more
democratic and efficient system of government that is responsive
to the needs of the people.
(b) PRECEDENT- This means that the decisions or
principles enunciated by a court of competent jurisdiction on a
question of law do not only serve as guides but also as authority to
be followed by ali other courts of equal or inferior jurisdiction in

LAW, ITS CONCEPT AND CLASSIFICATION

ali cases involving the same question until the same is overruled
or reversed by a superior court. In the Philippines, this doctrine of
stare decisis is not applied and recognized in the same manner that
it is applied and recognized in common law countries. However,
our New Civil Code provides as follows: "x x x Judicial decisions
applying or interpreting the laws or the Constitution shall form a
part of the legai system of the Philippines. x x x" (Article 8, New
Civil Code)
(c) . CUSTOM - Customs have the force of law only when
they are acknowledged and approved by society through long and
uninterrupted usage.
In the Philippines, there are severa! requisites before the court
considers custom. They are as follows:
a.

A custom must be proyed as a fact according to the rules


of evidence (Art. 12, NCC);

b.

The custom must not be contrary to Jaw (Art. 11, NCC);

c.

There must be a number of repeated acts and these


repeated acts must have been uniformly performed;

d.

There must be a judicial intention to make a rule of social


conduct; and

e.

A custom must be acknowledged and approved by society


through long and uninterrupted usage.

(d) COURT DECISION - Judicial decisions which apply


or interpret the constitution and the laws are part of the legai
system in the Philippines but they are not laws. However, although
judicial decisions are not laws, they are evidence of the meaning
and interpretations of the laws.
/In the Philippines, we adhere to the doctrine of STARE .
DECISIS which means that once a case has been decided one way,
then another case involving exactly the same question or point of
law should be decided in the same manner. This principle, however,
does not necessarily mean that erroneous decisions, or those found
to be contrary to law must be perpetuated. On the contrary, they .
should be abandoned.

WORLD'S LEGAL SYSTEM

Chapter Il
WORLD'S LEGAL SYSTEM

IMPORTANT TOPICS IN THIS CHAPTER:

(8) The Maritime Legai System; (9) The Q-reek Legai System; (10)
The Slavic Legai System; (11) The Roman Legai System; (12) The
Keltic Legai System; (13) The Japanese Legai System; and (14)
The Mohammedan Legai Syste;-.
Of the said systems, however, there are thr~e legai systems
that have exerted influence to our laws in the past several centuries
and which are stili continuously affecting our jurisprudence. The
three are: (l) Roman Law; (2) Anglican or Common Law; and (3)
Mohammedan Law. Of the three legai systems, Roman Law has
greatly influenced Philippine laws. It therefore deserves a more
extensive discussion.

l.

The three prevailing legai systems

2.

Roman Law

2.

3.

Value and importance of Roman Law

4.

Politica! history of Rome

Roman Law is the body of rules and principles adopted to guide


the Romans in the conduct or observance of their personal and
official affairs without necessarily specifying the period or the time
when those rules were adopted or promulgated. Roman Law, while
in its first stage of growth, was dominated by ritualism and strong
religious tenor. It was then referred to as JUS QUIRITIUM. Later,
it was referred to as the civil law of the Romans, then known as
JUS CIVILE.

(a)

Introduction

(b)

Three periods of Rome's politica! history


(b.l)

Monarchy (753-509 B.C.)

(b.2)

Republic (509-31 B.C.)

(b.3)

Empire (31 B.C. -A.D. 1433)

5.

Common Law

6.

Mohammedan Law

7.

Blending of legai systems in the Philippines

DISCUSSION
1.

THE THREE PREVAILING LEGAL SYSTEMS

There are many legai systems that have existed in different


countries ofthe world, namely: (l) The Mesopotamian Legai System;
(2) The Anglican Legai System; (3) TheEgyptian Legai System; (4)
The .Romanesque Legai System; (5) TheHebrew Legai System; (6)
The Ecclesiastica! Legai System; (7) The _9hinese Legai System;
6

3.

ROMAN LAW

VALUE ANO IMPORTANCE OF ROMAN LAW

Many law students often ask why Roman Law is stili included
in the law .curriculum and why it has been and stili is a three-unit
subject.
Our New Civil Code is basically Roman in origin. Numerous
maxims and legal principles stili found in law books are
continuously being used and cited by law professors and students
and even by law practitioners in their pleadings. It is worthwhile
to mention and to remember some of them, thus:
l. Ignorantia legis non excusat -

lgnorance of the law

excuses no one;
2. Dura lex sed lex - The law may be harsh, but it is stili
the law;
3. Cessante ratione cessat ipsa lex - When the reason for
the law ceases, the law also ceases to exist;

WORLD'S LEGAL SYSTEM

INTRODUCTION TO LAW

4. Sic utere tuo ut alienum non laedas - The owner o( a


thing cannot make use thereof in such a manner as to
injure the rights of third person (Art. 431, New Civil
Code);
5. Patria potesta - Parental authority;
6. Negotiorum gestio- Unauthorized management;
7. Res perit domino- The thing perishes with.the owner;
8. Jus possidendi - The right to possess;
9. Jus abutendi- The right to abuse;
10. Jus utendi - The right to use;

Roman Law is of enormous value to modern nations. It is at


hand, ready for use and able to shed light in' the solution of the
numerous complex problems which confront the modern civilized
world. (Sherman, Section 6)
Roman legai literature is also noted for originality. The style
of Roman jurists is simple, clear, brief and precise. Hence, its study
helps students of law in acquiring a correct style of legai expression.
POLITICAL HISTORY OF ROME
(a)

12. Jus disponendi - The right to dispose;


13. Jus uendicandi - The right to recover;
14. Nulla poena sine lege - There is no crime when there is
no law punishing it;
15. Salus populi est supreme lex - The welfare of the people
is the supreme law;

16. Caueat emptor - Buyers beware;


17. Solutio indebiti - Unjust enrichment;

18. Aedificum solo credit - The building foliows the land;


19. Accessorium siquitur principale principal;

stili exert in our day-to-day life, whether it is in the city or in the


remote barrio. The same thing is true to the rest of the world
affected by the Roman legai system.

4.

11. Jus fruendi - The right to the fruits;

Land is always

20. .Nullum tempus occurit regi - Time runs not against the
sovereign.
Modern laws and concepts of persons and family relations,
paterna! authority, marriage, divorce, concubinage, legitimation,
emancipation, adoption, guardianship, property, avulsion, aliuvion,
traditio brevi manu, traditio longa manu, constitutum possessorum,
obligations and contracts, nominate and innominate contracts, sale,
lease, agency, pledge, deposits, wills and successions, quasi-delicts,
quasi-contracts, negotiorum gestio, solutio indebiti and many others
are Roman in origin. Notwithstanding the modifications and the
enormous improvements that have been made, the Philippines and
its citizens cannot remove the great influence that Roman Laws

INTRODUCTION

The evolution of Roman Law is better understood and


appreciated by associating it with the politica! history of Rome.
For around thirteen centuries from the founding of Rome, there
were changes in the government as weli as in the mode and the
needs of the people. Necessarily, each period has its own extent of
politica! and legai development.
The importance of associating the politica} history of a people
with its laws was recognized by Gaius, a Roman jurist, when he
said: "Being about to take up an interpretation of our ancient
statutes, I have thought it essential that the law of the Roman
people should be traced from the foundation of the city, not because
I want 'to write verbose commentares, b\lt because in ali matter, I
perceive a thing is complete only when ali parts are assembled,
and surely the most important part of a thing is its beginning."
(Burdick, Principles of Roman Law and Their Relation to Modern
Law, p. 87)
(b) THREE PERIODS OF ROME'S POLITICAL
IDSTORY

Roman politica! history is divided into three periods: Monar


chy (753-509 B.C.), Republic (509-31 B.C.), and the Empire (31
B.C. - 1453 A.D.).
The first period starts from the earliest thnes to the abolition
of the kingship. The second period starts from the abolition of the

lO

INTRODUCTION TO LAW

monarchy to the unification of Italy. The third period is marked by


the breakdown of the old republican form and is characterized by
fierce politica! strife.

WORLD'S LEGAL SYSTEM

11

Romulus, from whom the name of the city was derived,


is the founder of Rome. The kings who immediately succeeded
him are Numa Pompilius Tullus Hostilus and Ancus Maritus.
Numa Pompilius was described as a wise and pious ruler and
is known to have established the Roman religion and the
adding of two months to the ten-month calendar. During the
reign of Tullus Hostilus, the Romans conquered Alba Longa,
the religious center ofthe Latin people. Under Ancus Maritus,
a number of troublesome Latin cities were conquered and their
inhabitants were brought to Rome.

They were called consuls which were chosen by an assembly


called Comitia Centuriata. lt was made up of divisions
apportioned in such a way that the votes of the patricians
counted more than the votes of the plebianl:!. The Senate
(Comitia Curiata), the most important body, consisted of 300
men who were chosen by the consuls from the patricians.
Hence, the plebians were oppresed, barred from office, politica!
power, and suffered from unjust debt laws and unfair
distribution of territory won by conquest. To seek redress, the
plebians in 494 B.C., marched out of Rome and threatened to
make a new city. The patricians acceded to the demands of
the plebians. The plebians were further granted the right to
be represented by new officials, called Tribunes, which had
the right to vote on any act of any magistrate which was unjust
to any citizen.

Shortly before 600 B.C., Rome was conquered by


Etruscan princes from across the Tiber. Tarquinus Priscus-(616
B.C.), the first of the Etruscan kings, drained the city's
marshes and improved the Forum, which was the commerciai
and political center of the town. He carried on many wars
with many neighboring people.

The plebians continued to gain other rights and an


assembly oftheir own, called concilium plebis, was recognized.
They appointed a ten-man commission called Decemvirs, to
put state laws into writing and have them engraved on 12
bronze tablets in 450 B.C. In 445 B.C., the plebians won the
right to marry patricians by virtue of Lex Canuleia.

Under Servius Tullius, the second Etruscan king, a treaty


was made with the Latin cities which acknowledged Rome as.
the head of all Italy.

Sometime in 367 B.C., Licensian laws are passed which


revised debt laws, limited holdings to 300 acres of land, and
compelled the large landowners to employ a certain proportion
of the laborers. In 350 B.C., the plebians were admitted to
the dictatorship and extraordinary magistracy whereby
supreme power a t criticai times were given to one man.

(b.1) Monarchy (753-509 B.C.)

The last of the kings of Rome, Tarquinus Superbus


(Tarquin The Proud), was a tyrant who opposed the people. A
rebellion of the aristocracy against him was led by Junius
Brutus at about 509 B.C. As a result, the Etruscans were
driven from the city and the rest of the Latium, and Rome
became a Republic.
(b.2) Republic (509-31 B.C.)
In this period, constant warfare and conquest prevailed.
The reins of government was in the hands of the aristocratic
citizens called patricians. At first, the plebians (common
citizens) had little to do with the administration of
government. Gradually, however, they removed the barrier
between them due to their continuing demands for reform.
In the early days of the Republic, the ruling power was
divided between two patrician magistrates elected for one year.

The growing power of the plebes was marked by the


graduai rise of a new voting body, the Comitia Tributa,. where
one man's vote counted as much as another man's vote. While
the equalization between the plebians and the patricians was
being realized, Rome was gradually extending its power to
the leadership of the Italian people. The lands that were
conquered by the Romans were welded into one single nation.
It did not exploit the conquered cities of Italy for its own
interests. Instead, it granted many of them the privileges of
human citizenship. Most of this people were given the status
of allies. They had self-government and the right to trade and
intermarry in Rome. They did not, however-, have the right to
vote.

12

INTRODUCTION TO LAW

All of Italy was dotted with colonies of Roman citizens.


Most of the colonies retained their full civic rights and nearly
one-sixth of all ltaly were annexed and distributed among
these Roman citizens. Thus, a common interest in the welfare
of Rome spread throughout the Italian Peninsula. The
struggles with Carthage ended with Rome's victory. One
conquest led to another. U p per Italy, Sicily, Spain, Macedonia,
Greece and Asia Minor were subdued and made Roman
provinces.
Intoxicated by their sudden rise to power, the new
generation of states departed from the wise policies of their
great predecessors. They fought ruthlessly and ruined the
countries they conquered. Most of the conquered lands were
administered by governors. The governors committed abuses
while administering the government and tried to amass wealth
while in office. The exorbitant taxes enriched the greedy
collectors and the ancient simplicity of Roman life gave way
to luxury and pomp. Morals were undermined and vice and
corruption flourished. The peasants were oppressed and were
deprived of their landholdings. These events led to a bitter
hostility between the aristocratic few and the poor segments
of society. A few patriotic statesmen tried in vain to avert the
climax. The Gracchi brothers carne forward to the people. They
proposed laws to redistribute the public lands and to limit
the powers of the corrupt Senate. Both men fell victims to
their foes, Tiberius in 133 B.C. and Gaius 12 years later.
The death of Tiberius marked the beginning of a century
of revolution and civil war that ended in the establishment of
the Roman Empire. Great men of action reorganized the state.
Among them were Sulla, Pompey, Cicero, and Caesar. They
made themselves masters of the disrupted state, sometimes
uniting to make their position secure and sometimes waging
savage civil warfare.
The thing that saved the ultimate destruction of Rome
was the emergence ofthreebrilliant statesmen, Gaius, Julius
Caesar and his nephew, Augustus.
Scrapping the old republican framework, they remolded
the structure into an empire. All power was gradually
concentrated in the hands of a single ruler, who was backed
by the Roman Army.

WORLD'S LEGAL SYSTEM

13

(b.3) Empire (31 B.C. -A.D. 1433)


The reign of Augustus marked the end of the revolutionary period. The establishment of the empire was followed
by two centuries of profound peace, and in the provinces
responsible men held power. Roman citizens,P.ip was extended
to all free men throughout the Empire and Roman law was
administered in every court. Augustus was followed by his
stepson, Tiberius (A.D. 14-37). His reign was followed by that
of Caligula, Claudius, and Nero, the last ruler of the line of
Augustus upon whose death ended the first century of peace.
After another century, the passion fo:- a life of luxury existed
in all classes. Selfishness and self-indulgence had become the
first law of life. Slave labor had degraded the once sturdy
peasantry to the status of serfs or beggars. The middle class,
which once had been the backbone of the nation, had almost
disappeared. In Roman society, there were then only the rich
and the very poor. For two years, after the two centuries of
peace, there were struggles for the throne among the military
commanders.
The long centuries of the Empire fall naturally into two
periods. In the earlier period, usually known as the
"Principate," though the emperor is in fact supreme, its power
is disguised under republican fo:r:ms. This existed in the period
of time stated above. As the disguise vanished in the third
century A.D., the period was then called the "Dominate"
because the emperor is no longer in theory, merely the
princ.eps, or "first citizen"; he is dominus- "master"- ofhis
subjects. This undisguised autocracy took piace at about 214
A.D. Diocletian ascended the throne. This emperor introduced
important reforms amounting to a change in the Constitution.
The Senate was leveled down to that of the city council of
Rome, thereby having practically no control over the Emperor
himself. From Diocletian's time until its end, the Roman
Empire remained an absolute monarchy. He also instituted
an administrative division between the Western and Eastern
halves of the Empire. This cleavage was accentuated when
Emperor Constantine transferred his capitai to Constantinople
(Greek City of Byzantium on the Black Sea) in 330 A.D. This
marked the graduai disintegration ofthe Western Empire, and
in the 5th century, when the last Roman Emperor of the West,
Romulus Augustus, was deposed, the Western Empire, finally

14

INTRODUCTION TO LAW

collapsed with the Teutonic invasions (476 A.D.). The Eastern


Empire, on the other hand, has a long future still before it,
which was only to end with the capture of Constantine by the
Turks in 1453 A.D. (Comparative Study: Roman Law and
Philippine Law, pp. 3-8, Rolando A. Suarez)
5.

COMMON LAW

Common Law is derived from case law and books of authority.


It is an unwritten law which does not emanate from the express
will of the legislature. Rather, it is founded on maxims, rules and
principles derived from time-honored usages and customs which
received acceptance from the courts of law.
This legal system has prevailed and is still prevailing in
England, Ireland, Australia, Wales, New Zealand, Canada and in
the United States.

Chapter 111
LAW ANO ITS APPLICATION

IMPORTANT TOPICS IN THIS CHAPTER:


l. Court's duty to decide every case

2. Application of laws and interpretations of laws


3. Statutory construction, its concept, purpose, and effect
4. Construction distinguished from interpretation

6.

MOHAMMEDAN LAW

Mohammedan Law is not strange in the Philippines for it has


heen and is still being observed by Muslims in Mindanao provided
it does not conflict with the generallaw of the land. It is derived
principally from the Koran and from writings of Islamic jurists.
The teachings of Mohammed also serve as source of this legal
system. Islamic countries who believe in Allah and his prophet
Mohammed still observe this legal system. Some of these countries
are Iran, Afghanistan, Malaysia, Indonesia, Turkey, those in Africa
and others.
7.

BLENDING OF LEGAL SYSTEMS IN THE PHILIPPINES

The three legal systems have met and blended into one legal
system in the Philippines. Our New Civil Code is basically Roman
in origin. Our procedurallaws are still being observed by Filipino
Muslims insofar as they do not conflict with the generai laws of
the land.

5. Meaning of the rule: "One must interpret first before he


construes"
6. Intrinsic aids distinguished from extrinsic aids
7. Purpose of interpretation and construction
8. When is it necessary and not necessary to interpret and
construct?
9. Who interprets the law and who determines legislative
intent?
10. Which prevails the law?

the letter of the law or the spirit of

11. Aids in interpretation and conatruction


12. Simplification of the rule regarding the use of extrinsic
aids

15

LAW AND ITS APPLICATION

INTRODUCTION TO LAW

16

DISCUSSION
1.

4.

Laws of pleading, practice and procedure are likely


liberally construed in order to promote their object and
to assist the parties in obtaining just, speedy and
inexpensive determination of every action and proceeding;

5.

In case of doubt in the interpretation ~nd applcation of


laws and when ali other rules of statutory construction
fail, it is presumed that the lawmaking body intended
right and justice to prevail.

COURT'S DUTY TO DECIDE EVERY CASE

A judge cannot decline to render judgment by reason of the


silence, obscurity or insufficiency of the laws. (Article 9, New Civ il
Code) In other words, he must decide the case assigned to him
whether or not he knows what law shall be applied. In case of
silence, obscurity or insufficiency of the laws, a judge may stili be
guided by the following:
l.

Customs which are not contrary to law, public order or


public policy;

2.

Court decisions, foreign or local, in similar cases;

3.

Legai opinions of qualified writers and professors;

4.

Generai principles of justice and equity; and

5.

Rules of statutory construction.

In criminal cases, however, it is an established rule that there


is no crime when there is no law punishing it -Nulla Poena Sine
Lege. Ifthere is no law, therefore, which punishes an act complained
of, the judge must dismiss the case.

2.

17

APPLICATION OF LAWS

In applying the law, the court should discover the real intent
and purpose of the legislature. If that intent and purpose can be
discovered within the law, it is the duty of the court to carry out
that intention.
If the same cannot be discovered within the law, the court
shall be guided by extrinsic aids.
3.

STATUTORY CONSTRUCTION, ITS CONCEPT, PURPOSE


ANO EFFECT

STATUTORY CONSTRUCTION DEFINED

Interpretations of Laws
It is the duty of the judge to apply the law without fear or
favor. In case of doubt in the interpretation or application of the
laws, it is presumed that the lawmaking body intended right and
justice to prevail. (Article 10, New Civil Code)

There are many rules of statutory construction but in order


not to saddle and confuse the beginner in the study of law, it is
enough in the meantime to know the most basic rules, namely:
l.

When the law and its meaning is clear and unmistakable,


there is no need to interpret it any further;

2.

When construction or interpretation is necessary, the


court should interpret the law according to the meaning
the legislature intended to give it;

3.

If there are two possible interpretations of a law, that


which will achieve the ends desired by Congress should
be adopted;

Statutory construction is the act or process of discovering and


expounding the meaning and intention of the authors of the law
with respect to its application to a given case, where that intention
is rendered doubtful, among others, by reason of the fact that the
given case is not explicitly provided for in the law. (Caltex
[Philippines], Inc. vs. Palomar, L-19650, September 29, 1966, 18
SCRA247)
4.

CONSTRUCTION DISTINGUISHED FROM INTERPRETATION

Construction and interpretation have the same purpose and


that is to ascertain and give effect to the legislative intent. A
distinction, however, has been drawn between construction and
interpretation. One who interprets makes use of intrinsic aids or
those found in the statute itself, while one who constructs makes
use of extrinsic aids or those found outside of the written language
of the law. Based on this distinction, the basic rule therefore is ONE MUST INTERPRET FIRST BEFORE HE CONSTRUES.

LAW AND ITS APPLICATION

INTRODUCTION TO LAW

18

5.

MEANING OF THE RULE: "ONE MUST INTERPRET FIRST


BEFORE HE CONSTRUES"

In trying to ascertain the legislative intent, courts should first


be guided by intrinsic aids, or those found in the law itself. If the
legislative intent could be ascertained by merely making use of
intrinsic aids, there is no need to make use of extrinsic aids, or
those found outside of the written language of the law. This is the
consistent ruling of the Supreme Court in a long line of cases.
(Commissioner of Internal Revenue vs. Limpan lnvestment
Corporation, L-28571 and L-28644, July 31, 1970; United Christian
Missionary Society vs. Social Security System, L-26712-16, December
17, 1969; Hidalgo vs. Hidalgo, L-25326, May 29, 1970; Casela vs.
Court of Appeals)
6.

INTRINSIC AIDS DISTINGUISHED FROM EXTRINSIC AIDS

Intrinsic aids are any of the following: title, preamble, words,


phrases and sentences context; punctuation; headings and marginai
notes; and legislative definitions and interpretation clauses. All of
these are found in the law itself.
Extrinsic aids may consist of contemporaneous circumstances,
policy, legislative history of the statute, contemporaneous or
practical construction, executive construction, legislative
construction, judicial construction, and construction by the bar and
legai commentators.
7.

PURPOSE OF INTERPRETATION ANO CONSTRUCTION

Interpretation and construction have the same purpose and


that is to ascertain and give effect to the legislative intent.
8.

WHEN IS IT NECESSARY ANO NOT NECESSARY TO INTERPRETANO CONSTRUCT?

When Necessary
It is necessary to interpret or construct when any of the
following reasons exists:
l.
When the language of the statute is ambiguous, doubtful
or obscure when taken in relation to a set of facts;
2.

When reasonable minds disagree as to meaning of the


language used in the statute.

19

When Not Necessary


lt is not necessary to interpret or construct when the law
speaks in clear and categorica! language. The duty of the court, in
such a case, is to APPLY THE LAW, NOT TO INTERPRET IT. (Go
Ka Toc & Sons vs. Rice & Corn Board, L-23607, May 23, 1967;
People vs. Mapa, L-22301, August 30, 1967; Luzon Security Co. vs.
De Gracia, L-25659, October 31, 1969)
9.

WHO INTERPRETS THE LAW ANO WHO DETERMINES


LEGISLATIVE INTENT?

Anyone can interpret the law. Lawyers, policemen, arbiters,


administrative boards and agencies, government as well as private
executives are involved from time to time in the interpretation of
laws. Their interpretation, however, is not necessarily conclusive
nor can they bind the courts. Hence, in many occasions, the
decisions of regulatory boards and administrative agencies have
been elevated and appealed to the Supreme Court in cases where
there is abuse of discretion and authority or when there is violation
of due process or denial ~t>substantial justice or erroneous
interpretation of the law. fMO,ntrade FMMC Division Employees and
Workers Union vs. Bacungan, G.R. No. 48437, September 30, 1986,
Second Division, Feria, J.)
The judiciary has the delicate task of ascertaining the
significance of a constitutional or statutory provision, an executive
order, a procedural or a municipal ordinance. lt discharges a role
no crucial than the roles played by the two other departments in
maintaining the rule of law. To assure stability in legal relations
and avoid confusion, it has to speak with one voice. Logically and .
rightly, it does so with finality through the highest judicial organ,
the Supreme Court. What it says is definite and authoritative,
binding on those who occupy the lower ranks in the judicial
hierarchy. (muie vs. Intermediate Appellate Court, G.R. No. 70443,
September, Second Division, Gutierrez, Jr., J.)
1O.

WHICH PREVAILS - THE LETTER OF THE LAW OR THE


SPIRIT OF THE LAW?

When the language of the law is clear and unequivocal, the


court's duty is to apply it, not to interpret it. The Supreme Court,
in the case of Chartered Bank Employees Association vs. Ople, G.R.

21

INTRODUCTION TO LAW

LAW AND ITS APPLICATION

No. 44747, August 28, 1985, restated the said rule in more elaborate
language. It said: "If the language of the law is clear and unequivocal, then read the law to mean exactly what it says. lf not, look
for the intention of the legislature."

Intrinsic aids are any of the following: title; preamble; the


words, phrases and sentences context; punctuation; headings and
marginai notes; legislative definition and interpretation clauses.

20

What if the letter of the law conflicts with its spirit, which
prevails?
There are two schools of thought on this matter. In the case
of People vs. Sales, et al., f{R. No. 66469, July 29, 1986, Justice
Isagani Cruz articulated his thought on this matter. He said: "A
too literal reading of law is apt to constrict rather than fulfill" is
usually found not in the "letter that killeth but in the spirit that
vivifieth," which is not really evanescent or elusive. Judges must
look beyond and not be bound by the language of the law seeking
to discover by their own lights the reason and the rhyme for its.
enactment. That they may properly apply in accordance to its end,
they need and must use not only learning but also vision."
The thinking of Justice Isagani Cruz is more in line with
Artide lO of the Civil Code which says:
"In case of doubt in the interpretation or application of the
laws, it is presumed that the lawmaking body intended right and
justice to prevail." This is also the gist of the decisions of the
Supreme Court in the old cases ofTorres vs. Limhays, 56 Phil. 141,
De Coster vs. Olondriz and Esendero, 50 Phil. 725, and in the
celebrated case of Dominador Aytona vs. Andres Castillo, et al., L19313, January 19, 1962.
Former Chief Justice Ramon Aquino, on the other hand, finds
it risky to rely on the so-called "spirit of the law." He said: "It is
dangerous to rely on the so-called spirit of the law which we cannot
Sj;)e nor handle and about which we do not know very much."
/Nillanueva vs. Commission on Elections, G.R. No. 54718, December
4, 1985)
11. AIDS IN INTERPRETATION ANO CONSTRUCTION

I. USE INTRINSIC AIDS BEFORE RESORTING


TO EXTRINSIC AIDS
In determining the intention of the legislature, courts should
resort first to intrinsic aids before resorting to extrinsic aids.

l.
TITLE - That which expresses the subject matter of
the law. It can help in the construction of statutes but it is not
controlling and not entitled to much weight. (Commissioner of
Customs vs. Reluvia, G.R. No. L-118860, May 29, 1969)

2.
PREAMBLE - That part of the statute following the
title and preceding the enacting clause which states the reasons or
the objectives of the enactment (Ace Bus Transportation vs. South
Hudson Country Blood Bus Owners Association, 177 A. 360). It
cannot enlarge or confer powers, or cure inherent defects in the
statute. (People vs. Hon. A. Purisima, et al., G.R. Nos. L-42050-66,
November 30, 1978)
3. WORDS, PHRASES AND SENTENCES CONTEXTThe intention of the legislature must primarily be determined from
the language of the statute and such language consists of the words,
phrases and sentences used therein. The meaning of the law should,
however, be taken from the generai consideration of the act as a
whole and not from any single part, portion or section or from
isolated words and phrases, clauses or sentences used.
PUNCTUATION - It is an aid of low degree in
4.
interpreting the language of a statute and can never control against
the intelligible meaning of the written word. However, if the
punctuation of the statute gives it a meaning which is reasonable
and in apparent accord with the legislative will, it may be used as
an additional argument for adopting the literal meaning of the
words thus punctuated.
5.
HEADINGS AND MARGINAL NOTES - If the
meaning of the statute is clear or if the text of the statute is clear
they will prevail as against the headings, especially if the headings
have been prepared by compilers and not by the legislature.
LEGISLATIVE DEFINITION AND INTERPRE
6.
TATION - If the legislature has defined the words used in the
statute and has declared the construction to be placed thereon, such
definition or construction should be followed by the courts. The rules
are as follows:
(a)

If a law provides that in case of doubt it should be

INTRODUCTION TO LAW

22

LAW AND ITS APPLICATION

construed or interpreted in a certain manner, the courts


should follow such instruction.
(b)

In case of conflict between the interpretation clauses and


the legislative meaning, as revealed by the statute
considered in its totality, the latter shall prevail.

(c)

A term is used throughout the statute in the same sense


in which it is first defined.

(d)

Legislative definition of similar terms in other statutes


may be resorted to EXCEPT where a particular law
expressly declares that its definition therein is limited
in application to the statutes in which they appear.

new agrarian law is enacted today and few years from now, there
will arise the need to find out why such a law is enacted, the
conditions, the prevailing sentiment of the people, the policy of the
State, and the executive order issued by the Office ofthe President
preceding the legislative enactment will throw light upon the
intention ofthe legislature in enacting said law.'The same thing is
true if death sentence is imposed for drug pushers and for those
currently involved in the so-called "satanism" offenses. The
conditions of the times and the very destructive and heinous crimes
committed even in broad daylight, whether in the city or in the
provinces, will convince future interpreters of the law that such a
penalty is needed to protect society.
3. LEGISLATIVE HISTORY OF THE STATUTE- Such
history may be found in reports of legislative committees, in the
transcript of stenographic notes taken during a hearing, legislative
investigation, or legislative debates.

II. EXTRINSIC AIDS


Extrinsic aids are of the following: (l) contemporaneous
circumstances; (2) policy; (3) legislative history of the statute; (4)
contemporaneous or practical construction; (5) executive
construction; (6) legislative construction; (7) judicial construction;
and (8) construction by the bar and legai commentators.

Are personal opinions of some legislators appropriate aids of


construction?
As a generai rule, they are not appropriate aids of construction.
However, if there is a unanimity among the supporters and
oppositors to a bill with respect to the objective sought to be
accomplished, the debates may then be used . as evidence of the
purpose of the act.

Extrinsic aids can be resorted to only after the intrinsic aids


have been used and exhausted.
l.
CONTEMPORANEOUS CffiCUMSTANCES- These
are the conditions existing at the time the law was enacted:

(a)

History of the times and conditions existing at the time


the law was enacted;

(b)

Previous state of the law;

(c)

The evils sought to be remedied or corrected by the law;


and

(d)

The customs and usages of the people.

The above-mentioned circumstances constitute the reasons


why the law was enacted. Hence, the one interpreting the law
should place himself in the position and circumstances of those who
used the words in question and be able to feel the atmosphere, the
conditions and the reasons why the law was enacted.
2. POLICY - The generai policy of the law or the settled
policy of the state may enlighten the interpreter of the law as to
the intention of the legislature in enacting the same. Hence, if a

23

4.
CONTEMPORANEOUS AND PRACTICAL CONSTRUCTION - Those who lived at or near the time when the law
was passed were more acquainted with the conditions and the
reasons why that law was enacted. Their understanding and
application of the law, especially if the same has been continued
arid acquiesced by the judicial tribunals and the legai profession,
deserve to be considered by the courts.

5. EXECUTIVE CONSTRUCTION- The construction


given by the executive department deserves great weight and should
be respected if said construction has been formed and observed for
a long period of time. The rules to remember are as follows:
(a)

Congress is deemed to have been aware of the


contemporaneous and practical construction made by the
officers charged with the administration and enforcement
ofthe law.

24

INTRODUCTION TO LAW

(b)

The courts should respect that contemporaneous


construction EXCEPT if it is clearly erroneous.

(c)

Executive construction has more weight if it is rendered


by the Chief Legai Adviser of the government who can
issue opinions to assist various departments of the
govemment charged with the duty to administer the law.

(d)

The opinion, however, of the Chief Legai Adviser is


subservient to the ruling of the judiciary which is in
charge of applying and interpreting laws.

6. LEGISLATIVE CONSTRUCTION - Legislative


construction is entitled to consideration and great weight but it
cannot control as against the court~s prerogative to decide on what
is the right or wrong interpretation.
7. JUDICIAL CONSTRUCTION- It is presumed that
the legislature was acquainted with and had in mind the judicial
construction of former statutes on the subject. It is also presumed
that the statute was enacted in the light of the judicial construction
that the prior enactment had received. With respect to a statute
adopted from another state, it is presumed that it was adopted
with the construction placed upon i t by courts of that state.
Should this construction be followed?
It should be followed only if it is reasonable, in harmony with
justice and public policy and consistent with the locallaw.

8. CONSTRUCTION BY THE BAR AND LEGAL


COMMENTATORS - It is presumed that the meaning publicly
given a statute by the members of the legai profession is a true
one and regarded as one that should not be lightly changed. (50
Am Jur, p. 312) The opinion and commentaries oftext writers and
legai commentators, whether they are Filipinos or foreigners, may
also be consulted as, in fact, they are oftentimes cited or made as
references in court decisions.
12. SIMPLIFICATION OF THE RULE REGARDING THE USE OF
EXTRINSIC AIDS

Extrinsic aids, such as those mentioned above, are entitled to


respect, conslderation and weight but the courts are at liberty to
decide whether they are applicable or not to the case brought to it
for decision.

Chapter IV
THE LEGAL PROFESSION ANO
THE QUALIFICATIONS ANO PROCEDURE
FOR ADMISSION TO THE PRACTICE OF LAW

IMPORTANT TOPICS IN THIS CHAPTER:


l. Qualification for admission to the practice of law

2. First requirement (before admission to the bar)


(a)

Citizenship

(b)

Age

(c)

Residence

(d)

Educational qualification

(e)

Moral and other qualifications

(f)

Bar examinations

(g)

Oath

(h)

Attorney's roll

3. Second requirement (after admission to the bar)


4. Purpose of imposing said requirements
5. Procedure for admission to the practice of law
6. Consequence of failure to pass said examination
7. Practice of law is more of a privilege than a right
8. Practice of law is a profession and not a business
9. The duties of a lawyer
10. Lawyer's compensation
25

THE LEGAL PROFESSION AND THE QUALIFICATIONS


AND PROCEDURE FOR ADMISSION TO THE PRACTICE OF LAW

INTRODUCTION TO LAW

26

11.

d.2.5 History

Disciplinary power over attorneys

d.2.6 Economics

12. Integrated Bar of the Philippines

d.3 He must have completed a Bachelor of Laws degree


in a law school or university approved and recognized by the Secretary of Education.

13. Integration of the bar defined


14. Legai and constitutional basis
15. Supporting arguments in support of constitutionality and
.legality

e.

Moral and otber qualifications - He must be of good


moral character, and that no charges against him,
involving moral turpitude have been filed or are pending
in any court in the Philippines.

f.

Bar examinations nations.

DISCUSSION
1.

QUALIFICATION FOR ADMISSION TO THE PRACTICE OF


I..AW

f.1

There are two basic requirements that should be complied with


before a person can engage in the practice of law.
2.

FIRST REQUIREMENT {Before Admission to the Bar)

He should first be admitted to the bar. This requirement is


accomplished by complying with the following requirements (Section
2 in relation to Sections 5, 6, and 14, Rule 138, Revised Rules of
Court):
a.

Citizenship - He must be a citizen of the Philippines;

b.

Age- He must at least be twenty-one (21) years of age;

c.

Residence - He must be a resident of the Philippines;

d.

Education Qualification

g.

d.2.1 Political Science

3.

d.2.4 Spanish

In order that a candidate may be deemed to have


passed his examinations successfully, he must have
obtained a generai average of 75 percent in any
subject. In determining the average, the subjects in
the examination shall be given the following relative
weights: Civil Law, 15 percent; Labor and Social
Legislation, 10 percent; Politica! and International
Law, 15 percent; Taxation, 10 percent; Remedial
Law, 20 percent; Legai Ethics and Practical Exercises, 5 percent.

Oath - He must take the lawyer's oath before the


Supreme Court itself. (Section 17, Rule 138, Revised Rules
o{Court)

SECOND REQUIREMENT (After Admission To The Bar)

The lawyer must remain in good and regular standing. This


requires the following:
(a)

He must be a member of the IBP (Integrated Bar of the


Philippines);

(b)

He must regularly pay all IBP membership dues and


other lawful assessment;

d.2.2 Logic
d.2.3 English

He must pass the bar exami-

b. Attorney's Roll - He must sign the roll of attorneys


and receive from the Clerk of Court of the Supreme Court
a certificate of the license to practice. (Sections 18 and
19, Rule 138, Revised Rules of Court)

d.1 He must have completed a four-year high school


course which is a prerequisite to a bachelor's degree
in arts or sciences;
d.2 He must have completed a bachelor's degree with
any of the following subjects as major or field of
concentration:

27

4.

29

(c)

He must observe faithfully the rules and ethics of the


profession;

be examined by the parties in interest, after the court has approved


the report.

(d)

He should be subject to judicial disciplinary control.

In order that a candidate may be deemed to have passed his


examinations successfully, he must have obtained a generai average
of 75 percent in all subjects, without falling belw 50 percent in
any subject. In determining the average, the' subjects in the
examination shall be given the following relative weights: Civil Law,
15 percent; Labor and Social Legislation, 10 percent; Mercantile
Law, 15 percent; Criminal Law, 10 percent; Politica! and International Law, 15 percent; Taxation, 10 percent; Remedial Law, 20
percent; Legai Ethics and Practical Exercises, 5 percent.

PURPOSE OF IMPOSING SAIO REQUIREMENTS

The said requirements are imposed to see to it that those who


are admitted to the practice of law are mentally and morally fit to
discharge their duties to their clients, to the courts, and to the public
in generai.
5.

THE LEGAL PROFESSION AND THE QUALIFICATIONS


AND PROCEDURE FOR ADMISSION TO THE PRACTICE OF LAW

INTRODUCTION TO LAW

28

PROCEDURE FOR ADMISSION TO THE PRACTICE OF LAW

Anyone who desires to be admitted to the practice of law


should pass the bar examinations conducted by a committee of bar
examiners appointed by the Supreme Court.
Examinations for admission to the Bar of the Philippines shall
take piace annually in the City of Manila. They shall be held in
four days to be designated by the chairman of the committees on
bar examiners. The subjects shall be distributed as follows:

First day: Politica! and Intemational Law (moming) and Labor


and Social Legislation (aftemoon);
Second day: Civil Law (moming) and Taxation (aftemoon);

6.

CONSEQUENCE OF FAILURE TO PASS SAIO EXAMINATION

Candidates who have failed the bar examinations for three


times shall be disqualified from taking another examination unless
they show to the satisfaction of the court that they have enrolled
in and passed regular fourth year classes as well as attended a
pre-bar review course in a recognized law school.
The professors of the individuai review subjects attended by
the candidates under this rule shall certify under oath that the
candidates have regularly attended classes and passed the subjects
under the same conditions as ordinary students and the ratings
obtained by them in the particular subject.

Third day: Mercantile Law (morning) and Criminal Law


(afternoon);

7.

Fourth day: Remedial Law (morning) and Legai Ethics and


Practical Exercises (afternoon). (Sections 8 and 11, Rule 38, Rules
ofCourt)

The practice of law is not a matter of right. It is a privilege


accorded only to those who measure up to certain rigid standards
of mental and moral fitness. Anyone who is granted the said
privilege is expected to maintain the said rigid standards.

The committee ofbar examiners shall be composed of a Justice


of the Supreme Court, who shall act as chairman, and who shall
be designated by the court to serve f0r one year, and eight members
of the Integrated Bar of the Philippines who shall hold office for a
period of one year. The names of the members of this committee
shall be published in each volume of the official reports.
Not later than February 15th after the examination, or as soon
thereafter as may be practicable, the committee shall file its report
on the result of such examination. The examination papers and
notes of the committee shall be filed with the clerk and may there

PRACTICE OF LAW IS MORE OF A PRIVILEGE THAN A RIGHT

In three separate cases, the Supreme Court made the following


statements:

Tan vs. Sabandal, B.M. No. 44


Bequia vs. Sabandal, SBC 66, February 24, 1992
Melencio-Herrera
"The practice of law is not a matter of right. It is a privilege
bestowed upon individuals who are not learned in the law but who
are also known to possess good moral character."

30

Legarda vs. Court of Appeals


G.R. No. 94457, June 10, 1992
En Banc, Per Curiam
. "Lawyers are indispensable part of the whole system of
administering justice in this jurisdiction. At a time when strong
and disturbing criticisms are being htirled at the legai profession,
strict compliance with one's oath of offce and the canons of
professional ethics is imperative."
"Lawjrers should be fair, honest, respectable, above suspicion
and beyond reproach in dealing with their clients. The profession
is not synonymous with an ordinary business profession. It is a
matter of public interest."
8.

THE LEGAL PROFESSION AND THE QUALIFICATIONS


AND PROCEDURE FOR ADMISSION TO THE PRACTICE OF LAW

INTRODUCTION TO LAW

PRACTICE OF LAW IS A PROFESSION ANO NOT A BUSINESS

Law advocacy is not a capitai that yields profits. The returns


it gives birth to are simple rewards for job done or service rendered.
lt is a calling that, unlike mercantile pursuits which enjoy a greater
deal of freedom from government interference, is impressed with
public interest, for which it is subject to State regulation. (Metropolitan Bank and Trust Company vs. Court of Appeals, G.R. Nos.
86100-03, January 23, 1990, Second Division, Regalado, J.)
Membership in the legai profession is achieved only after a
long and laborious study. By years of patience, zeal and ability, the
attorney acquires a fixed means of support for himself and his
family. This is not to say, however, that the emphasis is on the
pecuniary value of this profession but rather on the social prestige
and intellectual standing necessarily arising from and attached to
the same person of the fact that everyone is deemed an officer of
the court. (Conrad vs. Navarro, Adm. Case No. 2033; Ortigas vs.
Navarro, Adm. Case No. 2148, May 9, 1990, En Banc, Per Curiam)
On the one hand, the profession of an attorney is of great
importance to an individuai and the prosperity of his life may
depend on its exercise. The right to exercise it ought not to be lightly
or capriciously taken from him. On the other hand, it is extremely
desirable that the respectability of the Bar should be maintained
and that its harmony with the bench should be preserved. For
theses objects, some controlling power, some moderation, and
judgment, must be exercised. (Conrad vs. Navarro, Supra; Ortigas
vs. Navarro, Supra)

9.

31

THE DUTIES OF A LAWYER

The lawyer has the following duties:


l.
To maintain allegiance to the Republic of the Philippines
and to support the constitution and obey the law~ of the Philippines;

2. To observe and maintain the respect due to the courts of


justice and judicial officers;
3. To counsel or maintain such actions or proceedings only
as appear to him to be just, and such defense only as he believes to ,
be honestly debatable under the law;
4. To employ, for the purpose of maintaining the causes
confided to him, such means only as are consistent with truth and
honor, and never seek to mislead the judge or any judicial officer
by an artifice or false statement of fact or law;
5. To maintain inviolate the confidence, and at every perii
to himself, to preserve the secrets of his client, and to accept no
compensation in connection with his client's business except from
him or with his knowledge and approvai;
6. To abstain from all offensive personality and to advance
no fact prejudicial to the honor or reputation of a party or witness,
unless required by the justice of the cause with which he is charged;
7.
Not to encourage either the commencement or the
continuance of an action or proceeding, or delay any man's cause,

from any corrupt motive or interest;


8. Never to reject, for any consideration personal to himself,
the cause of the defenseless or oppressed;
9. In the defense of a person accused of a crime, by all fair
and honorable means, regardless of his personal opinion as to the
guilt of the accused, to present every defense that the law permits
to the end that no person may be deprived of life or liberty, but by
due process of law.
10.

LAWYER'S COMPENSATION

An attorney shall be eititled to have and recover from his


client not more than a 'reasonable compensation for his services,
with a view of the importance of the subject matter of the
controversy, the extent of the services rendered, and the professional

32

-,

INTRODUCTION TO LAW

standing of the attorney. No court shall be bound by the opinion of


attorneys as expert witnesses as to the. proper compensation, but
may disregard such testimony and base its conclusion on its own
professional knowledge. A written contract for services shall control
the amount to be paid therefor unless found by the court to be
unconscionabl~ or unreasonable.
11.

THE LEGAL PROFESSION AND THE QUALIFICATIONS


AND PROCEDURE FOR ADMISSION TO THE PRACTICE OF LAW

33

12. INTEGRATEO BAR OF THE PHILIPPINES

The Supreme Court ordained the integrtion of the Philippine


Bar on January 16_, 1973.
Under the 1987 Constitution, the Supreme Court has the
power, among others to promulgate rules concerning the integrated
bar. Artide VIII, Section 5 of the 1987 Constitution provides as
follows:

OISCIPLINARY POWER OVER ATTORNEYS

A member of the bar may be removed or suspended from his


office as attorney by the Supreme Court for any deceit, malpractice,
or other gross misconduct'~n such office, grossly immoral conduct,
or by reason of his convict\.tm of a crime involving moral turpitude,
or for any violation of the oath which he is required to take before
admission to practice, or for a willfl disobedience of any lawful
order of a superior court, or for corruptly or willfully appearing as
such attorney for a party to a case without authority to do so. The
practice of soliciting cases at law for the purpose of gain, either
personally or through paid agents or brokers, constitutes
malpractice.
The Court of Appeals or the Regional Trial Court may suspend
an attorney from practice for any of the causes named in the last
preceding section, and after such suspension, such attorney shall
not practice his profession until further action of the Supreme Court
in the premises.
Upon such suspension, the Court of Appeals or the Regional
Trial Court shall forthwith transmit to the Supreme Court a
certified copy of the order of suspension and a full statement of the
facts upon which the same was based. Upon the receipt of such
certified copy and statement, the Supreme Court shall make full
investigation of the fact involved and make such order revoking or
extending the suspension, or removing the attorney from his office
as such, as the facts warrant.
No attorney shall be removed or suspended from the practice
of his profession, until he has had full opportunities upon reasonable
notice to answer the charges against him, to produce witnesses in
his own behalf, and to be heard by himself or counsel. But if upon
reasonable notice he fails to appear and answer the accusation,
the court may proceed to determine the matter ex parte.

"Sec. 5. The Supreme Court shall have the following


powers: x x x
"(5) Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice of law,
the Integrated Bar, x x x."

13. INTEGRATION OF THE BAR OEFINEO

This is the official unification of alllawyers in the Philippines


under one official national organization which is known and called
as INTEGRATED BAR OF THE PHILIPPINES.
14. LEGAL ANO CONSTITUTIONAL BASIS

Section 5(5) of Art. VIII of the 1987 Constitution is the


constitutional basis.
The legai basis is founded on the principle that - THE
INHERENT POWER OF THE SUPREME COURT TO
REGULATE THE BAR INCLUDES THE AUTHORITY TO
INTEGRATE THE BAR.
15. SUPPORTING ARGUMENTS IN SUPPORT OF CONSTITUTIONALITY ANO LEGALITY
(l) To compel a lawyer to be a member of the integrated bar
does not violate his constitutional freedom to associate (or the
corollary right not to associate).

(2) Integration does not make a lawyer member of any group


of which he is not already a member. He became a member of the
bar when he passed the bar examinations.

34

INTRODUCTION TO LAW

(3) For the court to prescribe dues to be paid by the members


does not mean that the Court levies a tax. "A membership fee in
the integrated bar is an exaction for regulation, while the purpose
of a tax is revenue. lf the court has the inherent power to regulate
the bar; it follows that as an incident to regulation, it may impose
a membership fee for that purpose. x x x"
(4) The Supreme Court, in order to further the State's
legitimate interest in elevating the quality of professional services,
may require that the cost of improving the profession in this fashion
be shared by the subjects and beneficiaries of the regulatory
program - the lawyers.

Chapter V
PERSONS

IMPORTANT TOPICS IN THIS CHAPTER:

(5) And because it is a new regulation in exchange for new


benefits, it is not retroactive, it is not unequal, it is not unfair. (In
re: Integration of the Bar of the Philippines, 22 SCRA 22-28-31,
1973; In re: Edillon, C:.R. No. AC-1928, August 30, 1978)

l.

Concept of a person

2.

Capacity

3.

When does the personality of a natural person begin?

4.

When does the personality of a private corporation


(private juridical person) begin?

5.

When is a fetus considered horn?

DISCUSSION
1.

CONCEPT OF A PERSON

In Roman Law,herson is one who is capable of exercising


ownership and legai rights and to incur and contract obligations.
Under this concept, a slave is not considered a person, he being
merely regarded then as a chattel, a thing that can be sold or
disposed of a t the discretion of the master. Hence, a slave does not
have the legal capacity to exercise ownership and to incur and
contract oblig~tions.
The old and the new constitutions of the Philippines, on the
other hand, guarantee equal protection of the laws and this means
that no persons or class of person, whether rich or poor and
regardless of his religious belief and politica! persuasion, shall be
denied the same protection of the laws which is enjoyed by other
persons or other classes of persons in the same place and in like
35

PERSONS

INTRODUCTION TO LAW

36

P- rodigality

circumstances. Special favor or privilege for any individuai or class


is pr()hibited. (Sec. l, Art. III, 1987 Constitution)
Under the New Civil Code, a person may be a natura! or a
juridical person. A natura! person refers to a human being and a
juridical person refers to any of the following:

2.

l.

The state and its politica! subdivisions;

2.

Other corporations, institutions and entities for public


interest or purposes, created by law;

3.

Corporations, partnerships and associations for private


interest or purpose to which the law grants a juridical
personality, separate and distinct from that of each
shareholder, partner or member. (Art. 44, New Civil Code)

C - ivil Interdiction
Civil interdiction shall deprive the offender during the time
ofhis sentences ofthe rights ofparental authority, or guardianship,
either as to the person or property of any ward, or maritai authority,
of the right to manage his property and of the right to dispose of
such property by any act or any conveyance inter vivos. (Art. 34,
Revised Penal Code)
Artide 38 of the New Civil Code speaks of restrictions on
capacity to act, while Artide 39 speaks of circumstances which
modify or limit capacity to act. Said articles provide as follows:
'~t. 38. Minority, insanity or imbecility, the state ofbeing
a deaf-mute, prodigality and civil interdiction are mere
restrictions ol capacity to act, and do not ex:empt the
incapacitated person from certain obligations, as when the
latter arise from his acts or from property relations, such as
easement."

CAPACITY

In Roman Law, legai capacity is referred to as full proprietary


capacity. To bave this kind of capacity, a human being must be
free, a citizen and a sui juris. The capacity already acquired and
being enjoyed may be lost or diminished. The degree of diminution
may either be MAXIMA or MEDIA or MINIMA.

Art. 39. The following circumstances, among others, modi:(y


or limit capacity to act: age, insanity, imbecility, the
l;irl:g deaf-mute, pe!!_~i_!iprodigality, !.~EJ:ily_r_~l~ti()I1_~! ali:)J:lag~.
~sence.J.nsolv~~~~J;Dlstee~b.__ill,_ The consequences ofthese
circumstances are govemed in this Code, other codes, the Rules
of Court, and in speciallaws. Capacity to act is not limited on
account of religious belief or political opinion.

state-of

Under the New Civil Code, a person has full or compi~ civil
capacity if he has juridical capacity and capacity to actduridical
capacity is the fitness to be the subject of legai relations. Capacity
to act is the power to do acts with legai effect.

A married woman, twenty-one years of age or over, is


qualified for ali acts of civil life, except in cases specified by
law."

Artide 37 of the New Civil Code provides as follows:

"Juridical capacity, which is the fitness to be the subject


of legai relations, is inherent in every natural person and is
lost only through death. Capacity to act, which is the power to
do acts with legai effect is acquired and may be lost."
Capacity to act, unlike juridical capacity, may be
restricted or limited. The restrictions are those mentioned in
Artide 38 ofthe New Civil Code, to wit:

CODE:MISPC
M ...,- inority
I - nsanity

S - tate of being deaf-mute

37

3.

QUESTION - WHEN DOES THE PERSONALITY OF A NATURAL PERSON BEGIN?

ANSWER - Personality of a natural person begins at


conception (not at birth) provided that birth should occur later. This
is on the basis of Artide 40 of the New Civil Code which provides
as follows:

''Art. 40. Birth determines personality; but the conceived


child shall be considered horn for all purposes that are
favorable to it, provided, it be horn later with the conditions
specified in the following artide."

38

4.

INTRODUCTION TO LAW

QUESTION - WHEN DOES THE PERSONALITY OF A


PRIVATE CORPORATION (PRIVATE JURIDICAL PERSON)
BEGIN?

ANSWER - It begins from the moment a certificate of


incorporation is granted to it by the Securities and Exchange
Commission. From this moment, it has a personality separate and
distinct from its stockholders.
5.

QUESTION -

WHEN IS A FETUS CONSIDERED BORN?

ANSWER- Article 41 answers this question. It says: "For


civil purposes, the fetus is considered horn if it is alive a t the time
it is completely delivered from the mother's womb. However, if the
fetus had an intra-uterine life of less than seven months, it is not
deemed horn if i t dies within twenty-four hours after its complete
delivery from the maternal womb."
Under Articles 40 and 41 therefore, a conceived child can be a
recipient of a donation provided it is favorable to him. This means
that if the donation is burdensome to the conceived child, the
donation is not considered valid.

NOTE:
(l)

(2)

If the fetus had an intra-uterine life of less than seven


months, the child must have lived within twenty-four
hours after its complete delivery from its maternal womb.
(Last sentence, Article 41)
If the fetus had an intra-uterine life of at least seven months, it is considered horn if it is alive after its
complete delivery from the mother's womb.

Chapter VI
l

CONCEPT ANO NATURE OF MARRIAGE


IMPORTANT TOPICS IN THIS CHAPTER:
l. Concept

2. Definition of marriage
3. Requisites of a valid marriage
4. Essential requisites
5. Effect of absence of essential requisites
6. Effect of absence of formai requisites
7. Effect of defects in any of the essential requisites
8. Effect of irregularity in the formai requisites
9. Requirements if any or both of the contracting parties
are between 18 and 21 years old and if any or both are
not emancipated by marriage
10. Requirement if any of the contracting parties is between
21 and 25 years old
11.

Effect ifmarriage is celebrated within the three (3) month


period on the basis of a marriage license issued in
violation of the said period

12. Authority of the solemnizing officer


13. Marriage license
14. Formalities of marriage
15. Distinctions between a void and voidable marriage
16. What marriages are void from the beginning?
17. What are the other void marriages?
18. Is there a need to file an action for declaration of nullity
of the said marriage?
39

INTRODUCTION TO LAW

40

CONCEPT AND NATURE OF MARRIAGE

41

19. Is there a prescriptive period within which said action


shall be filed?

39. Parental authority is exercised by the parent designated


by the court (Art. 213, FC) "

20. Voidable marriage and grounds for annulment

40. Effect of reconciliation of the parties (Arts. 65 and 66,


FC)

21. Essential requisites: (l) Legai capacity and (2) Consent


freely given
22. What constitutes fraud as a ground for annulment of
marriage?
23. Effects of annulment of voidable marriage
24. Status of children born-out of marriage ab initio
25.

Status of children horn out of voidable marriages

26. Restrictions and precautions to be observed by the court


in issuing the decree of annulment
27. Legai separation
(a)

Introduction

28. Grounds for legai separation


29. Within what time should an action for legai separation
be filed?
30. Evidence rt)quired as basis for judgment in action for
legai separation
31. What is adultery?
32. What is concubinage?
33. Requisites for legai separation
(a)

Time constraint

(b)
(c)
(d)

Cooling-off period
Reconciliation
No legai separation on the basis of stipulation of
facts

34. Effects of legai separation

41.

In case of breach of mutuai obligation or mutuai help


and support

42.

In case of breach oLnutual obligation to observe respect


and fidelity

43. As regards the obligation of the spouse to live together


44. Absolute divorce
45. Conjugal partnership of gaini
46. Definition of paraphernal pr<perty
47. What are the duties ofhusband and wife?
48. Scope of duty to live together
49. Mutuai respect and fidelity
50. Mutuai help and support
51. Husband's right to fix residence
52. Can the wife acquire any property by gratuitous title?
53. What is a marriage settlement?
54. Who are the parties to a marriage settlement?
55. Systems that may be adopted by the parties to govern
their property relations
(a)

Absolute community

(b)

Relative community of gains (conjugal partnership)

(c)

Absolute separation

(d)

Dotal system

35. Effects after filing of the petition (Art. 61, FC)

56. What systems govern?

36. Effects during pendency of legai separation (Art. 49, FC)

57. In the absence of marriage settlement, or when the


agreed regime is void, what governs the property
relations between husband and wife?

37. Effects of the decree of legai sparation (Art. 63, FC)


38. Effects during the proceeding for legai separation or for
annulment of marriage

58. Concept of donation propter nuptias

INTRODUCTION TO LAW

42

CONCEPT AND NATURE OF MARRIAGE

incidents are governed by law


and not subject to stipulation,
except that maTiage settlements
may fix the property relations
during the marpage within the
limits provided by this Code.
(52a)

59. Requisites of donation propter nuptias


60. Distinction between donation propter nuptias and
ordinary donation
61. Propter nuptias

62.

43

Ordinary donation

63. Rights and obligations between husband and wife


64. To live together

REQUISITES OF A VALlO MARRIAGE

65. Wife may establish a separate domicile


66. Other consequences of marriage
DISCUSSION
CONCEPT

The concept ofmarriage both in Roman Law and in the New


Civil Code are fundamentally the same. It is regarded as a
permanent union of a man and a woman. It is only in that sense
that the concept is similar for while the Romans regard marriage
as a union of a man and a woman in a lifelong consortium, the
New Civil Code carne out with a more strict and conservative
concept and definition ofmarriage. Stilllater, the New Family Code
amended this definition.
DEFINITION OF MARRIAGE

Article 53, New Civil Code

Articles 2 and 3, New


Family Code

Art. 53. No marriage shall


Art. 2. No marriage shall be
be solemnized unless ali these valid, unless these essential
requisites are complied with:
requisites are present:
l.
Legai capacity of the
l.
Legai capacity of the
contracting parties who must be
contracting parties;
, a male and a female; and
2.
Their consent, freely
2.
Consent freely given in
given;
.
the presence of the solemnizing
3. Authonty of the per- officer. (52a)
son performing the marriage;
and
Art. 3. The formai requisites
of marriage are:
4. A marriage license,
l.
Authority ofthe solemexcept in a marriage of exceptional character. (Sec. la, Art. nizing officer;
3613)
2. A valid marriage

Article 52, NewCivil Code

Article l, New Family Code

license except in the cases provided for in Chapter 2 ofthis Title;


an d

Marriage is not a mere


contract but an inviolable social
institution. Its nature, consequences and incidents are governed by law and not subject to
stipulation, except that the
marriage settlements may, to a
certain extent, fix the property
relations during the marriage. (n)

Marriage is a special contract, of permanent union, between a man and a woman


entered into in accordance with
law for the establishment of
conjugal and family life. It is the
foundation of the family and an
inviolable social institution
whose nature, consequence, and

3. A marriage ceremony
which takes piace with the appearance of the contracting parties before the solemnizing officer
and their personal declaration
that they take each other as
husband and wife in the presence
of not less than two witnesses of
legai age. (53a, 55a)

45

INTRODUCTION TO LAW

CONCEPT AND NATURE OF MARRIAGE

Hence, unlike an ordinary contract, the parties, both under


the New Civil Code and the Family Code, cannot just terminate
their marriage as they wish, for the consequences and incidents of
marriage are governed by law. Notaries Public who draw or execute
documents destroying the inviolability of marriage are subject to
disciplinary action.

marriage. This means that both of them must a t least be 18 years


of ag~, and that they are not legally prohibited from marrying.

44

UNDER ARTICLES 2 ANO 3 OF THE NEW FAMILY CODE

ESSENTIAL REQUISITES
"Art. 2. No marriage shall be valid, unless these essential
requisites are present:
Legal capacity of the contracting parties who must
be a male and a female;
(l)

(2) Consent freely given in the presence of the solemnizing officer." (Underscoring supplied)

FORMAL REQUISITES
"Art. 3. The forma! requisites of marriage are:
(l)

Authority of the solemnizing officer;

(2) Both of them must give consent to the marriage. lt is


their consent, not the consent of the parents, that is referred to in
Article 2(1).
'
FORMAL REQUISITES
ABSENCE OF LEGAL AUTHORITY of the solemnizing officer to
solemnize marriage
ABSENCE OF MARRIAGE LICENSE

Renders the marriage void except when the marriage is


contracted with either or both parties believing in good faith at
the time of the marriage that the solemnizing officer had the legai
authority to do so.
RENDERS THE MARRIAGE VOlO

A marriage ceremony must publicly take piace under said


conditions but the marriage ceremony may be solemnized elsewhere
in the following cases:

A valid marriage license except in the cases provided


for in Chapter 2 of this Title; and

l.

In case of marriages contracted at the point of death


(articulo mortis);

A marriage ceremony which takes place with the


appearance of the contracting parties before the solemnizing
officer and their personal declaration that they take each other
as husband and wife in the presence of not less than two
witnesses of legal age." (53a, 55a) (Underscoring supplied)

2.

In case of marriages in remote places; or

3.

In case both parties request the solemnizing officer in


writing to that effect. (Article 8, Family Code)

(2)
(3)

EFFECTS OF THE FOLLOWING:


ESSENTIAL REQUISITES

l.

Absence of any of essential or formai requisites;

The absence of any of the said essential requisites renders


the contract of marriage void ab initio except as may be provided
in Section 35(2) of the Family Code.

2.

Defects in any of the essential requisites; and

3.

Irregularity in the formai requisites.

Hence, it is required that:


(l) The contracting parties must be a man and a woman
who should have the legai capacity to enter into a contract of

46

CONCEPT AND NATURE OF MARRIAGE

INTRODUCTION TO LAW

Absence of Any of
the Essential
or Formai
Requisites

Defects in Any
of the Essential
Requisites

The consent shall be manifested in writing by the interested


party, who personally appears before the local civil registrar, or in
the form of an affidavit made in the presence of two witnesses and
attested before any official authorized by law to administer oath.
(Article 14, Family Code)

Irregularity in the
Formai Requisites

It shall render
It shall render
It shall not affect
the marriage void ab the marriage void- the validity ofthe marinitio except as sta- able as provided in riage but the party or
ted in Artide 35(2). Artide 45.
parties responsible for
the irregularity shall be
civilly, criminally and
administratively liable.

Examples:

Examples:

REQUIREMENT IF ANY OF THE CONTRACTING


PARTIES IS BETWEEN 21 ANO 25 YEARS OLO

The party concerned shall be obliged to ask parental advice.


lf said advice is not obtained, or if such advice is not favorable,
or if the parent or guardian concerned refuses to give any advice,
no marriage license shall issue till after three (3) months following
the completion of publication of the application for marriage license.
(Article 15, Family Code)

Examples:

l. Lack of legai l. Lack of parental l. Lack oflegal age of


the witnesses.
capacity of ,the
consent
contracting parties.

2.

EFFECT IF MARRIAGE IS CELEBRATEO WITHIN


THE THREE (3) MONTHS PERIOO ON THE BASIS
OF A MARRIAGE LICENSE ISSUEO IN VIOLATION
OF THE SAIO PERIOO

Lack of consent ,2. Consent of a ,2. Presence of only


of any of the parparty is vitiated.
one witness.
ties to the marriage.

3. The parties are


not at least 18
years of age
(considered as
lack of legai
capacity).

47

3. Failure to comply
with the procedura!
requirements in
Artide 12.

The marriage is valid but the parties responsible of the


irregularity shall be civilly, criminally and administratively liable.
In other words, the same is treated merely as an irregularity.
(Article 4, Family Code)

4. Non-absence of the
3-month period as
provided in Artide
15.

AUTHORITY OF THE SOLEMNIZING OFFICER

Marriages solemnized by any person not legally authorized to


perform marriages are void unless such marriages were contracted
with either or both parties believing in good faith that the solemnizing officer had the legai authority to do so. (Art. 35[2], Family
Code)

5. Requirement if notice in Artide 17 is


not complied with.
REQUIREMENTS IF ANY OR 80TH OF THE CONTRACTING
PARTIES ARE BETWEEN 18 ANO 21 YEARS OLO ANO IF
ANY OR 80TH ARE NOT EMANCIPATEO BY MARRIAGE

There is a need of consent to the marriage to be given, in the


order mentioned, by the father, the mot:her, the surviving parent
or guardian, or persons having legal charge of them.

NOTE:
l.
;:!',,

'
~'

Under the Family Code, mayors are exduded from the


list of those .w~o, are authorized to solemnize marriage.
Later, or under .the New Local Government Code, the

INTRODUCTION TO LAW

48

mayors are now authorizedto solemnize marriage. (Sec.


444[XVIII], Local Government Code)

2.

Any incumbent member of the judiciary may soleiUize


marriages within the court's jurisdiction.
/

3.

If the marriage is celebrated by a priest, imam or

minister of a church, it is required that at least one of


the contracting parties belongs to the solemnizing officer's
church or religious sect. (Art. 7[2], Family Code)

4.

The marriage shall be solemnized publicly in the


chambers of the judge or in open court, in the church,
chapel or tempie, or in the office of the consul-general,
EXCEPT in cases of marriages in articulo mortis, or
.where both of the parties request the solemnizing officer
in writing in which case the marriage may be solemnized
at a house or place designated by them in a sworn
statement to that effect. (Art. 8, Family Code)

MARRIAGE LICENSE

Without a marriage license, the marriage is void. But for as


long as there is a marriage license, it is immaterial if it is illegally
or irregularly obtained. The marriage is valid just the same but
the guilty parties shall be civilly, criminally, and administratively
liable. (rt. 4, third paragraph, Family Code)
FORMALITIES OF MARRIAGE

No prescribed form or religious rite for the solemnization of


the marriage is required. It shall be necessary, however, for the
contracting parties to appear personally before the solemnizing
officer and dedare in the presence of not less than two witnesses
of legai age that they take each other as husband and wife. This
declaration shall be contained in the marriage certificate which
shall be signed by the contracting parties and their witnesses and
attested by the solemnizing officer. (Art. 6, Family Code)
VOlO ANO VOIOABLE MARRIAGE

The distinctions between a void and voidable marriage as to


its concept and its effect are as follows:

CONCEPT AND NATURE OF MARRIAGE

Void marriage

49

Voidable marriage

l. It is void ab initio. lt is void Jl. The marriage is valid until it

from the very beginning and


therefore no marriage legally
exists.

is annulled. ,

2. The marriage can never be 12. The marriage cari be ratified


ratfied.
by free cohabitation.
3. No conjugal partnership is 13. There is conjugal partnercreated.
ship unless the marriage
settlements provided otherwise .
4. There is no need for ajudicial 4. A judicial decision is needed
dedaration that the marriage
to annui the marriage.
is void.
5. The validity of the marriage 5. The validity of the marriage
may be attacked even after
may not be attacked after one
the death of one party.
party dies.
6. The status of children horn J6.
out of marriages that are
void ab initio - They are
illegitimate children except
as provided under Artide 54
of the Family Code which
provides as follows:
Art. 54. Children conceived or horn before the
judginent of annulment or
absolute nullity of the marriage under Artide 36 has
become final and executory
shall be considered legitimate. Children conceived or
horn of the subsequent
marriage under Artide 53
shall likewise be legitimated.

The status of children horn


out of voidable marriages:
(l) Those conceived before a
decree of annulment are
Legitimate Children;
(2) .Those conceived after a
decree of annulment are
Illegitimate children.

INTRODUCTION TO LAW

CONCEPT AND NATURE OF MARRIAGE

QUESTION - WHAT MARRIAGES ARE VOID FROM


THE BEGINNING?

The petition alleged that Roridel and Reynaldo were married


on Aprii 14, 1985, at the San Agustin Church in Manila; that a
son, Andre O. Molina was horn; that after a year of marriage,
Reynaldo showed signa of "immaturity and irresponsibility" as a
husband and a father since he preferred to spend more time with
his peers and friends on whom he squandered his money; that he
depended on his parents for aid and assistance; and, was never
honest with his wife in regard to their finances, resulting in frequent
quarrels between them. That sometime in February 1986, Reynaldo
was relieved of his job in Manila, and since then, Roridel had been
the sole breadwinner ofthe family; that in October 1986, the couple
had a very intense quarrel, as a result of which their relationship
was estranged; that in March 1987, Roridel resigned from her job
in Manila and went to live with her parents in Baguio; that a few
weeks later, Reynaldo left Roridel and their child, and had since
then abandoned them; that Reynaldo had thus shown that he was
psychologically incapable of complying with essential maritai
obligations and was highly-immature and a habitually quarrelsome
individuai who thought of himself as a king to be served; and that
it would be to the couple's best interest to have their marriage
declared null and void in order to free them from what appeared to
be an incompatible marriage from the start.

50

ANSWER - Under Article 35 of the Family Code, the


following marriages shall be void from the beginning:
(l)

Those contracted by any party below eighteen years of


age even with the consent of parents or guardiana;

(2)

Those solemnized by any person not legally authorized


to perform marriages unless such marriages were
contracted with either or both parties believing in good
faith that the solemnizing officer had the legai authority
to do so;

(3)

Those solemnized without license, except those covered


by the preceding Chapter;

(4)

Those bigamous or polygamous marriages not falling


under Articl e 41;

(5)

Those contracted through mistake of one contracting


party as to the identity of the other; and

(6)

Those subsequent marriages that are void under Artide


53.

QUESTION- WHAT ARE OTHER VOID MARRIAGES?


ANSWER - The following marriages are void:
l.

Void because of psychological incapacity


"Art. 36. A marriage contracted by any party who,
at the time of the celebration, was psychologically
incapacitated to comply with the essential maritai
obligations of marriage, shalllikewise be void even if such
incapacit.y becomes manifest only after its solemnization."

51

Reynaldo admitted that he and Roridel could no longer live


together as husband and wife, but contended that their misunderstandings and frequent quarrels were due to: (l) Roridel's strange
behavior of insisting on maintaining her group of friends even after
their marriage; (2) Roridel's refusal to perform some of her mari tal
duties such as cooking meals; (3) and Roridel's failure to run the
household and handle their finances.
During the pre-trial on October 17, 1990, the following were
stipulated:
l.

That the parties herein were legally married on Aprii


14, 1985 at the Church of St. Augustine, Manila;

2.

That out of their marriage, a child named Albert Andre


Olaviano Molina was horn on July 29, 1986;

FACTS:

3.

On August 16, 1990, respondent Roridel O. Molina filed a


verified petition for declaration of annulment of her marriage to
Reynaldo Molina.

That the parties are separated-in-fact for more than three


years;

4.

That the petitioner is not asking support for her and her
child;

Republic of the Philippines vs. Court of Appeals


198 SCRA268

52

INTRODUCTION TO LAW

5.

That the respondent is not asking for damages;

6.

That the common child of the parties is in the custody of


the petitioner wife.

Evidence for herein respondent wife consisted of her own


testimony and that of her friends Rosemarie Ventura and Maria
Leonora Padilla as well as of Ruth G. Lalas, a social worker and of
Dr. Theresita Hidalgo-Sison, a psychiatrist of the Baguio Generai
Hospital and Medicai Center. She also submitted documents marked
as Exhibits "A" to "E-l." Reynaldo did not present any evidence as
he appeared only during the pre-trial conference.
On May 14, 1991, the trial court rendered judgment declaring
the marriage void. The appeal of petitioner was denied by the Court
of Appeals which affirmed in toto RTC's decision. Hence, the present
recourse.

ISSUE:
In his petition, the Solicitor Generai insists that "the Court of
Appeals made an erroneous and incorrect interpretation of the
phrase 'psychological incapacity' (as provided under Art. 36 of the
Family C'lde), and made an incorrect application thereofto the facts
ofthe case," adding that the appealed decision tended "to establish
in effect the most liberai divorce procedure in the world which is
anathema to our culture."
In denying the Solicitor General's appeal, the respondent Court
relied heavily on the trial court's findings "that the marriage
between the parties broke up because of their opposing and
conflicting personalities." Then it added its own opinion that "the
Civil Code Revision Committee (hereinafter referred to as the
Committee) intended to liberalize the application of our civil laws
on personal and family rights x x x." It concluded that:
"As a ground for annulment of marriage, we view
psychological incapacity as a broad range of mental and
behavioral conduct on the part of 'irreconcilable differences'
and 'conflicting personalities' in no wise constitutes psychological incapacity. It is not enough to prove that the parties
failed to meet their responsibilities and duties as married
persons; i t is essential that they must be shown to be incapable
of doing so, due to some psychological (not physical) illness."

CONCEP'r AND NATURE OF MARRIAGE

53

The evidence adduced by respondent merely showed that she


and her husband could not get along with each other. There had
been no showing of the gravity of the problem neither its judicial
antecedence nor its incurability. The expert testimony of Dr. Sison
showed no incurable psychiatric disorder but only incompatibility.

COURT
Q-

Is it therefore the recommendation of the psychiatrist based


on your findings that it is better for the Court to annui (sic)
the marriage?

A- Yes, Your Honor.


Q- There is no hope for the marriage?
A-

There is no hope, the man is also living with another woman.

Q-

Is it also the stand of the psychiatrist that the parties are


psychologically unfit for each other but they are
psychologically fit with the other parties?

A- Yes, Your Honor.

Q- Neither are they psychologically unfit for their professions?


A- Yes, Your Honor.

In the case of Reynaldo, there is no showing that his alleged


personality traits were constitutive of psychological 1ncapacity
existing at the time ofmarriage celebration. While some effort was
made to prove that there was a failure to fulfill pre-nuptial
impressions of"thoughtfulness and gentleness." On Reynaldo's part
and of being "conservative, homely and intelligent" on the part of
Roridel, such failure of expectation is not indicative of antecedent
psychological incapacity. l{ at all, it merely shows love's temporary
blindness to the faults and blemishes of the beloved. (ltalics supplied)

2.

Void because of incestuous relationship

Art. 37. Marriages between the following are incestuous and


void from the beginning, whether the relationship between
the parties be legitimate or illegitimate:
l.

Between ascendants and descendants of any degree; and

2.

Between brothers and sisters, whether of the full or halfblood.

54

INTRODUCTION TO LAW

3.

CONCEPT AND NATURE OF MARRIAGE

Void {or reasons of public policy

authority over the party, in that order, unless after


attaining the age of twenty-one (21), such party freely
cohabited with the other and both lived together as
husband and wife.

Art. 38. The following marriages shall be void from the


beginning for reasons of public policy:
l.

Between collateral blood relatives, whether legitimate or


illegitimate, up to the fourth civil degree;

2.

Between step-parents and step-children;

3.

Between parents-in-law and children-in-law;

4.

Between the adopting parent and the adopted child;

5.

Between the surviving spouse of adopting parent and the


adopted child;

6.

Between the surviving spouse of the adopted child and


the adopter;

7.

Between an adopted child and a legitimate child of the


adopter;

8.

Between adopted children of the same adopter; and

9.

Between parties where one, with the intention to marry


the other, killed that other person's spouse, or his or her
own spouse.

Question - Is there a need to file an action for declaration


of nullity of the said marriage?
Answer - Yes.

Unsound mind - That either party' was of unsound


mind, unless such party after coming. to reason, freely
cohabited with the other as husband and wife.

3.

Fraud - That the consent of either party was obtained


by fraud, unless such party afterwards, with full
knowledge of the facts constituting the fraud, freely
cohabited with the other as husband and wife.

4.

Force, intimidation, undue influence - That the consent


of either party was obtained by force, intimidation or
undue influence, unless the same having disappeared or
ceased, such party thereafter freely cohabited with the
other as husband and wife.

5.

lmpotence- That either party was physically incapable


of consummating the marriage with the other, and such
incapacity continues and appears to be incurable.

6.

Sexually-transmissible disease - That either party was


aftlicted with a sexually-transmissible disease found to
be serious and appears to be incurable.

LEGAL CAPACITY

Answer - The action or defense for the declaration of


absolute nllity shall not prescribe.

This means that the parties must have the necessry age and
that there must be no impediment caused by a prior existing
marriage or by a certain relationship, whether on account of affinity
or consanguinity.

Question - What is voidable marriage?


Answer - A voidable marriage is one which is valid until it
is annulled for any of the following cases, existing at the time of
the marriage:
No age requirement - That the party in whose behalf i t
is sought to have the marriage annulled was eighteen
years of age or over but below twenty-one (21) and the
marriage was solemnized without the consent of the
parents, guardian or person having substitute parental

2.

ESSENTIAL REQUISITES: (l) LEGAL CAPACITY


AND (2) CONSENT FREELY GIVEN

Question - Is there a prescriptive period within which said


action shall be filed?

l.

55

RULES TO REMEMBER

.,.!

(l) Marriageable age for either male or female shall be 18


years or upwards. (Art. 5, Family Code)

(2) If either or both of the contracting parties (not having


been emancipated by previous marriage) are between 18 and 21

57

INTRODUCTION TO LAW

CONCEPT AND NATURE OF MARRIAGE

years old, there must be consent to the marriage by the father,


mother, surviving par~nt or guardian or persons having legai charge
ofthem, in the order mentioned. (Art. 14, Family Code)

(3) Concealment of sexually transmissible disease, regardless


of its nature, existing a t the time of the marriage; or

56

(3) Any contracting party between the age of21 and 25 shall
be obliged to ask their parents or guardian for advice, or if it be
unfavorable, the marriage license shall not be issued till after three
(3) months following the completion of the publication of the
application therefor. (Art. 15, Family Code)
(4) lf parental consent or parental advice is needed, there
mtist be a certificate that the contracting parties have undergone
marriage counselling. Failure to attach of marriage counselling shall
suspend the completion of the publication of the application. (Art.
16, Family Code)
(5) Marriage celebrated without the required license, except
when otherwise provided by law like marriage in articulo mortis,
shall be null and void. (Art. 35[3], Family Code)
o

Marriage contracted'by any party below 18 years of age,


even with parental consent, shall be null and void. (Art. 35[1],
Family Code)
(6)

CONSENT FREELY GIVEN

The consent referred to in Artide 2 of the Family Code refers


to the consent of the contracting parties. If there is no consent or
when the parties do not have the intention to be bound, the
marriage is void. If there is consent, but there was error, fraud,
intimidation or force, the marriage is voidable. (Art. 45, Family
Code)
WHAT CONSTITUTES FRAUD AS A GROUND FOR
ANNULMENT OF MARRIAGE

Artide 46 of the Family Code answers this question. It provides as follows:


Non-disclosure of a previous conviction by final judgment
of the other party of a crime involving moral turpitude;
(l)

(2) Concealment by the wife of the fact that at the time of


the marriage, she was pregnant by a man other than her husband;

(4) Concealment of drug addiction, habitual alcoholism or


homosexuality or lesbianism a t the time of the marriage.
l

No other misrepresentation or deceits as to character, health,


rank, fortune or chastity shall constitute such fraud as will give
grounds for action for the annulment of marriage.
EFFECTS OF ANNULMENT OF VOIDABLE MARRIAGE

It has four effects namely:


(l) WITH RESPECT TO EDUCATION AND SUPPORT The court shall provide for their education and support. (Art. 49,
Family Code)

(2) WITH RESPECT TO CUSTODY OF CHILDREN- The


custody of the children is provided for as the court deems best.
(Art. 49, Family Code)
(3) WITH RESPECT TO ATTORNEY'S FEES AND LITIGATION EXPENSES- They are taken from the community property,
if the action is successful. (Art. 90, NCC)
(4) WITH RESPECT TO THE GUILTY PARTY- Damages
are assessed against the guilty party in case of annulment due to:
(a) Lack of authority of the solemnizing officer concealed from one party;
(b). Concealment of impotence, or of a prior marriage
stili in force;

(c) Concealment ofincestuous relationship or of quasiincestuous disqualification under Artide 82;


(d)

Knowledge of insanity of one party. (Art. 91)

STATUS OF CHILDREN BORN-OUT OF MARRIAGES AB INITIO

They are illegitimate children except as provided under Artide


54 of the Family Code which provides as follows:
Art. 54. Children conceived or horn before the judgment
of annulment or absolute nullity of the marriage under Artide
36 has become final and executory shall be considered

CONCEPT AND NATURE OF MARRIAGE

INTRODUCTION TO LAW

58

legitimate. Children conceived or horn of the subsequent


marriage under Artide 53 shall likewise be legitimate.
STATUS OF CHILDREN BORN OUT OF VOIDABLE
MARRIAGES

It depends. Those conceived BEFORE an appealable decree


of annulment are legitimate children. Those conceived AFTER such
decree of annulment are illegitimate children.
RESTRICTIONS ANO PRECAUTIONS TO BE
OBSERVED BY THE COURT IN ISSUING THE
DECREE OF ANNULMENT

Art. 48. In ali cases of annulment or declaration of absolute


nullity of marriage, the court shall order the prosecuting attorney
or fiscal assigned to it to appear on behalf of the state to take steps
to prevent collusion between the parties and to take care that
evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no
judgment shall be based upon a stipulation of facts or confession of
judgment.

LEGAL SEPARATION
INTRODUCTION

In the Philippines, we do not have absolute divorce (divorce a


vinculo matrimoni). We only have relative divorce or legai
separation (divorce a mensa et thoro). In absolute divorce, the
marriage is dissolved and the parties can remarry. In relative
divorce or legai separation, however, the marriage bond is not
dissolved and the parties are not entitled to remarry. In effect, the
parties are merely separated from bed and board ..
GROUNDS FOR LEGAL SEPARATION

There are ten (10) grounds for legai separation under Artide
55 of the Family Code, to wit:
Repeated physical violence or grossly abusive conduct
directed against the petitioner, a common child, or a child of the
petitioner;
(l)

59

(2) Physical violence or moral pressure to compel the


petitioner to change religious or politica! affiliation;
(3) Attempt of respondent to corrupt or induce the petitioner,
a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement;
(4) Final judgment sentencing the respondent to imprisonment of more than six (6) years, even if pardoned;
(5)

Drug addiction or habitual alcoholism of the respondent;

(6)

Lesbianism or homosexuality ofthe respondent;

(7) Contracting by the respondent of a subsequent bigamous


marriage, whether in the Philippines or abroad;
(8)

Sexual infidelity or perversion;

(9) Attempt by the respondent against the life of the


petitioner; or
(10) Abandonment of petitioner by respondent without
justifiable cause for more than one (l) year.
For purposes of this Artide, the term "child" shall include a
child by nature or by adoption.
Under Artide 97 of the Civil Code, there are only two (2)
grounds for legai separation, namely:
(l) For adultery on the part of the wife and for
concubinage on the part of the husband as defined in the Penai
Code; or

(2)
other.

An attempt by one spouse against the life of the

WITHIN WHAT TIME SHOULD AN ACTION


FOR LEGAL SEPARATION BE FILED?

Art. 57 of the Family Code provides that an action for legai


separation shall be filed within five years from the time of the
occurrence of the cause.
EVIDENCE REQUIRED AS BASIS FOR JUDGMENT
IN ACTION FOR LEGAL SEPARATION

Simple preponderance of evidence is required. No previous

INTRODUCTION TO LAW

60

CONCEPT AND NATURE OF MARRIAGE

criminal conviction is necessary. No decree oflegal separation shall


be based upon a stipulation of facts or a confession of judgment.

Third: Reconciliation
"Art. 59. No legai separation may be decreed unless the
court has taken steps toward the reconciliation of the spouses
and is fully satisfied, despite such efforts, that reconciliation
is highly improbable."

WHAT IS ADULTERY?

Adultery is a crime committed by any married woman who


shall have sexual intercourse with a man not her husband; and by
a man who has carnai knowledge of her, knowing her to be married,
even if the marriage be subsequently declared void. (Art. 333,
Revised Penal Code)

Fourth: No Legal Separation on the Basis


of Stipulation of Facts
"Art. 60. No decree oflegal separation shall be based upon
a stipulation of facts or a confession of judgment.

Note:
l.

Article 333 of the Revised Penai Code specifies that the


crime is committed by a married woman. Therefore, if a
woman is single or not married, and she has sexual
intercourse with her two or more boyfriends, she cannot
be held liable for adultery.

2.

Adultery may be proved by circumstantial evidence.

61

In any case, the Court shall order the prosecuting


attorney or fiscal assigned to i t to take steps to prevent
collusion between the parties and to take care that the
evidence is not fabricated or suppressed."

EFFECTS OF LEGAL SEPARATION


The effects oflegal separation are those mentioned in Articles
61, 62, 63, 198 and 213 of the Family Code:

WHAT IS CONCUBINAGE?

Any husband who shall keep a mistress in the conjugal


dwelling or, shall have sexual intercourse, under scandalous
circumstances, with a woman who is not his wife, or shall cohabit
with her in any other piace, shall be punished by prision correccional in its minimum and maximum periods. (Art. 334, Revised
Penal Code)

Art. 61 -

states the effects after the petition for legai


separation is filed.

Art. 62 -

states the effects during the pendency of legai


separation.

Art. 63 -

states the effects of the decree of legai separation.

REQUISITES FOR LEGAL SEPARATION

Art. 49 -

The requisites for legai separation are those provided in


Articles 57, 58, 59 and 60 of the Family Code:

(1st paragraph) states the effects of the pending


petition for legai separation.

Art. 198 -

(2nd paragraph) states the effects of a final


judgment granting the petition for legal separation.

Art. 213 -

states the effects of separation with respect to


parental authority.

First: Time Constraint


"Art. 57. An act for legai separation shall be filed within
five (5) years from the time of the occurrence of the cause."

Second: Cooling-Off Period


"Art. 58. An action for legai separation $hall in no case
be tried before six (6) months shall have elapsed since the
filing of the petition."

l~~

EFFECTS AFTER FILING OF THE PETITION


(ART. 61, FC)

l.
Mter the filing of the petition for legai separation, the
spouses shall be entitled to live separately from each other.

62

INTRODUCTION TO LAW

2. The court, in the absence of a written agreement between


the spouses, shall designate either of them or a third person to
administer the absolute community or conjugal partnership property.
The administrator appointed by the coutt shall have the same powers
and. duties as those of a guardian under the Rules of Court.
EFFECTS DURING PENDENCY OF LEGAL
SEPARATION (ART. 49, FC}

During the pendency of the action and in the absence of


adequate provisions in a written agreement between the spouses,
the Court shall provide for the support' of the spouses and the
custody and support of their coinmon children. The Court shall give
paramount consideration to the mora! and materia! welfare of said
children and their choice of the parent with whom they wish to
remain as provided for in Title IX. It shall also provide for
appropriate visitation rights of the other parent.
EFFECTS OF THE DECREE OF LEGAL
SEPARATION (ART. 63, FC}

l.
The spouses shall be entitled to live separately from each
other, but the maniage bonds shall not be severed.

2. The absolute community or the cnjugal partnership shall


be dissolved and liquidated but. the offending spouse shall have no
right to any share of the net profits earned by the absolute
community or the conjugal partnership, which shall be forfeited in
accordance with the provisions of Article 43(2).
3. The custody of the minor children shall be awarded to
the innocent spouse, subject to the provisions of Article 213 ofthis
Code.
4. The offended spouse shall be disqualified from inheriting
from the innocent spouse by intestate succession. Moreover,
provision in favor of the offending spouse made in the will of the
innocent spouse shall be revoked by operation of law.
EFFECTS DURING THE PROCEEDING FOR LEGAL
SEPARATION OR OF ANNULMENT OF MARRIAGE

During the proceedings for legai separation or for annulment


of marriage, and for declaration of nullity of marriage, the spouses

CONCEPT AND NATURE OF MARRIAGE

63

and their children shall be supported from the properties of the


absolutP. community or the conjugal partnership. (Art. 198, 1st
paragraph)
Mter the fina! judgment granting the petition, the obligation
of mutuai support between the spouses ceases. Hbwever, in case of
legai separation, the court may order that the g\Iilty spouse shall
give support to the innocent one, specifying the terms of such order.
(Art. 198, 2nd paragraph)
PARENTAL AUTHORITY 15 EXERCISED BY
THE PARENT DESIGNATED BY THE COURT
(ART. 213, FC}

In case of separation of the parents, parental authority shall


be exercised by the parent designated by the Court. The Court shall
take into account all relevant considerations, especially the choice
of the child over seven years of age, unless the parent chosen, is
unfit. (Art. 213, 1st paragraph)
EFFECT OF RECONCILIATION OF THE PARTIES
(ARTS. 65 ANO 66, FC)

If the spouses should reconcile, a corresponding joint


manifestation under oath duly signed by them shall be filed with
the court in the same proceeding for legai separation. (Art. 65)

The reconciliation referred to in the preceding Article shall


have the following consequences:
(l) - The legai separation proceedings, if still pending, shall

thereby be terminated at whatever stage; and


(2)

The final decree of legai separation shall be set aside,


but the separation of property and any forfeiture of the
share of the guilty spouse already effected shall subsist,
unless the spouses agree to revive their former property
regime.

The court's order containing the foregoing shall be recorded


in the proper civil registries.
IN CASE OF BREACH OF MUTUAL OBLIGATION
OR MUTUAL HELP ANO SUPPORT
(l)

An action for support may be filed.

CONCEPT AND NATURE OF MARRIAGE

INTRODUCTION TO LAW

64

(2)

An action for receivership, separation of property or for


administration by the wife may be filed in case of
desertion by the husband.

(3)

Judicial admonition and other measures may be taken


by the court. However, the court cannot compel cohabitation.

IN CASE OF BREACH OF MUTUAL OBLIGATION


TO OBSERVE RESPECT ANO FIDELITY

(l)

A petition for legai separation may be filed.

(2)

The convicted spouse shall forfeit his or her right to


support.

(3)

The guilty spouse shall be disinherited.

(4)

The guilty spouse shall not be capable to succeed.

Art. 128. If a spouse without just cause abandons the


other or fails to comply with his or her obligations to the family,
the aggrieved spouse may petition the court for receivership,
for judicial separation of property, or for authority to be the
sole administrator of the conjugal partnership property, subject
to such precautionary conditions as the court may impose.

The obligations to the family mentioned in the preceding


paragraph refer to maritai, parental, or property relations.
A spouse is deemed to have abandoned the other when
he or she left the conjugal dwelling without intention of
returning. The spouse. who has left the conjugal dwelling for
a period of three months or has failed within the same period
to give any information as to his or her whereabouts shall be
prima facie presumed to have no intention of returning to the
conjugal dwelling.
AS REGARDS THE OBLIGATION OF THE SPOUSE
TO LIVE TOGETHER

(l)

The spouse who leaves the conjugal home or refuses to


live therein, without just cause, shall not have the right
to be supported. (Art. 127[1})

(2)

When the consent of one spouse to any transaction of

65

the other is requiredby.law, judicial authorization.shall


be obtained in a summary proceeding. (Art. 127[2])
(3)

In the absence of sufficient conjugal partnership property,


the separate property of both spouses shall be solidarily
liable for the support of the family. The spouse present
shall, upon petition in a summary: proceeding, be given
judicial authority to administer or encumber any specific
separate property of the other spouse and use the fruits
or proceeds thereof to satisfY the latter's share.

ABSOLUTE DIVORCE

Question - Do we have absolute divorce in the Philippines?


Answer- We do not have absolute divorce in the Philippines.
Muslim divorce was previously declared valid and recognized under
Republic Act No. 394 but this law was valid only for a period of 20
years from June 18, 1949.
Therefore, actions for absolute divorce between Filipinos or
between foreigners or between a Filipino and a foreigner will not
prosper in Philippine courts. If said action is brought in a foreign
court by a foreigner and the same is granted, the foreign court has
jurisdiction to grant the absolute divorce and provided further that
said divorce is recognized as valid according to the nationallaw of
the parties. If said action is brought in a foreign country by a
Fili pino citizen, the same even if granted, will not be recognized in
the Philippines.
CONJUGAL PARTNERSHIP OF GAINS

Article 106 of the Family Code defines conjugal partnership


of gains as follows:
Under the regime of conjugl partnership of gains,
the husband and wife piace in a common fund the proceeds,
products, fruits and income from their separate properties
and those acquired by either or both spouses through their
efforts or by chance, and, upon dissolution ofthe marriage
or of the partnership, the net gains or benefits obtained
by either or both spouses shall be divided equally between
them, unless otherwise agreed in the marriage settlements.

INTRODUCTION TO LAW

66

OEFINITION OF PARAPHERNAL PROPERTY

Art. 109. The following shall be the exclusive property of each


spouse:
(l)

That which is brought to the marriage as his or her own;

(2)

That which each acquires during the marriage by


gratuitous title;

(3)

That which is acquired by right ofredemption, by barter


or by exchange with property belonging to only one of
the spouses; and

(4)

CONCEPT AND NATURE OF MARRIAGE

That which is purchased with exdusive money of the wife


or of the husband.

RIGHTS AND OBLIGATIONS BETWEEN HUSBAND


ANDWIFE
QUESTION- WHAT ARE THE DUTIES OF BUSBAND
ANDWIFE?
ANSWER - They are obliged:
(l)

To live together;

(2)

To observe mutuai respect and fidelity; and

(3)

To render mutuai help and support.

SCOPE OF OUTY TO LIVE TOGETHER

The husband and the wife have a right to live together and
this includes cohabitation and sexual intercourse. With the
enactment of Republic Act No. 8353 otherwise known as Anti-Rape
Law of 1997, a husband may be held liable for the rape ofhis wife.
However, the subsequent forgiveness by the wife shall extinguish
the criminalliability except when the marriage is void ab initio.
MUTUAL RESPECT ANO FIOELITY

Mutuai respect simply means that each shall respect the other.
They can disagree or reprimand each other but it is unlawful for
them to inflict force or physical harm, EXCEPT when either of them

67

SURPRISES the other in the act of committing sexual intercourse


with another person. Even under this situation, Artide 24 7 of the
Revised Penai Code imposes a penalty of destierro to the guilty
spouse.
'

Infidelity, on the other hand, is a ground for legai separation


or disinheritance under Articles 55(8) and 63(4) ofthe Family Code.
MUTUAL HELP ANO SUPPORT

Husband do not marry his wife to make the latter his slave
and vice-versa. They should help and support each other within
their available resources and to see to it that they assist each other
in the rearing of their children for civie efficiency and development
of moral character.
Under Artide 11 of the Revised Penai Code, defense of the
spouse is a justifying circumstance provided the other requisites
therein are present.
HUSBANO'S RIGHT TO FIX RESIOENCE

As a rule, the husband shall fix the residence of the family.


However, the wife may establish a separate residence, IF:
l.

The husband maltreats her or grossly insults her;

2.

The husband continuously refuses to support her;

3. . The husband is immoderate or barbarie in his demands


for sexual intercourse;
4.

The wife is virtually driven out of the conjugal home by


the husband; and

5.

The husband continually indulges in illicit relations with


another woman.

CAN THE WIFE ACQUIRE ANY PROPERTY BY


GRATUITOUS TITLE?

The wife cannot, without the husband's consent, acquire any


property by gratuitous title EXCEPT from her ascendants,
descendants, parent-in-law and collateral relative within the fourth
d egre e.

CONCEPT AND NATURE OF MARRIAGE

INTRODUCTION TO LAW

68

(3)

WHAT IS A MARRIAGE SETTLEMENT?

It is an ante-nuptial contract entered into by the prospective


spouses for the purpose of fixing the conditions with respect to their
present and future property.

D.

It depends. Ifthe future spouses are of age, they are the parties
to the marriage settlement. If one or both of the spouses are minors
(under 21), the parties are:
(l)

The future spouses even if they are minors;

(2)

The parent or guardian; and

(3)

The family council if there is no guardian or parent.

Family expenses are contributed by each spouse according to stipulation or in proportion to their respective
income.

Dotai System
(l)

WHO ARE THE PARTIES TO A MARRIAGE


SETTLEMENT?

(2)
(3)
(4)

Property of the wife is managed by the husband during


the marriage.
Fruits go to the husband.
Expenses are bome by the husband.
Upon cessation of common life, the property is returned.

WHAT SYSTEMS GOVERN?

Art. 74. The property relations between husband and wife


shall be governed in the following order:
(l)

SYSTEMS THAT MAY BE ADOPTED BY THE


PARTIES TO GOVERN THEIR PROPERTY
RELATIONS

A.

B.

C.

69

By marriage settlements executed before the mar-

riage;
(2)

By the provisions of this Code; and

(3)

By the local customs.

Absolute Community
(l)

Present and future property (with certain exceptions) is


to be owned in common.

(2)

Expenses are borne by the common property.

Relative Community of Gains (Conjugal Partnership)


(l)

Present property continues to be owned by the respective


spouses;

(2)

Future property is separate if acquired gratuitously, but


coinmon if acquired by onerous title at the community's
expenses; and

(3)

Fruits and earnings are common.

IN THE ABSENCE OF MARRIAGE SETTLEMENT,


OR WHEN THE AGREED REGIME IS VOID, WHAT
GOVERNS THE PROPERTY RELATIONS BETWEEN
HUSBAND ANO WIFE?

The _system of absolute community of property as established


by the Family Code shall govern. (Art. 75, New Family Code)

Art. 75. The future spouses may, in the marriage


settlements, agree upon the regime of absolute community,
conjugal partnership of gains, complete separation of property,
or any other regime. In the absence of marriage settlement, or
when the regime agreed upon is void, the system of absolute
community ofproperty as established in this Code shall govern.

(l)

Present and future property is owned by the holder or


acquirer.

Art. 76. In order that any modification in the marriage


settlements may be valid, it must be made before the
celebration of the marriage, subject to the provisions of Articles
66, 67, 128, 135 and 136.

(2)

Fruits are separately owned by the owner of the producing property.

Art. 77. The marriage settlements and any modification


thereof shall be in writing, signed by the parties and executed

Absolute Separation

INTRODUCTION TO LAW

70

before the celebration of the marriage. They shall not prejudice


third persons unless they are registered in the local civil
registry where the marriage contract is recorded as well as in
the proper registries of property.
CONCEPT OF DONATION PROPTER NUPTIAS

Propter nuptias (donations by reason of marriage) are those


which are made before its celebration, in consideration of the same
and in favor of one or both of the future spouses.
REQUISITES OF DONATION PROPTER NUPTIAS

The donation must be made:

CONCEPT AND NATURE OF MARRIAGE

(b) The marriage does not


take place;

(b) Ingratitude;

(c) The marriage is annulled


due to the bad faith of
the donee;

(c) Appearance of children.

(d) There is legal separation


due to the fault of the
donee;
(e) Lack ofrequired parental
consent to the marriage;
. (f) Governed by Statute of

Frauds.

(l)

Before the marriage;

(2)

In favor of either spouses or both; and

(3)

In consideration (by reason) of the marriage.

RIGHTS AND OBLIGATIONS BETWEEN HUSBAND


AND WIFE COMMON TO HUSBAND AND WIFE

DISTINCTION BETWEEN DONATION PROPTER


NUPTIAS AND ORDINARY DONATION

Art. 69. -

The husband and the wife shall fix the family


domicile. In case of disagreement, the court shall
decide.

Ordinary Donation

Art. 70. -

The spouses are jointly responsible for the


support of the family. The expenses for such
support and other conjugal obligations shall be
paid from the community property and, in the
absence thereof, from the income or fruits of their
separate properties. In case of insufficiency or
absence of said income or fruits, such obligations
shall be satisfied from their separate properties.

Art. 72. -

When one of the spouses neglects his or her duties


to the conjugal union or commits acts which tend
to bring danger, dishonor or injury to the other
or to the family, the aggrieved party may apply
to the court for relief.

Art. 73. -

Either spouse may exercise any legitimate


profession, occupation, business or activity
without the consent of the other. The latter may
object only on valid, serious, and moral grounds.

Propter Nuptias
l. Acceptance is not required.

l. Acceptance is required.

2. The donor can give not more 2. The donor can give not more
than 1/5 (Art. 84) made by
than what he can give by
future spouse.
will.
3. It can include future prop-,3. It cannot include future
erty. (Art. 84)
property.
4. The donor must free the 4. The donor need not free the
property except from serviproperty unless the donation
tudes unless otherwise stiis onerous.
pulated.

5.

71

The donation may be revoked


for the following reasons:
(a) The condition is not
fulfilled;

,5.

The donation may be revoked


for the following reasons:
(a) Breach of conditions;

INTRODUCTION TO LAW

72

In case of disagreement, the court shall decide whether or


not:
(l)

The objection is proper; and

(2)

Benefit has accrued to the family prior to the objection


or thereafter. If the benefit has accrued prior to the
objection, the resulting obligation shall be enforced
against the separate property of the spouse who has not
obtained consent.

The foregoing provisions shall not prejudice the rights of


creditors who acted in good faith.

Art. 68. -

The husband and wife are obliged to live together,


observe mutuai love, respect and fidelity, and
render mutuai help and support.

TO LIVE TOGETHER

This is both a duty and a right. This includes cohabitation or


consortium and sexual intercourse. If there is, however, a legal
separation, there is no more duty to have sexual intercourse.
WIFE MAY ESTABLISH A SEPARATE DOMICILE

The wife may establish a separate domicile in the following


cases:
(l) If the husband maltreats her. (Arroyo vs. Vasquez de
Arroyo, 42 Phil. 54) .

(2) If the husband grossly insults her. (Talanan vs. Willis,


[CA] 35 O.G. 1369)
(3) Ifthe husband is immoderate or barbarie in his demands
for sexual intercourse. (Goitia vs. Campos-Rueda, 35 Phil. 252)
(4) If the husband continuously indulges in illicit relations
with another even if the concubine or concubines are not brought
into the maritai abode. (Dadivas vs. Villanueva, 54 Phil. 92)
(5)
nuously

If the husband refuses to support the family or contigambl~s.

(Panuncio vs. Sula, [CA] 34 O.G. 6122)

(6) If the husband insists on living with his own parents.


(Del Rosario vs. Del Rosario, CA 4600 O.G. 6122)

CONCEPT AND NATURE OF MARRIAGE

73

(7) If she is virtually driven out of their home by her husband


and she is threatened with violence if she should return. (Garcia
vs. Santiago and Santiago, 53 Phil. 952)
OTHER CONSEQUENCES OF MARRIAGE
(l) A husband and wife can chastise or reprimand each other
but may not inflict force except when either catches the other in
the act of sexual intercourse with another. (Art. 247, Revised Penal
Code)

(2) Marriage emancipates a person from parental authority


as to person.

(3) A husband cannot be examined for or against his wife


without her consent; nor a wife for or against her husband without
his consent, except in a civil case by one against the other, or in a
criminal case for a crime committed by and against the other.
(Section 20[b], Rule 130)
(4) The husband or the wife during the marriage or afterwards, cannot be examined without the consent of the other as to
any communication received in confidence by one from the other
during the marriage. (Section 21[a], Rule 130)
(5) A Filipino woman who marries an alien acquires his
nationality if so provided by her husband's laws. (Commonwealth
Act No. 63)
(6) A foreign woman who marries a Filipino may become a
Filipino citizen provided she herself may be lawfully naturalized.
(Section 15, Commonwealth Act No. 473)

THE FAMILY

75

The family home may be created judicially or extra-judicially.


If thus created, it is exempt from: (l) execution; (2) forced sale;
and (3) attachment.

Chapter VII
4.

ADVANTAGES OF A FAMILY HOME

lt is exempt from execution, forced sale, or attachment. lt is


liable only:

THE FAMILY

(a)
(b)
home;

IMPORTANT TOPICS IN THIS CHAPTER:


l.

Family defined

2.

Family suits are discouraged

3.

Family home defined

4.

Advantages of a family home

For non-payment of taxes;


For debts incurred prior to the constitution ofthe family

(c) For debts secured by mortgage on the premises before or


after such constitution; and
(d) For debts due to laborers, mechanics, architects, builders,
materialmen and others who have rendered service or furnished
material for the construction of the building. (Art. 155, FC)

DISCUSSION
1.

FAMILY DEFINED

The family is a basic social institution which public policy


cherishes and protects. No custom, practice or agreement which is
destructive of the family shall be recognized or given effect.
2.

FAMILY SUITS ARE DISCOURAGED

No suit between of the same family shall prosper unless it


should appear from the verified complaint or petition that eamest
efforts toward a compromise have been made, but that the same
have failed. If it is shown that no such efforts were in fact made,
the case must be dismissed. (Art. 151, FC)
3.

FAMILY HOME DEFINED

Art. 152 of the Family Code defines family home as: "The
dwelling house where a person and his family reside, and the land
on which it is situated."
74

ACC. NO.

b'

_,_

f~H R

tA\fJ liPRAR'I

PROPERTY

77

Chapter VIli

the possession of man. Things are those same objects before their
appropriation by man. The stars and the planets are included in
the concept of "things" but since they cannot be appropriated, they
cannot be considered property.

PROPERTY

2.

'

PRINCIPAL CLASSIFICATION OF PROPERTY

Under the New Civil Code, property may either be: (l) Immovable or real property; or (2) Movable or personal property.

IMPORTANT TOPICS IN THIS CHAPTER:


l. . Property defined

3.

2. Principal classification of property


3. Classification of real or immovable properties

CLASSIFICATION OF REAL OR IMMOVABLE PROPERTIES

CODE: NIDA

(a) by nature
(b) by incorporation
(c) by destination or purpose
(d) by analogy
4. Movable or personal properties

N-ature
I-

D - estination
A- nalogy

5. Definition and concept of ownership


6. Extent of ownership
7. Ownership of a hidden treasure

l.

Real property by nature - Those which by their very


nature are immovable, i.e., (a) land, buildings, roads and
construction of all kinds adhered to the soil; and (b)
mines, quarries, and slag dumps, while the matter thereof
forms part of the bed, and waters either running or
_stagnant.

2.

Real property by incorporation- Those which are


attached to an immovable in. a fixed manner (i.e.,
building):

8. Definition of hidden treasure


9. Modes of acquiring ownership

:'~

10. Attributes of ownership


11. Important articles of the New Civil Code on ownership
and possession

12. Effects of possession

DISCUSSION
1.

.~

PROPERTY DEFINED

Things which are or may be the object of appropriation are


considered as property. The word "thing'' is broader than the concept
of property. More specifically, property refers to things which are
susceptible to appropriation and alreal,iy possessed and found in
\
,~.w~:,.,.,.:,;...,;.,

~:

~ ' ~- "' 1: ....

. -:
: :~(

::

76

ncorporation

c;;'_,.,,.~... ~

1.
~.
. . ., .. .'

t",H
i''IJt
:
r .,

l~-~":---~.,~. ~-~~"~-~!'~- ' ~-~~~

'

t.::.!
1

(a)

Buildings, roads and construction of all kinds


adhered to the soil;

(b)

Trees, plants, and growing fruits, while they are


attached to the land or form an integrai part of an
immovable;

(c)

Everything attached to an immovable in fixed


manner, in such a way that it cannot be separated
therefrom without breaking the material or
deterioration of the object;

PROPERTY

INTRODUCTION TO LAW

78

(d)

3.

(a)

(b)

(c)

4.

Statues, reliefs, paintings, or other objects for use


or ornamentation, piaced in buiidings or on Iands
by the owner of the immovable in such a manner
that it reveais the intention to attach them permanently to the tenements;

4.

Animai houses, pigeon houses, beehives, fish ponds


or breeding piaces of similar nature, in case their
owner has placed them or preserved them with the
intention to have them permanently attached to the
land, and forming a permanent part of it; the
animals in these places are included;
Fertilizer actually used on a piece of land;

(e)

Docks and structures which, through floating, are


intended by their nature and object to remain at a
fixed piace on a river, lake or coast.

Real property by analogy - This includes rights over


immovable property (e.g., servitudes and contracts for
public works):
Contracts for public works, and servitudes and other
real rights over immovable property.

l.

A building whether built on a rented land or not and


whether it was built by the owner of the land or not is
Real property.

2.

A house is an immovable property but once it is demolished, it ceases to be an Immovable property.

3.

A barong-barong cannot be considered immovabie.

MOVABLE OR PERSONAL PROPERTIES

The following are deemed to be personal properties:

Machinery, receptacies, instruments or implements


intended by the owner of the tenement for an
industry or works which may be carried on in a
building or on a piece of land, and which tend
directly to meet the need of the said industry or
works;

(d)

(a)

NOTE:

Statues, reliefs, paintings, or other objects for use


or ornamentation, placed in buildings or on lands
by the owner of the immovable in such a manner
that it reveals the intention to attach them permanently to the tenements.

Real property by destination or purpose - Those


attached to an immovabie in such a manner that they
constitute an ideai identity (i.e., machinery used in a
cement plant):

79

5.

l.

Those movables susceptible of appropriation which are


not inciuded in the preceding article (e.g., pencii, watch);

2.

Real property which by any special provision of Iaw is


considered as personal property (e.g., growing crops);

3.

Forces of nature which are brought under controi by


science (e.g., electricity);

4.

In generai, all things which can be transported from piace


to place without impairment of the real property to which
they are fixed (e.g., picture frame hanging on the wall).

DEFINITION ANO CONCEPT OF OWNERSHIP

Ownership is the right to enjoy and dispose of a thing, without


other limitations than those established by law. (Art. 428, New Civil
Code)
Hence, the ownership is not absolute. It may be restricted by
the following limitations:
l.

2.

Limitations imposed by law:


(a)

Right of way;

(b)

Easement of party wall; and

(c)

Easement of waters.

Limitations imposed by the State:


(a)

Power of eminent domain;

(b)

Police power; an d

INTRODUCTION TO LAW

80

(c)
3.

PROPERTY

Power of taxation.

"Art. 437. The owner of a parcel of land is the owner of


its surface and of everything under it, and he can construct
thereon any works or make any plantations and excavations
which he may deem proper, without detriment to servitudes
and subject to speciallaws and ordinances. H~ cannot complain
of the reasonable requirements of aerial navigation."

Limitations imposed by the owner himself such as those


arising from a contract of mortgage, pledge or lease.

ILLUSTRATIONS:

l.

2.

One can own a stereo and use it freely in his house but
it does not mean that he can use it in full volume at 2:00
a.m., to the detriment of his neighbors who are already
sleeping. This is based on the latin maxim Sic Utere Tuo
Ut Alienum Non Laedas. This maxim is expressed in a
similar vein in Article 431 of the New Civil Code which
says: "The owner of a thing cannot make use thereof in
such a manner as to injure the rights of third person."

3.

Maintaining Ihaw-lhaw establishments inside a subdivision area can be abated.

4.

The government has the power to impose taxes on the


earnings of its citizens to support the costs of operation
of government. lt has also the power to expropriate
private properties for public use and provided that just
compensation is paid.

5.

6.

De La Salle Alabang is established and situated inside


New Alabang Village. In going to and from said school,
parents and school children have to pass through the
subdivision road of the village. The subdivision developers
or the association therein can impose reasonable rules
and regulations for security reasons but it cannot
absolutely disallow school children living in adjacent
subdivisions to pass through the subdivision road going
to De La Salle College where they are enrolled and duly
admitted.

X mortgaged his house and lotto Y bank. He is bound to


observe the conditions of the Contract of Real Estate
Mortgage.

EXTENT OF OWNERSHIP

Extent of one's ownership which a person has over a parcel of


land is defined in Article 437 which provides as follows:

81

As a rule therefore, the owner of a parcel of land is the owner


o( its surface and of everything under it subject only to the following
limitations: (a) servitudes; (b) special laws; (c) ordinances; (d)
reasonable requirements of aerial navigation; and (e) the Latin
maxim of Sic Utere Tuo Ut Alienum Non Laedas.
,
7.

OWNERSHIP OF A HIDDEN TREASURE

Article 438 of the New Civil Cqde defines who is the owner of
a hidden treasure. lt says:
"Art. 438. Hidden treasure belongs to the owner of the
land, building, or other property on which it is found."
Nevertheless, when the discovery is made on the property
of another, or of the State or any of its subdivisions, and by
chance, one~half thereof shall be allowed to the finder. If the
finder is a trespasser, he shall not be entitled to any share of
the treasure.
If the things found be of interest to science or the arts,
the State may acquire them a t their just price, which shall be.
divided in conformity with the rule stated."
Simply stated, the law states three (3) instances or situations:
l.

The hidden treasure may be found in one's own property;

2.

The hidden treasure may be found on a building;

3.

The hidden treasure may be found on the property of


another.

If one finds a hidden treasure in his own land or building, he


owns it exclusively. lf the finder is married, the treasure belongs
to the conjugal property.
If the hidden treasure is found on the land or building of
another by chance, the finder owns one-half of the hidden treasure
and the other half of the hidden treasure belongs to the owner of
the land or building.

82

INTRODUCTION TO LAW

PROPERTY

If the finder is a trespasser, he is not entitled to any share.


However, if the things found be of interest to science or the arts,
the State may acquire them a t their just price which shall be divided
according to the provisions of Art. 438.

2a.l. Alluvion
2a.2. Avulsion
2a.3. Insula Nata
2a.4. Alveus Derelictus

8.

DEFINITION OF HIDDEN TREASURE

It will be noted that accession is not listed in the New Civil


Code as a mode of acquiring ownership. In Roman Law, it is a
specific mode of acquiring ownership. If anything therefore is
acquired by or through accession, it is, on the basis of the New
Civil Code, to be treated as acquisition in accordance with law.

3. Prescriptio

DERIVATIVE MODES

NEW CIVIL CODE


l.

Originai Modes

l. Occupation

l. Occupation

(a) Animals ferae naturae

(b) N ew things
(c) Res Hostis
2. Accessio
2a. N atural Accessio continua

Succession

2. Donation
3. Prescription

(a) Wild animals or those


acquired by hunting or
fishing

4. Law
5.

(b) Hidden treasure (Thesaurus in Roman Law)

Delivery (Traditio in Roman


Law)

NOTES:

(c) Abandoned thing (Res


Derelicta in Roman Law)

Roman Law terms mentioned below have their counterparts


in the New Civil Code, thus:
Animals ferai naturae- Wild animals (Art. 713)

2. Intellectual creation
(a) Copyrights on any literacy, dramatic, historical,

(c) Letter '

2b.l.l Inaedificatio
2b.1.2 Satio lmplantatio
2b.2
On personal property:
2b2.1 Commixtio
2b2.2 Confusio
2b2.3 Adjudicatio
2b2.4 Specificatio

The modes of acquisition stated in our New Civil Code are


Roman in origin. All those mentioned in Roman Law books as modes
of acquisition, except mancipatio and addictio, are stili mentioned
in the New Civil Code. This is shown in the comparative list below.

Originai Modes

(b) lnvention or discovery;


an d

2b.l. On real property:

MODES OF ACQUIRING OWNERSHIP

ROMANLAW

legai, scientific or other


works;

2b. Artificial Accessio continua

''Art. 439. By treasure is understood, for legai purposes,


any hidden and unknown deposit of money, jewelry, or other
precious objects, the lawful ownership of which does not
appear."
9.

83

Res Derelicta- Abandoned property (Art. 719, last paragraph)


1

Thesaurus - Hidden Treasure (Art. 438)

INTRODUCTION TO LAW

84

Accessio- Accession (Art. 440)


l.

Accessio continua -

Accession by attachment or

PROPERTY

4.

Jus Disponendi - Right to dispose

5.

Jus Vindicandi- Right to recover

85

incorporation
l. l

Alluvion- Alluvion (Art. 457)

1.2 Avulsion - Avulsion (Art. 459)


1.3 Insula Nata -

Formation of Islands I (Arts. 464-

465)

1.4 Alveus Derelictus- Change of course ofrivers (Arts.


462-463)

ARTIFICIAL
ON REAL PROPERTY:
l.

Inaedificatio- Building (Arts. 445 to 446)

2.

Satio lmplantatio - Sowing and Planting (Arts. 445


to 446)

ON PERSONAL PROPERTY:

2.

1O.

l.

Commixtio - mixture of solids (Arts. 472 to 473)

2.

Confusio - mixture of liquids (Arts. 472 to 473)

3.

Adjudicatio - award by court judgment (i.e.,


damages awarded by the courts like those provided
in Article 2206)

4.

Specificatio- specification (Art. 474)

Accessio discreta- Accessio Discreta (Art. 441)


l.

N a turai fruits - same concept (Art. 442)

2.

Civil fruits :._ same concept (Art. 442)

3.

Industriai fruits - same concept (Art. 442)

ATTRIBUTES OF OWNERSHIP

l.

Jus Utendi - Right to use

2.

Jus Possidendi - Right to possess

3.

Jus Fruendi - Right to the fruits

ILLUSTRATION:

If X owns a house and lot, he has the right to live there


and use i t. If he wants, he can also sell, mortgage or lease it.
If he sells, he ceases to have contro!, ownership and possession
of the same in favor of the buyer. If he leased the same for
one (l) year, he stili retains the ownership but not the
possession because his right is transferred to the lessee by
virtue of the lease contract.
If the lessee fails or refuses to vacate the house and lot
after the expiration of the lease contract, the owner can sue
the lessee for unlawful detainer because while the possession
of the lessee is lawful in the beginning, it became unlawful
after he failed and refused to vacate upon demand and after
the expiration of the stipulated period.
If there are unpaid rentals, the lessor has also the right
to demand payment of the same because they are considered
fruits of ownership. This right is separate and distinct from
the right of the lessor to demand that the lessee vacates the
leased premises but these two (2) rights can be subject of and
incorporated in one (l) complaint.
IMPORTANT ARTICLES OF THE NEW CIVIL
CODE ON OWNERSHIP ANO POSSESSION

Art. 429. The owner or lawful possessor of a thing has


the right to exclude any person from the enjoyment and
disposal thereof. For this purpose, he may use such force as
may be reasonably necessary to repel or prevent an actual or
threatened unlawful physical invasion or usurpation of his
property.
A, resident of Manila, bought a farm lot in Dasmariiias, Cavite.
Because his job is in Manila, A visits his farm lot only during
weekends. One Sunday, he visited his farm lot and saw X planting
tomatoes in his farm lot. He told him that he owns the lot and he
cannot therefore plant tomatoes. X countered by saying that
ulthough he is not the owner, he does not want the farm lot to be

87

INTRODUCTION TO LAW

PROPERTY

idle and that is the reason why he planted tomatoes. One thing led
to another and they have an altercation. In the process, A lost his
temper and he pulled off the tomatoes and threw them away.
Simultaneously, A shouted at X and told him to leave his premises.
X threw the tomatoes back to the face of A and the latter countered
by slapping X on the face. Cooler heads intervened and thereafter,
X left the premises.

based on his arrangements with Aviz, then X is a possessor in bad


faith.

86

Is A liable for slapping the face of X?


It is submitted that A is not liable because his act of slapping
X was done in the process of defending himself from an actual
aggression.

Self-defense includes .defense of his person and of his rights


to property.

Art. 523. Possession is the holding of a thing or the


enjoyment of a right.
Art. 524. Possession may be exercised on one's own name
or in that of another.
Art. 525. The possession of things or rights may be had
in one (l) or two (2) concepts: either in the concept of owner,
or in that of the holder of the thing or right to keep or enjoy
it, the ownership pertaining to another person.

11.

EFFECTS OF POSSESSION

Art. 539. Every possessor has right 'to be respected in


his possession; and should he be distributed therein he shall
be protected in or restored to said possession by the means
established by the laws and the Rules of Court.
A possessor deprived of the possession through forcible
entry may within ten (lO) days from the filing ofthe complaint
presenta motion to secure from the competent court, in the
action for forcible entry, a writ of preliminary mandatory
injunction to restore him in his possession. The court shall
decide the motion within thirty (30) days from filing thereof.
A possessor, whether he is a possessor in the concept of owner
or holder, has three (3) rights under Art. 539, thus:
l.

He has the right to be respected on his possession;

2.

If he is disturbed in his possession, he has the right to


be protected or restored to his possession by any lawful
means;

3.

If he is deprived of his possession through forcible entry,


he can secure a writ of preliminary mandatory injunction
to restore him in his possession.

Art. 526. He is deemed a possessor in good faith who is


not aware that there exists in his title or mode of acquisition
any flaw which invalidates it.
He is deemed a possessor in bad faith who possesses in
any case contrary to the foregoing.

NOTES:
l.

Article 539, second paragraph thereof, states: "A possessor


deprived of the possession THROUGH FORCIBLE
ENTRY x x x." The remedy, therefore, of securing a writ
of preliminary mandatory injunction is not available if
the complaint is unlawful detainer.

2.

In forcible entry, the possession is not lawful from the


beginning. In unlawful detainer, the possession is lawful
in the beginning but it became unlawful after the lessee
failed and refused to vacate upon demand and after the
contract of lease.

Mistake upon a doubtful or difficult question of law may


be the basis of good faith.
X rented a car from Aviz, the owner. Although X is not the
owner, he is entitled to possess the car during the stipulated period
of the lease.
If X believes in good faith Aviz' representations that i t is the
owner and based on this belief, he is using the car and makes
representations to Y, a friend, that he is a lessee, he is a possessor
in good faith.
If the car is in truth and in fact owned by Z, and X knows
that the car he rented is owned by Z, and he continues to use it

GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS

Chapter IX
GENERAL PRINCIPLES ABOUT
CONTRACTS ANO OBLIGATIONS

89

(i)

Any third person who includes another to violate


the contract shall be liable for damages to the other
contracting party.

(j)

In order to judge the intention qf the contracting


parties, their contemporaneous and subsequent acts
shall be principally considered.

5. Concept of obligation
6. Sources of obligation
7. Nature and effects of obligations
8. Obligation of a person obliged to give something

IMPORTANT TOPICS IN THIS CHAPTER:


l.

9. Obligation to give a determinate thing

Elements of a contract

10. When is a thing specific or determinate and when is it


generic or indeterminate?

2. When is a contract perfected?


3. Can the contracting parties agree on any term or condition?

11.

4. Basic principles to remember about contracts


(a)

As a rule, contracts are perfected by mere consent.

(b)

The contracting parties are bound by the contract


they have entered into.

(c)
(d)

(e)
(f)

Effect of obligation to deliver a specific thing and a


generic thing

12. Effect of obligation


13. Effect of obligation not to do
14. Debtor is in default from the time of demand
15. Effect if there is fraud, negligence or delay

Contract takes effect only as between the parties,


their assigns and their heirs.

16. Kinds of damages

The parties to a contract may stipulate on anything


provided that it is not contrary to law, morals, good
customs, public order, and public policy.

17.. Responsibility arising from fraud (dolo)


18. Responsibility arising from negligence (culpa)
19. Kinds of culpa (negligence)

No one may contract in the name of another without


authority.

20. Distinctions between culpa contractual, culpa aquiliana


and culpa criminal

Obligations arising from contract have the force of


law between the contracting parties and should be
complied with in good faith.

21. ls a person responsible for those events which could not


be foreseen, or which though foreseen are inevitable?

(g)

Obligations derived from law are not presumed.

22. Kinds of obligation

(h)

Contracts are obligatory in whatever form they may


have been entered into, provided that ali the
requisites for their validity are present.

23. Definition and illustration

l'
~:

':

88

24. Extinguishment of obligations

INTRODUCTION TO LAW

90

DISCUSSION
When two (2) persons enter into a written agreement, the
terms and conditions they have agreed upon are stated therein.
They are bound by the said conditions (Art; 1308) and they should
therefore comply with the same in good faith. (Art. 1159) Hence, in
a contract of lease, the lessee is bound to pay the agreed rentals in
return for the use of the leased premises. The lessor, on the other
hand, has the right to demand the payment of the agreed rentals
on due date and during the effectivity of the lease. lf this is not
complied with by the lessee, the lessor. has the right to demand
that the lessee vacate the leased premises.
The observance of the conditions provided in a written
agreement is premised on the fact that prior to the act, they have
discussed the terms of the agreement and subsequently thereafter,
they have a meeting of the minds.
Hence, Artide 1305 of the New Civil Code defines a contract
as follows:
"Art. 1305. A contract is a meeting of minds between two
(2) persons whereby one binds himself, with respect to the
other, to give something orto render some service."
1.

ELEMENTS OF A CONTRACT

GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS

2.

91

WHEN IS A CONTRACT PERFECTED?


It depends.

A consensual contract like sale is perfected by mere consent.


(Art. 1315, NCC)
A real contract like pledge is perfected by delivery of the thing
pledged. (Art. 1316, NCC)
A formai contract like donation of a parcel of land where a
subdivision chapel shall be built requires a public instrument. (Art.
749, NCC)

3.
CAN THE CONTRACTING PARTIES AGREE ON ANY TERM
OR CONDITION?

Yes, provided they are not contrary to law, morals, good


customs, public order or public policy. (Art. 1306, NCC)
LAW

A written agreement of separation between husband and wife


is contrary to law.
Agreement to pay a rate of interest higher than that imposed
by law is void.

CODE: CSC
l.

Essential elements

MORALS

(a)

C - onsent

Agreement to pay excessive attorney's fees is immoral.

(b)

S- ubject matter

Promise to marry based on a carnai consideration is immoral.

(c)

C- onsideration
GOOD CUSTOMS

Without these essential elements, there can be no contract.


2.

Natural elements- Unless otherwise stipulated, these


elements are presumed to exist. Hence, in a contract of
sale, warranty against eviction and warranty against
hidden defects are presumed to exist.

3.

Accidental elements - Those agreed upon by the


parties like agreement to pay in five (5) equal installments.

Agreement between a man and a woman, both between 18


and 21 years old, not to seek parental consent is unlawful and
contrary to good customs. Likewise an agreement between a man
and a woman, both between 21 and 25 years old, not to seek
parental advice is also unlawful and contrary to good customs. In
the Philippines, seeking the advise and consent of parents before
marriage and if the parties are within the ages prescribed in the
New Family Code is an established custom.

GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS

INTRODUCTION TO LAW

92

PUBLIC ORDER

is not contrary to law, morals, good customs, public order


and public policy. (Art. 1306, NCC)

Agreement to have a live performance of nude dancers in Plaza


Miranda is contrary to morals, public order and public policy.

6.

PUBLIC POLICY

Agreement exempting a public utility bus operator and the


driver from liability in case of accident arising from gross negligence
is contrary to law and public policy.
4.

BASIC PRINCIPLES TO REMEMBER ABOUT CONTRACTS


l.

As a rule, contracts are perfected by mere consent. (Art.


1315, NCC)

2.

The contracting parties are bound by the contract they


have entered into. (Art. 1318, NCC)

3.

As a rule, a contract ta~s effect only as between the


parties, their assigns and heirs subject to the foliowing
exceptions:
(a)

(b)
4.

Except in case where the rights and obligations


arising from the contract are not transmissible by
their nature or by stipulation and by provision of
law (Art. 1311, NCC); and
Except where there is a stipulation in favor of a
third person.

If there is a stipulation in favor of a third person


(Stipulation Pour Autrui), the foliowing requisites must
be complied with:

As a rule, an unauthorized person cannot enter into a


contract in the name of another. If he wants to do so, the
following are required:
'
(a)

He must be duly authorized by the person whom


he represents, either expressly or impliedly;

(b)

He must have a right to represent said person;

(c)

The contract entered into by him must be subsequently ratified by the person he represents. (Art.
1317, NCC)

7.

Obligatins arising from contract have the force of law


between the contracting parties and should be complied
with in good faith. (Art. 1159, NCC)

8.

Contracts are obligatory in whatever form they may have


been entered into, provided that ali the requisites for
their validity are present. If a certain form is required
by law, that requirement is absolute and indispensable.
(Art. 1356, NCC)

9.

Any third person who induces another to violate the


contract shall be liable for damages to the other
contracting party. (Art. 1314, NCC)

10.

In order to judge the intention of the contracting parties,


their contemporaneous and subsequent acts shali be
principaliy considered. (Art. 1317, NCC)

(a)

The contracting parties must have clearly and


deliberately conferred a favor upon a third person;

(b)

A mere incidental benefit or interest of a person is


not sufficient;

(a}

A third person must communicate his acceptance


to the obligor before the revocation of the contract
or of the stipulation by the originai parties. (Art.
1311, 2nd paragraph)

Artic e 1315 -:refersto consensual contracts like a contract of


sale. This kind of contract is perfected by mere consent. From the
moment of perfection, the parties are bound not only to the
fulfiliment of what have been expressly stipulated but also to ali
the consequences which, according to their nature may be in keeping
with good faith, usage and law.

(c)

5.

93

The parties to a contract may stipulate on anything


provided that the terms and conditions they have agreed

EXPLANATIONS

A~A~.6-,-CON-~CTS ARE PERFECTED


ex
B MERE CONSEN"!) ---"" -< . 9 . ""'et<~

J'U.f,P

94

INTRODUCTION TO LAW

GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS

As already
ed, a real contract is not perfected by mere
o~<,'-t\
,,..
uc,
Cf./\
ocv\:."j t.t
consent but b delivery.
-/

.J

~---~-----..

'iO'jl'

Formai con
must comply with a s ecial fo
-e'fu:t: i t
can be perfected. For instance, if X will donate
o Y in or~ e . ,
that the latter can build a chapel in said lot, the donation must be
~
in a public instrument.
vtw.W
(b)

THE CONTRACTING PARTIES ARE BOUNO BY THE CONTRACT THEY HAVE ENTEREO INTO (ART. 1318, NCC)

The reason why a party entered into a contract is precisely to


have an evidence or proof of what they have entered into. Without
the consent of the other contracting party, one cannot just abandon
what has already been agreed upon simply because his friend
advised him that it is not beneficiai to him or that he wants it to
be changed by another term he wants. If this is allowed or tolerated
a contract will be a useless formality and that there will be more
confusion and misunderstanding between the parties. Such is not
the reason why parties entered into a contract.
(c)

(e)

pa<>

Article 1317 does not state whether the person entering into
a contract in the name ofthe other is an agent. lt merely says: "No
one may contract in the name of another without being authorized
by the latter, or unless he.has by law a right to represent him."
Assuming however, that the one entering into a said contract
is an agent acting for and in behalf of a certain principal, then the
following rules shall apply:

A sells his car to B and they executed a Deed of Sale to


evidence the same. Article 1311 says that said contract takes effect
only as between A and B, their assigns and heirs. Other relatives,
not being privies to the contracts, are not therefore bound by the
said contract of sale.

(d)

THE PARTIES TO A CONTRACT MAY STIPULATE ON


ANYTHING PROVIOEO THAT IT IS NOT CONTRARY TO LAW,
MORALS, GOOO CUSTOMS, PUBLIC OROER ANO PUBLIC
POLICY

This has been already discussed in this book.

NO ONE MAY CONTRACT IN THE NAME OF ANOTHER


WITHOUT AUTHORITY

Article 1317 should be construed in relation to Article 1897.

AS A RULE, A CONTRACT TAKES EFFECT ONLY AS


BETWEEN THE PARTIES, THEIR ASSIGNS ANO THEIR HEIRS

If before the delivery of the car, A dies, and it turns out that
the car sold by A to B is a car stolen by A from Y, the real owner, B
cannot compel the son of A to deliver the car for even during the
lifetime of A, he has clearly no right of ownership and possession.
The son of A, even if he likes to deliver the car to B, cannot do so
for he has equally no right whatsoever to the car.

95

(f)

l.

lf the agent acts with authority and in behalf of the


principal, the transaction is valid and the principal is
bound. The agent is not personally liable unless he
deliberately binds himself. (Art. 1897, NCC)

2.

If the agent acts with authority but not in behalf of the


principal and he acts of himself, the principal is not
bound, except if the transaction involves things belonging
to the principal.

3.

If the agent acts without authority but in behalf of the


principal, the transaction is unenforceable. (Art. 1403)
However, such transaction may be ratified. If ratified,
the transaction is valid from the very beginning. (Art.
1883, 2nd paragraph).

4.

If the agent acts without authority and in behalf of


himself, the transaction is valid whether or not the
subject matter belongs to the principal, provided that the
agent can legally transfer the ownership of the thing a t
the time of delivery. Otherwise, the agent will be held
liable for eviction.

OBLIGATIONS ARISING FROM CONTRACT HAVE THE


FORCE OF LAW BETWEEN THE CONTRACTING PARTIES
ANO SHOULO BE COMPLIEO WITH IN GOOO FAITH

If A leases his apartment to B and they executed a formai


contract of lease, there are rights and obligations rising from the
sai d contract. A, the lessor, is duty-bound to yield possession of his
apartment to B and in return B shall pay A the agreed rentals for
the use of the leased premises. Each one of them has a duty and
obligation to comply with said contract in good faith.

c'('-'
hf)

fo<M
INTRODUCTION TO LAW

96

(g)

/Jr-

l/l~

'J,.t!N

b &~c
GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS

OBLIGATIONS DERIVED FROM LAW ARE NOT PRESUMED

auction and entry is made by the auctioneer in his sales


book, a t the time of the sale, of the amount and kind of
property sold, terms of sale, price, names of the purchasers and person on whose account the sale is made,
it is a sufficient memorandum.

Legai obligations must be clearly expressed in the law which


creates lt for they cannot merely be presumed.
(h)

CONTRACTS ARE OBLIGATORY IN WHATEVER FORM THEY


MAY HAVE BEEN ENTERED INTO, PROVIDED THAT ALL THE
REQUISITES FOR THEIR VALIDITY ARE PRESENT

As a rule, ali contracts are valid regardless of form, provided


that ali the essential requisites for their validity are present.
However, when a specific form is required for their validity, then
that form should be obse11red.
A form may be importiil\t for enforceability. Hence, Article 1403
of the New Civil Code pro-rides as follows:
:

97

(e)

An agreeme:p.t for the leasing for a longer period than


one year, or for the sale of real property or of an interest
therein.

(f)

A representation as to the credit of a third person.

3.
Those where both parties are incapable of giving
consent to a contract.
A form may be important for convenience. Hence, Article 1358
ofthe New Civil Code provides as follows:

l~l

''Art. 1403. The following contracts are unenforceable,


unless they are ratified:

"Art. 1358. The following must appear in a public


document:

l.
Those entered into the name of another person by
one who has been given. no authority or legai representation,
or who has acted beyond his powers;

l.
Acts and contracts which have for their object the
creation, transmission, modification or extinguishment of real
rights over immovable property; sales of real property or of
an interest therein are governed by Articles 1403, No. 2, and
1405;

2.
Those that.d not comply with the Statute ofFrauds
as set forth in this number. In the following cases, an
agreement hereafter made shall be unenforceable by action,
unless the same, or some note or memorandum thereof, be in
writing, and subscribed by the party charged, or by his agent;
evidence, therefore, f the agreement cannot be received
without the writing, or a secondary evidence of its contents:
(a)

An agreement that by its terms is not to be performed


within a year from the making thereof.

(b)

A special promise to answer for the debt, default, or


miscarriage of another.

(c)

An agreement made in consideration of marriage, other


than a mutuai promise to marry.

(d)

An agreement for the sale ofgoods, chattels or things in


action, at a price not less than five hundred pesos
(P500.00), unless the buyer accepts and receives part of
such goods and chattels, or the evidences, or some of
them, of such things in action, or pays at the time some
part of the purchase money; but when a sale is made by

2.
The cession, repudiation or renunciation of hereditary rights or of those of the conjugal partnership cf gains;
The power to administer property, or any other
3.
power which has for its object an act appearing or which
shouid appear in a public document, or should prejudice a third
person;
4.
The cession of actions or rights proceeding from an
act appearing in a public document.
Ali other contracts where the amount involved exceeds five
hundred pesos (P500.00) must appear in writing, even a private
one. But sales of goods, chattels, or things in action are governed
by Articles 1403, No.2 and 1405.
(i)

ANY THIRD PERSON WHO INDUCES ANOTHER TO VIOLATE


THE CONTRACT SHALL BE LIABLE FOR.DAMAGES TO THE
OTHER CONTRACTING PARTY

A third person, if not a party or a privy to the contract, has

INTRODUCTION TO LAW

GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS

no interest therein whatsoever. This artide (Art. 1314, NCC),


penalizes said third person for damages if he induces another to
violate 'his contract.

"An obligation is a juridical relation whereby a person (called


the creditor) may demand from another (called the debtor), the
observance of a determinate conduct (the giving, doing or not doing),
and in case of breach, may demand satisfaction from the asseta of
the latter."

98

O)

IN OROER TO JUOGE THE INTENTION OF THE CON


TRACTING PARTIES, THEIR CONTEMPORANEOUS ANO
SUBSEQUENT ACTS SHALL BE PRINCIPALLY CONSIOEREO

When the terms and conditions are clear and they leave no
doubt as to the intention of the contracting parties, the literal
m!;)aning of the stipulations shall contro!. The evident intention of
the parties prevails over the wordings of the contract. In order to
judge this intention, the contemporaneous and subsequent acts of
the parties shall be principally considered. (Art. 1314, NCC)

6.

99

SOURCES OF OBLIGATION

Obligation may arise from: (l) law; (2) contracts; (3) quasicontracts; (4) acts or omissions punished by law; and (5) quasidelicts. (Art. 1157, NCC)

Obligations arising from law are those expressly provided in


the New Civil Code or in speciallaws. These are demandable. (Art.
1158, NCC)

Rules in the interpretation of the contracts are enumerated


on Articles 1370 to 1379 of the New Civil Code. Rule 130 of the
Revised Rules of Court shall supplement the foregoing rules.

Obligations arising from contracts have the force of law


between the contracting parties and should be complied with in
good faith. (Art. 1159, NCC)

5.

Obligations arising from criminal offenses are governed by


penallaws subject to the provisions ofArt. 2177 and of the pertinent
provisions of Chapter 2, Preliminary Title on Human Relations,
Title XVII of the New Civil Code. (Art. 1161, NCC)

CONCEPT OF OBLIGATION

There was a time when an obligation was classified into


obedential and conventional. Obedential obligations are those
imposed by the wili_ o:LGo.d-or_t.h~--~li':"__()_LN~tu.re. Conventional
obligations are those resulting from the will or ~f-.-the__
., contracting parties. This is how seventeenth century civilians

Obligations arising from quasi-contracts shall be subject to


the provisions of Chapter l, Title XVII of the New Civil Code.

cia8-~illedohHgtion8~

7.

In Roman Law, an obligation arises when one binds himself


to give (DARE) or to perform any duty stipulated (PRAESTARE).
As used in Roman Law, an obligation is a tie or a bond (vinculum
juris) which binds or holds two or more persons together, creating
both a duty and a right, the duty of the debtor to pay, and the
right of the creditor to be paid.

From the viewpoint of the subject matter of the obligation, i t


may either be:

Under the New Civil Code, an obligation is now defined as "a


juridical necessity to give, to do or not to do. (3)" This definition,
however, has been criticized as defective because it views obligations
only from the side ofthe debtor.
The better definition of obligation, according to retired Justice
J.B.L. Reyes, is that given by Arias Ramos, (4) thus:

8.

NATURE ANO EFFECTS OF OBLIGATIONS

l.

A Real Obligation to give a specific thing or to give a


generic thing; or

2.

A Personal Obligation to do or not to do.

OBLIGATION OF A PERSON OBLIGEO TO GIVE SOMETHING

A person obliged to give something has the following obligation:


l.

He is obliged to take care of i t with the proper diligence


of a good father of a family, EXCEPT if the law or
stipulation of the parties requires another standard of
care. (Art. 1163, NCC)

100

GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS

INTRODUCTION TO LAW

3.

NOTES:
l.

If the parties have agreed on the kind of diligence to be


observed, that which is stipulated shall be observed.

2.

If there is no agreement, the proper diligence of a good


father of a family shall be observed.

3.

If the law requires that a specific kind of diligence shall


be observed, this prevails over any kind of agreement.
EXAMPLE: A stipulation that JD Transit, Inc., will carry
its passengers by using ordinary diligence is void for the
law specifically requires that a common carrier shall
carry its passengers "safely as far as human care and
foresight can provide, using the utmost diligence of very
cautious persons, with due regard forali circumstances."
(Art. 1755, NCC)

9.

OBLIGATION TO GIVE A DETERMINATE THING

A thing is specific or determinate when it is capable of particular designation.

When the nature of the obligation requires the assumption of risk. (Art. 1174, NCC)

EXAMPLE:
l.

'

X is obliged to give Y this book. Before X can deliver it


to Y, his library was burned and said book was likewise
burned. Here, the obligation to deliver is extinguished.
The obligation to deliver a generic thing is not
extinguished by fortuitous events.

2.
12.

X is obliged to give Y a ballpen. If said ballpen is lost, it


can be replaced by another ballpen.

EFFECT OF OBLIGATION

If a person obliged to do something fails to do it, or if he does


it in contravention of the tenor of the obligation, the effects are as
follows:

The obligation to give a determinate thing includes the


obligation to deliver ali its accessions and accessories, even though
they may not have been mentioned. (Art. 1166, NCC)
10. WHEN IS A THING SPECIFIC OR DETERMINATE ANO WHEN
IS IT GENERIC OR INDETERMINATE?

101

13.

l.

The obligation shall be executed at his cost (debtor's cost);

2.

It may be decreed that what has been poorly done be


undone. (Art. 1167, NCC)

EFFECT OF OBLIGATION NOT TO DO

If the obligation consista in not doing, and the obligor does


what has been forbidden him, it shall be undone at his expense.
(Art. 1168, NCCJ

EXAMPLE: This Toyota Corolla Car with Plate No. NLX-844.


A thing is generic or indeterminate when it refers to a class
and cannot be pointed out with particularity.
EXAMPLE: A house.
11.

EFFECT OF OBLIGATION TO DELIVER A SPECIFIC THING


ANO A GENERIC THING

There is a great difference. The obligation to deliver a specific


thing is extinguished by a fortuitous event, EXCEPT in the
following cases:
l.

When expressly provided by law;

2.

When expressly agreed upon by the parties;

14.

DEBTOR IS IN DEFAULT FROM THE TIME OF DEMAND

Those obliged to deliver or to do something are in default from


the time of demand, judicial or extra-judicial. Without this demand,
the debtor is not in default.
In the foliowing instances, however, demand is not needed:
l.

When the obligation expressly so provides;

2.

When the law expressly so provides;

3.

When time is of the essence of the contract;

4.

When demand would be useless, as when the obligor has


rendered it beyond his power to perforni. (Art. 1169, NCC)

102

INTRODUCTION TO LAW

GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS

15. EFFECT IF THERE IS FRAUD, NEGLIGENCE OR DELAY

Those who in the performance of their obligations are guilty


of fraud, negligence or delay, and those who in any manner
contravene the tenor thereof, ARE LIABLE FOR DAMAGES.

3.

Moral damages

For moral anguish, besmirch~ sleepless nights, serious anxiety,


etc.

2.

Exemplary damages

To deter others fronLCOlJlmi@!!g the same !!.et.

3.

Actual damages

To compensate the aggrieved party for actual losses


suffered.

4.

Liquidated damages

Damages agreed upon by


the parties.

5.

Temperate

When the exact amount of


damages cannot be d~
mined.

6.

Nominai

To vindicate a right. The


ass~ent of nominai
damages is left to the discretion of the court.

17. RESPONSIBILITY ARISING FROM FRAUD (DOLO)

18.

l.

It is demandable in ali obligations. Any waiver of an


action for future fraud is void. (Art. 1171, NCC)

2.

Liability due to fraud cannot be reduced by the courts.

3.

There is deliberate intention to cause damage.

RESPONSIBILITY ARISING FROM NEGLIGENCE (CULPA)


l.

It is also demandable but such liability may be regulated


by the courts according to the circumstances.

2.

It can be reduced in certain cases.

There is no deliberate intention to cause damage.

19. KINDS OF CULPA (NEGLIGENCE)

16. KINDS OF DAMAGES


l.

103

20.

l.

Culpa contractual or Contractual negligence.

2.

Culpa aquiliana or Quasi-delict.

3.

Culpa criminal or Criminal negligence.

<l

DISTINCTIONS

CULPA
CONTRACTUAL

CULPA AQUILIANA l CULPA CRIMINAL

(a) There is a pre- (a) There is no p re-~ (a) There is a pre-existexisting obligation.
ing obligation.
existing obligation
(a contract, either
expressed or implied)
(b) Preponderance l(b) Preponderance of,(b) The crime m.ust be
of evidence is
evidence is needed.
proven beyond rearequired.
sonable doubt.
(c) Defense of a good (c) Defense of a good (c) This defense cannot
father of a family
father of a family in
be interposed. If the
in the selection
the selection of the
employee is insoland supervision of
employees is a provent or incapable to
employees is not
per defense of the
pay the civil aspect
proper and comemployer.
or liability, the emplete defense but
ployer is subsidiarthis can mitigate
ily liable.
liability for damages.
(d) The existence of a (d) The negligence ofl(d)
contract must be
the defendant must
proved. If it is
be proven.
proved and it is
also proven that
the contract was
not complied with,
it is presumed
that the debtor is
at fault.

The innocence of
the accused is presumed until the
contrary is proved.

104

21.

INTRODUCTION TO LAW

GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS

IS A PERSON RESPONSIBLE FOR THOSE EVENTS WHICH


COULD NOT BE FORESEEN, OR WHICH THOUGH FORESEEN ARE INEVITABLE?

. (b) I will give you my car today but if you fail in the

bar examinations to be given in September 2003, I


will be the owner of the tar aga:in. In this example,
the condition is a resolutory on~ because the
happening of the condition e~tinguishes the
obligation.

As a rule, there is no liability for a fortuitous event (that which


could not be foreseen, or which even if foreseen was inevitable)
EXCEPT IN THE FOLLOWING CASES:

22.

l.

When expressly specified by law;

2.

When expressly stipulated by the parties; and

3.

When the nature of the obligation requires the assumption of risk.

KINDS OF OBLIGATION

l.

Pure obligation as distinguished from conditional


obligation.

2.

Alternative obligation as distinguished from facultative


obligation.

3.

Joint obligation as distinguished from solidary obligation.

4.

Divisible obligation as distinguished from indivisible


obligation.

5.
23.

3.

EXAMPLE:

'!{~

I will give you any of tpe following: My 24 karat


gold ring worth P30,000.d'O~ or my Lancer car, 1978
model, worth P30,000.00, .01"" my residential lot in the
province worth P30,000.00. In this example, I can give
any of the three properties I have mentioned and if I
give one of them, I have complied with the obligation.

ii

',f.

4.

2.

I promise to give Marie my 14 karat gold ring worth


P15,000.00 but it is agreed that I could give her a secondhand car with the same value as a substitute.
5.

Pure obligation - lt is an obligation without a


condition or a term and therefore, it is demandable at
once.

X and Y borrowed P1,000.00 from A and it is agreed


that they are joint debtors of A. X will only be liable to
pay P500.00. This is so because they are joint debtors.

Conditional obligation - It is one with a condition.

(a)

I will give a car to you if you pass the bar examinations in September 2003. In this example, the
condition is a suspensive one because the giving of
the car depends on the results of the examination
to be given in September 2003.

. Joint obligation - In a joint obligation, an obligor


answers only for a part of the entire liability.
EXAMPLE:

I promise to pay you P100.00 upon demand.

EXAMPLES:

Facultative obligation "'- It is one where only one


presentation has been agreed upon but the obligor may
render another in substitution.
EXAMPLE:

Obligation with a penai clause.

EXAMPLE:

Alternative obligation - It is one where out of the


two (2) or more pre~entations which will be given, only
one is due.

DEFINITION ANO ILLUSTRATION

l.

105

r
!;

6.

Solidary obligation - It is done where both or ali of


the debtors are liable for the whole liability they have
incurred.

i'

EXAMPLE:
:f!

X and Y borrowed P1,000~00 fror.J. A and it is agreed


that they are solidary debtors. X can be held liable for

106

INTRODUCTION TO LAW

7.

3.

By the condonation or remission of the debt;

4.

By the confusion or merger of the rights of creditor and


debtor;

Divisible obligation - A divisible obligation is an

5.

By compensation;

6.

By novation.

EXAMPLE:

A agreed to deliver 500 kilos of rice to B. Here, the


subject matter is capable of partial performance in the
sense that the parties may agree that A will deliver 250
kilos of rice today and another 250 kilos of rice tomorrow.

Indivisible obligation - It is an obligation which is


not capable of partial performance.
EXAMPLE:

A agreed to deliver DX Toyota Corolla to Y. Here,


the subject matter is not capable ofpartialperformance
because the car cannot be divided into two.
9.

Obligation with a penai cause- In obligations with


a penai clause, the penalty shall substitute the indemnity
for damages and the payment of interest in case of noncompliance.
EXAMPLE:

X agreed to finish the painting job of the Cultural


Center Building within sixty (60) days. It was stipulated
that in case of delay, X will be liable to pay a penalty of
Pl,OOO.OO per day of delay. If it turns out therefore that
X fails to finish the painting job within sixty (60) days
and i t was only on the 65th day that he finished the job,
X will be liable to pay a penalty of P5,000.00.
24.

107

the whole Pl,OOO.OO and so with Y. The creditor can run


against both or against any one of them because they
are solidary debtors.
obligation which is capable of partial performance.

8.

GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS

EXTINGUISHMENT OF OBLIGATIONS

Obligations are extinguished by any of the following reasons:


Art. 1231. Obligations are extinguished:
l.

By payment or performance;

2.

By the loss of the thing due;

Other causes of extinguishment of obligations, such as annulment, rescission, fulfillment of a resolutory condition, and prescription, are governed elsewhere in this Code.

SPECIAL CONTRACTS

Chapter X

(b)

Article 1544, New Civil Code

l.

Definition

2.

Basic principles to remember

3.

Necessary formalities in creating a partnership

4.

Kinds of partnership

IMPORTANT TOPICS IN THIS CHAPTER:

II.

Article 1916, New Civil Code

III. PARTNERSHIP

SPECIAL CONTRACTS

I.

(a)

109

SALE

(a)

Generai partnership

(b)

Limited partnership

l.

Definition of a contract of sale

(c)

Universal partnership

2.

Essential elements of a contract of sale

(d)

Particular partnership

3.

Form of a contract of sale

5.

Kinds of partners

4.

Brief discussion of the essential requisites

6.

Definition

5.

Requisites of a valid subject matter

6.

Obligations of the seller

7.

Obligations of the buyer

Iv.

AGENCY

LOAN
l.

Definition

2.

Kinds of loan

3.

Basic principles to remember

l.

Definition

2.

When is a contract of agency perfected?

l.

Definition

3.

Acceptance of agency between persons who are present


and between persons who are absent

2.

Provisions common to pledge and mortgage

3.

Distinction between pledge and real mortgage

4.

Basic principles of agency

4.

Distinction between real mortgage and chattel mortgage

5.

Obligations of the agent

6.

Obligations of the principal

7.

Cases when the principal is not liable for expenses


incurred by agent

8.

lmportant articles to remember

V.

PLE.DGE AND MORTGAGE

:~'
.)

108

VI. ANTICHRESIS
l.

Definition

2.

Distinction between pledge and antichresis

3.

Distinction between antichresis and mortgage

4.

Basic principles

INTRODUCTION TO LAW

110

SPECIAL CONTRACTS

VII. COMMON CARRIERS


l.

Definition

2.

Criteria as to whether a carrier is common or private

3.

Vigilance required of a common carrier

4.

Extraordinary vigilance over the goods

5.

Extraordinary diligence for the safety of passengers

DISCUSSION
The author has chosen to cover only the contracts discussed
in this chapter on account of their usefulness and importance in
day-to-day life. Everyday, contracts of sale, agency, partnership,
loan, pledge, mortgage and transportation are usually heard and
encountered not only by lawyers but also by laymen. 1t is therefore
important for a beginner in the study of law to have a basic and
working knowledge of the above-mentioned contracts by way of
preparing them to a deeper and more det:iiled study of law.

I. SALE
1.

DEFINITION OF A CONTRACT OF SALE

Contract of sale is a contract whereby one of the contracting


parties obligates himself to transfer the ownership of an d to deliver
a determinate thing, and the other to pay therefore a price certain
in money or its equivalent. (Art. 1458, NCC)
2.

ESSENTIAL ELEMENTS OF A CONTRACT OF SALE

The essential elements of a contract of sale are as follows:

CODE: C-S-C
C- onsent
S - ubject matter
C-ause

3.

111

l.

Consent or meeting ofthe minds - The vendor agrees


to sell and transfer ownership of his property to the
vendee in return for the price the latter agrees to pay
the vendor.

2.

Subject matter - The subject matt~r of the contract


must be specific. If the parties have not agreed on the
subject matter of their transaction, they have no meeting
of the minds.

3.

Cause or consideration - The price may be in the form


of money or its equivalent, as stated in the last sentence
of Art. 1458. Therefore, a check or a promissory note may
suffice instead of cash.

FORM OF A CONTRACT OF SALE

No particular form is needed to make a contract of sale valid


as. between the parties. For as long as ali the essential requisites
for its validity are present, a contract of sale shall be valid and
obligatory, regardless of its form. Therefore, a contract of sale may
either be oral or in writing.
However, there are contracts of sale which must be in writing
like a sale of a "piece of land or any interest therein," or a sale of
personal property if the price is P500.00 or more, or a sale which
will be performed only after a period of more than one (l) year
from the execution of the agreement.
Hence, the following articles ofthe New Civil Code provide as
follows:
~rt. 1874. When a sale of a piece of land or any interest
therein is through an agent, the authority of the latter shall
be in writ~ng; otherwise, the sale shall be void."

"Art. 1403. The following contracts are unenforceable,


unless they are ratified:
l.
Those entered into the name of another person by
one who has been given no authority or legai representation,
or who has acted beyond his powers;

2. Those that do not comply with the.Statute ofFrauds


as set forth in this number. In the following cases, an
agreement hereafter made shall be unenforceable by action,

SPECIAL CONTRACTS

INTRODUCTION TO LAW

112

EXAMPLES:

unless the same, or some note or memorandum thereof, be in


writing, and subscribed by the party charged, or by his agent;
evidence, therefore, of the agreement cannot be received
without the writing, or a secondary evidence of its contents:
(a)

An agreement that by its terms is not to be performed within a year from the making thereof;

(b)

A special promise to answer for the debt, default,


or miscarriage of another;

(c)

An agreement made in consideration of marriage,


other than a mutuai promise to marry;

(d)

An agreement for the sale of goods, chattels or


things in action, at a price not less than five hundred pesos (P500.00), unless the buyer accept and
receive part of such goods and chattels, or the
evidences, or some of them, of such things in action,
or pay a t the time some part of the purchase money;
but when a sale is made by auction and entry is
made by the auctioneer in his sales book, at the time
of the sale, of the amount and kind of property sold,
terms of sale, price, names of the purchasers and
person on whose account the sale is made, it is a
sufficient memorandum;

(e)

An agreement for the leasing for a longer period


than one (l) year, or for the sale of real property or
of an interest therein;

(f)

A representation as to the credit of a third person.

3.
Those where both parties are incapable of giving
consent to a contract.

l.

When A sells his car to B and they are facing each other
when B agreed to pay PlO,OOO.OO, the price asked by A,
the contract of sale is perfected from the moment A
accepted the offer of B unconditionally..

2.

A placed an advertisement in a newspaper to sell his car.


B, an interested buyer, called by telephone and told him
that he is amenable to pay the price asked by A without
condition. From that moment, there is a perfected contract of sale.

3.

A wrote a letter to B and offered to sell his car to him.


Upon receipt of said letter, B wrote a letter reply
accepting the offer of A and which letter was received by
A on February l, 2002 at 7:00 p.m. Before receiviilg the
letter, however, A wrote a letter to B and informed him
that he is withdrawing his offer. Here, there is no
perfected contract of sale because prior to the date and
time A received B's letter of acceptance, he had already
withdrawn his offer. Clearly, A has already withdrawn
his offer before he knew of the acceptance. Therefore,
there is no meeting of the minds.

SUBJECT MATTER - The subject matter of the contract


of sale must be specific or determinate, not generic or indeterminate.
As already stated in the last chapter, a specific thing is a thing
which can be designated with particularity.
Future things may be the object of sale provided they are
already in existence a t the time of the perfection of the contract.
5.

4.

113

REQUISITES OF A VALlO SUBJECT MATTER

BRIEF DISCUSSION OF THE ESSENTIAL REQUISITES

l.

The subject matter must be specific or determinate.

CONSENT - A contract of sale is perfected at the moment


there is a meeting of minds and therefore it is perfected by mere
consent. Delivery of payment is not essential for the perfection of a
contract of sale.

2.

The subject matter must be lawful.

3.

The seller must have the right to transfer the ownership


thereof at the time of delivery.

More specifically, the contract of sale is perfected at the


moment there is a meeting of the minds upon the thing which is
the object of the contract and upon the price. (Art. 1475, 1st par.)

CAUSE OR CONSIDERATION - Witho:ut a lawful cause


or consideration, the contract of sale is void. The cause in a contract
of sale is a price certain, in money or its equivalent.

INTRODUCTION TO LAW

114

6.

SPECIAL CONTRACTS

OBLIGATIONS OF THE SELLER

2.

The principal obligations of the seller are as follows:

Agency is perfected by the meeting of the offer and acceptance


upon the thing and the cause which are to constitute the contract.
(Art. 1319, New Civil Code)

l.

To deliver the determinate object of the contract;

2.

To transfer its ownership;

3.

To warrant (against eviction and against hidden defects);

4.

To pay for the expenses of the deed of sale; and

5.

To preserve the thing from the moment of perfection up


to the time of delivery.

WHEN IS A CONTRACT OF AGENCY PERFECTED?

Acceptance must be made expressly or impliedly. It may be


implied from the acts of the agent, from his silence and from his
inaction according to the circumstances. (Art. 1870, NCC)
3.

ACCEPTANCE OR AGENCY BETWEEN PERSONS WHO ARE


PRESENTANO BETWEEN PERSONS WHO ARE ABSENT
l.

7.

l.

To accept delivery; and

2.

To pay the price the contract.

Between persons who are present - The acceptance


of a person may also be implied if the principal delivers
his power of attorney to the agent and the latter receives
it without any objection.

OBLIGATIONS OF THE BUYER

The principal obligations of the buyer are as follows:

2.

Between persons who are absent - The acceptance


of the agency cannot be implied from the silence of the
agent, except:

at the time and piace stipulated in

(a)

When the principal transmits his power of attorney


to the agent, who receives it without any objection.

(b)

When the principal entrusts to him by letter or


telegram a power of attorney with respect to the
business in which he is habitually engaged as an
agent, and he did not reply to the letter or telegram.

II. AGENCY
1.

115

DEFINITION

Artide 1868 of the N ew Civil Code defines agency as a contract


whereby a person binds himself to render some service or to do
something in representation of or in behalf of another with the
consent or authority of the latter.
In Rallos vs. Go Chan & Sons Realty Corporation, et al., G.R.
No. L-24332, January 31, 1978, agency was defined as "a relationship between two parties whereby one party called the principal,
authorizes another, called the agent, to act for and in his behalf in
transactions with third persons."
Artide 1868 gives the impression that the agent must always
expressly represent the principal. This, of course, is not necessarily
true for there are cases when the agent acts in behalf of himself
and yet the principal would stili be bound such as when the contract
involves things belonging to the principal.

4.

BASiC PRINCIPLES OF AGENCY


l.

It has the following characteristics:

(a)

It is a consensual, bilatera!, nominate, principal and


preparatory contract;

(b)

lt is consensual because it is perfected by mere


consent except when it involves the sale of land or
any interest therein. It is bilatera! because the
principal and the agent have reciproca! obligations.
It is nominate because it has a name designated by
law. It is principal because it can exist by itself
without depending on another contract. It is preparatory because a contract of agency is preparatory
to 1:1. subsequent contract.

INTRODUCTION TO LAW

116

2.

3.

The appointment of an agent by the principal is based


on trust. Therefore, the agent is expected to act within
the scope of his authority and to act in behalf of his
principal.
As already explained above, a situation may arise when
the agent is authorized by the principal but he acts in
behalf of himself. It is also possible that the agent is not
authorized but he acts in behalf ofhis principal. Because
of these possibilities the foliowing situations may arise,
to wit:

(a)

(b)

(c)

(d)

S.

SPECIAL CONTRACTS

The agent acts with authority and in behalf of


the principal - The transaction is valid and the
principal is bound by the acts of the agent. The
agent assumes no personal liability unless he
deliberately bound himself.
The agent is authorized by the principal but
he acts in behalf of himself, not in behalf of
the principal - As a rule, the principal is not
bound by the acts of the agent except if it involves
things belonging to the principal.
The agent acts without authority but in behalf
of the principal The transaction is
unenforceable but i t may be ratified. If ratified, the
contract is validated from the very beginning.
The agent acts without authority and in his
own behalf - The transaction is valid, whether
or not the subject matter belongs to the principal
provided that the agent can legaliy transfer the
ownership of the thing at the time of delivery.
Otherwise, he will be held liable for eviction.

6.

117

Art. 1886.

To advance necessary funds, if stipulated, except


if principal is insolvent;

Art. 1887.

To act in accordance with the instructions of the


principal (in default thereof, he shali do ali that
a good father of a good famiy would do, as
required by the nature of the business);

Art. 1888.

Not to carry out the agency ifits execution would


manifestly result in loss or damage to the
principal;

Art. 1889.

To be liable for damages, if there being a conflict


between his interest and that of the principal,
he prefers his own;

Art. 1891.

To render an account of his transaction and to


deliver to the principal whatever he may have
received by virtue of the agency even though it
may not be owing to the principal (stipulation
exempting the agent from this obligation is
VOID).

OBLIGATIONS OF THE PRINCIPAL- (From Arts. 191 Oto 1913)

CODE: CARI

C- omply
A- dvance
R- eimburse
I - ndemnify

Art. 1910.

To comply with ali the obligations which the agent


may have contracted within the scope of his
authority.

Art. 1912.

To advance to agent, iflatter requests (1st par.)


sums necessary to execute the agency.

OBLIGATIONS OF THE AGENT

Art. 1881.

To act within the scope of his authority;

Art. 1912.

Art. 1884.

To carry out the agency and be liable for damages


in case of non-performance; and to finish the
business already begun on the death of the
principal, should delay entail any danget;

To reimburse the agent for all advances he (2nd


par.) made, even if business was not successful
(provided agent is free from ali fault).

Art. 1913.

To indemnify the agent forali damages which the

execution of agency may have caused the agent,


without his fault or negligence.

7.

119

CASES WHEN PRINCIPAL IS NOT LIABLE FOR EXPENSES


INCURRED BY AGENT

(b)

To the first possessor in good faith, if there is no


inscription; and

Art. 1918, provides as follows:

(c)

To the person who presenta the oidest titie, ifthere


is no first registrant and first possessor in good
faith.
'

l.

8.

SPECIAL CONTRACTS

INTRODUCTION TO LAW

118

If the agent contravenes instructions of the principai


uniess the Iatter wishes to avail himseif of the benefits
derived from the contract;

2.

When expenses were due to the fauit of the agent;

3.

When the agent incurred them knowing that unfavorabie


resuit wouid ensue, if the principai was not aware
thereof;

4.

When stipuiated that the agent bears the expenses, or


that the agent wouid be allowed oniy a certain sum.

IMPORTANT ARTICLES TO REMEMBER

Art. 1916. When two persons contract with regard to the same
thing, one with the agent and the other with the principai, and the
two contracts are incompatibie with each other, that of prior date
shall be preferred, without prejudice to the provisions of Art. 1544.
Art. 1544. Ifthe same thing shouid have been soid todifferent
vendees, the ownership shall be transferred to the person who may
have first taken possession thereof in good faith, if it shouid be
movabie property.

CODE:RPO

R - egistrant in good faith


P - ossessor in good faith
O - Idest titie

III. PARTNERSHIP
1.

DEFINITION

By the contract of partnership, two (2) or more persona bind


themseives to contribute money, property, or industry to a common
fund, with the intention of dividing the profits among themseives.
It may aiso be formed to exercise a profession. (Art. 1767, New Civil
Code)
2.

Shouid it be immovabie property, the ownership shall beiong


to the person acquiring it who in good faith first recorded it in the
Registry of Property.
Shouid there be no inscription, the ownership shall pertain to
the person who in good faith was first in the possession; and, in
the absence thereof, to the person who presents the oidest titie,
provided there is good faith.

BASIC PRINCIPLES TO REMEMBER


l.

Partnership is based on MUTUAL TRUST by or among


the partners. (delectus personarum)

2.

Like a corporation, i t has a personaiity separate and


distinct from the individuai partners. (Art. 1768, NCC)

3.

The partners may contribute money, property or industry


to common fund.

4.

A partnership may be constituted in any form except


where immovable property or real rights are contributed
thereto, in which case, a public instrument shall be
necessary. (Art. 1771, NCC)

5.

A contract of partnership is void, whenever immovabie


property is contributed thereto, of an inventory of said
property is not made, signed by the parties, and attached
to the public instrument.

PREFERENCE:
l.

IF PROPERTY IS MOVABLE
(a)

2.

To the first possessor in good faith.

IF PROPERTY IS IMMOVABLE
(a)

To the first registrant in good faith;

3.

NECESSARY FORMALITIES IN CREATING A PARTNERSHIP


l.

A contract of partnership having a capitai of P3,000.00


or more, in money or property, shall appear in a public

120

INTRODUCTION TO LAW

instrument and recorded in the Securities and Exchange


Commission. However, even if this is not complied with,
the partnership and the members thereof remain liabie
to third persons. (Art. 1772, NCC)
2.

4.

lf what is contributed is reai property, an inventory


shouid be attached and there must be a public instrument, an inventory of the said property signed by the
parties shouid be made, and this inventory shouid be
attached to the public instrument. If this is not compiied
with, the partnership is void and has no juridicai
personality even as between the parties.

SPECIAL CONTRACTS

5.

KINDS OF PARTNERS

A partner may be a capitalist partner or an industriai partner


insofar as their contribution to the partnership is concerned.
A partner may be a generai partner or a Iimited partner insofar
as liabiiity is concerned.
e

A person may be a managing partner, silent partner, liquidating partner or a secret partner insofar as participation in the
partnership is concerned.
6.

KINDS OF PARTNERSHIP

DEFINITION
l.

Capitalist Partner -

The partner who contributes


money or property to the partnership.

2.

Industriai Partner -

The partner who contributes


his industry.

3.

Generai Partner

A partner who is liabie beyond


the extent ofhis contribution to
the partnership.

4.

Limited Partner

A partner who is liabie oniy to


the extent of his contribution.

5.

Secret Partner

A partner whose connection


with the firm is kept secret.

6.

Silent Partner

A partner who does not participate in the management of


the partnership but who shares
profits or Iosses, as the case
may be.

7.

Liquidating Partner- A partnership who takes charge


of Iiquidating the affairs of the
partnership after its dissoiution.

According to liability, a partnership may be generai or limited:

GENERAL PARTNERSHIP - a partnership where ali the


parties are generai partners who are liabie even to extent of their
individuai properties, after the exhaustion of the partnership assets.
LIMITED PARTNERSHIP- A partnership where one
partner is a generai partner and the others are limited partners. A
Iimited partner is Iiabie oniy to the extent of his contribution.
As to its object, a partnership is either universai or particular:

UNIVERSAL PARTNERSmP- This may referto universai


partnership of ali present property or to a universai partnership of
ali profits.
(a)

(b)

Universal partnership of all present property - A partnership of ali present property is that in which the
partners contribute ali the property which actualiy
beiongs to them to a common fund, with the intention of
dividing the same among themseives, as weli as ali the
profits which they may acquire therewith. (Art. 1779, 1st
par., NCC)
Universal partnership of all profits- Comprises ali that
the partners may acquire by their industry or work
during the existence of the partnership. (Art. 1779, 2nd
par., NCC)

PARTICULAR PARTNERSHIP- A particuiar partnership


has for its object determinate things, their use of fruits, or specific
undertaking, or the exercise of a profession or vocation.

121

Iv. LOAN
1.

DEFINITION

By the contract of Ioan, one of the parties, delivers to another,


either something not consumabie so that the Iatter may use the

SPECIAL CONTRACTS

INTRODUCTION TO LAW

122

same for a certain time and return it, in which case the contract is
called a commodatum; or money or other consumable thing, upon
the condition that the same amount of the same kind and quality
shall be paid, in which case the contract is simply called a loan or
mutuum.

123

(b)

Ownership goes to the borrower.

(c)

It is a loan for consumption.

(d)

It refers to personal property.

(e)

Same amount that was borrowed shall be returned.

Commodatum is essentially gratuitous.


3.

In commodatum, the bailor retains the ownership of the thing


loaned, while in simple loan, ownership passes to the borrower.
(Art. 1933, NCC)
2.

KINDS OF LOAN
l.

Commodatum- One where the bailor (lender) delivers


a non-consumable thing so that the bailee (borrower) may
use it for a certain time and return it.

BASIC PRINCIPLES TO REMEMBER


l.

A contract of loan is a real contract. Therefore, it is


perfected upon delivery of the thing loaded.

2.

Delivery of the thing loaned is essential because the


purpose of the contract is either to transfer its use or its
ownership.

3.

Commodatum is purely personal and the borrower cannot


lend the thing he borrowed to another.

EXAMPLE: A borrowed B's car which he will use


for three (3) days while taking a vacation in Baguio. B
agreed to lend his car to A for free. A should return B's
car.
2.

Mutuum or Simple Loan - One where money or other


consumable thing is loaned with the obligation of paying
the same amount of the same kind and quality.
EXAMPLE: IfA borrowed PlOO.OO from B, A should
return the same amount.

DISTINCTIONS
l.

2.

COMMODATUM

rv. PLEDGE AND MORTGAGE


1.

DEFINITION

Pledge is a real contract whereby one person (called pledgor)


delivers a movable to another (called pledgee) as security for the
principal obligation and with the understanding that when the
obligation is paid or fulfilled, the thing pledged shall be returned
by the pledgor to the pledgee.
Mortgage is a real contract whereby one person (called the
mortgagor) offers his real property as security for the principal
obligation and with the understanding that when the obligation is
paid or fulfilled, the mortgage or encumbrance on the said property
shall be cancelled and released.

(a)

Essentially gratuitous.

(b)

Ownership is retained by the bailor or lender.

(c)

lt is a loan for use or temporary possession.

2.

(d)

It involves real or personal property.

(e)

The same thing that was borrowed shall be returned.

Art. 2085. The following requisites are essential to the


contracts of pledge and mortgage:

MUTUUM
(a)

May be gratuitous or onerous.

PROVISIONS COMMON TO PLEDGE ANO MORTGAGE

l.

That they be constituted to secure the fulfillment of a


principal obligation;

2.

That the pledgor or mortgagor be the absolute owner of


the thing pledged or mortgaged;

124

SPECIAL CONTRACTS

INTRODUCTION TO LAW

3.

the right to receive the fruits of an immovable of his debtor, with


the obligation to apply them to the payment of the interest, if owing,
and thereafter to the principal of his credit x x x."

That the persons constituting the pledge or mortgage


have the free disposal of their property, and in the
absence thereof, that they be legally authorized for the
purpose.

2.

Third persons who are parties to the principal obligation may


secure the latter by pledging or mortgaging their own property.

DISTINCTIONS

PLEDGES
3.

DISTINCTIONS

personal property.

PLEDGE

2. Not applicable (no fruits).

Constituted on real property. l. Constit:uted on personali


property. (Art. 2094)
(Art. 2124)

2. As a rule, mortgage retains 2. The thing pledged must be l


placed in the possession of the
creditor, or of a third person
l
by common agreement.

the property.

Constituted in immovables.

ANTICHRESIS

MORTGAGE

l. The creditor acquires the l. The creditor has no right to

right to receive the fruits of


an immovable of his debtor.

the fruits.

4.

BASIC PRINCIPLES
l.

The amount of the principal and of the interest shall be


specified in writing, otherwise, the contract of antichresis
is VOID. (Art. 2134, NCC)

2.

The actual market value of the fruits at the time of


application thereof to the interest and principal shall be
measured of such application. (Art. 2133, NCC)

3.

The creditor is obliged to pay the taxes and charges


upon the estate unless otherwise stipulated. (Art. 2135,
NCC)

Constituted on movables.
obligation.

VI. COMMON CARRIERS


V. ANTICHRESIS

1.
1.

DEFINITION

Article 2132 of the New Civil Code defines antichresis as


follows: x x x "By the contract of antichresis, the creditor acquires

l
l

2. May guarantee future obliga- 2. Cannot guarantee future


ti on.

2. The creditor has the right to l


the fruits of the immovables.

!~

CHATTEL MORTGAGE
l.

immovable property.

DISTINCTIONS

DISTINCTIONS

REAL MORTGAGE
l.

3.

3. N ot valid against third per- 3. N ot valid against third persons unless a description of
sons i~ not registered. (Art.
2125)
the thing pledged appear in
a public instrument. (Art.
2096, NCC)
4.

ANTICHRESIS

l. Pledge is constituted on l. Antichresis is constituted on

REAL MORTGAGE
l.

12l'l

DEFINITION

Art. 1732 of the New Civil Code defines common catriers as


follows: x x x "Common carriers are persons, corporations, firms or
associations engaged in the business of carrying or transporting

126

SPECIAL CONTRACTS

INTRODUCTION TO LAW

passengers or goods or both, by land, water, or air, for compensation,


offering their services to the public."

COMMON CARRIER

2.

PRIVATE CARRIER

public but only to certain


perso ns.

CRITERIA AS TO WHETHER A CARRIER IS COMMON OR


PRIVATE

lf the carrier is obliged to carry ali persons applying for


passage and there is no legai excuse to refuse, it is a public carrier.
Otherwise, it is a private carrier.
3.

4.

VIGILANCE REQUIRED OF A COMMON CARRIER


l.

It is bound to observe EXTRAORDINARY DILIGENCE


in the vigilance over the goods.

2.

It is bound to observe EXTRAORDINARY DILIGENCE


for the safety of its passengers.

EXTRAORDINARY VIGILANCE OVER THE GOODS

Common carriers are responsible for the LOSS,


DESTRUCTION OR DETERIORATION of the goods unless the
same is due to any of the following causes:
l.

Flood, storm, earthquake, lightning, or other natura!


disaster or calamity;

2.

Act of the public enemy in war, whether international or


civii;

3.

Act or omission of the shipper or owner of the goods;

4.

The character of the goods or defects in the


in the containers;

5.

Order or act of competent public authority.

pac~ing

EXTRAORDINARY DILIGENCE FOR THE SAFETY OF PAS


SENGERS

Art. 1755. Acommon carrier is bound to carry the passengers


safely as far as human care and foresight can provide, using the
utmost diligence ofvery cautious persona, with a'due regard forali
the circumstances.
.

l. A common carrier offers its l. lt is not available to the

services to the public. (Art.


1732, NCCJ

5.

127

or

SUCCESSION

129

DISCUSSION
1.

In the early stages of Roman Lw, the parents wete required


to declare before the Comitia Curiata who were'their ,heirs. Their
sons and daughters, who were acknowledged as sui heredes or under
potestas, have the right to slI.r fri'their estate. Testamentary and
intestate successions were already known to the Romans. As
between these two kinds of successions, however, intestate
succession (ab intestato) was the primitive iilstitution.

Chapter Xl
SUCCESSION

From the concept of intestate succession, the concept of


testamentary succession grew. By then, the Romans considered it
a disgrace to die intestate. If only to avoid intestacy, there was a
practice then to execute a testamerit called PER AES ET LIBRAM
under and by virtue of which, a person who is not an heir (SUUS
HERES) or not a member of the family, was appointed as heir.

IMPORTANT TOPICS IN THIS CHAPTER:


l.

CONCEPT ANO DEFINITION OF SUCCESSION

Concept and definition of succession

2. What inheritance includes


3. Kinds of succession

The concept of succession in generai is the same both in Roman


Law and under the New Civil Code. It means succeeding or entering
into the piace or property rights of another.

4. What is a will?
5. Characteristics of a will

Article 774 of the New Civil Code defines succession as: ~ '
mode of aquisitibn by virtue< of which the property, rights and
obligationst th exterit ortll,eValue. of the inheritan.~ of a. p&rson
a:re''tra:rlsmittei:fthtug:fi hisdeath to another or othetse'ith~r~~by
his will or by operation of law.."

6. Who can make a will?


7. When is a person of sound mind?
8. Wills allowed under the New Civil Code
9. Requisites of a valid will

Based on the said definition, succession has therefore the


following elements: (l) lt is a mode ofacquisition; (2).Prope'rty rigl},ts
and oblig~tions .~~t ~P:~. ~~te11t of the yall1~ of the i~e~tanc~. ~~a
person are transmitted to. another; (3) The same are transm1tted
through death; and (4) Th transnissiori is either by'Win:o~by
opert:ti6h of law.

10. Actual example of an attestation clause


11. Actual example of an attestation clause where testator
caused some other person to write his name
12. Actual example of an acknowledgment of a will
13. Qualifications of witnesses to notarial wills
14. A will can be revoked or altered in case of supplement or
alteration

!l,
l

'ti

15. In case of revocation


t!':l

128

!J!

2.

WHAT INHERITANCE INCLUDES

The inheritance includes ali the property, rights and obligations of a person which are not extinguished by his death. (Art.
776, NCC) In other words, all property and transmissible rights
and obligations existing at the time of the death of a person,
including accession or those accruing therefrom, are included in
the inheritance of a person. (Art. 781, NCC)

130

SUCCESSION

INTRODUCTION TO LAW

his death. Any waiver or restriction of this kind is voi d.


(Art. 828, NCC)

The rights to the succession are transmitted from the moment


of the death of the decedent. (Art. 777, NCC)
6.

t.~

3.

4.

KINDS OF SUCCESSION
l.

~stamentarySuccession

2.

Legai or Intestate

3.

>Mixed Succession

Succe~sion

(a)

Testamentary Succession;-- Succession which results


from the designation ~f an heir, made in a will
executed in the form prescribed by law. (Art. 779,
NCC)

(b)

Legal or. Intestate Succession - Succession prescribed by operation of law and which takes piace if
a person dies without a will, or he has a will but
the same is void or has subsequently lost its validity.
(Art. 780, NCC)

131

'

6.

The will must be executed voluntarily and freely and


without force, duress, fear or threat. The same are
grounds for the disallowance of the 'will. (See Art. 839,
NCC)

WHO CAN MAKE A WILL?

Ali persons who are not expressly prohibited by law can make
a will (Art. 796, NCC). It is essential, however, that the testator
must be of a sound mind at the time of the execution of the will
(See Art. 798, NCC) and at least 18 years of age or over.. (See Art.
797, NCC)
7.
;
~f

WHAT IS A WILL?

WHEN IS A PERSON OF SOUND MINO?

To be of sound mind, it is not necessary that the testator be


in full possession of ali his reasoning faculties, or that his mind is
wholly unbroken, unimpaired, or unshattered by disease, injury or
other cause.
It shall be sufficient if the testator was able at the time of
making the will to know the nature of, the estate to be disposed of,
the proper objects of his bounty, and the character of the testamentary act. (Art. 799, NCC)

Autwill is an ~et wh~rel)y a, person is permitted, with the


form.alities pr~scribed by l~w, to ..c;on,trol to ~ certain degreei the
disposition ;of his estate, to take effect after his death. (Art.783,

NCC)
8.
5.,

CHARACTERISTICS OF A WILL
l.

A will must comply with the formalities of the law.

2.

The making of a will is strictly a personal act and cannot


be left in whole or in part to the discretion of a third
person nor can it be accomplished through the instrumentality of an agent or attorney. (See Art. 784, NCC)

3.

It is a formai act because there are legai formalities that


should be complied with. (See Art. 783, NCC)

4.

The will is effective only after the death of the testator.


(See Art. 777, NCC)

5.

A will may be revoked by the testator at any time before

':!

:!

\r

WILLS ALLOWED UNDER THE NEW CIVIL CODE


l.

Ordinary or Notarial Will;

2.

Holographic Will.

Ordinary or Notarial Will - l t is a will which is attested


and acknowledged before a Notary Public.

Jf'l

..

. :f
;

:t

ti

j}:

;i!!

tfi

q~~

Holographic Will- It is a will which is entirely written,


dated and signed by the hand of the testator himself. l t is subject
to no other form and may be made in or out of the Philippines, and
need not be witnessed. (See Art. 810, NCC)
9.

REQUISITES OF A VALlO WILL


l.

lt must be in writing and executed in the language and


dialect known to the testator. (Art. 804, NCC)

132

133

SUCCESSION

INTRODUCTION TO LAW

The will must be subscribed at the end thereof by the


testator himself or by the testator's name written by some
other person in his presence and by his express direction.
(Art. 805, NCC, opening par.)

10. ACTUAL EXAMPLE OF AN ATTESTATION CLAUSE

3.

The will must be attested and subscribed by three or


more credible witnesses in the presence of the testator
and of one another. (last sentence of opening paragraph,
Art. 805, NCC)

4.

The testator or the person required by him to write his


name and the instrumental witnesses of the will, shali
also sign each and every page thereof, except the last,
on the left margin.

This instrument consists of


pages ihcluding this page,
, 20 _ , in the Municipality
was on this __ day of
of
Province of
, signed by the testator,
- - - - - - - - at the bottom of the instrument and at the
left-hand margin of each and every page thereof, in the presence of
ali and each of us, and thereupon, at his request, have witnessed
and signed the will and ali pages thereof in the presence of the
testator and of each other.

5.

Ali the pages shali be numbered correlatively in letters


placed on the upper part of each page. (See Art. 805,
NCC)

2.

6.

7.

ATTESTATION CLAUSE

. The attestation shall state the number of pages used upon


which the will is written, and the fact that the testator
signed the will and every page thereof, or cause some
other person to write under his express direction, in the
presence of the instrumental witnesses and ali the pages
thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to
the witnesses, it shall be interpreted to them. The
attestation shall state:
a.

The number and pages used and upon which the


will is written;

b.

That the testator signed (or expressly caused


another person to sign) the will and evecy page
thereof in the presence of the instrumental witnesses;

c.

That the instrumental witnesses witnessed and


signed the will and ali the pages thereof in the
presence of the testator and of one another.

11.
'~

(Name)

(Address)

(Name)

(Address)

(Name)

(Address)

ACTUAL EXAMPLE OF AN ATTESTATION CLAUSE WHERE


TESTATOR CAUSED SOME OTHER PERSON TO WRITE HIS
NAME

ATTESTATION CLAUSE
This instrument consists of _ _ pages including this page,
was on this ___ day of
, 20_, in the Municipality
of
Province of
, announced and
published to us by the testator
to be his last will and
testament, and said testator caused Mr.
to writc
his name, under his express direction at the bottom of said
instrument and the left-hand margin of each and every page thereof,
in the presence of all of us, and we thereupon, at the testator's
request, have witnessed and signed the will and all pages thereof
in the presence of the testator and of each other.

134

SUCCESSION

INTRODUCTION TO LAW

(Name)

(Address)

(Name)

(Address)

(Name)

(Address)

Witnessed my hand and notarial seal at the piace and on the


date first above-stated.

Notary Public
Until December 31,20 _ _

12. ACTUAL EXAMPLE OF AN ACKNOWLEDGMENT OF A WILL


;f

2.

135

(Seal and Documentary Stamp)


Doc. No. ____ ,
Page No. ____ ,
Book No. ____ ,
Series of 20 ----.,...

ACKNOWLEDGMENT
13.

Republic of the Philippines


Province/City of

QUALIFICATIONS OF WITNESSES TO NOTARIAL WILLS

A witness to the execution of a notarial wili must be:

) s.s.

(a)

of sound mind;

At the Municipality/City of
in said province, on
this
day of
, 20_, personaliy appeared
the Testator
, and his three (3) instrumental witnesses,

(b)

at least 18 years old;

(c)

not blind;

to wit: ----------------------------'
and
, ali known to me to be the same persons
who executed and attested, respectively, the foregoing Last Will
and Testament, consisting of
(_) pages, including
this one on which this acknowledgment is written, and they ali
acknowledged to me that the Testator signed the will and every
page thereof on the left margin in the presence of the Testator and
of one another, that ali the pages of said will are numbered
correlatively in letters placed on the upper part of each page, and
that the attestation clause is in a language known to the
instrumental witnesses; they further acknowledged to me that the
said wili and attestation are their own free and voluntary act and
deed. The Community Tax Certificates of the said Testator and three
(3) instrumental witnesses were exhibited to me, to wit:

(d)

able to read and write;

(e)

domiciled in the Philippines;

(O

must not have been convicted of falsification of a document, perjury or false testimony.

_____ No.

issued at

on

, 20 ___

_____ No.

issued at

on

, 20 ___

_____ No.

issued at

on

, 20 ___

_ _ _ _ No.

issued at

on

, 20 ___

A WILL CAN BE REVOKED OR ALTERED


IN CASE OF SUPPLEMENT OR ALTERATION
\

After the execution of a will, another will may be executed


either to alter the same or to make an explanation or addition to
the will already made. This will is called a codicil which is derived
from Latin "codex" and which means a little will.
In case of conflict between a will and a codicil, the latter
prevails because it expresses the last will and wish of the testator.
A codicil shall be executed as in the case of a wili. (Art. 826,
NCC)

136

INTRODUCTION TO LAW

IN CASE OF REVOCATION

A will may be revoked by the testator at any time before his


death. Any waiver or restriction of this right is void. (Art. 828, NCC)
However, no will shall be revoked except in the following cases:
l.

By implication of law; or

2.

By some will, codici! or other writing executed as provided


in case of wills; or

3.

By burning, tearing, cancelling, or obliterating the will


with the intention of revoking it, by the testator himself,
or by some other person in his presence, and by his
express direction. lfburned, torn, cancelled, or obliterated
by some other pe~son, without the express direction of
the testator, the will may stili be established, and the
estate distributed in accordance therewith, if its contents,
and due execution, and the fact of its unauthorized
destruction, cancellation, or obliteration are established
according to the Rules of Court. (Art. 830, NCC)

Chapter Xli
TORTS ANO DAMAGES

IMPORTANT TOPICS IN THIS CHAPTER:


l. Definition of a quasi-delict

2. Requisites of a quasi-delict
3. Quasi-delict is a civil wrong
4. The act or omission must be without intent to cause
damage
5. If there is no intention to cause damage
6. Distinctions
(a)

Culpa contractual

(b)

Culpa aquiliana

(c)

Culpa criminal

7. What is negligence?
8. What is the test to determine negligence?
9. Degree of care of negligence that is required
10. What are the defenses that can be interposed in quasidelict?
i'.

(t'

~i!;:
,,

(a)

Last clear chance

(b)

Contributory negligence

(c). Proximate cause of the loss or injury is the negligence of plaintiff

137

~f-

138

TORTS AND DAMAGES

INTRODUCTION TO LAW

11.

2.

REQUISITES OF A QUASI-DELICT

(d)

Defense of due diligence in the selection and


supervision of employees

(e)

Assumption of risk

(a)

There must be an act or omission;

(f)

Prescription

(b)

Such act or omission causes damage to another;

(g)

Force majeure

(c)

Such act or omission is caused by fault or negligence;

(h)

Fault of engineer, architect or contractor

(d)

There is no pre-existing contractual relation between the


parties.

This article states the requisites of a quasi-delict, to wit:

Old cases
(a)

Picart vs. Smith, 37 Phil. 813

(b)

Umali vs. Bacani, 69 SCRA 263

3.

(c)

Culion Ice, Fish, etc. vs. Philippine Motors, 55 Phil.


129

(d)

Cangco vs. Manila Railroad, 38 Phil. 768

A quasi-delict is a civil wrong, not a crime, because it is not


caused by an intentional or malicious act, but by mere fault or
negligence.

(a)

Philippine Long Distance Telephone Company, Inc.


vs. Court of Appeals, G.R. No. 57079, September 29,
1989

(b)

Phoenix Construction, Inc. vs. Intermediate


Appellate Court, G.R. No. 65295, March 10, 1987

(c)

Vergara vs. Court of Appeals, G.R. No. 77679,


September 30, 1987

(d)

Radio Communication of the Philippines, Inc. vs.


Court of Appeals, G.R. No. 79525, March 13, 1991

(e)

St. Francis High School, et al. vs. Court of Appeals,


G.R. No. 82465, February 25, 1991

DISCUSSION

4.

THE ACT OR OMISSION MUST BE WITHOUT INTENT TO


CAUSE DAMAGE

The act or omission must be without intent to cause damage


because if there is intent to cause damage, the act or omission
becomes a crime. In such a case, the civil liability for such act or
omission will be governed by the Revised Penai Code which provides
as follows:
"Art. 1161. CIVIL OBLIGATIONS ARISING FROM
CRIMINAL OFFENSES SHALL BE GOVERNED BY THE
PENAL LAWS, SUBJECT TO THE PROVISIONS OF ART.
2177, AND THE PERTINENT PROVISIONS OF CHAPTER 2,
PRELIMINARY TITLE, ON HUMAN RELATIONS, AND OF
TITLE XVIII OF THIS BOOK, REGULATING DAMAGES."

!'

ih

DEFINITION OF A QUASI-DELICT

Article 2176 of the New Civil Code defines a quasi-delict in


this manner: ''Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and is governed
by the provisions of this chapter."

QUASI-DELICT IS A CIVIL WRONG

It is independent of contract because if the said act or omission


is in violation of a contract, then the result would be that there is
a mere breach of contract.

12. New cases

1.

139

5.

IF THERE IS NO INTENTION TO CAUSE DAMAGE

If the act or omission that caused the damage was committed


unintentionally, it is fault or culpa. Otherwis~; it is dolo, an act
that becomes a crime.

6.

TORTS AND DAMAGES

INTRODUCTION TO LAW

140

Based on this definition, the degree of care, precaution and


vigilance that should be observed depends on the circumstances of
persons, piace and time. That which may be considered therefore
as sufficient care and precaution in a set of circumstances, may be
insufficient in another set of circumstances that confront the same
individuai.

DISTINCTIONS
CULPA
CONTRACTUAL

CULPA AQUILIANA l CULPA CRIMINAL

(a) There is a pre- (a) There is no p re-~ (a) There is no preexisting obligation.
existing obligation.
existing obligation
(express or implied).
(b) Preponderance of (b) Preponderance of (b) The crime must be
evidence is reevidence is needed.
proven beyond reaquired.
sonable doubt.
(c) Defense of a good (c) Defense of a good l(c)
father of a family in
father of a family
in the selection of
the selection of the
the employees is
employees is a pronot a proper and
per defense of the
complete defense
employer.
of the employer.

This defense can


not be interposed. If
the employee is
insolvent or incapable to pay the civil
aspect or liability,
the employer is
subsidiarily liable.

(d) The existence of a (d) The fault or negli- (d) The innocence of
gence of the dethe accused is precontract must be
fend~nt must be
sumed until the
proved. If it is also
contrary is proved.
proven that the
proven.
contract was not
complied with, it
is presumed that
the debtor is at
fault.
(e) Negligence is only (e) Negligence is direct, l(e) Negligence is direct,
substantive and insubstantive and inincidental to the
dependent.
dependent.
performance of an
existing obligation
based on a contract.
7.

WHAT IS NEGLIGENCE?

Article 1173 of the New Civil Code defines negligence as the


omission of that diligence which is required by the circumstances
of persons, place and time.

141

"
1

h
f

Hence, when A drives his car in a thickly populated place like


Divisoria or Quiapo, he should know, even without being told, that
during day time, there are not only plenty of people who cross the
streets but that there are also a lot of cars, jeepneys, buses, carts
and delivery panels in both sides of the streets. Under the
circumstances, A should observe a higher degree of care and
precaution because if he does not observe this, there is not only a
great possibility but also a great danger that he will hit or injure a
pedestrian, or that he will bump or hit another vehicle.
A may not be driving his car but a PUB (public utility bus)
with one hundred passengers from Manila to Baguio. Here, he will
not pass through Divisoria or Quiapo but he will pass through a
long highway where vehicles travel at a fast speed, until he reached
the dangerous Kennon road, going to Baguio City. Here, he is
employed as a driver of a public utility bus which is engaged in
the business of transporting passengers, and therefore, the degree
of care and diligence required of the carrier is extraordinary
diligence, as required by Articles 1733 and 1755 of the New Civil
Code.

"Art. 1733. COMMON CARRIERS, FROM THE


NATURE OF THEIR BUSINESS AND FOR REASONS OF
PUBLIC POLICY, ARE BOUND TO OBSERVE EXTRAORDINARY DILIGENCE IN THE VIGILANCE OVER THE
GOODS AND FOR THE SAFETY OF Tl:JE PASSENGERS
TRANSPORTED BY THEM, ACCORDING TO ALL THE
CIRCUMSTANCES OF EACH CASE.
SUCH EXTRAORDINARY DILIGENCE IN VIGILANCE
OVER THE GOODS IS FURTHER EXPRESSED IN
ARTICLES 1734, 1735,AND 1745, NOS. 5, 6,AND 7, WHILE
THE EXTRAORDINARY DILIGENCE FOR THE SAFETY OF
THE PASSENGERS IS FURTHER SET FORTH IN
ARTICLES 1755 AND 1756."

142

INTRODUCTION TO LAW

"Art. 1755. A COMMON CARRIER IS BOUND TO


CARRY THE PASSENGERS SAFELY AS FAR AS HUMAN
CARE AND FORESIGHT CAN PROVIDE, USING THE
UTMOST DILIGENCE OF VERY CAUTIOUS PERSONS,
WITH A DUE REGARD FOR ALL THE CIRCUMSTANCES."
Take note that as provided in Artide 1733, common carriers
"are bound to observe extraordinary diligence" x x x "according to
all circumstances of each case," and as provided in Artide 1755,
the common carrier "is bound to carry the passengers safely as far
as human care and foresight can provide, using the utmost diligence
of very cautious persons, with a due regard for all the circumstances."

TORTS AND DAMAGES

10. WHAT ARE THE DEFENSES THAT CAN BE INTERPOSED IN


QUASI-DELICT?

In the string of cases that have already been decided by the


Supreme Court, the following defenses have been interposed and
were considered meritorious, to wit:
(l)

LAST CLEAR CHANCE - In Picart vs. Smith, the


plaintiff who was riding a poney was originally a t faults
he being in the wrong side of the bridge, but defendant
Smith had the last clear chance to avoid the impending
harm by merely swerving. Since he failed to do this, it
was he who was held liable for damages.

(2)

CONTRIBUTORY NEGLIGENCE - The defendant


may daim that plaintiff's own negligence contributed to
his injury. This defense, however, will merely mitigate
the award of damages. In the Phoenix case, the driver of
the car was on his way home after taking a shot or two
of liquor but his negligence is merely contributory and
the damages therefore were mitigated.

(3)

PRO:XIMATE CAUSE OF THE LOSS OR INJURY IS


THE NEGLIGENCE OF PLAINTIFF- In the Phoenix
case, the Supreme Court held that both parties were
negligent but the immediate and proximate cause of the
accident and ofthe car driver's injuries was the wrongful
and negligent manner in which the truck was parked or
the truck driver's "lack of due care."

The Supreme Court has therefore defined negligence in this


manner:
"Negligence is want of care required by the circumstances. It is a relative or comparative, not an absolute term,
and its application depends upon the situation of the parties
and the degree of care and vigilance which the circumstances
reasonably require. Where the danger is great, a high degree
of care is necessary, and the failure to observe is a want of
ordinary care under the circumstances." (Corliss vs. Manila
Railroad Co., L-21291, March 28, 1969)
8.

WHAT IS THE TEST TO DETERMINE NEGLIGENCE?

The test is this: Would a prudent man (in his position) foresee
harm to the person injured as a reasonable consequence of the
course about to be pursued? If so, the law imposes a duty on the
actor to refrain from that course, or to take precaution against its
mischievous results, and the failure to do so constitutes negligence.
Reasonable foresight of harm, followed constitutive fact of
negligence. (Picart vs. Smith, 37 Phil. 809)
9.

DEGREE OF CARE OF NEGLIGENCE THAT IS REQUIRED

That standard or degree of care or diligence that should be


observed is that which is expected of a good father of a family unless
the law or stipulation of the parties requires another standard of
care.

143

(4) DEFENSE OF DUE DILIGENCE IN THE SELECTION AND SUPERVISION OF EMPLOYEES- This
is available as a defense only in culpa aquiliana but not
in the case of culpa contractual.
(5)

ASSUMPTION OF RISK- The defense was allowed


in Afialda vs. Hilsole, et al. (85 Phil. 67) but rejected in
Ilocos Norte Electric Company vs. Court of Appeals. The
maxim "volente non fit injuria" relied upon by petitioner
finds no application in the latter case. The court's
reasoning is as follows: "It is imperative to note the
surrounding circumstances which impelled the deceased
to leave th comforts of a roof and brave the subsiding
typhoon. The deceased was on her way to her grocery
store to see to it that the goods were not flooded. As such,

144

INTRODUCTION TO LAW

can she be punished for exercising her right to protect


her property from the floods by imputing upon her the
unfavorable presumption that she assumed the risk of
personal injury? Definitely not."
(6)

PRESCRIPTION - A motion may be filed on the


ground that the action (based on quasi-delict) has already
prescribed. This is based on the provision of Artide 1146
ofthe New Civil Code which provides, "following actions
must be instituted within four years."

(7)

FORCE MAJEURE - This is a defense that can be


interposed by the possessor or user of the animai under
Artide 2183.

(8)

FAULT OF ENGINEER, ARCHITECT OR CONTRACTOR - This defense can be interposed by the


owner of the building if third persons suffer damages
because of defect in construction committed either by the
engineer, contractor or architect.

11. OLD CASES

PICART VS. SMITH


37 PHIL. 813
Principle:

"WHERE BOTH PARTIES ARE GUILTY OF


NEGLIGENCE, BUT THE NEGLIGENT ACT
OF ONE SUCCEEDS THAT OF THE OTHER
BY AN APPRECIABLE INTERVAL OF TIME,
THE ONE WHO HAS THE LAST REASONABLE OPPORTUNITY TO AVOID THE
IMPENDING HARM AND HAS TO DO SO
IS CHARGEABLE WITH THE CONSEQUENCES, WITHOUT REFERENCE TO
THE PRIOR NEGLIGENCE OF THE OTHER
PARTY."

FACTS: Plaintiff Picart was riding a pony on a bridge. He


saw an approaching automobile and he improperly pulled his horse
over to the railing in the right, the wrong side of the bridge. The
driver of the automobile sounded his horn but Picart made no move
to go to the right side. He guided his car to the right without

TORTS AND DAMAGES

146

diminution of speed until he was only a few feet away. He turned


to the right but passed so dosely to the horse that the latter being
frightened, jumped around and was killed by the passing car.
Picart was thrown off his horse and suffered contusions. He
sued Smith for the value of his animai, medicai expense and damage
to his apparel.
ISSUE: Who is at fault?
HELD: Plaintiff Picart was originally a t fault but d~fendant
Smith had the last dear chance to avoid the impending harm by
merely swerving. Smith failed to do this and he should therefore
be chargeable for the consequence of his acts, without reference to
the prior negligence of the other party.

UMALI VS. BACANI


69 SCRA263
Principle:

THE TEST TO DETERMINE THE EXISTENCE OF NEGLIGENCE, AS ENUNCIATED


IN PICART VS. SMITH IS THIS: "DID THE
DEFENDANT IN DOING THE ALLEGED
NEGLIGENT ACT USE THAT REASONABLE
CARE AND CAUTION WHICH AN ORDINARILY PRUDENT PERSON WOULD HAVE
USED IN THE SAME SITUATION? IF NOT,
THEN HE IS GUILTY OF NEGLIGENCE."
IN THIS CASE, THE COURT FOUND OUT
THAT A SERIES OF NEGLIGENCE WERE
COM~TTED BY THE DEFENDANT AND
HIS E PLOYEES.

FACTS: As a result
a strong typhoon that hit Alcala,
Pangasinan on May 14, 1972, Banana plants near Alcala Electric
Plant fell on the electric wire which caused it to be cut. One end of
the wire was left hanging on the electric post and the other fell on
the ground under the fallen banana plants. Knowing this, the
Barangay Captain told an employee of the electric plant about it
.and asked him to fix it. Manuel Saynes, a boy living nearby, got in
contact with the live cut wire which led to his death. Fidel Saynes,
father of Manuel Saynes, filed an action for damages against
Teodoro Umali, owner and manager of the electric plant.

147

INTRODUCTION TO LAW

TORTS AND DAMAGES

UMALI'S CONTENTION: The death of Manuel is due to a


fortuitous event (referring to the strong storm that caused the
banana plants to fall and cut the electric wire).

not have occurred if he observed the care and skill of one ordinarily
skilled in the particular work which he attempts to do. When a
person holds himself out as being competent to do things, he will
be held liable for negligence if he fails to exhibit the care and skill
of one ordinarily skilled in the particular work which he attempts
to do. The defendant was held liable for the value. of the vessel.

146

ISSUE: Is the owner of the electric plant liable for damages?

HELD: Umali was held liable for damages. The employees of


Alcala Electric Plant were already aware of the possible damage
caused by the storm to the electric lines which is dangerous to life
and property, but they did not cut off from the plant the flow of
electricity along the lines. They could have done this pending
inspection of the wires. Likewise, they did not take the necessary
precaution to eliminate the source of danger to the electric line,
knowing that all banana plants were standing on elevated ground
and which are higher than the electric post. The court also took
note of Cipriano Baldomero's negligence. He, being an employee of
the electric plant and aware of the live cut wire, did not take the
necessary precaution to prevent anybody from approaching the
pl ace.
CULION ICE, FISH, ETC.
VS. PHILIPPINE MOTORS
55 PHIL. 129

. Principle:

WHEN A PERSON HOLDS HIMSELF OUT


AS BEING COMPETENT TO DO THINGS,
HE WILL BE HELD LIABLE FOR NEGLIGENCE IF HE FAILS TO EXHIBIT THE
CARE AND SKILL OF THE ONE ORDINARILY SKILLED IN THE PARTICULAR
WORK WHICH HE ATTEMPTS TO DO.

FACTS: The manager of defendant corporation accepted the


job of changing the gasoline engine of plaintiff's boat. After
installing a new fuel tank and a new carburetor, the boat was taken
out for trial. During this period, a back fire occurred in the cylinder
of the engine. The boat was ultimately destroyed. Plaintiff filed an
action to recover the value of the boat from the defendant.
ISSUE: Is that fire an avoidable accident? Who is negligent?

HELD: The burning of the boat resulted from an accident but


this accident was in no sense an unavoidable accident. It should

CANGCO VS. MANILA RAILROAD


38 PHIL. 768

Principle:

IF A PRUDENT MAN COULD FORESEE


HARM AS A RESULT OF THE COURSE
HE WILL ACTUALLY PURSUE, IT IS HIS
DUTY TO GUARD AGAINST THE CONSEQUENCES OF HIS ACTS.

FACTS: Plaintiffis residing in San Mateo, Rizal, and he used


to ride on defendant's train because of a pass supplied by the
company. He was about to alight from the train but his feet carne
in contact with a sack of watermelons, and his feet slipped from
under him and he fell violently. His body rolled from the platform
and was drawn under the moving car, where his right arm was
badly crushed and lacerated. Plaintiff sued defendant for damages.
The defendant contends, among others, that the said accident would
not have happened had plaintiff waited until the train carne to a
full stop.
ISSUE: Is said contention tenable?
Ther is a breach of contract of carriage and MRR failed to
exercise due care in not providing for safe exit of passengers. The
watermelons are in the platform where they shouldn't be placed,
rather they should have been removed from the platform.

HELD: The plaintiff may have assumed the risk from boarding
the car under a condition open to his view but it is not fair for him
to assume the risk that the motorman, knowing the existence of
such a situation, will increase his perii by accelerating his speed
before he is planted safely in the platform. Reasonable men give
their conduct by the circumstances which are before them or known
to them. The situation, as aforementioned, is known to the
motorman but he failed to take the precaution which is required of
u prudent and reasonable man in a given situation. The defendant
was held liable for damages.

INTRODUCTION TO LAW

148

12.

NEW CASES

PHILIPPINE LONG DISTANCE TELEPHONE


COMPANY, INC. VS. COURT OF APPEALS
G.R. NO. 57079, SEPTEMBER 29, 1989
Principle:

THE VICTIM IS SOLELY RESPONSIBLE


FOR THE CONSEQUENCE OF HIS
IMPRUDENCE. HE HAD THE LAST CLEAR
CHANCE OR OPPORTUNITY TO AVOID
THE ACCIDENT, NOTWITHSTANDING THE
NEGLIGENCE HE IMPUTES TO PLDT FOR
LEAVING AN OPEN TRENCH UNCOVERED.

TORTS AND DAMAGES

149

The warning signs could not have completely prevented the


accident. The only purpose of said signs was to inform and warn
the public of the presence of excavations on the site. Antonio already
knew of the presence of said excavations. It was not the lack of
knowledge of these excavations which caused the jeep to fall into
the excavation but the unexplained sudden swerving of the jeep
from the inside lane towards the accident mound. He cannot charge
PLDT for his injuries where his own failure to exercise due and
reasonable care was the cause thereof.

ANTONIO'S NEGLIGENCE IS NOT MERELY CONTRIBUTORY BUT GOES TO THE VERY CAUSE OF THE OCCURRENCE OF THE ACCIDENT, AND WHICH PRECLUDES HIM
TO RECOVER DAMAGES.

It is both a societal norm and necessity that one should


exercise a reasonable degree of caution for his own protection.
Antonio had the last clear chance or opportunity to avoid the
accident, notwithstanding the negligence he imputes to PLDT. As
a resident of Lacson Street, he passed on that street almost every
day and had knowledge of the presence and location of the
excavations there. His negligence exposed him to danger. Hence,
he is solely responsible for the consequence of his imprudence.

FACTS: Antonio sued PLDT for the injuries he sustained when


his jeep ran over a- mound of earth and fell into an open trench, an
excavation allegedly undertaken by PLDT for the installation of
its underground conduit system.

PHOENIX CONSTRUCTION, INC.


VS. INT. APPELLATE COURT
G.R. NO. 65295, MARCH 10, 1987

The complaint alleged that Antonio failed to notice the open


trench which was left uncovered because of the creeping darkness
and the lack of any warning light signs.
Antonio was on the inside lane before it swerved to hit the
"accident mound."
Antonio is familiar not only of the street but also of the
excavations onthe street as it appears that he passes on that street
almost everyday.
ISSUE: Is Antonio guilty of contributory negligence, and if
so, does this merely mitigate the damages he is claiming, or does
this preclude his right to recover damages?
HELD: The negligence of Antonio was not only contributory
to his injuries but goes to the very cause of the occurrence of the
accident, as one of its determining factors, and thereby precludes
his right to recover damages. The perils of the road were known to
and hence assumed by Antonio. By exercising reasonable care and
prudence, he could have avoided the injuries, even assuming that
there was some alleged negligence on the part of PLDT.

Principle:

THE VICTIM, THE DRIVER OF THE CAR,


AND THE DUMP TRUCK OWNED BY
PHOENIX, INC. ARE BOTH NEGLIGENT
BUT THE IMMEDIATE CAUSE OF THE
VICTIM'S INJURY WAS THE WRONGFUL
AND NEGLIGENT MANNER IN WHICH
THE TRUCK WAS PARKED OR THE TRUCK
DRIVER'S LACK OF DUE CARE.

FACTS: After a dinner cocktail meeting with his boss where


he had taken a shot or two of liquor, A went home at about 1:30
A.M., driving his car. On his way home after crossing an
intersection, his car headlights suddenly failed. He switched his
headlights to "bright," and there, he saw a ford dump truck which
is about 2 112 meters away from his car.
The dump truck is owned by Phoenix, Inc. It was parked on
the right hand side of the street, facing the incoming traffic. It
partially blocks the way of the incoming traffic. It has no lights
and no early warning devices.

150

TORTS AND DAMAGES

INTRODUCTION TO LAW

A tried to avoid a collision by swerving his car to the left but


to no avail. His car smashed into the dump truck. As a result, A
suffered physical injuries, facial scars, nervous breakdown and loss
of two gold bridge dentures. A sued Phoenix and its driver.
A'S CONTENTION - The legal and proximate cause of his
injuries was the negligent manner in which Phoenix driver had
parked the dump truck.
HELD: ON THE ISSUE OF NEGLIGENCE AND
PROXIMATE CAUSE OF INJURYBoth were negligent but the immediate and proximate cause
of the accident and of l injuries was the wrongful and negligent
manner in which the truck was parked or the truck driver's "lack
of due care."
The collision of .N.s car with the dump truck is a natural and
foreseeable consequence of the truck driver's negligence. The
negligence of the truck driver, far from being a "passive and static
condition" was rather an indispensable and efficient cause.
The improper parking of the dump truck created an unreasonable risk of injury for anyone driving, and for having created this
risk, the truck driver must be held responsible.
.N.s negligence, although later in point of time than the truck
driver's negligence, is merely contributory and the damages
therefore that he will recover is subject to mitigation by the courts,
in accordance with Artide 2179 of the Civil Code.
ON THE ISSUE OF DAMAGES - In a suit for damages
arising from a quasi-delict where the plaintiff's negligence was
contributory, the demands of substantial justice may be satisfied
by allocating most of the damages on a 20-80 ratio.
Based on this, the following were awarded:
(l) 20% ofthe damages awarded by the appellate court shall
be borne by the plaintiff;

(2) 80% shall be paid by the driver and his employer who
shall be solidarily liable to A;
(3) The award of exemplary damages shall be borne
exclusively by the defendant Phoenix.

151

ON THE HISTORICAL FUNCTION OF THE LAST


CLEAR CHANCE DOCTRINE

The last clear chance doctrine of the common law was imported
into our jurisdiction, but it is a matter of debate whether, to what
extent, it has found its way into the Civil Code of the Philippines.
The historical function of the doctrine in the common law was to
mitigate the harassness of another common law doctrine - that of
contributory negligence. (Phoenix Construction, !ne. vs. Intermediate
Appellate Court, Ibid.)
VERGARA VS. COURT OF APPEALS
G.R. NO. 77679, SEPTEMBER 30, 1987
Principle:

THE OWNER OF THE CAR CANNOT BE


FAULTED BECAUSE HE LOST CONTROL
OF HIS CAR WHEN IN ORDER TO AVO ID A
HEAD-ON COLLISION WITH A PASSENGER
BUS WHICH SUDDENLY SWERVED INTO
HIS LANE, HE VEERED HIS CAR TO THE
SHOULDER OF THE HIGHWAY AND
COLLIDED WITH A PRIVATE JEEP.

FACTS: A and his friend were travelling by car to Manila


from Baguio. From the opposite direction, the following were
travelling: a tricycle, a passenger bus, a private jeep in that order.
The bus tried to overtake the tricycle but in doing so, it swerved
into the lne of A. This prompted A to veer his car to the shoulder
of the highway to avoid a head-on collision. A, however, lost control
of his car causing it to collide with a private jeep. No charges were
filed against the owner of the passenger bus. A became the accused
in a criminal case of reckless imprudence resulting to damage to
property and multiple physical injuries. A claimed that he is not
guilty of criminal negligence because he lost control of his car when
the bus swerved into his lane.
ISSUE: Is the defense of A tenable?
HELD: The owner of the car cannot be faulted because he
lost control of his car when in order to avoid a head-on collision
with a passenger bus which suddenly swerved into his lane, he
veered his car to the shoulder of the highway and collided with a
private jeep.

153

INTRODUCTION TO LAW

TORTS AND DAMAGES

The real culprit is the passenger bus but there were no charges
that were filed. The court held that although A was not criminally
negligent, and therefore not held liable for a crime, there is enough
evidence to prove that A should hav exercised a little more caution
and discretion in reacting to the treat of a head-on collision. For
this reason, he was adjudged civilly liable for the hospital expenses
and unearned salaries of the victims.

Believing that the transmittal of the aforesaid telegram in


that manner was done intentionally and with gross breach of
contract resulting in ridicule, contempt, and humiliation of the
private respondents and the addressees, including their friends and
relatives, the Spouses Timan demanded an explanation.

152

The Timans were not satisfied with the explanation of RCPI,


hence, their complaint for damages against RCPI.
The trial court decided in favor of the Timans, and the Court
of Appeals affirmed the decision of the lower court in toto.

RADIO COMMUNICATION OF THE PHI..IPPINES, INC.


VS. COURT OF APPEALS
G.R. NO. 79528, MARCH 13, 1991

Principle:

RCPI argued that it stili correctly transmitted the text of the


telegram and was received by the addressee on time despite the
fact that there was error in the social form and envelope used.

RCPI'S CLAIM OF GOOD FAITH PREDICATED ON THE EXHAUSTION OF SOCIAL


CONDOLENCE FORMS IS OF NO MOMENT.
GROSS NEGLIGENCE AND CARELESSNESS CAN BE ATTRIBUTED TO DEFENDANT IN NOT SUPPLYING ITS STATIONS
WITH ADEQUATE SOCIAL CONDOLENCE
FORMS.

RCPI asserted that there was no showing that it has any


motive to cause harm or damage to the Timans.
ISSUE: Is RCPI guilty of negligence? Is RCPI guilty of bad
faith, fraud and malice?

FACTS: Minerva and Flores Timan sent a telegram of


condolence to their cousins, Mr. and Mrs. Hilario Medoranda
through Radio Communication of the Philippines, Inc. (RCPI), to
convey their deepest sympathy for the death of the mother-in-law
of Hilario, to wit:
"Mr. and Mrs. Hilario Medoranda

(l

1inidad, Calbayog

May God give you courage and strength to bear your loss,
our deepest sympathy to you and members of the family.
MINER & FLORY''
The condolence telegram was correctly transmitted as far as
the written text was concerned. However, the condolence message
as communicated and delivered to the addressee was typewritten
on a "HAPPY BIRTHDAY" card and placed inside a "CHRISTMASGRAM" envelope.

HELD: Anyone who avails of the facilities of a telegram


company can choose to send his message in the ordinary form or in
a social form. In the ordinary form, the text of the message is
delivered in an envelope matching the purpose of the occasion and
the words and intent of the message. The sender pays a higher
amount for the social telegram than for ordinary form. Hence, when
RCPI typed the message of condolence in a birthday card and
delivered the same in a colorful Christmas gram envelope, it
committed a breach of contract as well as gross negligence. It's
excuse tliat i t had run out of social condolence cards and envelope
is flimsy and unacceptable.
It could not have been faulted had it delivered the message in
the ordinary form and reimbursed the difference in the cost to the
sender. But by transmitting it unfittingly, through other special
forms, clearly, albeit outwardly, portraying the opposite feelings of
joy arid happiness and thanksgiving, RCPI only exacerbated the
sorrowful situation of the addressee and senders. This botchery
exposed not only RCPI's gross negligence but also its callousness
and disregard for the sentiments of its clientele, which is
tantamount to wanton misconduct, for which it must be held liable
for damages.
It is not surprising that when the Timans' telegraphic message
reached their cousin, it became the joke of the Medorandas' friends,

155

INTRODUCTION TO LAW

TORTS AND DAMAGES

relatives, and associates who thought that the unpardonable mixup was a mockery of the death of the mother-in-law of the sender's
cousin. Thus, it was not unexpected that because of this unusual
incident, which caused much embarrassment and distress to
Timans, he suffered nervousness and hypertension resulting in his
confinement for three days at the hospital.

after doing so. Nevertheless, Ferdinand went on with the teachers


to the beach because of their persuasion.

Under the circumstances, defendant's plea of good faith


predicated on the exhaustion of social condolence forms cannot be
accepted. Gross negligence or carelessness can be attributed to
defendant in not supplying its various stations with such sufficient
and adequate social condolence forms when it held out to the public
the availability of such social condolence forms and accepted for a
fee the transmission of message on said forms. Knowing that there
are no such forms as testified to by its material control manager,
and entering into a contract for the transmission of message in
such forms as testified to by its material control manager, and
entering into a contract for the transmission of message in such
forms, defendant committed acts of bad faith, fraud and malice.

The school and the teachers were sued for damages by


Ferdinand's parents. They contended that the defendants failed to
exercise the proper diligence of a good father of a family in
preventing their son's drowning, and prayed for actual, moral and
exemplary damages, attorney's fees and costs of suit.

154

ST. FRANCIS HIGH SCHOOL, ET AL. VS. COURT OF


APPEALS
G.R. NO. 82465, FEBRUARY 25, 1991
Principle:

THE SCHOOLAND THE TEACHERSARE NOT


NEGLIGENT. THE INCIDENT HAPPENED
NOT IN THE SCHOOLAND NOT IN ASCHOOL
DAY, AND WHILE THE TEACHERS AND THE
STUDENTS WERE HOLDING A PURELY
PRNATE AFFAIR, A PICNIC.
THE CLASS ADVISER OF THE CLASS
WHERE FERDINAND BELONGED, DID HER
BEST AND EXERCISED DILIGENCE OF A
GOOD FATHER OF A FAMILY TO PREVENT
ANY UNTOWARD INCIDENT OR DAMAGES
TO ALL STUDENTS.

FACTS: Ferdinand Castillo is a 13-year-old first year high


school student at St. Francis High School. He wanted to join a school
picnic a t a beach but he was not allowed by his parents. He was
allowed, however, to bring food to the teachers and to return home

While the teachers and the students were in the water,


including Ferdinand, one of the female teachers wJ:to was apparently
drowning, was rescued by Ferdinand. Unfortunately, it was Ferdinand himself who drowned.

The trial court rendered judgment against the teachers,


ordering all ofthem to pay plaintiffs P30,000.00 as actual damages,
P20,000.00 as moral damages, P15,000.00 as attorney's fees and to
pay the costs. The case against the school, however, was dismissed.
The Court of Appeals ruled that the school and the teachers
are guilty of negligence and therefore liable for the death of
Ferdinand.
ISSUE:

(l)

Are defendants guilty of negligence?

(2)

Is Artide 2180 applicable to this case?

(3)

Is the award of exemplary and moral damages


proper?

HELD: ON THE ISSUE OF NEGLIGENCE - The school


and the teachers are not guilty of negligence. In the case at bar,
the teachers/petitioners were not in the actual performance of their
assigned tasks. The incident happened not within the school
premises, not on a school day, and most importantly, while the
teachers and students were holding a purely private affair, a picnic.
The incident happened while some members of the class of the
school were having a picnic at the beach. The picnic had no permit
from the school head or its principal because this .picnic was not a
school-sanctioned activity neither is it considered as an extracurricular activity.
Mere knowledge by petitioner/principal of the planning of the
picnic by the students and their teachers does not in any way show
acquiescence or consent to the holding of the same. The application
therefore of Artide 2180 has no basis in law and neither is it
supported by any jurisprudence. If we were to affirm the findings

156

INTRODUCTION TO LAW

of the appellate court on this score, employers will forever be


exposed to the risk and danger of being hailed to Court to answer
for the misdeeds or omissions of the employees even if such act or
omission be committed while they were not in the performance of
their duties.
No negligence could be attributable to the teachers to warrant
the award of damages to Ferdinand's parents. The class adviser of
the class where Ferdinand belonged did her best and exercised
diligence of a good father of a family to prevent any untoward
incident or damages to ali the students who joined the picnic. In
fact, she invited the P.E. instructors and scout masters who have
knowledge in first-aid application and swimming. Moreover, the
petitioners brought life savers in case of emergency. Petitioners did
ali what is humanly possible to save the child.

1t was held that the Court of Appeals committed an error in


applying Artide 2180 ofthe Civil Code in rendering the schoolliable
for the death of Ferdinand.

Chapter Xlii
POLITICAL LAW ANO THE CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
PARTI
BASIC PRINCIPLES ANO DEFINITIONS

IMPORTANT TOPICS IN THIS CHAPTER:


l.

ONTHE ISSUE OF AWARDING MORAL OREXEMPLARY


DAMAGES- No moral or exemplary damages may be awarded in
favor ofFerdinand's parents. The case does not fali under any ofthe
grounds to grant moral damages. Petitioners are not guilty of any
fault or negligence. Hence, no moral damages can be assessed against
them.
While it is true that Ferdinand's parents gave their consent
to their son to join the picnic, this does not mean that petitioners
were already relieved of their duty to observe the required diligence
of a good father of a family in ensuring the safety of the children.
But here, petitioners were able to prove that they had exercised
that required diligence. Hence, the claim for moral or exemplary
damages becomes baseless.

MAJORITY OPINION- The majority opinion holds the


view that the teachers involved were not in the actual performance
of their assigned tasks, hence, any act or omission caused by them
cannot bind their employer, St. Francis High School.
DISSENTING OPINION - Justice Padilla dissented. He
maintained that although the excursion may not have been attended
by the appropriate school authorities, the presence or stamp of
authority of the school nevertheless pervaded by reason of the
participation of not one but of several teachers.

Definition
(a)

Politica! Law

(b)

Philippine Politica! Law

(c)

Administrative Law

(d)

Election Law

(e)

Law of Public Officers

(f)

Law on Municipal Corporations


PART Il
THE 1987 CONSTITUTION

IMPORTANT TOPICS IN THIS CHAPTER:


l.

Constitution
(a)

2.

What is Constitution?

Basic principles of Constitution


(a)

The Constitution is the supreme law of the land

(b)

Being the supreme law of the land, it is the symbol


and monument of the people's wili
157

158

POLITICAL LAW AND THE CONSTITUTION


OF THE REPUBLIC OF THE PHILIPPINES

INTRODUCTION TO LAW

(c)

3.

The Constitution outlines the infrastructure of the


government

(d)

The Constitution must be obeyed by ali

(e)

The courts are the ultimate guardians ofthe Constitution

3.

Search and Seizure


(a)

Simplification

(b)

Probable Cause
(b.l) Basis
(b.2) Requirements in determining the existence
of probable cause

Classifications of the Constitution and its definition


(a)

Written or rigid

(b)

Conventional or cumulative

(c)

Rigid or flexible

4.

Qualities and essential parts of a good written Constitution

5.

The 1987 Constitution may be changed

159

(b.3) Valid warrantless search and seizure


4.

Privacy of Communications and Correspondence


(a)

Generai rule and exceptions

(b)

Coverage of the guarantee


(b. l) Tangible objects
(b.2) Intangible objects

PART 111

5.

BILL OF RIGHTS

IMPORTANT TOPICS IN THIS CHAPTER:


l.

2.

Due Process of Law


(a)

Definition and purpose

(b)

Person

(c)

Life

(d)

Liberty

(e)

Property

(f)

Requirements of Due Process at a glance

6.

(a)

Meaning of Freedom of Speech and of the Press

(b)

What are included in the Freedom of Expression

(c)

What are included in the terms "speech" and


"expression"

(d)

What is included in the term "press"

Freedom of Religion
(a)

7.

(f.l)

Substantive

(f.2)

Procedura!

Liberty of Abode and Travel


(a)

8.

Religion Defined

Meaning of Liberty of Abode and Travel

Right to Information
(a)

Two rights guaranteed by Section 7

(f.2.a)

In administrative proceedings

(b)

Rationale of Section 7

(f.2.b)

In judicial proceedings

(c)

Scope of the right

(d)

Limitations on the Right to Information matters of


public concern and on the corollary right to accesa
to official records

Equal Protection of Law


(a)

Freedom of Speech and of the Press

Requirements of a valid and reasonable classification

INTRODUCTION TO LAW

160

9.

Right of Association
(a)

10.

11.

12.

What is the difference?

(c)

Problem

15.

16.

17.

Taking of Private Property for Public Use


(a)

Public Use

(b)

Just Compensation

(c)

Fair Market Value

(d)

Due Process of Law

18.

Prohibition agai~st impairment of obligation of contracts


(a)

What is prohibited under Sec. 16?

(b)

Points to remember

19.

Free access to courts and quasi-judicial bodies and


adequate legal assistance
Sec. 11 is a collective primary responsibility of all
lawyers, judges, prosecutors, legislators and executives in the government including all its employees

(b)

Indigent party

(c)

Indigent distinguished from a pauper

Right to remain silent and to have competent and


independent counsel
(a)

14.

POLITICAL LAW AND THE CONSTITUTION


OF THE REPUBLIC OF THE PHILIPPINES

Right of association under the 1987 Constitution


and under the 1935 and 1973 Constitutions

(b)

(a)

13.

20.

21.

Explan~tion of each right

(a)

Generai rule

(b)

Rationale of the Right to Bail

(c)

Bail defined

(d)

Kinds or forms

Due Process in Criminal Proceedings

Habeas Corpus
(a)

What is a writ of habeas corpus?

(b)

Applicability of the writ of habeas corpus

Speedy disposition of cases before ali judicial, quasijudicial or administrative bodies


(a)

Is there a difference between the right to speedy


trial, as guaranteed in Sec. 14(2), Article III, and
speedy disposition of cases as guaranteed in Sec.
16?

(b)

Similarity

Rights against self-incrimination


(a)

Rationale of Sec. 17

(b)

Purpose

(c)

Applicability

Freedom of politica! belief and freedom against involuntary servitude


(a)

What is involuntary servitude?

(b)

When is involuntary servitude permissible?

Right against excessive fines, degrading or inhuman


punishment
(a)

When is fine considered excessive?

(b)

When is punishment considered cruel?

Right against imprisonment for debt or non-payment of


a poll tax
(a)

Right to bail
22.

23.

161

What is a poll tax?

bouble Jeopardy
(a)

Meaning and requisites

(b)

What are the requisites to constitute double


jeopardy?

Right against ex post facto law and bill of attainder


(a)

Meaning of ex post facto law and bill of attainder

/,
INTRODUCTION TO LAW

162

POLITICAL LAW AND THE CONSTITUTION


OF THE REPUBLIC OF THE PHILIPPINES

(b)

Characteristics of ex post facto law

(d)

other high crimes

(c)

Scope and applicability of the prohibition against


ex post facto law

(e)

graft and corruption

(f)

betrayal of public trust

(d)

What is a bill of attainder

(e)

Characteristics of bill of attainder and bill of pains


and penalties

4. Procedure of impeachment
5. Who can file a complaint for impeachment?
6. Can an impeachment proceeding be initiated against the
same official more than once within a period of one (l)
year?

PART IV
THE FUNDAMENTAL ANO INHERENT POWERS
OF THE STATE

7. Who has the sole power and authority to decide ali cases
of impeachment?
8. What is the nature of the impeachment proceedings?

IMPORTANT TOPICS IN THIS CIIAPTER:


l.

2.

163

What are the fundamental and inherent powers of the


state?

9. What rules apply in an impeachment proceeding?

(a)

Police Power

10. What is needed in order to convict the person subject of


impeachment?

(b)

Power of Eminent Domain

11.

(c)

Power of Taxation

12. Can President Estrada be prosecuted in case he is acquitted?

Similarities and distinctions of the three powers of the


State

What is the effect of a judgment in case of impeachment?

DISCUSSION OF PART I
PARTY

BASIC PRINCIPLES AND DEFINITION

BRIEF DISCUSSION OF IMPEACHMENT

I.

IMPORTANT TOPICS IN THIS CIIAPTER:

A.

l. What is impeachment?

2. Who are the impeachable officials under the 1987


Constitution?
3. What are the grounds for impeachment and its definition?
(a)

culpable violation of the Constitution

(b)

treason

(c)

bribery

DEFINITION

'\i

POLITICAL LAW

Politica! law is that branch of jurisprudence which treats of


the science of politics, or the organization of government. (Black's
Law Dictionary, Sixth Edition, p. 1158)
Our Supreme Court defined politicallaw in more specific tenns
by saying that it is the branch of public law which deals with the
organization and operation of the governmental organs of the state
and defines the relations of the state with the inhabitants of its
territory. (People vs. Perfecto, 43 Phil. 887)

POLITICAL LAW AND THE CONSTITUTION


OF THE REPUBLIC OF THE PHILIPPINES

INTRODUCTION TO LAW

164

B.

C.

ADMINISTRATIVE LAW

It is a study of the laws that regul~e the administrative


organization and operations of the governmental organs of the State
and determines the competence of the administrative authorities
and the remedies available to the individuai in case of violation of
his rights.
D.

ELECTION LAW

It is a study of the laws, rules and procedures involving the


conduct of election of ali public officials who wili exercise the powers
of government as allocated to and within their functions and
responsibilities.
E.

LAW OF PUBLIC OFFICERS

It is a study of the creation, modification and dissolution of


public office as weli as the eligibility of public officers, the manner
of their election or appointment and assumption of office, their
rights, duties, powers, inhibition and liabilities, and the modes of
terminating their official relations.

F.

DISCUSSION OF PART II

PHILIPPINE POLITICAL LAW

Philippine Politica! Law, on the other hand, deals specifically


with the study of the structure and powers of our government as
well as the study of Constitutional Law, Administrative Law,
Election Law, Law oi"Public Officers, the Law on Municipal
Corporations, ali of which are covered by and included in the study
of Philippine Politica! Law.

LAW ON MUNICIPAL CORPORATIONS

This is a study of the generai principles governing municipal


corporations, the laws affecting the creation, organization and
government of provinces, cities, municipalities and barangays; the
scope and application of the powers of municipal corporations,
including municipal ordinances, contracts, liabilities, and enterprises.

165

THE 1987 CONSTITUTION


1.

CONSTITUTION

a.

What is Constitution?

Constitu~ is_jt..hody of rules and maxims in accordance with


which the powers of sovereignty are habitually exercisd. Most
likely, i t is defined as the supreme law of the land as ordained and
established by the people which prescribes the permanent framework ofthe system of government, which establishes basic principles
upon which the government is founded, and which defines and
allocates to the various organs of government their respective
powers and duties. (Justice Malcolm's description, Phil. Constitutional Law, p. 6)

2.

BASIC PRINCIPLES OF THE. CONSTITUTION

a.

The Constitution is the supreme law of the land:

A Constitution is a legislation direct from the people acting in


their sovereign capacity, hence, it is more superior than an ordinary
law or statute which is merely a legislation from the people's
representatives subject to limitations prescribed by the Constitution.
No man-made law, therefore, can prevail as against the
Constitution.
b. Being the supreme law of the land, it is the symbol and
monument of the people's will:
As such, it should be su.bmitted for ratification of the people
following the principle that "x x x sovereignty resides in the people
and ali government authority emanates from them.'' (Section 1,
Article II, 1973 and 1987 Constitutions)
c.
The Constitution outlines the infrastructure of the
government:

It is through the Constitution that the fundamental powers


of the government are established, limited and defined, and by

INTRODUCTION TO LAW

POLITICAL LAW AND THE CONSTITUTION


OF THE REPUBLIC OF THE PHILIPPINES

which those powers are distributed among the several departments


of the government for their safe and useful exercise and for the
benefit of the body politic.

(c) Rigid or flexible -A rigid Constitution is one which


can be amendedthrough aJormal and difficult process. A/lfgible
Constitution is one which can be changed by ordinary legislation.

166

d.

Q - What is the nature of the powers of a Constitutional


Convention?

The Constitution must be obeyed by all:

I t governs the poor an d the rich, the governed an d the


governors, the mighty and the weak, and regardless of the color of
one's skin, his religion or his politica! persuasion.
e.

A - There are three theories, thus:


(l) The powers of the Constitutional Convention are in the
nature of sovereign powers, hence, it is more supreme over the other
departments of the government.

The courts are the ultimate guardians of the Constitution:

It is the court that implements the laws prescribed in the


Constitution which would certainly gives the people whatever is
just and fair as on the case maybe.

\.
1

(2) The Constitutional Convention is inferior to the other


departments of the government because it derived its powers from
the legislature which created it.

(3) It is independent and co-equal with the other departments of government. (Cruz, Constitutional Law, pp. 14-15, 1998
Edition)

'

3.

CLASSIFICATIONS OF THE CONSTITUTION ANO ITS DEFI


NITION

Q - What are the different kinds of construction of a Constitution?

Q - Classify Constitutions
A - A Constitution may be written or unwritten, conventional
or cumulative, and rigid or flexible
(a) A wdtten or rigid Constitution is one the provisions
of which have been reduced to writing and embodied in one or more
instruments at a particular time.
EXAMPLE: Philippine Constitution. An unwritten Constitution is one which has not been reduced to writing at any specific
time but it is the collective product of a graduai political development, consisting of unwritten usages and customary rules, judicial
decisions, dieta of statesmen, and legislative enactments of a
fundamental character written but scattered in various records
without having any compact form in writing. The three most
conspicuous historical instances of such constitutions are those of
Athens, Rome, and England. The latter is almost the sole example
of a progressive modern State retaining such a Constitution.
(Malcolm and Laurel, Phil. Constitutional Law, pp. 9-13)

Conventional or Cumulative - A conventional


Constitution is enacted deliberately and consciously by a constituent body or ruler at a certain time and piace. A cumulative
Constitution is a product of a graduai political development.
(b)

167

A- Executive Construction - Is the construction and


interpretation of laws or statutes by the various executive heads of
the various departments of the government. (Gov't. vs. Mun. of
Binalonan, 32 Phil. 634)

Contemporaneous Construction by Executive Officers


- Construction placed by executive officers on a statute, whose
duty is to enforce said statute. (In Re Allen, 2 Phil. 630)
Prospective Construction - Is a rule that ali statutes are
to be construed as having only prospective operation unless the
purpose and intention of the legislature to give them retrospective
effect is expressly declared or is necessarily implied from the
language used.
In every case of doubt, the doubt must be resolved against
the retrospective effect. (Lopez vs. Crow, 40 Phil. 997; Laurence vs.
Rubio, 43 Phil. 1017; Segovia vs. Noel, 47 Phil. 430)

Q- What is the doctrine of "Stare-Decisis"?


A - It means uniformity in judicial decisions. The principle
is sometimes applied and sometimes ignored in the field of
constitutional law. But it may be said that once an interpretation

168

169

INTRODUCTION TO LAW

POLITICAL LAW AND TRE CONSTITUTION


OF TRE REPUBLIC OF TRE PRILIPPINES

has been given the provision of the constitution, it should not be


abandoned without grave reasons, for the stability of many
iroportant institutions of society depends upon permanence.

2. I t is likely to encroach on the domain of ordinary


legislation instead of confining itself to fundamental principles.

The rule applies only with respect to the point actually decided
by the case. (Black, Const. Law, 44; Humphrey vs. U.S. 602)

Q - Distinguish "Stare-Decisis" from "Res Jzidicata."


A - The first refers to rule of law, while the second refers to
settled questiona offact. (Prall vs. Burckhart, 299, Ill. 19, 132 N.E.
280)

Q - What are the advantages and the disadvantages of a


written Constitution?
A- A written Constitution has its own advantags and
disadvantages.

Its advantages are the following:


l.
lt serves as the best guide and reference of the people
when their rights and liberties are transgressed and violated.

2.

lt provides stability to a nation and its people.

3. With a written law on their side, the people feel more


secure and confident that they are well protected against abuse of
authority.
4.
In times of chaos and politica! uncertainties, it serves as
a link and a bridge to pass over to better times.
5. In case of external aggression, it serves as the rallying
point and inspiration of the people to protect their country against
the invaders, or even against any form of foreign control.
6. lt lays down in clear terms the principles of their politica!
creed and aspirations, the policies that govern the state and its
people, all of which protect them from frequent and violent
fluctuations of public pulse.
7. Both in times of peace and war, i t holds the people
together.

Its disadvantages are the following:


l.
The rules, principles and policies upon which it is based
are difficult to change even when they turn out, at times, to be
inconvenient.

3. When there is an urgent need for a change, the prescribed


rules or procedures tb effect such change often results to bitter or,
probably, violent, clashes of opinion.

Q - What are the advantages and disadvantages of R.n


unwritten Constitution?
A - An unwritten Constitution is advantageous in the sense
that it is flexible and elastic. It is not advantageous in the sense
that it is subject to perpetuai change at the will of only a few
number of people.
Q - What is the purpose of a Constitution?
A - The purpose of a CoRS..titution is "to prescribe the permanent framew.ork oia"s"Ystem of government, to assign to the different
departments their respective powers and duties, and establish
certain fixed principles on which government is founded" (Malcolm
and Laurel, Philippine Constitutional Law, 7) Likewise, it serves
as a security and sanctuary of the rights of all citizens, rich or
poor, weak or strong, lettered or unlettered, and regardless of
religious and politica! persuasion. In times of peace and war, it
holds the state together.

Q - What are the essential parts of a written Constitution?


A - A good written Constitution has three essential substantive parts, to wit:
l.
CONSTITUTION OF LIBERTY: This contains the
fundamental civil and politica! rights of the citizens as well as the
limitations on the powers of the government to see to it that the
said rights are safeguarded. The Bill of Rights, for instance, not
only enumerates the rights guaranteed by the Constitution to every
citizen but also prescribes the limitations whenever such rights are
violated. Artide III, Section 12(2, 3, and 4) of the 1987 Constitution
offer exaroples:

"Section 12(2). No torture, force, violence, threat,


intimidation, or any other means, which vitiate the free will,
shall be used against him. Secret detention places, solitary,
incommunicado, or other similar forms of detention are
prohibited.

170

POLITICAL LAW AND THE CONSTITUTION


OF THE REPUBLIC OF THE PHILIPPINES

INTRODUCTION TO LAW

Section 12(3). Any confession or admission obtained in


violation of this or Section 17 hereof shall be inadmissible in
evidence against him.

1.11!
,:
'
~: i

Section 12(4). The law shall provide for penai and civil
sanctions for violations of this section as well as compensation
to and rehabilitation of victims of torture or similar practices
and their families."
c

i,,,

3.
CONSTITUTION OF SOVEREIGNTY: This contains
the provisions on how to amend or revise our Constitution and when
such amendment or revision is considered valid.
A - A good written Constitution must be broad, brief, and
definite.
Q - Define each.
A - l t must be broad because it must outline an organization
of government for the whole state and that unlike a statute, it is
intended not merely to meet existing conditions but also to govern
the future. While it is true that it will not govern the past, the
events that happened in the past, whether recent or too long ago,
are lessons that guide the framers of the Constitution on what they
think is appropriate to be written in the Constitution. One good
example of this is the new definition of judicial power which now
includes the duty to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the government
(1987 Constitution, Article VII, Section 1) which adds teeth to Article
VII, Section 18 of the 1987 Constitution, this is now referred to as
the expanded jurisdiction of the Supreme Court.
Likewise. the Supreme Court may now "review. in an
appropriate proceeding filed by any citizen. the sufficieny of the

factual basis of the proclamation of martial law or the suspension


of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.
(Underlining Supplied) (Section 18, paragraph 3)
lt is brief because it is not intended to go into details of
organization. The details are left to Congress which will be in better
position to find out what specific legislation is needed from time to
time.

2.
CONSTITUTION OF GOVERNMENT: This outlines
the organization of the government, enumerating its powers, laying
down certain rules relative to its administration, and defining the
electorate. Hence, the Constitution allocates unto the three branches
of government their respective powers, functions and responsibilities; specifies the constitutional bodies or commissiona as well
as their respective powers, functions and responsibilities; and
defines the accountability of public officers.

Q - What are the requisites of a good written Constitution?

171

lt is definite because vagueness may cause incalculable harm,


or it may lead to opposing interpretation which may bring about
chaos and violence, instead of peace. Of course, there are constitutional provisions which are worded in generai terms but they
are such precisely to give a reasonable leeway for the courts to
decide on what is best under the circumstances. The people should
repose their faith and trust in the intelligence and wisdom of those
in whose hands lies the solemn duty to do what is right and just.
4.

p.;

lr

lilt:

i'r!.i

~t'.,

~f"

THE 1987 CONSTITUTION MAY BE CHANGED

The 1987 can be changed either by amendment or rvision.


This is referred to as formai amendment.
A change may also be affected when our courts of justice
interpret ambiguously worded provisions of the Constitution to
make it conform with realities. This being not in accordance with
the formai process of amendment, as called for, it is understood
that in so doing, the Supreme Court is merely modifying its
interpretations of the ambiguously worded constitutional provisions
involved and it does so in accordance with the principle that it has
the last word in the construction of any law and even of the
Constitution itself.

Q - Distinguish revision from amendment.


A - Revision is the rewriting or overhauling of the entire
instrument.

Amendment is a change or alteration for the better; an


amendment or change within the lines of the originai instrument
which will bring about improvement.

Q - What are the steps required in the !'evision or amendment of the constitution?

POLITICAL LAW AND THE CONSTITUTION


OF THE REPUBLIC OF THE PHILIPPINES

INTRODUCTION TO LAW

172

A - There are two (2) steps required in the process of revision


or amending the Constitution, namely: (l) ~?Eosal; (2) ~ation.

to the Constitution and should not extend to the revision


of the entire Constitution, as it would be practically
impossible for the voting public to review what have been
revised which is more than an amendment but a
rewriting or overhauling of the entire ,instrument.)

l.
PROPOSAL - Proposal is the motion of initiating
suggestions or proposals on amendment or revision, which may
either
by:

be

(a)

173

Q- What is People's Initiative?

Congress, upon a vote of three-fourths of ali its members;


or

(b)

A Constitutional Convention; or

A- I t is a method whereby the people themselves can directly


propose amendments to the Constitution.

(c)

The peoples through initiative. (Sections l and 2, Article


XVII)
.

tion?

Q- Who can propose amendments or revision ofthe ConstituA- Amendments or revisions may be proposed either by (l)
Congress or (2) by the Constitutional Convention.

2.
RATIFICATION - Ratification is the sovereign act
vested in the Filipino people either to reject or approve the proposals
to amend or revise the constitution. The ratificatory process is found
and outlined in Section 4, Article XVII of the Constitution.

Q - If the proposal is made by Congress, what is the required


vote?

Q - How may the constitution be revised?

A- Three-fourths of ali its members.

A - There are two (2) modes of revising the Constitution, to

Q - If the pro posai is made by a Constitutional Convention,


what is the required vote?

wit:
(a)

By the Congress, upon a vote of three-fourths of ali its


Members; or

(b)

By a Constitutional Convention.

IfCongress chooses to cali a Constitutional Convention, it may


either:
(i)

(ii)

Cali a Constitutional Convention by a vote of two-thirds


of ali its Members (Section 3, Article XVII);
Submit to the electorate the question of calling such a
body by a majority vote of ali its Members. (Ibid.)

A - The convention, once organized, is free to decide the vote


required to carry a proposal.

:~

il.

A - Amendment may be effected:


By a Congress, upon a vote of three-fourths of ali its
Members (Section 1[1], Article XVII); or

(b)

By a Constitutional Convention (Section 1[2], Article


XVII);

(c)

By People's Initiative (Section 2, Article XVII). (This


system of initiative should be limited only to amendments

1.

DUE PROCESS OF LAW

a.

Q - How may the Constitution be amended?


(a)

DISCUSSION OF PART III


THE BILL OF RIGHTS

,1:

~~

t1

DEFINITION AND PURPOSE

Through the years, severa! definitions have been written about


due process of law. In Darmonth vs. Wordward (4 Wheat, 518 L.
ed. 629 [1819]), it was defined as a law which hears before it
condemns, which proceeds upon inquiry, and renders judgment only
after a trial. In the old case of U.S. vs. Lin Su Fan (lO Philippines
104), due process was interpreted to mean:
(l)

That there is a law prescribed in harmony with the


generai powers of the legislative department of the
Government;

174

POLITICAL LAW AND THE CONSTITUTION


OF THE REPUBLIC OF THE PHILIPPINES

INTRODUCTION TO LAW

(2)

That the law is reasonable in its operation;

(3)

That the law is enforced according to the regular methods


of procedures prescribed;

(4)

That the law is applicable alike to all people of the State


orto all of a class.

In the famous case of Aquino, Jr. vs. Military Commission (63


SCRA 546), the Supreme Court made a more articulate statement
and definition of due process of law, thus:
"Due process of law does not necessarily mean a judicial
proceedings in the regular courts. The guarantee of due
process, viewed in its procedura! aspect, requires no particular
form of procedure. It implies due notice to the individuai of
the proceedings, an opportunity to defend himself and the
problem of the propriety of the deprivation, under the circumstances presented, must be resolved in manner consistent with
the essential fairness. It means essentially a fair and impartial
trial and reasonable opportunity for the preparation of the
defense."
The due process clause is a guaranty against any kind of abuse
and arbitrariness, by anyone in any of the branches of government.
More specifically, the purpose of the due process clause is:
(l)

To prevent undue encroachment against the life, liberty


an d property of individuals.

(2)

To secure the individuai from the arbitrary exercise of


powers of government, unrestrained by the established
principles of private rights and distributive justice.

(3)

To protect property from confiscation by legislative


enactments from seizure, forfeiture, and destruction
without a trial and conviction by the ordinary modes of
judicial procedures.

b.

PERSON

In Roman Law, a person is one who is capable of exercising


ownership and legai rights to incur and contract obligation. Under
this concept, a slave is not considered a person, he being merely
regarded as a chattel, a thing that can be sold or disposed of at the
discretion of the master. Hence, a slave does not have the legai
capacity to exercise ownership to incur and contract obligations.

175

Under the New Civil Code, a person may be natura! or a


juridical person. A natura! person refers to a human being and a
juridical person refers to any of the following:
(l)

The State and its politica! subdivisions;

(2)

Other corporations, institutions and entities for public


interest or purpose created by law; their personality
begins as soon as they have been constituted according
to the law;

(3)

Corporations, partnerships and associations for private


interest or purpose to which the law grants a juridical
personality, separate and distinct from that of each
shareholder, partner or member. (Article 44, New Civil
Code)

Under our Constitution, natural and artificial persons are


covered iind protected by the due process clause, except that with
respect to artificial persons, the protection is only insofar as their
property is concerned. (South Bell and Co. vs. Natividad, 40 Phil.
136)
c.

LIFE

The right to life is not merely a right to the preservation of


life itself but also to the security of the limbs and organs of the
human body against any unlawful harm. This constitutional
guarantee includes the rights of an individuai to pursue a lawful
calling or occupation; to express, write or even paint his ideas for
as long as he does not unlawfully transgress the rights of others;
to exercise his freedom of choice, whether this is in the area of
politics, religion, marriage, philosophy and employment, or even
in the planning of his family, and in generai, to do and perform
any lawful act or activity which, in his judgment, will make his
life worth living.
Under the new Constitution, the right to life may further be
construed to mean and to include an "improved quality of life"
(Section 9, Article II), "full respect for human rights" and the
"dignity of every human person" (Section 11, Article Il), "just and
dynamic social order" to ensure "the prosperity and independence
of the nation and free the people from poverty through policies that
provide adequate social services, promote full employment, a rising
standard of living, and an improved quality of life for all" (Section
9, Article 11), "the right to health" and "balanced and healthful

INTRODUCTION TO LAW

POLITICAL LAW AND THE CONSTITUTION


OF THE REPUBLIC OF THE PHILIPPINES

ecology in accord with rhythm and harmony of nature" (Sections


15 and 16, Article Il), the right to "socialjustice," (Section 10, Article
Il) the "right of workers" and the promotion of their welfare"
(Section 18, Article Il), and "equal access to opportunities for public
service" (Section 26, Article 11).

of one's employment or profession (Century Textile Mills, !ne. vs.


NLRC, 161 SCRA 528), the rights arising from a perfected mining
daim, or a perfected homestead, or a final judgment, are protected
and cannot be taken away from the owner without due process of
law.

176

Ali these are declared principles and state policies the


promotion and enforcement of which are guaranteed by the express
provision of Artide II of the 1987 Constitution. In that sense, they
could reasonably be daimed as part of the right to life, to hold
otherwise would, in effect, render nugatory the very assurance and
undertaking of the State to promote and guarantee the same to ali
citizens alike, without discrimination.
d.

LIBERTY

Liberty refers to something which is more than mere freedom


from physical restraint or the bounds of a prison. It means freedom
to go where one may choose, and to act in such manner, not
inconsistent with the equal rights of others, as his judgment may
dictate for the promotion of his happiness; to pursue such callings
and avocations as may be most suitable to develop his capacities,
and give to them their highest enjoyment, within the bounds of
law. (Munn vs. Illinois, 94 U.S. 143)
A person is free to do anything he wants provided he does not
violate the law and the better rights of others. This freedom,
however, should be construed as freedom to do right, and never
wrong, according to Apolinario Mabini, hence, in exercising this
freedom, one should be "guided by reason and the upright and
honorable conscience of the individuai; commanding obedience to
those rightfully placed in power and acknowledge as the most fit
to guide."
e.

f.

177

REQUIREMENTS OF DUE PROCESSATA GLANCE

The due process clause should be interpreted both as a


substantive and as a procedura! guard.
l.

~~

1),:
,'~
~~

..
i

f:

~'~l

i'~

PROPERTY

SUBSTANTIVE

Substantive due process is a guarantee that life, liberty and


property shall not be taken away from anyone without due process
of law. Ifa law is invoked to take away one's liberty and property,
the more specific concern of substantive due process is not to find
out whether said law is being enforced in accordance with
procedura! formalities but whether or not the said law is a proper
exercise of legislative power. This will necessarily require the
following. There must be a valid law upon which it is based:
(a)

The law must have been passed or approved to accomplish a valid governmental objective.

(b)

The objective must be pursued in a lawful manner.

(c)

The law as well as the means to accomplish the objective


must be valid and not oppressive.

2.

PROCEDURAL

Procedura! due process refers to the regular methods of


procedure to be observed before one's life, liberty or property can
be taken away from him. Simply stated, it means that the procedure
to be observed must be fair.
Procedura! due process therefore is a guarantee to obtain a
fair trial in a court of justice according to the mode of proceeding
applicable to each case. Now, this indudes not only any court of
justice but also any and ali administrative boards, bodies or
tribunals.

Property refers to things which are susceptible of appropriation, and which are already possessed and found in the
possession of man. (Castan, 8th ed., Part II, pp. 367-369)
It could either be immovable or real property, as enumerated
in Artide 415 of the Civil Code, or movable or personal property,
as enumerated in Artides 416 and 417 of the Civil Code. Ali those
properties, induding the right to own and possess the same, as
well as the right to acquire, or use it for any lawful purpose and by
any lawful means, the right to earn a living, the right to the fruits

THE TWO (2) ASPECTS OF PROCEDURAL DUE PROCESS


ARE THE FOLLOWING:
l)
fl'

PROCEDURAL DUE PROCESS IN ADMINISTRATIVE


PROCEEDINGS

INTRODUCTION TO LAW

178

2)

PROCEDURAL DUE PROCESS IN JUDICIAL PROCEEDINGS

The requirements of due process in judicial proceedings, as


laid down in Banco Filipino vs. Palanca (37 Phil. 921) are as follows:
l.

There must be an impartial court or tribunal clothed with


judicial power to hear and determine the matter before
i t;

2.

Jurisdiction must be lawfully acquired over the person


of the defendant and over the property which is subject
matter of the proceeding;

3.

The defendant must be given an opportunity to be heard;


and

4.

Judgment must be rendered upon lawful hearing.

PROCEDURAL DUE PROCESS IN


ADMINISTRATIVE PROCEEDINGS

The requirements of due process in administrative proceedings, as laid down in Ang Tibay vs. Court of Industriai Relations
(69 Phil. 635), are as follows.
l.

The right to a hearing, which includes the right to present


one's case and submit evidence in support thereof;

2.

The tribunal must consider the evidence presented;

3.

The decision must have something to support itself;

4.

The evidence must be substantial;

5.

The decision must be rendered on the evidence presented


at the hearing, or at least contained in the record and
disclosed to the parties affected;

6.

7.

The tribunal or body or any of its judges must act on its


own independent consideration of the law and facts of
the controversy and not simply accept the views of a
subordinate in arriving at a decision; and
The board or body should, in all controversia! questions,
render its decision in such a manner that the parties to
the proceeding can know the various issues involved, and
the reason for the decision rendered.

POLITICAL LAW AND THE CONSTITUTION


OF THE REPUBLIC OF THE PHILIPPINES

179

SEARCH ANO SEIZURE

There are actually three (3) rights mentioned in Section 2,


Artide III of the Constitution thus:
l.
One is the right of the people to be secure in their
persons. houses. papers. and effects against unreasonable
searches and seizures of whatever nature and for any purposes.
The right is "inviolable."

2.
No search warrant shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complaint and the
witnesses he may produce, and particularly describing the piace to
be searched and the persons or things to be seized.

No warrant of arrest shall issue except upon


3.
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized. (Compressed in
the second sentence of Section 2 which says, "and no search warrant
or warrant of arrest shall issue except upon probable cause xxx.''}
PRIVACY OF COMMUNICATION
ANDCORRESPONDENCE
RULE ANO EXCEPTIONS
GENERAL RULE:

The privacy of communication and correspondence shall be


inviolable.
EXCEPTIONS:

(l)

Except upon lawful order of the court; or

(2)

When public safety or order requires otherwise as


prescribed by law.

COVERAGE OF THE GUARANTEE

The constitutional protection to privacy or communication and


correspondence includes tangible or intangible objects.

180

INTRODUCTION TO LAW

EXAMPLE:
l.

2.

Tangible objects - Letters, telegrams, signals, cables,


telephone, client's file and other documents.
Intangible objects- Under Republic Act No. 4200, it
is illegal for any person, not authorized by ali the parties
to any private communication by means of tape recorder.
(People vs. Sy Juco, 64 Phil. 667)
FREEDOM OF SPEECH AND OF THE PRESS

MI:ANING OF FREEOOM OF SPEECH


ANO OF THE PRESS

POLITICAL LAW AND THE CONSTITUTION


OF THE REPUBLIC OF THE PHILIPPINES

181

2.

The right of peaceful picketing. (Cafeteria Employees


Union vs. Angeles, 64 Suppt. Crt. 126)

3.

The right to a lawful strike.

4.

The right to disseminate information concerning the facts


of a labor dispute.

5.

Expression by means of radio, television, and motion


picture.

6.

The right to express grievances against the government;


to criticize the affairs of government.

7.

The right to display posters, notices, flags and banners.

Freedom of speech and that of the press implies, the right to


freely utter and publish whatever the citizen may please, and to
be protected from any responsibility for so doing, except so far as
such publication, from their blasphemy, obscenity, or scandalous
character, may be a public offense, or as by their falsehood and
malice they may injuriously affect the standing, reputation or
pecuniary interests of individuals. (Cooley's Const. Limitations, 8th
ed., 886; U.8. vs. Sotto, 38 Phil. 666)

WHAT IS INCLUOEO IN THE TERM "PRESS"

WHAT ARE INCLUOEO IN THE FREEOOM OF EXPRI:SSION?

In broad sense, religion includes any form of belief in regard


to the relation of human beings to some supernatural powers, or
as defined in Aglipay vs. Ruiz (64 Phil. 201), it is a "profession of
faith to an active pwer that binds and elevates man to his creator."
Persons holding the same religious beliefs are generally associated
in groups which may or may not be organized as corporations.

It includes the following:

2.

Free speech and free press


Freedom of assembly

3.

Freedom of petition

4.

Freedom of religion

5.
6.

Right of association or right to form associations


Right to religious freedom

l.

WHAT ARE INCLUOEO IN THE TERMS "SPEECH"


ANO "EXPRESSION"

The terms include the following:


l.

The right to freely utter, print and publish any statement


without previous censorship of the government. (U.S. vs.
Sotto, 38 Phil. 666)

They include newspapers, magazines, journals, books and any


sort of publication.
FREEDOM OF RELIGION
RELIGION OEFINEO

In a more specific or restricted sense, religion is a system of


belief, or worship, or philosophy not necessarily in the existence of
God, or power of a more superior being, but in a philosophy or way
of life detached from any reverence or obedience to God.
There are those who pray in any piace of their choice for they
believe that the tempie of God is not necessarily the altar we know
with ali images of saints, but a piace where they could meditate
and talk to their own God without the intercession of any priest or
pastor.
In ali these instances, their faith and way of life, is their
religion which the Constitution guarantees to be inviolable. The
reason for this is because the Constitution guarantees the freedom

182

INTRODUCTION TO LAW

POLITICAL LAW AND THE CONSTITUTION


OF THE REPUBLIC OF THE PHILIPPINES

to believe, this is being absolute. What is regulated and subject to


the police power of the State is when that belief is translated into
action and the acts or acts performed is harmful to the better rights
of others.

It is in the pursuit or exercise of this right that the people


are granted the right to know and to be informed "on matters of
public concern."

LIBERTY OF ABODE AND TRAVEL

l t is through the exercise of this right that those in govemment


are on their toes, so to speak, for they are awar~ that the vigilant
public, assisted by broadcast and print media, are all.there watching
them, particularly the performance oftheir functions and responsibilities.

MEANING OF LIBERTY OF ABOOE ANO TRAVEL

It is the right of a person to have his home or to maintain or


change his home, dwelling, residence or habitation in whatever
piace he has chosen, within the limits prescribed by law (First
Sentence, Section 6), and to go where he pleases without interference
from anyone, except in the interest of national security, public safety,
or public health, as may be provided by law. (Second Sentence,
Section 6)
The exceptions aforementioned means that the liberty of abode
and travel is subject to the police power of the State.
RIGHT TO INFORMATION
TWO RIGHTS GUARANTEEO BY SECTION 7

The two rights guaranteed by Section 7 are (l) the right to


information on matters of public concern (First Sentence, Section
7); and (2) the right to access to official records, and to documents,
and papers pertaining to official acts, transactions or decisions, as
well as to government research data used as basis for policy
development.
RATIONALE OF SECTION 7

The strength of a democratic and republican government, such


as ours, depends on the active support and cooperation of the
sovereign people who choose and elect the officers who will represent
them. Just as they are the ones upon whose hands lie the sovereign
will and authority to put them from there; they are undoubtedly
entitled to know, a t the very least, if they are served or not served
weli; if the government entrusted to their care is properly managed
or not; if the funds and properties which the people own are properly
kept and spent.

183

They know that sooner or later, they will be exposed to the


fulllight ofpublic scrutiny. (Valmonte vs. Belmonte, Jr., 170 SCRA
256 [1989]). They will be more cautious and careful, and more than
this, transparent in their dealings and transactions.
SCOPE OF THE RIGHT

The right to information includes the right to be informed


"matters ofpublic concern." This, in turn, includes access "to offi.cial
records and documents and papers pertaining to official acts,
transactions or decisions, as well as to government research data
used as basis for policy development."
LIMITATIONS ON THE RIGHT TO INFORMATION
MATTERS OF PUBLIC CONCERN ANO ON THE
COROLLARY RIGHT TO ACCESS TO OFFICIAL
RECOROS

Said rights are "subject to such limitations as may be provided


by law." The limitations referred to may either be a limitation
imposed by statutory law, or by any regulation which a particular
office may impose to maintain order and efficiency or to insure the
safety of the records in its custody.
Among the many government offices whose records are usually
inspected, examined or copied, are the records, of the Securities
and Exchange Commission, Registry of Deeds, Courts in alllevels,
Land Registration Authority, N ational Bureau of Investigation,
N ational Intelligence Administration, N ational Labor Commission
and other quasi-judicial offices, Social Security System, Government
Service Insurance System, Department of Labor and Employment,
Bureau of Domestic 'l'rade, Department of Foreign Affairs and their
auxiliary offices, and the N ational Archives, among others. From
day to day, thousands of people go to these offices for such purposes.

184

INTRODUCTION TO LAW

POLITICAL LAW AND THE CONSTITUTION


OF THE REPUBLIC OF THE PHILIPPINES

Access to officiai records of sdd offices and other government


offices for that matter is guaranteed by Section 7, but it reserves
the right to impose reguiations which are necessary preciseiy to
protect the safety of the documents in their possession. With the
advent of computer and modern technoiogy, for instance, the records
in the Securities and Exchange Commission, or that of the Land
Registration Authority, are now in microfiims and researchers are
now required to pay some fees to have copies, upon proper appiication.

2.

Even without the said constitutionai provision, the right of


associatin is part and parcei of the freedom of expression and
assembly, and like the latter, it is subject to limitations imposed
by Iaw and to the dominant police power of the state.
PROBLEM:

Another controi and reguiation which the government may


impose happens when there is an imperative need to preserve
confidentiality, or to protect nationai security. In such cases, the
higher interest of the State, or of the government, is a t stake and
may not be prejudiced oniy or the benefit of convenience of orte or
a few persons.

1.

CAN THE LAWYER'S NAME IN THE ROLL OF


ATTORNEYS BE CANCELLEO FOR HIS FAILURE
TO PAY HIS MEMBERSHIP DUES IN THE
INTEGRATEO BAR OF THE PHILIPPINES?
r:

,{

RIGHT OF ASSOCIATION UNOER THE 1987 CONSTITUTION


ANO UNOER THE 1935 ANO 1973 CONSTITUTIONS

1935
CONSTITUTION
Article III, Section
1(6)

1973
CONSTITUTION
Article IV, Section 7

1987
CONSTITUTION
Article III, Section 8

"T h e right t o
form. association or
societies for purposes
not contrary to law
shall not be abridged."

"The right to form


association or societies
for purposes not contrary to law shall not be
abridged."

"The right of the


people, including those
employed in the public
or private sectors, to
form unions, associations, or societies for
purposes not contrary to
law shall not be abridged."

WHAT IS THE OIFFERENCE?

Ali the said provisions guarantee the right to form associations


or societies for purposes not contrary to Iaw. Section 8, Artide III
of the present Constitution, however, mereiy maj{es an emphasis
(l) that the right of association is a "right of the people, including
those empioyed in the public and private sectors; and (2) that the
said right now includes to form unions."

In other words, controis and system are in piace not to prohibit


access, but to reguiate access. Without these, the safety of the
documents will not be assured and it will be more inconvenient to
the peopie who seek access to officiai records.

RIGHT OF ASSOCIATION

185

~ :~~
ili
'h'

'

f!
'~-!

!:

Bar integration does not compei a Iawyer to associate with


anyone. l t is his choice to attend or not to attend meetings of the
Integrated Bar, to vote or not to vote in the eiection of officers of
the Integrated Bar of the Philippines.
The only compulsion to which a lawyer is subjected to is the
payment of the annual dues. Even on the assumption that
Integrated Bar compeis a Iawyer to pay his annuai dues, this is
justified as a valid exercise of the police power of the state.
Admission to the practice of Iaw is not a right but a priviiege.
(In re Marcia[ Edillion, 84 SCRA 554)
TAKING OF PRIVATE PROPERTY
FOR PUBLIC USE
Private property can be taken from its owner but subject to
the following conditions:
l.

That the private property is taken for public use.

2.

That the owner of the said property shouid be paid just


compensation.

186

3.

POLITICAL LAW AND THE CONSTI'l'UTION


OF THE REPUBLIC OF THE PHILIPPINES

INTRODUCTION TO LAW

3.

That due process of law shall be observed in the taking


of the said property.

4.

That the taking shall only be exercised by the State


or by those to whom the power bas been lawfully
delegated.

1.

Under this provision, the contracting parties are free to enter


into any kind of contract they choose and they are likewise free to
"establish such stipulations, clauses, terms and conditions as they
may deem convenient."
This right, however, is not absolute. It is subject to the
limitation that the said stipulations, clauses, terms and conditions
"are not contrary to law, morals, good customs, public order, or
public policy."

Just compensation - It is a fair and full equivalent of the


loss sustained. It is the market value to which must be added the
consequential damages, if any, or from which must be deducted his
consequential benefit, if any. (Manila Railway. Co. vs. Fabie, 17 Phil.
207; Manila Railway Co. vs. Ve{asquez, 32 Phil; 286)

Due process of law - It is a law which hears before it


condemns, which proceeds upon inquiry, and renders judgment only
after trial. (Darmouth vs. Wood Mart, 4 Wheat, 518 L. ed. 629)
PROHIBITION AGAINST IMPAIRMENT
OF OBLIGATION OF CONTRACTS

B.

'il

t:

Article 1311, New Civil Code

Article 1311. Contracts take effect only between. the


parties, their assigns and heirs, except in case . where
the rights and obligations arising from the contract are
not transmissible by their nature, or by stipulation or
by provision of law. The heir is not liable beyond the
value of the property he received from the decedent.
lf a contract should contain some stipulation in
favor of a third person, he may demand its fulfillment
provided he communicated his acceptance to the obligor
before its revocation. A mere incidental benefit or
interest of a person is not sufficient. The contracting
parties must have clearly and deliberately conferred a
favor upon a third person. (1257a)
GENERAL RULE: Contracts take effect only between the
parties and their heirs.
EXCEPTION: Except in case where the rights and obligations arising from contract are not transmissible by their nature
or by its stipulation or by provision of law.
C.

To have a clearer understanding of Section 10, a law student


should know the following basic principles about contracts.

Article 1306, New Civil Code

Article 1306. The contracting parties may establish


such stipulations, clauses, terms and conditions as they
may deem convenient, provided they are not contrary to
law, morals, good customs, public order, or public policy.

Public use - Public use is synonymous with public benefit,


public utility, or public advantage, and to authorize the exercise of
the power of eminent domain to promote such public benefit, etc.,
especially where the interest involved are of considerable magnitude. (Guido vs. Rural Progress Administration, 84 Phil. 847)

Fair Market value - It is the price at which a willing seller


would sell and a willing buyer would buy, neither being under
normal pressure. (Manila Railroad Co. vs. Caligsihan, 40 Phil. 326;
Municipality of Bustos vs. Santos, C.A.-G.R. No. 22547-R, June 29,
1962)

WHAT 15 PROHIBITED?
A.

TERMS USED

Republic Act No. 7160, otherwise known as the Local Government Code, provides that the amount to be paid for the expropriated
property shall be determined by the proper court based on the fair
market value at the time of the taking of the property. The value
determined by the assessor may, however, be contested in court.

187

The freedom of contract is both a constitutional and


statutory right.

To uphold this right, the courts should move with the necessary

188

189

INTRODUCTION TO LAW

POLITICAL LAW AND THE CONSTITUTION


OF THE REPUBLIC OF THE PHILIPPINES

caution and prudence in holding contracts void. (People vs. Pomar,


46 Phil. 440; Ferrazini vs. Gsell, 34 Phil. 697)

At a time when the costs of living have become so expensive,


it has become so difficult for the poor to afford even the basic
necessities of life. Food, shelter, clothing and education, for instance,
are no longer sufficiently enjoyed by many people both in the city
and in the countryside. With more reason therefore that a greater
number of people find it more difficult to sustain 'costs of medicines,
hospitalization and doctor's fees, as well as costs of a court .suit
and attorney's fees.

D.

Obligations arising from contracts

"Article 1159. Obligations arising from contracts


have the force of law between the contracting parties
and should be complied within good faith."
2.

POINT5 TO REMEMBER:

A.

PARTIES HAVE NO VESTED RIGHT IN PARTICULAR REMEDIES OR MODES OF PROCEDURE.

Reason: Particular remedies and modes of procedure is an


exercise of the police power of the state. Besides, it is within the
power of the legislature to enact laws which will provide particular
remedies or modes of procedure if they are in its judgment necessary
under the circumstances.
EXAMPLE:

Passage of a law providing for the suspension or post-ponement


in the payment of obligation. The moratorium, however, should not
be an unreasonable length of time, otherwise, i t is an infringement
of the provision against the infringement of contract.

The burden of prosecuting or defending a cause of action,


whether in a civil, criminal labor or administrative proceedings,
have discouraged many citizens to go into litigation. Some who have
tried to litigate have been disappointed either because the same
has become tedious, prolonged and expensive, or because they have
not obtained justice.
To compound these problema, some officers and employees of
government are not serving poor litigants with vigilance, courtesy,
efficiency and dedication. Ali these add to the pain and burden of
those who are precisely suffering from poverty.
This is a collective primary responsibility of alllawyers, judges,
prosecutors, legislators, and executives in government including all
its employees. They should do everything possible to make their
good influence felt by those in the lower echelons of government,
particularly those employed in the judiciary. They should be
reminded of the following:

''A HUNGRY MAN KNOWS NO LAW EXCEPT THE


LAW OF SURVIVAL. A PERSON WHO IS OPPRESSED
AND A VICTIM OF INJUSTICE FORGETS THE LAW. HE
TAKES THE LAW IN HIS HANDS. AN OPPRESSED
HUNGRY MAN SUFFERS MORE. HE IS LIABLE TO
RUN AMOCK. HE LOST HIS LAST HOPE."

FREE ACCESS TO COURTS AND QUASI-JUDICIAL


BODIES AND ADEQUATE LEGAL ASSISTANCE
1.

5ECTION 11 15 A COLLECTIVE PRIMARY RE5PON51BILITY


OF ALL LAWYER5,. JUDGE5, PR05ECUTOR5, LEGI5LATOR5 ANO EXECUTIVE5 IN THE GOVERNMENT INCLUDING
ALL IT5 EMPLOYEE5

This is one guarantee in the Bill of Rights which should better


be implemented and complied with by everyone having to do in
the administration of justice, by every employee in the judiial and
quasi-judicial agencies of our government, and by all lawyers who
are handling cases, either as counsel for the plaintiff or for the
defense.

2.

WHO 15 AN INDIGENT PARTY?

An indigent party is one who is authorized by the court to


prosecute his action or defense as an indigent upon an ex parte
application and hearing showing that he has no money or property
sufficient and available for food, shelter and basic necessities for
himself and his family. (Section 21, Rule 3 of 1997 Rules of Civil
Procedure)

190

3.

INTRODUCTION TO LAW

-~

INDIGENT DISTINGUISHED FROM A PAUPER

A pauper is a person so poor that he must be supported at


public's expense. (Philippine Legal Encyclopedia, by Jose Agaton
R. Sibal)
The Supreme Court, however, gave a broader meaning to this
word, as applied to statutes or provisions on the right to sue. An
applicant for leave to sue in forma pauperis need not to be a pauper,
the fact that he is able-bodied and may earn the necessary money
is no answer to his statement that he has no sufficient means to
prosecute the action or to secure the costs. (lbid.)
As distinguished from indigent. The difference between
"paupers" and "indigent" persons is that the latter are persons who
have no property or source of income sufficient for their support
aside from their own labor, though self-supporting when able to
work and in employment. (lbid.)
RIGHT TO REMAIN SILENT AND TO HAVE
COMPETENTANDINDEPENDENTCOUNSEL
EXPLANATION OF EACH RIGHT

A.

191

must also explain the effects in practical terms. (People vs. Rojas,
147 SCRA 169[1987])
The police investigator should explain a meaningful
information rather than just a ceremonial and perfunctory recitation
of an abstract constitutional principle. (lbid~)
RIGHT TO BAIL
1.

SIMPLIFICATION OF SECTION 13

GENERAL RULE:
Before conviction, ali persons shali be available by sufficient
sureties.
Before conviction, ali persons shall be released on recognizance
as may be provided by law.
EXCEPTION:
The said rule shali not apply to those charged with offenses
punishable by reclusion perpetua when evidence of guilt is strong.

RIGHT TO REMAIN SILENT

A person under investigation has the right to refuse to answer


any question. More than this, his silence may not be used against
him. (People vs. Alegre and Gordoncillo, 94 SCRA 109, 118 [Nov. 7,
1979])
B.

POLITICAL LAW AND THE CONSTITUTION


OF THE REPUBLIC OF THE PHILIPPINES

RIGHT TO COUNSEL

The right of a person under investigation is to have "competent


and independent counsel preferably by his own choice."

2.

RATIONALE OF THE RIGHT TO BAIL

An accused is presumed innocent until his guilt is proven


beyond reasonable doubt by final judgment. The right to bail gives
the accused not only an opportunity to obtain provisional liberty
but also the chance to prepare for trial while continuing his usual
work or employment. The bail posted by the accused for his
provisionalliberty is, in effect, an assurance that the accused will
attend the court proceedings, particularly when his presence is
required.

The purpose of the right to counsel during custodia! investigation is to preclude the slightest coercion as would lead the
accused to admit something else. (People vs. Eranoria, 209 SCRA
577, June 8, 1992; People vs. Remollo, 227 SCRA 375, October 22,
1993)

In short, the purpose of the bail is to relieve the accused from


imprisonment until his conviction, and at the same time his
appearance at the trial is secured. (Almeda vs. Villaluz, 66 SCRA
38 [1975])

C.

3.

RIGHT TO BE INFORMED OF ONE'S RIGHT

It is not enough that a police officer will just repeat to the


person under investigation the provisions of the Constitution. He

BAIL DEFINED

Bail is the security given for the release of a person in custody


of the law, furnished by him or a bondsman, conditioned upon his

,~
~

POLITICAL LAW AND THE CONSTITUTION


OF THE REPUBLIC OF THE PHILIPPINES

INTRODUCTION TO LAW

192

appearance before any court as required under the conditions


hereinafter specified. (Section 1, Rule 114, New Rules of Court)
Bail may be given in the form of corporate surety, property
bond, cash or deposit or recognizance. (lbid.)
4.

KINDS OR FORMS OF BAIL

A. BAIL BOND -An obligation given by the accused with


one or more sureties, with the condition to be avoided upon the
performance by the accused of such acts as he may legally be
required to perform. (Villasemor vs. Abana, 21 SCRA 312)
..

It may be given in the form of:


l.

Corporate Surety (Section 10, Rule 114, Rules of Court)

2.

Property Bond (Section 11, Rule 114, Rules of Court)

3.

Cash Deposit (Section 14, Rule 114, New Rules o{Court)

4.

Recognizance (Section 15, Rule 114, New Rules of Court)

B. RECOGNIZANCE - It is a bond or similar obligation


made and recorded before a court by which a person binds himself
to perform some act or fulfill some condition at a specified time.
(Philippine Legal Encyclopedia, p. 837, by Jose Agaton R. Sibal)

l.

The accused shall be presumed innocent until the


contrary is proved.

2.

The accused shall enjoy the right to be heard by himself


and counsel.

3.

To be informed of the nature and value of accusation


against him.

4.

To have speedy, impartial and public trial.

5.

To meet the witnesses face to face.

To have compulsory process.

7.

To secure the attendance of witnesses and the production


of evidence in his behalf.

HABEAS CORPUS
1.

WHAT IS A WRIT OF HABEAS CORPUS?

It is a writ of order directed to the person detaining another


and commanding him to produce the body of the prisoner at a
certain time and piace, with the day and the cause of his detention,
to do, submit to, and receive whatsoever the court ofjudge awarding
the writ shali consider in that behalf.
It is a special proceeding the applicability of which is defined
by Section l, Rule 102 ofthe Revised Rules ofCourt in the following
manner:

"Section 1. 1b what habeas corpus extends. - Except


as otherwise expressly provided by law, the writ of
habeas corpus shall extend to all cases of illegal
confinement or detention by which any person is
deprived of his liberty, or by which the rightful custody
of any person is withheld (rom the person entitled
thereto."

SIMPLIFICATION

Section 14, paragraph l, speaks of due process in criminal


cases or proceedings. Section 14, paragraph 2, specifies the rights
of the accused in ali criminal prosecutions namely:

6.

However, after arraignment, trial may proceed notwith


standing the absence of the accused. PROVIDED (l) that he has
been duly notified and (2) that his failure to appear is unjustifiable.

DUE PROCESS IN CRIMINAL PROCEEDINGS


1.

193

2.

APPLICABILITY OF THE WRIT OF HABEAS CORPUS

The above-quoted provision of the Rules of Court states that


a writ of habeas corpus may be availed of in "ali cases of illegal
confinement or detention by which any person is deprived of bis
liberty, or by which the rightful custody of any person is withheld
from the person entitled thereto."

v-l

194

INTRODUCTION TO LAW

POLITICAL LAW AND THE CONSTITUTION


OF THE REPUBLIC OF THE PHILIPPINES

RIGHT AGAINST SELF-INCRIMINATION

SPEEDY DISPOSITION OF CASES BEFORE ALL


JUDICIAL, QUASI-JUDICIAL
OR ADMINISTRATIVE BODIES
1.

1.

IS THERE A OIFFERENCE BETWEEN THE RIGHT TO SPEEOY


TRIAL, AS GUARANTEEO IN SECTION 14(2), ARTICLE 111,
ANO SPEEOY OISPOSITION OF CASES, AS GUARANTEEO
IN SECTION 16?

There is a difference. The right to speedy trial particularly


refer to criminal prosecutions which are at the trial stage, while
the right to speedy disposition of cases applies to all cases before
judicial, quasi-judicial or administrative bodies.

i_,

SPEEDY DISPOSITION
OF CASES

l. The right to speedy trial is l. The right to speedy dispowhat provided under Artide
sition of cases is provided
IV, Section 14(2), of the 1935
under Artide IV, Section 16,
of the 1973 Constitution, and
Constitution.
now found likewise in Artide
III, Section 16, of the 1987
Constitution.

The right against self-incrimination s a mandatory and


substantive right established on broad grounds of public policy and
humanity. Policy because it would place the witness against the
strongest temptation to commit perjury, of humanity because it
would be to extort a confession of truth by a kind of duress every
specie and degree of which the laws abhor. (Chavez vs. Court of
Appeals, 24 SCRA 663)

:i'

,,ifi

~ :!

rl':.~
'

No torture, force, violence, threat, intimidation, or any other


means which vitiate the free will shall be used against him (Section
12[2}, Article III, 1987 Constitution) and "any confession or
admission obtairied in violation of this or Section 17 hereof shull
be inadmissible in evidence against him." (Section 12[3], Article III,
1987 Constitution)

~~ ,:

2.

----

----

-----

------

---

--

----

PURPOSE OF THE PRIVILEGE

The basic purposes of the right against self-incrimination are


as follows:

2. The right to speedy trial 2. It covers all phases of the


pertains only to criminal
proceedings, whether judiprosecutions which are at the
cial, quasi-judicial or admitrial stage.
nistrative. This right is therefore broader than speedy trial
and applies to civil, criminal
and administrative cases.
L__----

RATIONALE OF SECTION 17

In fact, Artide III, Section 12(1) guarantees that "any person


under investigation for the commission of an offense shall have
the right to be informed of his right TO REMAIN SILENT."

More specifically, here are the differences:


SPEEDY TRIAL

195

l.

For humanitarian reasons to prevent a witness or accused


from being coerced, whether physically, morally ami/or
psychologically into incriminating himself, and

2.

To protect the witness or accused from committing


perjury, because the first law of nature is self-incrimination. (Galman vs. Pumaran, 138 SCRA 294)

-------~--

SIMILARITY

Both rights are beyond quantification, as they cannot be


measured in terms of days, months or even years. Both rights are
given a relative concept consistent with reasonable delays
considering the circumstances in each case. (Martin vs. Ver, 123
SCRA 745)

3.

APPLICABILITY OF SAIO RIGHT

The right is available not only in criminal prosecutions but;


also in other proceedings, whether they are civil, administrative or
legislative investigations. (lbid.) In fact, said right may be claimed
not only by a person accused of an offense but also by any witness
who is asked an incriminating question.

INTRODUCTION TO LAW

POLITICAL LAW AND THE CONSTITUTION


OF THE REPUBLIC OF THE PHILIPPINES

FREEDOM OF POLITICAL BELIEF AND


FREEDOM AGAINST INVOLUNTARY SERVITUDE

to their property on the occupation on which they may be engaged.


(Villanueva vs. City of Iloilo, 26 SCRA 578)

196

1.

WHAT IS INVOLUNTARY SERVITUDE?

It is a condition where one is forced to work for another against


his will and whether he is paid or not.
2.

WHEN IS INVOLUNTARY SERVITUDE PERMISSIBLE?

It is permissible when the following conditions exists:


l.

lf it is a punishment for a crime whereof the party shall


have been duly convicted. (Section 18[2])

2.

If it is so required to defend the State. (Section 4, Article


Il)

3.

If it so needed under the principle of posse comitatus.


(U.S. vs. Pompaya, 31 Phil. 245)
RIGHT AGAINST EXCESSIVE FINES,
DEGRADING OR INHUMAN PUNISHMENT

1.

WHEN IS FINE CONSIDERED EXCESSIVE?

A fine is considered excessive where it is clearly shown that


the nature of the violation compared with the fine is
disproportionate, or if it exceeds the utmost limit of the punishment
which the vindication of the law demands. (U.S. vs. Valera, 26 Phil.
598)
Punishment is cruel if i t is flagrantly and plainly oppressive,
wholly disproportionate to the nature of the offense as to shock the
moral sense of the community (People vs. Etista, 93 Phil. 647), or
when it involves torture or lingering death. (People vs. Puda, 133
SCRA l)
RIGHT AGAINST IMPRISONMENT FOR DEBT
OR NON-PAYMENT OF A POLL TAX
1.

WHAT IS A POLL TAX?

It is a tax of fixed amount upon ali persons or upon persons


of certain class, resident within a specific territory, without regard

197

DOUBLE JEOPARDY
1.

MEANING OF DOUBLE JEOPARDY

When an accused is either acquitted, or convicted, or the case


against him is dismissed or otherwise terminated without his
express consent, by a court of competent jurisdiction, upon a
complaint on information or when formai charge sufficient in form
and substance to sustain a conviction and after the accused has
pleaded to the charge, THE CONVICTION ON ACQUITTAL OF
THE ACCUSED ON THE DISMISSAL OF THE CASE SHALL BE
A BAR TO ANOTHER PROSECUTION FOR THE SAME
OFFENSE.
After the said conviction, acquittal or dismissal, and the said
elements being present, double jeopardy can be invoked to defeat a
second prosecution for the same offense. (Section 21, Article III, in
relation to Rule 117, Section 7, New Rules of Court)
2.

WHAT ARE THE REQUISITES TO CONSTITUTE DOUBLE


JEOPARDY?

In order that an accused may not be subjected to another trial


and punishment for the same offense, the following requisites must
be complied with, to wit:
l.

There must be a valid complaint or information;

2.

Said complaint or information must be filed in court of a


competent jurisdiction;

3.

The accused has pleaded guilty to the charge; and

4.

The accused has been acquitted or the case dismissed or


terminated without his express consent. (People VH.
Vergara, 41 SCAD 13, 221 SCRA 560; People vs. Navallo,
234 SCRA 175)

198

POLITICAL LAW AND THE CONSTITUTION


OF THE REPUBLIC OF THE PHILIPPINES

INTRODUCTION TO LAW

RIGHT AGAINST EX POST FACTO LAW


AND BILL OF ATTAINDER

3.

199

SCOPE ANO APPLICABILITY OF THE PROHIBITION AGAINST


EX POST FACTO LAW

The prohibition applies only to:


1.

MEANING OF EX POST FACTO LAW:

l.

Criminal legislation which affects the substantial right


to the accused (Tolentino vs. Angeles, 99 Phil. 309, 318;
Santos vs. Secretary of Public Works and Commissiona,
C-16049, March 18, 1967);

2.

Criminal procedural law prejudicial to the accused.

In Latin, ex post facto law means "From something done


afterwards." It is any law which makes an innocent act a crime
after the act was commit.ted.
The Supreme Court. made a comprehensive meaning of an ex
post facto law, thus: It is one which l.

2.

Aggravates a crime, or makes it greater than it was, when


committed;

3.

Changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed;

4.

Alters the legai rules of evidence, and authorizes


conviction upon less or different testimony than the law
required a t the time of the commission of the offense;

5.

6.

2.

Makes criminal an act before the passage ofthe law and


which was innocent when done, and punishes such an act;

4.

It is ~ac.t which inflicts punishment without judicial


trial. (Cunning vs. Missouri, 4 Wall. 277, 323; 18 L. ed., 356-363;
People vs. Carlos, 78 Phil. 535, June 30, 1947; People vs. Terrer, 48
SCRA 382 and 397, Dee. 27, 1972)
5.

Assuming to regulate civil rights and remedies not only,


in effect imposes penalty or deprivation of a right for
something which when done was lawful; and
Deprives a person accused of a crime of some lawful
protection to which he has become entitled, such as the
protection of a former conviction or acquittal, or a
proclamation of amnesty. (Philippine Legal Encyclopedia
by Jose A.gaton R. Sibal, p. 3.l1, citing In re Kay Villegas
Kami, Inc., 35 SCRA 429)

2.

That it is retroactive in its operation;

3.

That it alters the situation for the accused party to his


disadvantage (Cooley's Const. Law, 8th ed., 542);

4.

lts enforcement is prejudicial to the accused.

l.

They are convictions and sentences pronounced by the


legislative department, instead of the judicial department;

2.

The sentence pronounced and the punishment inflicted


are determined by no previous law or fixed rule; and

3.

The investigation into the guilt of the accused, if any such


were made, was not necessarily or generally conducted
in his presence or that of his counsel, and no recognized
rule of evidence governed the inquiry. (Ex Parte Garland,
4 Wall. 388, 18 L. ed. 366)

THE FUNOAMENTAL ANO INHERENT


POWERS OF THE STATE

The characteristics of an ex post facto law are the following:


That it relates to criminal matters;

CHARACTERISTICS OF BILL OF ATTAINOER ANO BILL OF


PAINS ANO PENALTIES

PART IV

CHARACTERISTICS OF AN EX POST FACTO LAW

l.

WHAT IS A BILL OF ATTAINOER?

1.

WHAT ARE THE FUNOAMENTAL ANO INHERENT POWERS


OF THE STATE?

They are the following: (l) police power; (2) power of eminent
domain; and (3) power of taxation.

INTRODUCTION TO LAW

200

2.

f:XPLANATION OF EACH POWER

A.

POLICE POWER

It is the sovereign power to promote and protect the generai


weifare. It is the "most pervasive and the Ieast limitabie of the
three powers of the State (Ynot vs. Intermediate Court of Appeals,
148 SCRA 659), the most essentiai, consistent and illimitabie which
enabies the State to prohibit ali hurtfui things to the comfort, safety
and weifare of society." (Lozarro vs. Martinez, 146 SCRA 323)
If is aiso referred to as the law of overwhelming necessity.
B.

POWER OF EMINENT DOMAIN

It is an inherent power of the State that enabies it to forcibiy


acquire private property, which is intended for public use, upon
the payment of just compensation to the owner.

C.

POWER OF TAXATION

It is the inherent power of the State to raise revenues to defray


the expenses of government or for any public purpose. This can be
done through the imposition of burdens or imposition on persona,
properties, services, occupations or transactions.
3.

POLITICAL LAW AND THE CONSTITUTION


OF THE REPUBLIC OF THE PHILIPPINES

SIMILARITIES OF THE THREE INHERENT POWERS OF THE


STATE

CODE: I - I - I - E-L

4.
)

'

201.

THE THREE POWERS DIFFER IN THE FOLLOWING

CODE: N- P - E - R
N - ature (As to nature of compensation)
P-

roperty (As to nature of property)

E - xercise of power (As to how the power is exercised)


R - eguiated (As to w ha,' is regulated)
AS TO NATURE OF COMPENSATION

In Police Power - The compensation of the person subjected


to police power is the intangibie aitruistic feeling that he has
contributed to the generai weifare.
In Eminent Domain and Taxation compensation of the property taken.

There is full and just

In Taxation- There is corresponding protection and pubiic


improvement for the taxes paid.
AS TO NATURE OF PROPERTY

In Police Power - Police power invoives destruction and


confiscation of property which are noxious.
In Eminent Domain and Taxation for pubiic use.

The property taken is

AS TO HOW THE POWER IS EXERCISED

I -

nterference (They are the three methods by which the


State interferes with private rights).

I -

nherent (They are inherent in the State and they may be


exercised by the State without the need of express
constitutional grant)

Eminent Domain upon valid deiegation.

I-

ndispensabie and indestructibie (They are not only


necessary but also indispensable and indestructible as the
State itself)

AS TO WHAT IS REGULATED

Police Power and Taxation - They are inherentiy exercisabie


oniy by the government.
It may be exercised by private entities

In Police Power - It regulates Iiberty and property.

E - quivaient compensation (They presuppose equivalent


compensation)

In Eminent Domain and Taxation private rights oniy.

L - egisiative in character (They are exercised primarily by


the legislative)

Bail is the security given for the reiease of a person in custody


of the Iaw, furnished by him or a bondsman, conditioned upon his

They are addressed to

POLITICAL LAW AND THE CONSTITUTION


OF THE REPUBLIC OF THE PHILIPPINES

INTRODUCTION TO LAW

202

Q - What is treason?

appearance before any court as required under the conditions


hereinafter specified. (Section l, Rule 114, Rules of Court)
f

Bail may be given in the form of corporate surety, property


bond, cash deposit or recognizance. (lbid.)
PARTV
BRIEF DISCUSSION OF IMPEACHMENT

Q - What is impeachment?
A - It is ,.a m!;lthod of national inquest into the conduct of public
men. It is also referred to as an extraordinary process of
removal exercised by the legislature over a selected member
of officials.
Q - Who are the impeachable officials under the 1987
Constitution?
A - l.

President;

2.

Vice-President;

3.

Members of Supreme Court;

4.

Members of Constitutional Commissiona. (Section 2,


Article II, 1987 Constitution)

203

l
i

A - It is a crime committed by any person who, owing allegiance


to the government of the Philippines, levies war against it or
adheres to its enemies, giving them aid and comfort. (Article
114, Revised Penal Code)
'
Q - What is bribery?
A - lt is a crime committed by any public officer who shall agree
to perform an act, whether or not constituting a crime, or
refrain from doing an act which he is officially required to do
in connection with the performance of his official duties, in
consideration of any offer, promise, gift or present received by
him personally or through the mediation of another, or who
shall accept gifts offered to him by reason of his office. (Articles
210-211, Ibid.)

Q - What are other high crimes?


A - They refer to those offenses which "like treason and bribery,
are of so serious and enormous a nature as to strike at the
very life or the orderly workings of the government."
According to Justice lsagani Cruz, rape and murder,
although as serious as treason and bribery, may be probably
excluded from the definition.

Q - What are the grounds for impeachment?

Q - What is graft and corruption?

A- The grounds for impeachment are:

A-

l.

Culpable violation of the Constitution;

2.

Treason;

Th~y are enumerated in the Anti-Graft and Corrupt Practices


Act, which was in force at the time of the adoption of the
Constitution. Section 3 of the Republic Act No. 3019, as
amended, provides as follows:

3.

Graft and Corruption;

a)

4.

Other high crimes, or betrayal of public trust.

An act of persuading, inducing, or influencing another


public officer or tolerates such acts which are tantamount
to the violation of the rules and regulations of a
competent authority or on those susceptible to the latter's
official duties.

b)

Directly or indirectly requests or accepts gift or any other


form which benefits himself or another person in
connection with any transaction or contract between the
Government and the other party within which he may
legally intervene.

Q - What is culpable violation of the Constitution?


A - It is defined as wrongful, intentional or willful disregard of
the fundamental law. The act must be deliberate and
motivated by bad faith to constitute a ground for impeachment.
Hence, a mere mistake in the proper construction of the
Constitution cannot be considered a valid ground for impeachment.

204

INTRODUCTION TO LAW

c)

d)

e)

f)

g)

h)

i)

Directly or indirectly requesting or receiving any gift,


present or other pecuniary or materia! benefit, for himself
or for another, from any person for whom the public
officer, in any manner or capacity, has secured or
obtained, or will secure or obtain, any Government permit
or license, in consideration for the help given or to be
given, without prejudice to Section thirteen of this Act.

~
l
Jl!

~'JIT

Neglecting or refusing, after due demand or request,


without sufficient justification, to act within a reasonable
time on any matter pending before him or for the purpose
of obtaining, directly or indirectly, from any person
interested in the matter some pecuniary or material
benefit or advantage, or for the purpose of favoring his
own interest of giving undue advantage in favor of or
discriminating against any other interested party.
Entering, on behalf of the government, into any contract
or transaction manifestly and grossly disadvantageous
to the same, whether or not the public officer profited or
will profit thereby.
Directly or indirectly having a financial or pecuniary
interest in any business, contract or transaction in
connection with which he intervenes or takes part in his
official capacity, or in which he is prohibited by the
Constitution or by any law from having any interest.
Directly or indirectly becoming interested, for personal
gain, or having a material interest in any transaction or
act requiring the approvai of a board, panel or group of

Interest for personal gain shrul be presumed against


those public officers responsible for the approvai of
manifestly unlawful, inequitable, or irregular transactions or acts by the board, panel or group to which they
belong.

.i'

.~1;

:~

i~

'li,,

.}
l

205

which he is a member, and which exercises discretion in


such approvai, even if he votes against the same or does
not participate in the action of the board, committee,
panel or group.

,1!,

Accepting or having any member of his family accept


employment in a private enterprise which has pending
official business with him during the pendency thereof
or within one year after its termination.
Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted benefit, advantage or preference in the discharge of
his official, administrative or judicial functions through
manifest partiality, evident bad faith or gross inexcusable
negligence. These provisions shall apply to officers and
employees of offices or government corporations charged
with the grant of licenses or permits or other concessions.

POLITICAL LAW AND THE CONSTITUTION


OF THE REPUBLIC OF THE PHILIPPINES

j)

Knowingly approving or granting any license, permit,


privilege or benefit in favor of any person not qualified
for or not legally entitled to such license, permit,
privilege, or advantage, or of mere representative or
dummy of one who is not so qualified or entitled.

k)

Divulging valuable information of a confidential


character, acquired by reason of his office or by him on
account of his official position to unauthorized persons,
or releasing such information in advance of its authorized
release date.
"The person giving the gift, present, share,
percentage or benefit referred to in subparagraphs (b)
and (c); or urging the divulging or untimely release of
the confidential information referred to in subparagraph
(k) of this section shall, together with the offending
officer, be punished under Section 9 of this Act and shall
be permanently or temporarily disqualified, in the
discretion of the Court, from transacting business in any
form with the government."

Q - What is betrayal of public trust?


A- Is a new ground added by the Constitutional Commission
presumably to cover other ali manner of offenses unbecoming
a public functionary but not punishable by the criminal
statutes.
'

EXAMPLE:
Inexcusable negligence of duty, tyrannical abuse of
authority, breach of official duty by malfeasance or,
misfeasance, cronyism, favoritism, obstruction of justice.

206

INTRODUCTION TO LAW

POLITICAL LAW AND THE CONSTITUTION


OF THE REPUBLIC OF THE PHILIPPINES

iJj
Q - What is the procedure of impeachment?
A- Section 3, Article 11 of the 1987 Constitution provides for the
procedure of impeachment. These are the foliowing rules:
l.

2.

The House of Representatives shali have the exclusive


power to initiate ali cases of impeachment by a vote of 1/
3 of its members.

;.1
w

!l!
1

.~ !i

The Senate has the sole power to try and decide ali cases
of impeachment case and "no person shali be convicted
without the concurrence oftwo-thirds of ali the members
of the Senate."

Q - Who has the sole power to try and decide ali cases of
impeachment?

f!
~l

207

A- Section 3(6), Article 11 of the 1987 Constitution provides as


foliows:
"The Senate shall have the sole power to try and decide
all cases of impeachment. When sitting for that purpose, the
Senators shall be on oath or affirmation. When the President
ofthe Philippines is on trial, the Chief Justice ofthe Supreme
Court shall preside, but shall not vote. No person shall be
convicted without the concurrence of two-thirds of all the
members of the Senate."

Q - Who can file a complaint for impeachment?

Q - What is the nature of the impeachment proceedings?

A- Section 3(2), Article XI, states that "a verified complaint for
impeachment may be filed by (a) any Member of the House of
Representatives or (b) by any citizen upon a resolution of
endorsement by any Member thereof."

A- Justice Isagani Cruz said: "Impeachment proceedings are in


a sense of judicial and penal in character. Hence, the
Constitutional rights of the accused as guaranteed in Article
III, such as the right to due process and against selfincrimination, are available in these proceedings. The Rules
of Court, while not strictly applicable as the Congress is not a
court of justice, are nonetheless observed in the conduct of
the trial. As in ordinary criminal actions, proof beyond
reasonable doubt is necessary for conviction."

ft;

'.fii

Procedure:
l.

2.

3.

Said resolution of endorsement shali be included in the


Order of Business within ten (10) session days, and
referred to the proper Committee within three (3) session
days thereafter.
The Committee, after the hearing, and by majority vote
of all its Members, shali submit its report to the House
within sixty (60) session days from such referral, together
with the corresponding resolution.
The resolution shall be calendared for consideration by
the House within ten (10) session days from receipt
thereof.

;:r
'l

On the basis of the ongoing impeachment trial, I am more


inclined to submit that while impeachment proceeding is in a
sense judicial in character, it is not necessarily penai in
character for i t is clear that in case of conviction of President
Estrada, he shall be punishable only by:
l.

Removal from office; and

2.

Disqualification to hold any office under the Republic of


the Philippines. (Section 3[7], Article XI of the 1987
Constitution)

Q - Can an impeachment proceeding be initiated against


the same official more than once within a period of one
year?

The said penalty is more of a penalty in an


administrative proceedings than in a criminal proceeding.

A- No. Section 3(5) provides that "No impeachment proceedings


shali be initiated against the same official more than once
within a period of one ye~r." This is intended to prevent
impeachment from beginning an instrument of mere harassment.

"Judgment in cases o{ impeachment shall not extend


further than removal f!"om office and disqualification to
hold any office under the Republic of the Philippines, but
the party convicted shall nevertheless be liable and subject
to prosecution, trial and punishment according to law."

Section 3(7), Article XI provides in full:

208

INTRODUCTION TO LAW

POLITICAL LAW AND THE CONSTITUTION


OF THE REPUBLIC OF TRE PHILIPPINES

209

il

The fact that the last sentence of Section 3(7),


provides for a situation where a party convicted "shall
be nevertheless liable and subject to prosec\ltion trial,
and punishment according to the law" does not make
impeachment a criminal proceeding because it is clear
that it is only in case of his conviction that President
Estrada shall be liable and subject to prosecution, trial
and punishment. It is only from there when the President
will be subject to a criminal proceeding.

fti

:l!

Q - What rules apply in an impeachment proceeding?

Q - What is needed in order to convict the person subject


ofimpeachment?

Q - What is the effect of a judgment in case of impeachment?

A- No. Reason: While it is true that he is already resigned and

if

lr

f!

,ir
~'

A - (l) Sectlon 7(3), Article XI, specifies the following effects:

a.

Removal from office;

b.

Disqualification to hold any office under the Republic of


the Philippines;

c.

In addition, the party convicted shall nevertheless be


liable and subject to prosecution, trial and punishment
according to law.

Q -C an President Estrada be prosecuted in case be is


acquitted?
A- No, because the last sentence of Section 3(7), Article XI, states

that it is only in case of his conviction by the impeachment


court that he shall be liable to prosecution, trial and
punishment according to law. This means that if he is
acquitted, he cannot be liable and subject to prosecution, trial,
and punishment.
Q -In case President Estrada case convicted in the impeachment proceeding and thereafter criminally
prosecuted for the offense which warranted bis

A- No. As already stated, the penalty which the Senate may


impose shall be limited to removal from office and
disqualification to hold any office under the Republic of the
Philippines. This penalty is beyond the reach of the President's
power of executive clemency, but does not piace the offense
which wa'rranted his conviction on impeachment, the officer
cannot plead the defense of double jeopardy.
Q - If President Estrada resigned before the rendition of
judgment by the impeachment court, does bis
resignation piace him beyond reach of impeachment for
offenses committed during bis tenure?

A- The rules of the present Senate. The Rules of Court shall


supplement the rules of the Senate whenever it is practicable.

A- Section 3(6) "x x x No person shall be convicted without the


concurrence of two-thirds of ali the members of the Senate."

conviction on impeachment, can be plead the defense


of double jeopardy?

can no longer be removed from his office, there is stili a penalty


which can be imposed even after his resignation and that is
the penalty of "disqualification to hold any office under the
Republic of the Philippines."
Q - During the process of impeachment trial, can President
Estrada be suspended pendente lite?
A- This has no precedent in our jurisdiction. I t is my opinion
that the penalty of preventive suspension pendente lite may
be imposed for the following reasons:
l.

As aforementioned, the impeachment trial is judicial and


administrative in character because precisely of the
penalty provided in Section 3(7), Artide XI;

2.

The purpose of suspension pendente lite is precisely to


prevent the officer sought to be suspended from possibly
using his influence against any and ali officials of the
government and thereby help him influence the outcome
of the proceeding. It is for this reason that suspension
pendente lite may be justified.

In the U.S., this was raised during the deliberation of


the Constitutional Convention of 1887 (when a proposal was
submitted to provide for such preventive suspension). This was
rejected for being considered an unnecessary molestation.

As we see it now, it cannot be considered an "unnecessary


molestation." It is considered necessity to protect the interest

210

POLITICAL LAW AND THE CONSTITUTION


OF THE REPUBLIC OF THE PHILIPPINES

INTRODUCTION TO LAW

In the said case of Avelino vs. Cuenco, then Senate President


Avelino motu proprio adjourned a session of the Senate leaving
twelve (12) other Senators in the session hall. The twelve (12)
Members continued the meeting and replaced Senate President
Avelino with Senator Cuenco as acting President. Senator Avelino
contended that Senator Cuenco was not validly elected because the
twelve (12) Senators did not constitute a majority, or a quorum of
the twenty-four-man Senate.

ofthe greater number ofFilipino people considering the gravity


of the charges and the offenses committed.

Q -Is the judgment of Congress in an impeachment


proceeding subject to judicial review?
A - As a rule, it is not subject to judicial review precisely because
of the Constitutional provision that the Senate has the "sole
power to try, and decide ali cases of impeachment."
However, the courts may annui the proceedings if there
is a showing of a grave abuse of discretion committed by the
Congress or of non-compliance of the procedura! requirements
of the Constitution.
EXAMPLE:
l.

When the charges are instituted without a verified


complaint; or by less than one-third (113) of ali the
members of the House of Representatives; or where the
judgment of conviction is supported by less than a twothirds (2/3) vote in the Senate.

Q - Can the subject of conviction in the impeachment be


subject to the pardoning power of the President?
A- It is not subject to the pardoning power of the President.
However, if the convicted official is prosecuted later on
in an ordinary criminal action and later on found guilty, the
decision may be the subject of pardon by the President.

Q - Section 3(6), Article XI, states that no person shall be


convicted without the concurrence of two-thirds of all
the members of the Senate. Does this referto two-thirds
of twenty-four or two-thirds of twenty-two?
A - The Constitution merely states "two-thirds of ali the Members
of the Senate without any specification as to whether it is
two-thirds of the regular membership of twenty-four or twothirds of the present members of the Senate."
This will be a test case in the Supreme Court.
However, the old case of Avelino vs. Cuenco gives us a
guide on what constitutes a quorum in the Senate.

211

,,

The Supreme Court ruled that twelve (12) Senators were


sufficient to constitute a quorum thereby using the principle of
majority of twenty-three (23), and not twenty-four (24) Senators.
The reason given by the Supreme Court is that one Senator
was then outside of the Philippines being then in the U.S. and for
this reason, he is therefore outside the coercive jurisdiction of the
smaller number of the Senators who could adjourn from day to day
and compel the attendance of absent members in such manner and
under such penalties as the Senate might provide.
There is more reason that this doctrine will be held applicable
because Justice Marcelo Fernan is not only outside of Philippine
territory. He already died and therefore he cannot in any way be
capable of voting in the first piace.
In the case of Gloria Macapagal-Arroyo, she was already
elected Vice-President of the Republic of the Philippines and for
this reason she is no longer capable to participate in the impeachment proceeding as a Senator and therefore no longer capable to
vote.
The actual reality is that the present membership of the
Senate is only twenty-two (22) and therefore the constitutional
requirement ofconcurrence oftwo-thirds(2/3) should be two-thirds
(2/3) of the present members of the Senate who are actually
participating in the impeachment proceeding.
As a matter of fact, on the basis of the submission, I may
even submit that Senator Barbers who is not actually participating
in the impeachment trial may not be able to be included because
he is outside not only of the territorial jurisdiction of the Senate
but also outside the coercive jurisdiction of the smaller number of
Members.

JIl'

CRIMINAL LAW

,i l
1

213

(13) What is illiteracy?


(14) Who are criminally liable?

Chapter XIV

(15) Who are considered principals, accomplices, and


accessories?
(16) Points to remember

CRIMINAL LAW

(17) Enumeration of all circumstances that modify or


affect criminal liability

.i'.l'
'

IMPORTANT TOPICS IN THIS CHAPT:ER:

(a)

Article 11

Justifying circumstances

(b)

Article 12

Circumstances which exempt


from criminalliability

(c)

Article 13

Mitigating circumstances

3. Definition of Criminal Law

(d)

Article 14

Aggravating circumstances

4. Basic principles of Criminal Law

(e)

Article 15

Their concept

l. Historical background

(a)

Classica! school of thought

(b)

Positivist school of thought

5. Who incurs criminalliability?

8.

7.

Notes
Circumstances that modify or affect criminal
liability

(2)

Six justifying circumstances

(3)

Important distinction to remember

(4)

Burden of proof

(5)

The defendant must rely on the strength of his


evidence

(6)

Effect of justifying and exempting circumstances

(7)

Mitigating circumstances

tfk

(8)

Aggravating circumstances

il

(9)

Kinds of aggravating circumstances

(11) Alternative circumstances

DISCUSSION

,~.

(l)

(10) What should be alleged and proven?

Modification of the penalty for the violation of B.P. Blg.


22

6. Stages in the commission of felonies

i!F

ur'l''
'l;

l.

HISTORICAL BACKGROUND:

\,

Our revised Penai Code was based on the Spanish Penai Code
of 1870. lt is based on the classica! school of thought, as
distinguished from the positivist school of thought.

l!

Classical School of Thought - This school of thought


assumes that men have free will: that they know what is right and
what is wrong; and as rational beings, they are guided by thought
that a crime carries with it a corresponding penalty.

"il

i'

lf~

\!!

Positivist School ofThought- This school ofthought views


a criminal merely as a sick man who needs reformation and cure
instead of punishment.

'

CRIMINAL LAW

(12) What is habitual intoxication?

l t is that branch of public law which defines crimes, treats of


their nature and provides for their punishment.

214

CRIMINAL LAW

INTRODUCTION TO LAW

wrongfui act done be different from that which he


intended;

BASIC PRINCIPLES OF CRIMINAL LAW

l.

There is no crime when there is no law punishing it. In


other words, any and ali offenses must be defined by law.

2.

As a rule, penallaws are prospective in effect.

3.

Penai Iaws and those of public security and safety shali


be obiigatory upon ali who Iive or sojourn in Philippine
territory subject to the principles ofinternationaliaw and
to treaty stipulations.

4.

As a ruie, our Revised Penai Code shali be enforced not


oniy within the Phiiippine Archipeiago, including its
atmosphere, its interior waters and maritime zone, but
aiso outside of its jurisdiction, against those who:
(a)

Should commit an offense while on a Philippine ship


or airship;

(b)

Should forge or counterfeit any coin or currency note


of the Philippine Islands, or obligations and securities issued by the Government of the Philippine
Isiands;

(c)

Shouid be Iiable for acts connected with the


introduction into these islands of the obiigations and
securities mentioned on the preceding number;

(d)

While being public officers or empioyees, shouid


commit an offense in the exercise of their functions;
or

(e)

Shouid commit any of the crimes against nationai


security and the law of the nations, defined in Title
One of Book Two of this Code.

2.

Attempted - There is an attempt when the offender


conmences the commission of a felony directly by overt acts, and
does not perform ali the acts of execution which should produce
the felony by reason of some cause of accident than his own
spontaneous desistance. (Art. 6, third paragraph, Revised Penal
Code)
Frustrated - It is frustrated when the offender performs
all the acts of execution which would produce the felony as a
consequence, but which, nevertheless, do not produce it by reason
of causes independent of the will of the perpetrator. (Art. 6, 2nd
paragraph, RPC)
Consummated - It is consummated when ali the elements
necessary for its execution and accomplishment are present. (Art.
6, 2nd paragraph, RPC)

NOTES:
l.

WHO INCURS CRIMINAL LIABILITY?

l.

By any person committing a felony (delicto) although the

ctrcumstances that modify or affect criminal liability


- The circumstances modifying or affecting criminalliability
are the following:

Except as provided in treaties and laws of preferentiai


application.

Criminai liability shall be

By any person performing an act which would be an


offense against persons or property, were it not for the
inherent impossibility of its accomplishment or on
account of the employment of inadequate or ineffectual
means.

STAGES IN THE COMMISSION OF FELONIES

EXCEPTION:

Art. 4. Criminal Liability incurred:

215

2.

(a)

Justifying Circumstances (Art. 11, RPC)

(b)

Exempting Circumstances (Art. 12, RPC)

(c)

Mitigating Circumstances (Art. 13, RPC)

(d)

Aggravating Circumstances (Art. 14, RPC)

(e)

Alternative Circumstances (Art. 15, RPC)

Six (6) justifying circumstances - The six (6) justifying


circumstances are as follows:
(a)

Self-defense;

216

INTRODUCTION TO LAW

CRIMINAL LAW

217

(jl

(b)

Defense of relatives;

(c)

Defense of strangers;

(d)

Avoidance of greater evil or injury;

(e)

Fulfillment of duty or exercise of a right;

(f)

Obedience to a lawful order.

2.

If the actor succeeds in proving the exempting


circumstance he/she invokes, he/she is relieved from
criminal Iiability but not from civil Iiability under Art.
101 of the Revised Penai Code.

jfj

3.

4.

Important distinction to remember- Ifthere is a circumstance justifying the act of the accused, he is exempt from both
civil and criminal liability. An exempting circumstance frees
the accused only from criminal liability but not from civil
liability.
Burden ofproof- IfA killed B and he admitted this with a
qualification that he was merely compelled to do it in the
course of defending himself, he has the burden to prove the
element of self-defense.

5.

Defendant must rely on the strength of his evidence In proving self-defense, the defendant must rely on the
strength of his own evidence and not on the weakness of the
prosecution; for even if it were weak, it could not be disbelieved
after the accused had admitted the killing.

6.

Detailed distinction betweenjustifying and exempting circumstances:


Justifying Circumstances:
l.

2.

The act is voluntary but there is no malice because the


actor acted in good faith, being compelled by some lawful
motive.
If the actor succeeds in proving the justifying circumstances he/she invokes, he is relieved from both criminal
and civil liability.

Exempting Circumstances:
l.

There is likewise no malice because the act is not


voluntary, or the actor has no intelligence, or the act
complained of was accidentally done or the omission was
avoidable.

However, there is no civil liability attached to the exempting


circumstances mentioned in paragraphs 4 and 7 of Art. 12 of the
Revised Penal Code.

NOTE:
"Article 101 of the Revised Penai Code provides as follows The exemption from criminai liability established in subdivisions
l, 2, 3, 5, and 6 of Article 12 and in subdivision 4 of Article 11 of
this Code does not include exemption from civiliiability, which shall
be enforced subject to the following rules:
First: In case of subdivisions l, 2, and 3 ofArticle 12 of civil
liability for acts committed by an imbecile or insane person, and
by a person under nine years of age, or by one over nine but under
fifteen years of age, who has acted without discernment, shall
devolve upon those having such person under their legal authority
or contro!, uniess it appears that there was no fault or negiigence
on their part.
Second: In cases falling within subdivision 4 of Article 11, the
persons for whose benefit the harm has been prevented shall be
civilly liable in proportion to the benefit which they may have
received.

The courts shall determine, in their sound discretion, the


proportionate amount for which each one shall be liable.
When the respective shares cannot be equitably determined,
even approximateiy, or when the liability is also attached to the
Government, or to the majority of the inhabitants of the town, and,
in ali events, whenever the damage has been caused with the
consent of the authorities or their agents, indemnification shall be
made in the manner prescribed by speciai laws or regulations.
Third: In cases falling within subdivisions 5 and 6 of Article
12, the persons using violence or causing the fear shall be primarily
liable and secondarily, or if there be no such persons, those doing
the act shall be liabie, saving always to the latter that part of their
property exempt from execution.

218

7.

8.

9.

INTRODUCTION TO LAW

CRIMINAL LAW

Mitigating Circumstances - These are any of the


circumstances mentioned in Article 13 of the Revised Penai
Code which, if proven, reduces the penalty. Generai or specific
mitigating circumstances may reduce the penalty to. the
minimum period or it may be lowered by one degree as
provided in Articles 62 and 64 depending on the presence of
generic or specific aggravating circumstances which offset
them. Special or privileged mitigating circumstances may
reduce the penalty by one or two degrees as provided in
Articles 67 and 69 of the Revised Penai Code (i.e., minority
and incomplete justification and exemption).

tance must be alleged in the information because it is an


integrai part of the offense. If the same is not alleged in the
information but proven in the triai, it cannot be used in
. changing the Iegai character of the offense charged and
convicting the accused of a higher offense. In such a case, it
can oniy be treated as a generic aggravating circumstance.
11. Alternative Circumstances -Alternative circumstances are
those which must be taken into consideration as aggravating
or mitigating according to the nature and effects of the crime
and the other conditions attending its commission. They are:
(l) reiationship; (2) intoxication; and (3) the degree ofinstruction and education of the offender.

Aggravating Circumstances - They are circumstances


which, if proven, increase the penalty because they indicate
the unusual criminality or perversity and dangerousness of
the offender.

Example: IfA is accidentally drunk at the time he shot


B, his drunkenness is considered as a mitigating circumstance.
But if N.s drunkenness is intentionai or habituai, this is considered as an aggravating circumstance.

Kinds of aggravating circumstances:


(a)

(b)

Generic or Ordinary - The effect of generic aggravating circumstances is inherent in the crime, not
necessarily qualifying (i.e., Trespass in robbery with
force).

WHAT IS HABITUAL INTOXICATION?

A habituai drunkard is one given to intoxication by excessive


use of intoxicating drinks. Habit shouid be actuai and confirmed.
It is unnecessary that it be a matter of daily occurrence. It Iessens
individuai resistance to evii thought and undermines will power,
making its victim a potential evii-doer.

Qualifying - The effect of a qualifying aggravating


circumstance is not oniy to give the crime its proper and
exciusive name but aiso to piace the author thereof in
such a situation as to deserve no other penaity than that
specially prescribed for said crime (i.e., treachery). The
presence of this quaiifying aggravating circumstance
makes the killing murder instead of homicide.

WHAT I.S ILLITERACY?

Illiteracy means Iack of instruction and Iow intelligence. Mere


illiteracy is not sufficient to constitute the mitigating circumstance
of Iack of instruction. There must aiso be Iack of intelligence.

NOTE:
(c)

lO.

219

lnherent- These are circumstances which are inherent


in the crime. Hence, trespass is inherent in the crime of
robbery with force upon things. Abuse of con{idence is
inherent in the crime of estafa. Likewise, relationship is
inherent in the crime of parricide.

Example: IfA is unschooied and cannot sign his name, this


does not necessarily mean that A is entitled to a mitigating
circumstance of Iack of instruction if it is proven that he is
exceptionally intelligent and mentally aiert to the extent that he
realizes the full consequences of his acts. On the other hand, ifA is
abie to sign his name but he is so densely ignorant and of Iow
intelligence that he does not reaiize the full consequence of his
criminai act, he may still be entitled to the benefit of a mitigating
circumstance.

What should be alleged and proven -A generic aggravating circumstance may be proven during the triai even if it is
not alleged in the information and even if there is an objection
being raised by the defense. However, a qualifying circums/,W

;~l

:,

INTRODUCTION TO LAW

220

CRIMINAL LAW

221

l'

Il

12. Who are criminally liable? -Artide 16 of the Revised


Penai Code answers this question. It provides as follows:

Article 16. The following are criminally liabie for grave


and Iess grave feionies:
l.

Principais;

2.

Accomplices; and

3.

Accessories.

The following are criminally Iiabie for light feionies:


l.

Principais;

2.

Accomplices.

13. Who are considered principals, accomplices and


accessories? - They are those defined in Artides 17, 18 and
19 of the Revised Penai Code, thus:

'

WHO ARE ACCESSORIES?

, l
l

l
;i

l
l

Article 19. Accessories are those who, having knowiedge of


the commission of the crime, and without having participated
therein, either as principais or accomplices, take part subsequent
to its commission in any of the following mann~rs:
l.

By profiting themseives or assisting the offender to profit


by the effects of the crime.

2.

By conceaiing or destroying the body of the crime, or the


effects or instruments thereof, in order to prevent its
discovery.

3.

By harboring, concealing, or assisting in the escape of


the principai of the crime, provided the accessory acts
with abuse of his public functions or whenever the author
of the crime is guilty of treason, parricide, murder, or an
attempt to take the life of the Chief Executive, or is
known to be habitually guilty of some other crime.

jl
n1
''
:H,
i'

~~:
[ti
Ifi

WHO ARE PRINCIPALS?

Article 17. The following are considered principais:


l.

Those who take a direct part in the execution of the act;

2.

Those who directly force or ihduce others to commit it;

3.

Those who cooperate in the commission of the offense by


another act without which it wouid not have been
accomplished.

CODE:
l.

Principai by direct participation

2.

Principai by inducement

3.

Principai by cooperation

WHO ARE ACCOMPLICES?

Article 18. Accomplices are those persona, who, not being


induded in Artide 17, cooperate in the execution of the offense by
previous or simuitaneous acts.

i
'l

\ i

(P

~ rl

1.1

~~~l

POINTS TO REMEMBER:

l.

Nulla Poene Sine Lege - There is no crime when there


is no Iaw punishing it.

2.

A person, to be guilty of a crime, must commit that crime


himseif or he must, in some manner, participate in its
commission or in the fruits thereof.

.L ,
'lf
!,i

3. - Oniy naturai persona are criminally liabie. Judiciai


persona are not criminally liabie but the President or
other officers of the corporation may be criminally liabie
in those instances when they have knowingiy permitted
or committed crimes such as estafa and faisification.
4.

There are no accessories in light feionies.

ARTICLES 11, 12, 13, 14, AND 15 ARE HEREIN QUOTED IN


FULL:
Art. 11- Justifying Circumstances
Art. 12- Exempting Circumstances
Art. 13- Mitigating Circumstances

First: That the evil sought to be avoided actually


exists;

Art. 14 - Aggravating Circmstances


Art. 15- Alternative Circumstances

Second: That the injury feared be greater than that


done to avoid it;

CODE:

Third: That there be no other practical and less


harmful means of preventing it.

J - ustifying

E- xempting

5.

Any person who acts in the fulfillment of a duty or in


the lawful exercise of a right or office.

6.

Any person who acts in obedience to an order issued by


a superior for some lawful purpose.

M - itigating
A- ggravating
A-lternative

Art. 11. Justifying circumstances. - The following do not


incur any criminal liability:
l.

Anyone who acts in defense of his person or rights,


provided that the following circumstances concur:

Art. 12. Circumstances which exempt from criminal


liability. - The following are exempt from criminalliability:
l.

First: Unlawful aggression;

Third: Lack of sufficient provocation on the part of


the person defending himself.
Anyone who acts in defense of the person or rights of his
spouse, ascendants, descendants, or legitimate, natural,
or adopted brothers or sisters or of his relatives by affinity
in the same degrees, and those by consanguinity within
the fourth civil degree, provided that the first and second
requisites prescribed in the next preceding circumstance
are present, and the further requisite, in case the
provocation was given by the person attacked, that the
one making defense had no part therein.

3.

Anyone who acts in defense of the person or rights of a


stranger, provided that the first and second requisites
mentioned in the first circumstance of this artide are
present and that the person defending be not induced by
revenge, resentment, or other evil motive.

4.

Any person who, in order to avoid an evil or injury, does


an act which causes damage to another, provided that
the following requisites are present:

An imbecile or an insane person, unless the latter has


acted during a lucid interval.
When the imbecile or an insane person has committed an act which the law defines as a felony (de lieto),
the court shall order his confinement in one of the
hospitals or asylums established for persons thus
afllicted, which he shall not be permitted to leave without
first obtaining the permission of the same court.

Second: Reasonable necessity of the means employed to prevent or repel it;

2.

223

CRIMINAL LAW

INTRODUCTION TO LAW

222

2.

A person under nine (9) years of age.

3.

A person over nine (9) years of age and under fifteen (15),
unless she has acted with discernment, in which case,
such minor shall be proceeded against in accordance with
the provisions of Artide 80 of this Code.
When such minor is adjudged to be criminally
irresponsible, the court, in conformity with the provisions
of this and the preceding paragraph, shall commit him
to the care and custody of his family who shall be charged
with his surveillance and education; otherwise, he shall
be committed to the care of some institution or person
mentioned in said Artide 80.

4.

Any person who, while performing a lawful act with due


care, causes an injury by mere accident without fault or
intention of causing it.

5.

Any person who acts under the compulsion of an


irresistible force.

6.

Any person who acts under the impulse of an uncontrollable fear of an equal or greater injury.

7.

Any person w ho fails to perform an act required by law,


when prevented by some lawful or insuperable cause.

Art. 18. Mitigating Circumstances. -

2.

means of action, defense, or communication with his


fellow beings.
9.

Such illness of the offender as would diminish the


exercise ofthe will-power ofthe offender without however
depriving him of consciousness of his acts.

10.

And, finally, any other circumstance of a similar nature


and analogous to those above mentioned.

The. following are

mitigating circumstances:
l.

225

CRIMINAL LAW

INTRODUCTION TO LAW

224

Those mentioned in the preceding chapter, when all the


requisites necessary to justify the act orto exempt from
criminalliability in the respective cases are not attendant.
That the offender is under eighteen (18) years (Rep. Act
No. 147 amending Art. 80 has reduced the age of 18 to
16. The minor offender who is under 18 is entitled to a
privilege mitigating circumstance [Art. 68], but if he is
16 or over, his sentence will not be suspended [Art. 80]) of
age or over seventy (70) years, In the case of the minor,
he shall be proceeded against in accordance with the
provisions of Artide 80.

3.

That the offender had no intention to commit so grave a


wrong as that committed.

4.

That sufficient provocation or threat on the part of the


offended party immediately preceded the act.

5.

That the act was cominitted in the immediate vindication


of a grave offense, to the one committing the felony
(delicto), his spouse, ascendants, descendants, legitimate,
natural, or adopted brothers or sisters, or relatives within
the same degrees.

6.

That of having acted upon an impulse so powerful as


naturally to have produced passion or obfuscation.

7.

That the offender had voluntarily surrendered himself


to a person in authority or his agents, or that he had
voluntarily confessed his guilt before the court prior to
the presentation of the evidence for the prosecution.

8.

That the offender is deaf and dumb, blind, or otherwise


suffering some physical defect which thus restricts his

Art. 14. Aggravating Circumstances.


aggravating circumstances:

The following are

l.

That advantage be taken by the offender of his public


position.

2.

That the crime be committed in contempt ofor with insult


to the public authorities.

3.

That the act be committed with insult or in disregard of


the respect due to the offended party on account of his
rank, age, or sex, or that it be committed in the dwelling
of the offended party, if the latter has not given
provocation.

4.

That the act be committed with abuse of confidence or


obvious ungratefulness.

5.

That the crime be committed in the palace of the Chief


Executive, or in his presence, or where pu,blic authorities
are engaged on the discharge of their duties, or in a place
dedicated to religious worship.

6.

That the crime be committed in the nighttime, or in an


uninhabited piace, or by a band, whenever such circumstances may facilitate the commission of the offense.
Whenever more than three armed malefactors shall
have acted together in the commission of an offense, it
shall be deemed to have been committed by a band.

7.

That the crime be committed on the occasion of a


conflagration, shipwreck, earthquake, epidemie or othor
calamity or misfortune.

8.

That the crime be committed with the aid of armed men


or persons who insure or afford impunity.

CRIMINAL LAW

INTRODUCTION TO LAW

226

9.

10.

11.
12.

A recidivist is one who, a t the time of his trial for


one crime,.shall have been previously convicted by a final
judgment of another crime embraced in the same title of
this Code.
That the offender has been previously punished for an
offense to which the. law attaches an equal or greater
penalty or for two (2) or more crimes to which it attaches
a lighter penalty.
That the crime be committed in consideration of a price,
reward or promise.

That the act be committed with evident premeditation.

14.

That craft, fraud, or disguise be employed.

15.

That advantage be taken of superior strength, or means


be employed to weaken the defense.

17.
18.

That the act be committed with treachery (alevosia).


There is treachery when the offender commits any
of the' crimes against the person, employing means,
methods, or forms in the execution thereof which tend
directly and specially to insure its execution, without risk
to himself arising from the defense which the offended
party might make.
That means be employed or circumstances brought about
which add ignominy to the natural effects of the act.
That the crime be committed after an unlawful entry.
There is an unlawful entry when an entrance is
effected by a way not intended for the purpose.

19.

That as a means to the commission of a crime a wall,


roof, floor, door, or window be broken.

20.

That the crime be committed with the aid of persons


under fifteen (15) years of age or by means of motor
vehicles, airships, or other similar means.

That the wrong done in the commission of the crime be


deliberately augmented by causin.g other wrong not
necessary for its commission.

Art. 15. Their concept- Alternative circumstances are those


which must be taken into consideration as aggravating or mitigating
according to the nature and effects of the crime and the other
conditions attending its commission. They are the relationship,
intoxication and the degree of instruction and education of the
offender.
The alternative circumstance of relationship shall be taken
into consideration when the offended party is the spouse, ascendant,
descendant, legitimate, natural, or adopted brother or sister, or
relative by affinity in the same degrees of the offender.

.That the crime be committed by means of inundation,


fire, poison, explosion, stranding a vessel or intentional
damage thereto, derailment of a locomotive, or by the
use of any other artifice involving great waste and ruin.

13.

16.

21.

That the accused is a recidivist.

227

The intoxication of the offender shall be taken into consideration as a mitigating circumstance when the offender has
committed a felony in a state of intoxication, if the same is not
habitual or subsequent to the pian to commit said felony; but when
the intoxication is habitual or intentional, it shall be considered as
an aggravating circumstance.
!t.

MODIFICATION OF THE PENALTY FOR


THE VIOLATION OF B.P. BLG. 22

~l

Sec. l. Checks without sufficient funds. - Any person who


makes or draws and issues any check to apply on account or for
value, knowing at the time of issue that h e does not have sufficient
funds in or credit with the drawee bank for the payment of such
check is subsequently dishonored for the same reason had not the
drawee, without any valid reason, ordered the bank to stop
payment, shall be punished by imprisonment of not less than thirty
(30) days but not more than one (l) year, or by a fine of not less
than but not more than double the amount of the check which fine
shall in no case exceed Two Hundred Thousand Pesos (P200,000.00),
or both such fine and imprisonment at the discretion of the court.
(B.P. Blg. 22, 1st paragraph, RTC)

;i

In Eduardo Vaca vs. Court of Appeals (G.R. No. 181714,


November 16, 1998, 100 SCAD 763, 298 SCRA 656, 664), the
Supreme Court through Mr. Justice Vicente V. Mendoza, modified
the sentence imposed for violation of B.P. Big. 22 by deleting the

228

INTRODUCTION TO LAW

penalty of imprisonment and imposing only the penalty of fine in


an amount double the amount of the check.
Likewise, the case of Rosa Lim vs. People of the Philippines
(G.R. No. 180088, September 18, 2000), the Supreme Court en banc,
also deleted the penalty of imprisonment and sentenced the drawer
of the bounced check to the maximum of the fine allowed by B.P.
Big. 22, i.e., P200,000, and concluded that such would best serve
the ends of criminal justice.

Chapter XV
REMEDIAL LAW
IMPORTANT TOPICS IN TWS CHAPTER:
l.

2.

3.
4.

The New Rules of Court


(a)

Civil Procedure

(b)

Provisional Remedies

(c)

Special Civil Action

(d)

Criminal Procedure

(e)

Evidence

Different kinds of special civil action, special proceedings


and provisional remedies
(a)

Provisional remedies

(b)

Special civil action

(c)

Special proceedings

(d)

Remedies in civil cases

Attachment
Preliminary Injunction
(a)

Grounds for issuance of preliminary injunction

5.

Receivership

6.

Replevin

7.

Alimony pendente lite

8.

Special civil action


(a)

Interpleader

(b)

Declaratory relief

(c)

Certiorari, prohibition, mandamus


229

REMEDIAL LAW

INTRODUCTION TO LAW

230

9.
10.

231

(d)

Quo warranto

(d)

Elements of jurisdiction in criminal actions

(e)

Eminent domain

(e)

Distinction between complaint and information

(f)

Foreclosure of mortgage

(f)

How is criminal action commenced

(g)

Partition of real estate

(h)

Duplicity of the offense

(h)

Forcible entry and unlawful detainer

(i)

Where shall a criminal action be instituted and tried

(i)

Contempt

(j)

Who are authorized to conduct a preliminary


investigation

(k)

Information

Brief explanation of each


Special proceedings
(a)

Settlement of estate of deceased persons

(b)

Petition for probate of will and issuance of letters


testamentary

l'

ll

11.

'

(c)

Petition for letters of administration

(d)

Petition for escheat

(e)

Petition for guardianship

(f)

Petition for appointment of trustees

(g)

Petition for adoption of minors

(h)

Petition for hospitalization of insane persons

(i)

Petition for habeas corpus

(j)

Petition for change of name


Petition for voluntary dissolution of corporation

(k)

li l
l !

(o)

Cancellation of entries in the civil registry

Kinds of evidence

(b)

What is the best evidence rule?

(c)

What is the parol evidence rule?

(d)

What is hearsay evidence?

(e)

Exceptions to the hearsay rule

(f)

Rules concerning admission to the practice of la w

Remedial law, as the term itself suggests, provides for the


remedies and the procedures to be observed by way of enforcing
rights and obligations. While substantive law creates rights,
remedial law provides for the procedure of enforcing said rights.
That makes remedial law more complicated to both law students
and to law practitioners. For law students, study of remedial law
becomes more difficult because experience proves that procedura}
law can only be more appreciated and understood when a lawyer
is involved in the actual application of the legai remedies.

Judicial approvai of voluntary recognition of minor


natura! children
(m) Petition for judicial constitution of family home
Petition for appointment of administrative and/or
trustee for the estate of absentee

(a)

DISCUSSION

(l)

(n)

Evidence

Briefly, the New Rules ofCourt are divided into different parta,
to wit:

11.

Brief explanation of each

l.

Civil Procedure

12.

Criminal procedure

2.

Provisional Remedies

(a)

Definition

3.

Special Civil Actions

(b)

Criminal jurisdiction

4.

Special Proceedings

(c)

How is the court's jurisdiction determined

5.

Criminal Procedure

!qj

,,"

REMEDIAL LAW

INTRODUCTION TO LAW

232

6.

Evidente

7.

Rules concerning admission to the practice of law

233

SPECIAL PROCEEDINGS
l. Settlement of estate of deceased persons

2. Escheat
DISCUSSION OF EACH:

3. Guardianship and custody of children

CIVIL PROCEDURE

4. Trustees

It treats of the enforcement and protection of rights in civil


cases. There are two (2) kinds of civil action:

5. Adoption

(a)

Ordinary Civil Action - Example: collection case,


abatement of nuisance, breach of contract.

(b)

Special Civil Action - Example: Quo warranto, certiorari, mandamus, proh~bition, declaratory relief, partition,
foreclosure of mortgage, interpleader, eminent domain.

DIFFERENT KINDS OF SPECIAL CIVIL ACTION,


SPECIAL PROCEEDINGS ANO PROVISIONAL REMEDIES

PROVISIONAL REMEDIES
l.

Attachment

2.

Preliminary lnjunction

3.

Receivership

4.

Replevin (delivery of personal property)

5.

Alimony pendente lite (support pending litigation)

6. Rescission and revocation of adoption


7. Hospitalization of insane persons
8. Habeas corpus
9. Change of name
10. Voluntary dissolution of corporation
11.

12. Constitution of family home


13. Declaration of absence and death
14.

Interpleader

2.

Declaratory relief and similar remedies

3.

Certiorari, prohibition, mandamus

4.

Quo warranto

5.

Eminent domain

6.

Foreclosure of mortgage

7.

Partition

8.
9.

Cancellation or correction of entries in the civil registry

REMEDIES IN CIVIL CASES


A person civilly aggrieved may:
l.

File an action, either an ordinary civil action or a special


ivil action; or

2.

File a special proceeding.

SPECIAL CIVIL ACTION


l.

JudiciaJ approvai of voluntary recognition of minor


natural (or spurious children)

They are the remedies which may be availed of by the


petitioner which are temporary in character because they are
subject to some modifications that may be ordered when judgment
is finally rendered.
The provisional remedies mentioned in the Rules of Court are
as follows:
l.

Attachment

Forcible entry

2.

Preliminary injunction

Contempt

3.

Receivership

234

REMEDIAL LAW

INTRODUCTION TO LAW

4.

Replevin

5.

Alimony pendente lite

3.

EXPLANATION OF EACH:

235

That the defendant is doing, threatening, or is about to


do, or is procuring or suffering to be done some act
probably in violation of the plaintiff's rights respecting
the subject of the action, and tending to render the
judgment ineffectual. (Section 3, Rule, 58)

ATTACHMENT

It is a provisional remedy which is ancillary to a principal


action whereby a plaintiff or any proper party may, at the
commencement of the action or at any time thereafter, have the
property of the adverse party attached or taken into legai custody
as security for the satisfaction of the judgment that may be
recovered.

There are three (3) kinds of attachment, namely:

RECEIVERSHIP

It is a provisional remedy whereby the court appoints a


receiver to hold the real or personal property in litigation during
its pendency with power to possess, take hold of, control, and to
dispose of the same as may be allowed by the court in proper cases.
WHEN TO APPOINT A RECEIVER?

(a)

Preliminary Attachment- An attachment which is


given a t the beginning of an action or during its pendency
or before the finality of the judgment.

l.

When a corporation has been dissolved, or insolvent, or


in imminent danger of insolvency, or has forfeited its
corporate rights.

(b)

Garnishment- An attachment allowing the plaintiff


to reach credits, whether money or property, belonging
to or owned by the debtor or owing to him from someone
who is not a party to the litigation. The latter is, in effect,
ordered to pay the new creditors, not the old creditors.

2.

When the party applying for the appointment of a


receiver has an interest in the property involved which
may be lost, removed, or materially injured.

3.

When in a case of foreclosure of a mortgage: (a) the


property is in danger of being wasted or materially
injured and its value is probably insufficient to discharge
the mortgage debt; (b) there was a stipulation for
receivership in the mortgage contract.

4.

When there is already a judgment BUT: (a) the property


has to be preserved during the appeal; (b) the judgment
could not be executed; or (c) the judgment obligor refuses
to apply his property in satisfaction of the judgment or
otherwise to make the judgment effective.

5.

In all other cases when receivership would be convenient


and feasible. (Section l, Rule 59)

(c)

Final Attachment- An attachment given by the court


to enforce or satisfy a final and executory judgment.

PRELIMINARY INJUNCTION

It is an order granted at any stage of an action prior to the


finality of a judgment requiring a person to refrain from a particular
act or requiring the performance of a particular act.
GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION

l.

2.

That the plaintiff is entitled to the relief deman:ded, and


the whole or part of such relief consists in restraining
the commission or continuance of the acts complained
of, or in the performance of an act or acts either for a
limited period or perpetually.
That the commission or continuance of some acts
complained of during the litigation or non-performance
thereof would probably work injustice to the plaintiff.

RE PLEVI N

lt is a provisional remedy whereby the plaintiff petitions the


court to compel in the meantime the delivery to him of such personal
property mentioned in his complaint. The plaintiff may ask for this
remedy at the commencemeilt of the action, or at any time before
the answer.

HEMI~DIAL

INTRODUCTION TO LAW

236

Requirements:
l. The plaintiff must show by his own affidavit or that of
some other person who personally knows the fact:
(a)

That the plaintiff is the owner of the property


claimed particularly describing it, or is entitled to
the possession thereof;

(b)

That the property is WRONGFULLY DETAINED


by the defendant (the cause of detention must be
alleged according to the petitioner's best knowledge,
information and belief);

(c)

LAW

6.

Foreclosure of mortgage

7.

Partition of real estate

8.

Forcible entry and unlawful detainer

9.

Contempt

237

EXPLANATION OF EACH
INTERPLEADER

It is a special civil action whereby a person who has property


in bis possession or an obligation to render, either on whole or in
part, but who claims no interest in the subject matter or whose
interest in whole or in part is not disputed by others, goes to court
and asks that conflicting claimants to the property or obligation be
required to litigate their conflicting claims in order to determine
who is entitled to the same.

That it has: (a) not been taken for a tax assessment


or fine pursuant to law; or (b) not seized under
execution or attachment of the property of the
plaintiff, or if so seized, that it is EXEMPT trom
such seizure; and (c) the actual value ofthe property.
(Sec. 2, Rule 60)

DECLARATORY RELIEF
ALIMONY PENDENTE LITE

This is also known as support pending litigation. It is a


provisional remedy whereby the plaintiff, at the commencement of
the proper action, or at any time afterwards but prior to final
judgment, may file an application for alimony pendente lite stating
the grounds for the claim and the financial conditions ofboth parties
and shall be accomplished by affidavits, depositions, or other
authentic documenta in support thereof.

li

(l

It is a special civil action instituted by any person interested


under a deed, will, contract, or other written instrument, or whose
right are affected by statute, executive order or regulation, or
ordinance before breach or violation thereof in order to determine
any question of construction or validity arising under the
instrument or statute and for a declaration of his right or duties
thereunder.
CERTIORARI

SPECIAL CIVIL ACTION

It is an action whereby one party sues another to enforce or

protect a right or to prevent the commission of a wrong by following


special rules of procedure.
The special civil actions are as follows:

,,

i'!'i

'j

It is a special civil action directed against any tribunal, board


or officer exercising judicial functions claiming that said tribunal,
board or officer has acted without jurisdiction, in excess of
jurisdiction or with grave abuse of discretion and there is no appeal,
nor any plain, speedy, and adequate remedy in the ordinary course
of law. All these must be alleged by the plaintiff in a verified petition
:filed in the proper court and praying that judgment be rendered
annulling or modifying the proceedings, as the law requires.

l.

lnterpleader

2.

Declaratory relief

3.

Certiorari, prohibition, mandamus

PROHIBITION

4.

Quo warranto

5.

Eminent domain

It is a special civil action directed against any tribunal, corporation, board or person whether exercising judicial or ministerial

238

INTRODUCTION TO LAW

functions claiming that said tribuna!, corporation, board or persons


acted without jurisdiction or with grave abuse of discretion and
there is no appeal, nor any plain, 'speedy, and adequate remedy
in the ordinary course of law. All these must be alleged by the
plaintiff through a verified petition filed in the proper court and
praying that judgment be rendered commanding the defendant to
desist from further proceedings in the action or matter specified
therein.
MANDAMUS

It is a special civil action directed against any tribuna!,


corporation, board or person claiming that said tribuna!, corporation, board or person has unlawfully neglected the performance
of an act which the law specifically enjoins as a duty resulting from
an office, trust or station or has excluded another from the use
and enjoyment of the right or office to which such other is entitled
and there is no other plain, speedy, and adequate remedy in the
ordinary course of law. All these must be alleged by the plaintiff
through a verified petition filed in the proper court and praying
that judgment be rendered commanding the defendant immediately,
or at some other specified time, to do the act required to be done to
protect the life of the petitioner and to pay the damages sustained
by the petitioner by reason of the wrongful acts of the defendants.

REMEDIAL LAW

239

(c)

Quo warranto may involve a defendant which is a private


perso n.

(d)

Quo warranto proceeding may be brought in the name


of a corporation.

(e)

Quo warranto proceeding may involve an appointive


public office. Here, the issue is the legality of the appointment and therefore, whoever was legally appointed will
be entitled to occupy the office.

(f)

Quo warranto proceeding may involve an elective office.


Here, the issue is the qualification or eligibility of the
candidate.

EMINENT DOMAIN

It is the right of the state or any duly authorized entity to


take private property for public use or purpose provided just
compensation is given and due process is observed.
FORECLOSURE OF MORTGAGE

It is the process by which the mortgagee-creditor is allowed


to have the mortgaged property foreclosed and sold in order that
the indebtedness may be paid out of the proceeds of sai d sale.

QUO WARRANTO

KINDS OF FORECLOSURE

It is a special civil action whereby a person claiming to be


entitled to a public office or position files an action against a usurper
challenging the authority of the latter in holding said public office
or position.

l.

Judicial foreclosure - This is a special civil action


referred to in Rule 68 of the Revised Rules of Court. AB
the term itself implies, this requires a court litigation.

2.

Extra-judicial foreclosure - This is a process of


foreclosure provided in Act No. 3135 as amended by Act
No. 4118. As the term itself implies, this process does
not require court litigation.

KINDS OF QUO WARRANTO

(a)

(b)

Quo warranto may be brought in the name of the


Republic of the Philippines. Here, the right of the
defendant to the office is passed upon by the court.

PARTITION OF REAL ESTATE

Quo warranto proceeding may be brought in the name


of a private person. Here, the plaintiff must prove his
own right. If he cannot prove his own right, the right of
the defendant will not be passed upon by the court.

lt is a process of dividing or assigning property owned in


common among the various co-owners thereof in proportion to their
respective interest in the property. Partition may be done judicially
or extra-judicially.

240

INTRODUCTION TO LAW

FORCIBLE ENTRY

It is a special civil action whereby the plaintiff prays for the


recovery of materia! or physical possession of real property because
he was deprived of his possession thereof by force, intimidation,
strategy, threat, or stealth. This action must be brought within one
(l) year from the unlawful deprivation. Ifnot brought within one (l)
year, the possession of the property may stili be recovered through
an accion publiciana, not through an action of forcible entry.

REMEDIAL LAW

(9)

CONTEMPT

It is a misbehavior committed in the presence of or so near a


judge or court as to obstruct or interrupt the proceeding before the
judge or court, in which case, it is called direct contempt, or it may
be any other improper conduct tending to degrade or interfere with
the administration of justice, in which case, it is called indirect
contempt.
SPECIAL PROCEEDINGS

It is a civil remedy taken to establish the status or right of


party or to establish a particular fact.

The special proceedings are as follows:


(l)

Settlement of estate of deceased persons

(2)

Petition for probate of will and issuance of letters


testamentary

(3)

Petition for letters of administration

(4)

Petition for escheat

(5)

Petition for guardianship

(6)

Petition for appointment of trustees

(7)

Petition for adoption of minors

(8)

Petition for hospitalization of insane persons

Petition for habeas corpus

(lO)

Petition for change of name

(11)

Petition for voluntary dissolution of corporation

(12)

Judicial approvai of voluntary recognition of minor


natura! children

(13)

Petition for judicial constitution of family home

(14)

Petition for appointment of administrative and/or trustee


for the estate of absentee

(15)

Petition for correction of entries in the civil registry

UNLAWFUL DETAINER

It is a special civil action filed by a plaintiff and who prays to


recover the possession of real property from a person unlawfully
withholding possession of the same.

241

EXPLANATION OF EACH
SEITLEMENT OF ESTATE OF DECEASED PERSON

An estate can be summarily settled in two (2) ways:


(l)

Extra-judicial settlement of estate by agreement of the


heirs; and

(2)

Summary settlement of estate whose gross value is


PlO,OOO.OO or less.

EXTRA-JUDICIAL ARRANGEMENT OF THE HEIRS

There are severa! requisites, to wit:


(l)

The decedent left no will;

(2)

The decedent left no debts (this is presumed ifno creditor


files a petition within two (2) years after the death of
the deceased) (Last sentence of Section l, Rule 47);

(3)

A public instrument should be filed with the Register of


Deeds;

(4)

All the heirs must be of age, or if they are minors, they


should be represented by theirjudicial or legai representatives duly authorized for the purpose;

(5)

Ali the said heirs must agree. lf the heirs disagree, the
heirs may do so through an ordinary action of partition
(Section 1, Rule 74);

242

INTRODUCTION TO LAW

(6)

(7)

The parties to an extra-judicial settlement of estate must


file a bond with the Register of Deeds in an amount
equivalent to the value of personal property involved as
certified to under oath by the parties concerned and
conditioned upon the paymeri.t of any just claim filed with
the Register of Deeds (Section 1, Rule 74);
The fact of extra-judicial settlement on administration
shall be published in a newspaper of generai circulation.
However, no extra-judicial settlement shall be binding
upon any person who has not participated or had no
notice thereof.

SUMMARY SETTLEMENT OF ESTATE WHOSE


GROSS VALUE IS P1 0,000.00 OR LESS
(l)

There can only be summary settlement of estate if the


gross value of the same is PlO,OOO.OO or less. lf this
requirement is complied with, the heirs may apply to the
competent court, after the regular publication, to proceed
with the summary partition and after paying all the
known obligations, to partition all the property among
the heirs, without appointing an administrator.
(a)

Competent Court: Refers to the Court of First


Instance having jurisdiction of the estate. (CFI is
now referred to as RTC).

(b)

Publication: The notice about the said summary


settlement shall be published once a week for three
(3) consecutive weeks in a newspaper of generai
publication on the province where the property is
situated.

(c)

(2)

Hearing: the hearing shall be held not less than


one (l) month or more than three (3) months from
the date of last publication of notice.

There can only be summary settlement regardless of


whether the deceased person died with or without a will,
provided that the gross value of his estate does not exceed
PlO,OOO.OO or less.

REMEDIAL LAW

243

PETITION FOR PROBATE OF WILL ANO


ISSUANCE OF LETTERS TESTAMENTA~Y

Probate is the process of proving before a competent court that


the will of a deceased person was duly executed and that said
decedent possessed testamentary capacity at the time of the
execution of the will and when all these are proved, the will of the
decedent shall be submitted for approvai of the said court.
BASIC POINTS TO REMEMBER

(l)

No will shall pass either real or personal property unless


it is provided and allowed in accordance with the rules
of Court. (Art. 838, 1st par., New Civil Code)

(2)

There is no prescriptive period for institution of probate


proceedings bE::cause the same is established not primarily
for the interest of the heirs but principally to protect the
expressed wishes of the testator.

(3)

The probate of a will is conclusive as to its due execution


and as to the testamentary capacity of the testator but
not as to the validity of any provisions made in the will.
Hence, after a will has been probated by a competent
court, the law will not admit evidence to overthrow the
legai presumption that it is genuine.

PETITION FOR LETTERS OF ADMINISTRATION

Who may petition for the allowance of the will?


Section l, Rule 76 of the New Rules of Court, enumerates the
persons who may file a petition for the allowance of a will and
they are as follows:
(a)

Executor;

(b)

Devisee or legatee in a will;

(c)

Any other person interested in the estate;

(d)

The testator himself, may, during his lifetime, petition


for the allowance of his will. (2nd par., Sec. 1, Rule 47)

244

INTRODUCTION TO LAW

When can the above persons petition for the allowance


ofthe will?
They may, a t any time, after the death of the testator petition
to the court having jurisdiction to have the will allowed whether
the same be in his possession or not, is lost, or destroyed.
DEFINITION OF TERMS
w~

EXECUTOR - The person appointed by the testator in his


.

ADMINISTRATOR - The person appointed by the court in


case there is no will.
ADMINISTRATOR WITH A WILL ANNEXED - The
person appointed by the court because although there is a will,
said person's will does not appoint any executor, or if one is
appointed, said person is either incapacitated or not willing to serve.
PERSONS DISQUALIFIED OR INCOMPETENT TO
SERVE AS EXECUTOR OR AS AN ADMINISTRATOR

l.

Minors;

2.

Non-residents of the Philippines;

3.

Those who are unfit to execute the duties of the trust


because of:
(a)

drunkenness;

(b)

improvidence;

(c)

want of understanding;

(d)

want of integrity; and

(e)

conviction of an offense involving moral turpitude.


(Sec. l, Rule 78)

PETITION FOR ESCHEAT

Escheat is a special proceeding whereby the real and personal


property of a person who dies without a will or any legai heir
becomes the property of the state upon his death.

REMEDIAL LAW

245

PETITION FOR GUARDIANSHIP

Guardianship is the relationship existing between the


guardian and the ward or it might refer to the duty or authority of
a guardian in relation to his ward.

Who may petition for appointment of a gitardian for a


resident of the Republic of the Philippines?
Section l, Rule 93 ofthe New Rules ofCourt enumerates those
who may petition for the appointment of a guardian and they are
as follows:
(l)

Any relative, friend or other person on behalf of a resident


minor or incompetent who has no parent or lawful
guardian;

(2)

The minor himself is fourteen (14) years of age or over;

(3)

An officer of the Federai Administration of the United


States in the Philippines in favor of a ward thereof; and

(4)

The Director ofHealth, in favor of an insane person who


should be hospitalized, or in favor of an isolated leper.
(Sec. l, Rule 93)

PETITION FOR APPOINTMENT OF TRUSTEE


DEFINITION OF TERMS
TRU~TEE - Is a person appointed by the court to carry out
the effect of the provisions of the will as if he had been appointed
by the testator and in its technical sense, the trustee is a person
who holds the trust for the benefit of another.

TRUSTOR - Is a person who establishes a trust.


BENEFICIARY has been created.

ls a person for whose benefit the trust

DUTIES OF A TRUSTEE

(l)

To return to the court a true inventory of ali real and


personal property or estate that comes to his possession
or knowledge;

246

INTRODUCTION TO LAW

REMEDIAL LAW

247

(2)

To faithfully discharge his trust;

PETITION FOR HOSPITALIZATION OF INSANE PERSONS

(3)

To render upon oath a true account of the property in


his hands; and

(4)

To settle his accounts in court and to pay over and deliver


ali the estate remaining in his hands.

Hearing and Judgment - The court shall make an order


of commitment upon satisfactory proof in open court on the date
fixed in the order, that the commitment applied for is for the public
welfare or for the welfare of the insane person, arid that his relatives
are unable for any reason to take proper custody and care of him.
The court shall order his commitment to such hospital or other
piace for the insane as may be recommended by the Director of
Health. The court shall make proper provisions for the custody or
property or money belonging to the insane until a guardian be
properly appointed. (Sec. 3, Rule 101, Rules of Court)

PETITION FOR ADOPTION OF MINORS

Adoption is a judicial act which creates a relationship between


two (2) persons similar to that which results from legitimate
paternity and filiation. In adoption, a person who has no child of
his own, has the opportunity to have one by creating the relation
of paternity and filiation through legai process.
BASIC POINTS TO REMEMBER

l.

Every person of age, who is in full possession of his civil


rights may adopt; (Art. 334, New Civil Code)

2.

Any person, even if of age, may be adopted provided the


adopter is 16 years older. (Art. 337, New Civil Code of
the Philippines)
The following cannot adopt:

PETITION FOR HABEAS CORPUS

This is a writ directed to a person detaining another and


commanding him to produce the body of the prisoner at a certain
time and piace and to state the cause of his capture and detention.
Habeas corpus is a remedy to relieve persons from unlawful
restraint.
BASIC POINTS TO REMEMBER

It is not the writ itself but only its privilege that may be
suspended. For as long as a petition for habeas corpus is filed, and
the court finds that it is in proper form, it will issue the writ as a
matter of course.

(l)

Those who have legitimate, legitimated, acknowledged natura! children by legai fiction;

(2)

The guardian, with respect to the ward, before the


final approvai of his accounts;

(3)

A married person, without the consent of the otl;ler


spouse;

(4)

Non-resident alien;

POWER TO SUSPEND THE PRIVILEGE OF


THE WRIT OF HABEAS CORPUS

(5)

Resident aliens with whose government the


Republic of the Philippines has broken diplomatic
relations;

1973 CONSTITUTION

(6)

Any person who has been convicted of a crime


involving moral turpitude, when the penalty
imposed was six (6) months imprisonment or more.

If ~ssued, what will be the order of the Court?


The Court will order the production of the pers<m allegedly
detained and will require the respondent to justify the detention.

Article VII, Sec. 9 provides as follows:


"Sec. 9 - The President shall be Commander-in-Chief
of ali Armed Forces of the Philippines and, whenever it
becomes necessary, he may cali out such armed forces to
prevent or suppress lawless violence, invasion, insurrection,

248

REMEDIAL LAW

INTRODUCTION TO LAW

or rebellion. In case of invasbn, insurrection, or rebellion, or


imminent danger thereof, when the public safety requires it,
he may suspend the privilege of the writ of habeas corpus, or
piace the Philippines or any part thereof under martiallaw.
1987 CONSTITUTION
Article VII, Sec. 18 provides as foliows:

"Sec. 18 - The President shali be the Commander-inChief of ali armed forces of the Philippines and, whenever it
becomes necessary, he may cali out such armed forces to
preyent or suppress lawless violence, invasion or rebellion. In
case of invasion or rebellion, when the public safety requires
it, he may, fora period not exceeding sixty (60) days, suspend
the privilege of the writ of habeas corpus or piace the
Philippines or any part thereof under martiallaw."
l.
The Supreme Court rulings on the issues of whether or
not the courts can inquire on the presidential suspension of the
privilege of the writ of habeas corpus are as follows:

The first two (2) leading cases on this point are the cases of
Barcelon vs. Baker (5 Phil. 87) and Montenegro vs. Castaneda (91
Phil. 882). In both cases, the Supreme Court decided that the
President's decision to suspend the privilege of the writ of habeas
corpus is "final and conclusive upon the courts andali other pesons."
The Barcelon rule was enunciated in this jurisdiction in 1905
whereas the Montenegro rule, which reiterated the Barcelon rule,
was enunciated in 1952. This ruling continued to prevail until1971
until our Supreme Court carne out with another ruling in the case
of Lansang vs. Garcia, 42 SCRA 448.
In the case of Lansang vs. Garcia, the Supreme Court ruled
that courts are aliowed to inquire whether or not a presidential
suspension of the privilege of the writ of habeas corpus is arbitrary
in order to determine its constitutional sufficiency.
The Lansang doctrine, however, was abandoned on account of
the decision rendered by the Supreme Court on cases docketed as
G.R. No. 61388 entitled, "In the Matter of Dra. Aurora Parong, et
al., Josefina Garcia-Padilla, petitioner vs. Minister Juan Ponce
Enrile, Gen. Favian Ver, Gen. Fidel V. Ramos, and Lt. Col. Miguel
Coronel, respondents decided onApril20, 1983, and G.R. No. 61016

249

entitled, "In the Matter of Petition for Habeas Corpus of Horacio


R. Morales, Jr., petitioner vs. Minister Juan Ponce Enrile, Gen.
Fabian C. Ver, Col. Galileo Kintanar, respondents. Promulgated on
Aprii 26, 1983, or six (6) days after the Padilla decision was
promulgated.
In the Padilla case, nine (9) justices voted to abandon the
doctrine in the Lansang case and these justices are as foliows:
Justice Pacifico de Castro, Efren Plana, Juvenal Guerrero, Felix
Makasiar, Venecio Escolin, Conrado Velasquez, Vicente Abad Santos,
Hugo Gutierrez, Jr., and Lorenzo Relova. Two (2) justices voted to
retain the doctrine in the Lansang case and they are Chief Justice
Enrique Fernando and Justice Claudio Teehankee.
The majority decision reverted to the Barcelon and Montenegro
rule as above-mentioned.
In the Morales case, the justices who previously voted in the
Padilla case in favor of abandoning the doctrine in the Lansang
case maintained their position. Three (3) justices voted to retain
the Lansang doctrine and they are Chief Justice Enrique Fernando
and Justices Claudio Teehankee and Hermogenes Concepcion.
2. Now, under Sec. 18, Art VII of the Ne w Constitution, the
military powers of the President are more defined and specific. The
originai authority of the Commander-in-Chief, as provided in the
1973 Constitution, is changed as follows:
(l)

He may cali out the armed forces to prevent or suppress


. lawless violence, invasion or rebellion only.

(2)

The grounds for the suspension of the privilege of the


writ of habeas corpus and the proclamation of martial
law are now limited only to invasion or rebellion.

(3)

The duration of such suspension or proclamation shali


not exceed sixty (60) days, following which it shali be
automaticaliy lifted.

(4)

Within forty-eight (48) hours after such suspension or


proclamation, the President shall personally or in writing
report his action to Congress.

(5)

The Congress may then, by a majority vote of ali its


members voting jointly, revoke his action. The revocation
may not be set aside by the President.

INTRODUCTION TO LAW

250

(6)

By the same vote and in the same manner, the Congress


may, upon the initiative of the President, extend his
suspension or proclamation for a period to be determined
by the Congress if the invasion or rebellion shall continue
and the public safety requires the extension.

(7)

The action ofthe President and Congress shall be subject


to review by the Supreme Court which shall have the
authority to determine the sufficiency of the factual basis
of such action.
This matter is no longer considered a political
question and may be raised in an appropriate proceeding
by any citizen. Moreover, the Supreme Court must decide
the challenge within thirty (30) days from the time it is
file d.

(8)

Martiallaw does not automatically suspend the privilege


of the writ of habeas corpus or the operation of the
Constitution. The civil courts and the legislative bodies
shall remain open. Military courts and agencies are not
conferred jurisdiction over civilians where the civil courts
are functioning.

(9)

The suspension of the privilege of the writ of habeas


corpus shall apply only to persons facing charges of
rebellion or offenses inherent in or directly connected
with invasion.

(10) Any person arrested for such offense must be judicially


charged therewith within three (3) days. Otherwise, he
shall be released.
3. A brief background of Supreme Court rulings on the issue
of whether there is right to bail during the suspension of the privilege
of the said writ are as follows:

Garcia Padilla vs. Enrile (G.R. No. 61388)


The right to bail cannot be invoked during the suspension of
the privilege .of habeas corpus. Associate Justice Pacifico P. De
Castro who wrote the Padilla decision for the court reasoned out
in this vein:

"Realistically, a person engaged in the rebellion does not,


upon being arrested or captured, ceases to be as committed to

REMEDIAL LAW

251

the cause of the movement. Through a grand conspiracy as is


of the essence of how rebellion is committed involving a great
mass of confederates bound together by a common goal, he
remains in a state of continued participation in the criminal
act or design. His heart still beats with th~ same emotion for
the success of the movement of which he ontinues to be an
ardent adherent and ally.
lt is simple logic then to hold that there should be no
legal compulsion for a captured rebel to be charged in court,
only to be released on bail, while he is, realistically and legally,
still as much engaged in carrying on actively to attain their
goal of overthrowing the established regime.
lt is, likewise, all too well-known that when the rebel
forces capture government troopers or kidnap private
individuals, they do not accord to them any of the rights now
being demanded by the herein petitioners, particularly to be
set at liberty upon the filing of bail. As a matter of common
knowledge, captives of the rebels or insurgents are not only
given the right to be released, but also denied trial of any kind.
In some instances, they may even be liquidated unceremoniously. What is then sought by the suspension of the
privilege of the writ of habeas corpus, is, among others, to put
the government forces on equal fighting terms with the rebels,
by authorizing the detention of their own rebel or dissident
captives as the rebellion goes on. In this way, the advantage of
the rebellion forces ha ve over those of the government, as when
they resort to guerrilla tactics with sophisticated weapons, is,
at least minimized, thereby enhancing the latter's chances of
beating their enemy. lt would, therefore, seem to be ignoring
realities in the name of misplaced magnanimity and
compassion, and for the sake of humanity, to grant the demand
for respect of rights supposedly guaranteed by the Constitution
by those who themselves seek to destroy that very same
instrument, trampling over it already as they are still waging
war against the government. This stark actuality gives added
force and substance to the rationale of the suspension of the
privilege of the writ of habeas corpus in case of invasion,
insurrection, rebellion, or imminent danger thereof, when
public safety requires it.

252

253

INTRODUCTION TO LAW

REMEDIAL LAW

4. In a book I have written, entitled, ''What is our right and


what is our power as a people," I expressed my dissent to the abovementioned ruling in this manner.

appropriately its own? Moreover, it is not the particular right of


the individuai that is protected or being protected. Rather, it is the
doctrine of separation of powers itself and the system of checks
and balances as well as the very constitution itself which guarantees
all of these that the judiciary protects. If, in th~ exercise of this
duty, an individuai or group of individuals are directly or indirectly
benefited, it is because they are part and parcel of the state and of
the government which they have chosen. After all, the government
may come and go at any time but the people who compose the state
remains. They are actually the ones who work to no end just so
that the nation and the state can survive.

On the issue of bail, the two (2) reasons given by Associate


Justice Pacifico P. de Castro and which are quoted above, are not,
in my honest opinion, sufficient justifications to deny the right to
bail for the following reasons:

First: In G.R. No. 61388 entitled "In the matter ofthe Petition
for the Issuance of the Writ of Habeas Corpus for Dra. Aurora
Parong, et al., Hosefina Garcia-Padilla, petitioner vs. Minister Juan
Ponce Enrile, Gen. Fabian C. Ver," Gen. Fidel V. Ramos, and Lt.
Col. Miguel Coronel, respondents, records show that Dra. Aurora
Parong is charged with the crime of illegal possession of firearms.
This is clearly a bailable offense. The same thing is true with respect
to the other detainees. No amount of legal nicety nor the issuance
of a Presidential Commitment Order can prevail over a clear
constitutional guarantee expressed in Section 18, Artide IV of the
New Constitution which reads:
xxx

"Sec. 18 - All persons except those charged with capital


offenses when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties. Excessive bail shall
not be required. (Underlining Supplied)
Since it is clear that the said detainee is charged with a
bailable offense and since it is clear from the above-quoted
constitutional provision that she is qualified to be bailable, there
should be no reason nor any barrier to deny the petition for bail.

Second: While the President has the power to suspend the


privilege of habeas corpus under and by virtue of the exceptions in
Section 15, Article IV of the New Constitution, it is, on the other
hand, the power of the courts to grant bail to qualified persons no t
falling under the exceptions mentioned in Section 18, Article IV. I
see no justification to the statement that "the duty of the judiciary
to protect individual rights must yield to the power of the executive
to protect the state x x x." Ten (10) or one hundred (100) detention
prisoners, or even more, even granting that they are rebels, cannot
overwhelm the vast powers of the government. It will not make a
serious difference if they are granted the right to bail. Besides,
why should the judiciary yield a power and a duty which is

l
l

iltfil

.]l,H
f

Third: In all criminal prosecutions, the accused shall be


presumed innocent until the contrary is proved, and shall enjoy
the right to be heard by himself and counsel, to be informed of the
nature and cause of the accusation against him, to have a speedy,
impartial and public trial, to meet the witnesses face to face, and
to have compulsory process to secure the attendance of witnesses
and the production of evidence in his behalf. x x x (Sec. 19, Article
IV, 1987 Constitution) If one's right to bail is denied, the abovequoted constitutional right will be defeated and rendered useless.
The detainee, for as long as he is detained, cannot effectively
prepare his case and his defense. Added to this is the fact that
during the entire period of his detention and untii the case is finally
decided, he is, in the eyes of the la w, stili presumed innocent. The
contrary has yet to be proven and yet during the interegnum
between the inquiry and the final judgment, he has already lost
the battie. Even before the trial starts, he is already in a very
disadvantageous position. While the government, with all the
powers .nd facilities in its command, is thoroughly preparing its
case and its evidence, the detainee suffers the physical and mental
burden of being kept inside the prison cell. Even granting for the
sake of argument that he is given a chance to confer with his
counsel, the disadvantage in any respect stili works against the
detainee. This is very evident and clear and any contradiction of
reaiity will only make the truth very obvious .
PETITION FOR CHANGE OF NAME

A person desiring to change his name can file his petition with
the locai civil registry office of the city or municipality where the
record being sought to be corrected or changed is kept. (R.A. No.
9048)

illll
INTRODUCTION TO LAW

254

REMEDIAL LAW

256

!l'
:Il

l'

JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION


OF MINOR NATURAL CHILDREN

CONTENTS OF PETITION FOR CHANGE OF NAME

l.

The petition for change of name shall be in the form of


an affidavit, subscribed and sworn to before any person
authorized to administer oaths. The petition for change
of first name or nickname may be aliowed in any of the
foliowing cases:
(a)

The petitioner finds the first name or nickname to


be ridiculous, tainted with dishonor or extremely
difficult to write or pronounce;

(b)

The new first name or nickname has been habitualiy


and continuously used by the petitioner and he has
been publicly known by that first names or
nicknames in the community; or

(c)

The change wili avoid confusion.

VENUE:

Where judicial approvai of a voluntary recognition of a minor


natura! child is required, such child or his parents shali obtain the
same by filing a petition to that effect with the Court of First
Instance of the province in which the child resides. In the City of
Manila, the petition shali be filed on the Juvenile and Domestic
Relations Court. (Sec. l, Rule 105, New Rules of Court)

Ilii
CONTENTS OF PETITION

PETITION FOR VOLUNTARY DISSOLUTION OF CORPORATION

A petition for voluntary dissolution of a corporation shali be


filed in the CFI of the province where the principal office of the
corporation is situated. (Sec. l, Rule 104) (CFI is now referred to
asRTC)
Requirements:
l.

It must be signed by a majority of its Board of Directors,


or other officers managing its affairs.

2.

It must be verified by the President or Secretary or one


of the directors.

3.

It must set forth ali claims and demands against the said
corporation.

4.

A statement that its dissolution was resolved:


(a)

By the majority of the members (if non-stock),

(b)

Or by the affirmative vote of the stockholders


holding and representing two-thirds (2/3) of ali the
shares of stock issued or subscribed (if a stock
.corporation) at a meeting of its members or
stockholders calied for that purpose. (Sec. l, Rule
104)

'11111

The petition for judicial approvai of a voluntary recognition


of a minor natura! child shall contain the foliowing aliegations:
(l)

The jurisdictional facts;

(2)

The names and residences of the parents who acknowledge the child, or of either of them, and their compulsory
heirs, and the person or persons with whom the child
lives;

(3)

The fact that the recognition made by the parent or


parents took piace in a statement before court of record
or in an authentic writing, copy of the statement or
writing being attached to the petition. (Sec. 2, Rule l 05,
New Rules of Court)

l
.... Il

WHO MAY RECOGNIZE A NATURAL CHILO?

A natura! child may be recognized by the father and mother


jointly, or by only one of them. (Art. 276, New Civil Code of the
Philippines)

WAYS OF VOLUNTARY RECOGNITION

Recognition shali be made in the record of birth, a will, ll


statement before a court of record, or in any authentic writing. (Art .
278, New Civ il Code of the Philippines)

256

INTRODUCTION TO LAW

REMEDIAL LAW

NOTE:
l.

2.

3.

4.

(b)

A child who is of age cannot be recognized without his consent.


When the recognition of a minor does not take piace in a record
of birth or in a will, judicial approvai shall be necessary. A
minor can in any case, impugn the recognition within four (4)
years following the attainment of his majority. (Art. 281, New
Civil Code)
A recognized natural child has the right: (l) To b~ar the
surname of the parent recognizing him; (2) To receive support
from such parent, in conformity with Artide 291; (3) To receive
in a proper case, the hereditary portion which is determined
in this Code. (Art. 282, New Civil Code)

In cases ofrape, abduction or sedudion, when the period


of the offense coincides more or less with that of the
conception;

(2)

When the child is in continuous possession of status of a


child of the alleged father by the direct acts of the latter
or of his family;

(3)

When the child was conceived during the time when the
mother cohabited with the supposed father;

( 4)

When the child has in his favor any evidence or proof


that the defendant is his father. (Art. 283, New Civil
Code)

Recognition by operation oflaw (i.e., natural children by


legai fiction such as those mentioned)n Artide 89 of the
New Civil Code).

(4)

Automatic recognition such as that mentioned in Article


271 of the New Civil Code.

''Art. 271 - Only natural children who have


been recognized by the parents before or after, the
celebration of the marriage, or have been declared
natural children by final judgment, may be
considered legitimated by subsequent marriage.
lf a natural child is recognized or judicially
declared as natural, such recognition or declaration
shall extend to his or her brothers or sisters of full
blood; Provided, That the consent of the latter shall
be implied if they do not impugn the recognition
within four (4) years {rom the t ime of su c h
recognition, or in case they are minors, within four
(4) years following the attainment o{ majority."
WHO MAY PETITION DECLARATION OF ABSENCE?

Kinds of recognition
(l)

Recognition may either refer to recognition of (a) a


natural child, or (h) recognition of a spurious child.
(a)

(b)
(2)

'!

. i

Natural child - It is a child horn outside of wedlock of parents who, a t the time of conception of the
former, were not disqualified by any impediment to
marry each other.

l!

Spurious child- It is an illegitimate child other


than natural.

Voluntary recognition of a natural child or


voluntary recognition of a spurious child;

After the lapse of two (2) years from his disappearance and
without any news about the absentee or since the receipt of the
last news, or offive (5) years in case the absentee has left a person
in charge of the administration of his property, the declaration of
his absence and appointment of a trustee or administrator may be
applied for by any of the follQwing:
(a)

The spouse present;

(b)

The heirs instituted in a will, who may present an


authentic copy of the same;

(c)

The relatives who would succeed by the law ofintestacy;


and

(d)

Those who have over the property of the absentee some


rights subordinated to the condition of his. death. (Sec.
2, Rule 107, New Rules of Court)

Recognition may also be categorized as follows:


(a)

Compulsory recognition of a natural child. In this


case, a formai declaration of filiation is made by the
court.

(3)

In any of the following cases, the father is obliged to recognize


the child as his natural child:
(l)

257

7''"

i,j

REMEDIAL LAW

INTRODUCTION TO LAW

258

CODE:

(g)

Legitimations;

2 years - Should lapse before declaration of absence can be


made. This period applies to an absentee who has no administrator.

(h)

Adoptions;

(i)

Acknowledgments of natura! children;

5 years - Should lapse before declaration of absence can be


made. This period applies if the absentee has an administrator.

(j)

Naturalization;

(k)

Election, loss or recovery of citizenship;

(l)

Civil interdiction;

CONTENTS OF PETITION

The petition for the appointment of a representative, or for


declaration of absence and the appointment of a trustee or an
administrator, must show the following:
(a)

The jurisdictional facts;

(b)

The names, ages, and residences of the heirs instituted


in a will, copy of which shall be presented, and of the
relatives who would succeed by the law of intestacy;

(c)

The names and residences of creditors and others who


may have any adverse interest ovel' the property of the
absentee;

(d)

The probable value, location and character ofthe property


belonging to the absentee.

CANCELLATION OF ENTRIES IN THE CIVIL


REGISTRY
ENTRIES SUBJECT TO CANCELLATION
OR CORRECTION

(m) Judicial determination of filiation;


(n)

Voluntary emancipation of a minor; and

(o)

Changes of name.

WHO MAY FILE A PETITION FOR CANCELLATION OR


CORRECTION OF ENTRIES IN THE CIVIL REGISTRY?

Any person interested in any act, event, order or decree


concerning the civil status of persons which has been recorded in
the civil registry, may file a verified petition for the cancellation or
correction of any entry related thereto, with the Court of First
Instance of the province where the corresponding civl registry is
located (CF! is now referred to as RTC)
NOTE:
WHAT CHANGES ARE AUTHORIZED?

l.

Changes that are authorized are those changes which


are merely clerical in nature. Those which affect civil
status, nationality or citizenship are not authorized. Ali
these and other substantial changes should be threshed
out in a proper action.

2.

Notice and Publication- Upon the filing ofthe petition,


the court shall, by an order, fix the time and piace for
the hearing of the same, and cause reasonable notice
thereof to be given to the person named in the petition.
The court shall also cause the order to be published once
a week for three (3) consecutive weeks in a newspaper of
generai circulation in the province. (Sec. 4, Rule 108, New
Rules of Court)

Upon good and valid grounds, the following entries in the civil
registry may be cancelled or corrected:
(a)

Births;

(b)

Marriages;

(c)

Deaths;

(d)

Legai separation;

(e)

Judgments of annulments of marriage;

(f)

Judgments declaring marriages void from the beginning;

259

CRIMINAL PROCEDURE
DEFINITION

261

REMEDIAL LAW

INTRODUCTION TO LAW

260

REQUISITES FOR VALlO EXERCISE OF


CRIMINAL JURISDICTION

Before a court can validly exercise its power to hear and try a
case, the following requisites must be present:
l

Criminal procedure is a part of remedial law which provides


for the apprehension, prosecution, conviction or acquittal, as the
case may be, of a person who is accused of having committed a
crime.

(a)

There must be jurisdiction over the subject matter;

(b)

There must be jurisdiction over the territory where the


offense was committed; and

(c)

There must bejurisdiction over the person ofthe accused.

CRIMINAL JURISDICTION

Jurisdiction over the subject matter is conferred by law.

Criminal jurisdiction is the authority to hear and try a


particular offense and impose the punishment for it.

Jurisdiction over the territory means that an accused can be


tried only in the piace where he committed the crime or where any
of the essential ingredients of the crime took piace.

HOW IS THE COURT'S JURISDICTION DETERMINED?

Jurisdiction over the person of the accused may be obtained


by voluntary appearance or surrender of the accused or by arrest.

The generai rule is that the jurisdiction of a court is determined by:

DISTINCTION

(a)

The geographical limits of the territory over which it


presides;

(b)

The actions (civil and criminal) is empowered to hear and


decide.

ELEMENTS OF JURISDICTION IN CRIMINAL ACTIONS

The elements of jurisdiction of a trial court over the subject


matter in a criminal case are:
(a)
(b)

The nature of the offense and/or penalty attached thereto.


The fact that the offense has been committed within the
territorial jurisdiction of the court.

COMPLAINT

INFORMATION

l. A sworn statement charging l. A written statement of

a person with an offense,


subscribed by the offended
party, any peace officer and
other employee ofthe government or governmental institution in-charge of the enforcement or execution of the
law.

accusation charging a person


with an offense subscribed by
the Fiscal and filed with the
Court.

2. Filed either in court or in the 2. Filed directly with the Court.


Fiscal's Office.
WHO MUST PROSECUTE CRIMINAL ACTION?

Non-concurrence of either of these two (2) elements may be


challenged by an accused at any stage of the proceedings in the
court below or on appeal.

AS A RULE: A criminal action either commenced by complaint


or by information shall be prosecuted under the discretion and
control of the Fiscal.

In the absence of any of the said elements, a judgment of


conviction is null and void. (U.S. vs. Jayme, 24 Phil. 90, 93)

EXCEPTION: However, when there is no Fiscal available in


the Municipal Trial Court, the following persor.s may prosecute the
case:

'
REMEDIAL LAW

INTRODUCTION TO LAW

262

(a)

The offended party;

(b)

Any peace officer; and

(c)

Public officer charged with the enforcement of the law


violated.

IN CASE OF OEATH OR INCAPACITY OF THE


OFFENOEO PARTY, ANO THE LATTE~ HAS NO
PARENTS, GRANOPARENTS, OR GUAROIAN, WHO
SHALL INSTITUTE THE CRIMINAL ACTION IN HER
BEHALF?

Sllch authority shall cease in the following manner:


(a)

Upon intervention of the Fiscal; or

(b)

Upon elevation of the case to the Regional Trial Court.

The State. (Sec. 5, 3rd paragraph of the Revised Rules on


Criminal Procedure)
IN CASE THE OFFENOEO PARTY IS A MINOR, CAN
SHE INSTITUTE THE PROSECUTION OF THE
ABOVE OFFENSES?

HOW IS CRIMINAL ACTION A COMMENCEO?

lt is "commenced either by complaint or information in the


name of the People of the Philippines against all persons who
appear to be responsible therefor.

Yes, unless she is incompetent or incapable of doing so upon


grounds other than her minority.
IN CASE THE OFFENOEO PARTY WHO IS A MINOR
FAILS TO FILE A COMPLAINT, WHO CAN FILE THE
SAME?

WHAT ARE THE CRIMES THAT SHALL BE


PROSECUTEO ONLY UPON THE COMPLAINT OF
THE OFFENOEO SPOUSE?

Her parents, grandparents, or guardian may file the same.

The crimes of adultery and concubinage shall not be prosecuted, except upon a complaint filed by the offended spouse.

WHAT SHOULO A COMPLAINT OR INFORMATION


STATE?

WHEN THE OFFENOEO PARTY PROSECUTES A


CRIMINAL PROSECUTION FOR AOULTERY ANO
CONCUBINAGE, WHO SHOULO BE IMPLEAOEO?

The offended party cannot institute criminal prosecution for


said crimes without including both guilty parties, if they are both
alive, nor, in any case, if the offended party has consented to the
offense or pardoned the offenders.
WHAT ARE THE CRIMES THAT SHALL BE
PROSECUTEO ONLY UPON THE COMPLAINT OF
THE OFFENOEO PARTY, OR HER PARENTS,
GRANOPARENTS, OR GUAROIAN?

The offense of seduction, abduction, or acts of lasciviousness


shall not be prosecuted except upon a complaint filed by the offended
party or her parents, grandparents, or guardian, nor, in any case,
if the offender has been expressly pardoned by the above-named
persons, as the case may be.

263

'l

"Sec. 8. Designation of the offense - The complaint


or information shall state the designation of the offense given
by the statute aver the acts or omissions constituting the
offense and SPECIFY ITS QUALIFYING AND AGGRAVATING CIRCUMSTANCES. If there is no designation of the
offense, reference shall be made to the section or subsection
of the statute punishing it.
Sec. 9. Cause of accusation - The acts or omissione
complained of as constituting the oft'ense and the aggravating
circumstances must be stated in ordinary and concise language
and not necessarily in the language used in the statute but in
terms sufficient to enable a person of common understanding
to know what offense is being charged as well as ITS
QUALIFYING AND AGGRAVATING CIRCUMSTANCES and
for the court to pronounce judgment."

ilf:

264

REMEDIAL LAW

INTRODUCTION TO LAW

IF THERE IS AN ERROR IN THE NAME OR


IDENTITY OF THE ACCUSED, HOW SHOULD IT BE
RAISED?

If in the course of the proceeding, the true name of the accused


is disclosed by him, or appears in the other manner to the court,
the true name of the accused shall be inserted in the complaint or
information and record.

DUPLICITY OF THE OFFENSE

A complaint or information must charge but one offense .

lll

EXCEPTION: Except in cases in which existing laws prescribe


a single punishment for various offense.

~~

WHERE SHALL A CRIMiNAL ACTION BE


INSTITUTED ANO TRIED?

ftr

WHAT IS THE OTHER WAY OF IDENTIFYING THE


NAME OF THE OFFENDED PARTY?

l!g

l.

Subject to existing laws, in ali criminal prosecutions, the


action shall be instituted and tried in the court of the
municipality or territory wherein the offense was
committed or any one of the essential ingredients thereof
took place;

2.

Where an offense is committed on a railroad train, in an


aircraft, or in any other public or private vehicle while
in the course of its trip, the criminal action may be
instituted and tried in the courts of any municipality or
territory where such train, aircraft or other vehicle
passed during such trip, including the piace of departure
and arrivai;

3.

Where an offense is committed on board a vessel in the


course of its voyage, the criminal action may be instituted
and tried in the proper court of the first port of entry or
of any municipality or territory through which the vessel
passed during such voyage subject to the generally
accepted principles of international law;

4.

Other crimes committed outside the Philippines but


punishable therein under Artide 2 of the Revised Penai
Code shall be cognizable by the proper court in which
the charge is first filed.

1:
'li
i\

~ .(:

He must be described under a fictitious name.


(a)

(b)

(c)

In case of offenses against property, if the name of the


offended party is unknown, the property, subject matter
of the offense, must be described with such particularity
as to properly identify the particular offense charged.
If in the course of the trial, the true name of the person
against whom or against whose property the offense was
committed is disclosed or ascertained, the court must
cause the true name to be inserted in the complaint or
information, or record.
If the offended party is a corporation or any other
juridical person, it is sufficient to state the name of such
corporation or juridical person, or any name or designation by which it has been or is known, or by which it
may be identified, without necessity of averring that it
is a corporation, or that it is organized in accordance with
the law.

IS IT NECESSARY TO STATE THE EXACT TIME


WHEN THE ALLEGED OFFENSE WAS COMMITTED?

No. (Sec. 11, Rule 110 of the Revised Rule on Criminal


Procedure)

EXCEPTION: Except when time is a materia! ingredient of


the offense. In such case, the act may be alleged to have been
committed at any time or near to the actual date at which the offense
was committed or the information or complaint will permit.

265

!.

l
l[l

!'w l

RULE 111

1985

2000 as amended

"Sec. l. Institution of cri"Sec. l. Institution of cri


minai and civil actions."
minai nd civil actions."
When a .criminal action is
When a t::riminal action is
instituted, the civil action for the instituted, the civil action for the

rr

n
266

INTRODUCTION TO LAW

REMEDIAL LAW

)i

267

recovery of civil liability is impliedly instituted with the criminai action, unless the offended
party waives the civil action,
reserves his right to institute it
separately, or institutes the civil
action prior to the cri minai
action.

recovery of civil liability


ARISING FROM OFFENSE
CHARGED shall be deemed
instituted with the criminal
action unless the offended party
waives the civil action, reserves
the right to institute it separately
or institutes the _civii action prior
Such civil action includes to the criminai action.
recovery of indemnity under the
Such civil action includes
Revised Penai Code, and recovery of indemnity under the
damages under ArtiCles 32, 33, Revised Penai Code, and dama34 and 2176 of the Civil Code of ges under Articles 32, 33, 34 and
the Philippines arising from the 2176 of the Civil Code of the
act or omission of the accused. Philippines arising from the act
A waiver of any of the civii or omission of the accused.
The reservation of the right
actions extinguishes the others.
The institution of, or the reser- to institute the separate civil
vation of the right to file, any of actions shall be made before the
said civil actions separateiy prosecution starts to present its
waive the others.
evidence and under circumThe reservation of the right stances affording the offended
to institute the separate civil party a reasonabie opportunity to
actions shall be made before the make such reservation.
prosecution starts to pres~nt the
EXCEPT AS OTHERWISE
evidence and. under cucum- PROVIDED IN THESE RULES,
stances affordmg the offe?-ded NO FILING FEES SHALL BE
party a reasonable o~portumty to REQUIRED FOR ACTUAL DAmake such reservatwn.
MAGES.
In no case may the offended
NO
COUNTERCLAIM,
party recover damages twice for
CROSSCLAIM,
OR THIRD
the same act or omission of the
PARTY
COMPLAINT
MAY BE
accused.
FILED BY THE ACCUSED IN
When the offended party THE CRIMINAL CASE. BUT
seeks to enforce civil liability ANY CAUSE OR ACTION
against the accused by way of WHICH COULD HAVE BEEN
moral, nominai, temperate or THE SUBJECT THEREOF MAY
exempiary damages, the 'filing BE LITIGATED IN A SEPAfees for such civil action as RATE CIVIL ACTION.
provided in these Rules shall

l}

li

'l
1;

!\::

..
'

'

1
,i

~~
w

i-

ii

qjl

constitute a first lien on the


(A)
THE
CRIMINAL
judgment except in an award for ACTION FOR VIOLATION OF
actuai damages.
BATAS PAMBANSA BLG. 22
SHALL BE DEEMED TO IN.
In cases wherem the amou~t CLUDE THE CORRESPONDofdamag~s, other than ac~uai, 1s ING CIVIL ACTION, NO
~lleged .m the compiamt. or RESERVATION TO FILE SUCH
m~ormatwn, the corre.spondmg CIVIL ACTION SEPARATELY
filmg fees shall be pa1d by ~he SHALL BE ALLOWED.
offended party upon the fihng
thereof in court for trial.
UPON FILING OF THE
"
.

AFORESAID JOINT CRIMINAL


Sec. ~. Ins~Itution of AND CIVIL ACTIONS, THE
separate Civd acbon.
OFFENDED PARTY SHALL
Except in the cases provided PAY IN FULL THE FILING
for in Section 3 hereof, after the FEES BASED ON THE
criminal action has been com- AMOUNT OF THE CHECK
menced, the civil action which INVOLVED, WHICH SHALL BE
has been reserved cannot be CONSIDERED
AS
THE
instituted until finai judgment ACTUAL DAMAGES CLAIMED.
has been rendered in the WHERE THE COMPLAINT OR
criminal action.
INFORMATION ALSO SEEKS
TO RECOVER LIQUIDATED
(a)
Whenev~r t~e offended MOAL, NOMINAL, TEMPEp.a~ty s~all have ~nsbtute.d the RATE OR EXEMPLARY DAc~VII acbon as proVIded for ~n the MAGES, THE OFFENDED PARf1rst paragraph of ~ecbon l TY SHALL PAY ADDITIONAL
h~re?f befo~e the filmg ?f .the FILING FEES BASED ON THE
cn~mai. acbon and the cnmmal AMOUNTS ALLEGED THEREactwn 1s subse~ue~tl.y co.m- IN, IF THE AMOUNTS SUBSEmenced, the pendm~ CIVII acbon QUENTLY AWARDED BY THE
shall be suspended,.m whatev?r COURT, THE FILING FEES
stage ?ef?re fina~ Judgment m BASED ON THE AMOUNT
the cnmmal actwn. has been AWARDED SHALL CONSTI~endered. However, 1f no finai TUTE A FIRST LIEN ON THE
JUdgment has been rendered by JUDGMENT
the trial court in the civil action,

the same may be consolidated


WHERE
THE
CIVIL
with the criminal action upon ACTION HAS BEEN FILED
application with the court trying SEPARATELY AND TRIAL
the criminai action. If the appli- THEREOF HAS NOTYET COMcation is granted, the evidence MENCED, IT MAY BE CONSOpresented and admitted in the LIDATED WITH THE CRIMI-

r
~~

268

REMEDIAL LAW

INTRODUCTION TO LAW

269

:l

civil action shall be deemed


automatically reproduced in the
criminal action, without prejudice to the admission of addtional evidence that any party
may wish to present. In case of
consolidation, both the criminal
and civil actions shall be tried
and decided jointly.

NAL ACTION. UPON APPLICATION WITH THE COURT


TRYING THE LATTER CASE
IF THE APPLICATION IS
GRANTED THE TRIAL OF
BOTH ACTIONS SHALL PROCEED IN ACCORDANCE WITH
SECTION 2 OF THIS RULE
GOVERNING CONSOLIDATION OF THE CIVILAND CRI(b)
Extinction of the penai MINAL ACTIONS."
action does not carry with it
extinction ofthe civil, unless the
"Sec. 2. Institution of
extinction proceeds from a separate civil action."
declaration in a final judgment
.
.
~ tf
h' h th . .1
Except m cases prov1ded for
a
e
tac
rom
w
1c
e
CIVI
.
.
,
th thtth d'd t t
m Sectwn 3 hereof, after :..he
m1g anse 1 no ex1s .
. . 1 ac t'w n h as b een comcnm1na
menced, the civil action which
has been reserved cannot be
instituted initial judgment on the
merits has been entered in the
criminal action.
(a)
Whenever the offended
party shall have instituted the
civil action as provided for in the
first paragraph of Section l
hereof before the filing of the
criminal and the criminal action
is subsequently commenced, the
pending civil action shall be
suspended, in whatever stage
before judgment on the merits
has been entered. However, if no
judgment on the merits has been
entered 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
upon. If the application is granted, the evidence presented and
admitted in the civil action shall

li

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 crimnal and the civil
actions shall be tried and decided
jointly.

!l

li

(b)
Extinction of the penai
action does not carry with it
extinction of the civil, unless the
extinction proceeds from a
declaration in a final judgment
that the fact from which the civil
might arise did not exist.

'!1

!~!

CHANGES AT A GLANCE

1985

!l,\i

;iil'

l. Under the 1985 Rule, the Il.


action for recovery of civil
liability arising from crime
including the civil liability
under Articles 32, 33, 34 and
2176 of the Civil Code of the
Philippines arising from the
same act or omission are
deemed impliedly instituted
with the criminal action
unless the offended party
waives the civil action,
reserves his right to institute
it separately, or institutes the
civil action prior to the
criminal action.

2.
li

2000 as amended

Under the former rule, a


waiver of any of these three

,2.

Under the present rule only


the civilliability arising from
the offense charged is
deemed instituted with the
criminal unless the offended
party waives the civil action,
re-s.erves his right to
institute it separately, or
institutes the civil action
prior to the criminal action.

A waiver ofany ofthese three


(3) civil actions extinguishes

r1

\:l
270

INTRODUCTION TO LAW

REMEDIAL LAW

l
(3) civil actions extinguishes
the others. The institution of,
or the reservation of, the
right to .file any sai d ci vii
actions separately waives the
others.
3. The former rule does not
include Batas Pambansa Big.
22.

the others is no longer provided in the present rule.

3. The present rule also incorporated Circular 57-97 on the


filing of action for violation of
Batas Pambansa Big. 22
mandating the inclusion of
the corresponding civil action
for which the filing fee shall
be paid based on the amount
of the check involved.

INFORMATION

l.

A written accusation charging a person with an offense


subscribed by the Fiscal and filed with the Courts.

2.

Filed directly with the Court.

WHO MUST PROSECUTE CRIMINAL ACTIONS?

l.

(a)

Provincia! or City Fiscal and their Assistants;

(b)

Judges ofthe Municipal Trial Courts and Municipal Trial


Courts;

(c)

National and Regional State Prosecutors; and

(d)

Other officers as may be authorized by the law.

Their authority to conduct preliminary investigation shall


include ali crimes cognizable by the proper court in their respective
territorial jurisdiction. (Sec. 2, Rule 112)
DISTINCTIONS
COMPLAINT

l.

2.

A sworn statement charging a person with an offense,


subscribed by the offended party,. any peace officer and
other employee of the government or governmental
institution in-charge of the enforcement or execution of
the law violated.
Filed either in court or in the Fiscal's Office.

Criminal actions commenced by complaint or by information


They shall be prosecuted under the direction and
control of the Fiscal.

2.

Adultery and concubinage


They shall not be prosecuted except upon a
complaint filed by the offended spouse. The Fiscal cannot
prosecute those crimes on
own initiative. The offended
party must implead both the guilty parties, if they are
both alive.

his

WHO ARE AUTHORIZED TO CONDUCT A


PRELIMINARY INVESTIGATION?

The following may conduct a preliminary investigation, to wit:

271

3.

Seduction, abduction, rape, acts of lasciviousness


They shall not be prosecuted except upon a
complaint filed by the offended party, or her parents, or
her grandparents, or guardian nor in any case if the
offender has been expressly pardoned by the abovenamed persons, as the case may be.

EVIDENCE
It is the means sanctioned in the Rules of ascertaining in
judicial proceeding the truth respecting a matter of fact.
KINDS OF EVIDENCE

l.

Documentary evidence - Such as documents, papers


or any written letter or communication.

2.

Testimoniai evidence - Oral or written testimony or


statement of a witness.

3.

Real evidence- That which may be exhibited to or


viewed by the Court such as the knife or gun used to kill
Mr.A.

272

INTRODUCTION TO LAW

4.

Circumstantial evidence - It proves a fact from


circumstances surrounding a particular incident or
situation.

5.

Corroborative evidence - Additional evidence of the


same kind tending to prove the same fact.

6.

Cumulative evidence. - Additional evidence of a


different kind tending to prove a fact.

7.

Prima facie evidence - Evidence sufficient to prove


an issue unless rebutted by other evidence.

8.

Expert evidence - That given by a person who has a


specialized knowledge of a particular field in connection
with which his testimony is requested.

REMEDIAL LAW

273

COPIES OF AN ORIGINAL ARE REGARDED AS ORIGINALS

When an entry is repeated in the regular course of business,


one being copied from another a t or near the time of the transaction,
all the entries are equally regarded as originals.
WHAT IS THE PAROL EVIDENCE RULE?

Rule 130, Section 7 of the New Rules of Court defines the


parol evidence as follows:

WHAT IS THE BEST EVIDENCE RULE?

"Sec. 7. Evidence of written agreements - When


terms of an agreement have been reduced to writing, it is to be
considered as containing all such terms, and, therefore, there
can be, between the parties and their successors-in-interest, no
evidence of the terms of the agreement other than the contents
of the writing, except in the following cases:

Under the best evidence rule, the contents of the document


being offered. in evidence cannot be proved unless the originai is
produced or its absence accounted for. The reason for the rule is to
prevent uncertainty, ambiguity and fraud.

(a) Where a mistake or imperfection of the writing, or


its failure to express the true intent and agreement of the
parties, or the validity of the agreement is put in issue by the
pleadings;

Rule 130, Section 2 of the New Rules of Court provides as


follows:

(b) Where there is an intrinsic ambiguity in the writing.


The term agreement includes will."

"Sec. 2. Originai writing must be produced;


exceptions - There can be no evidence of a writing the
contents of which is the subject of inquiry, other than the
original writing itself, except in the following cases:
(a) When the original has been lost, destroyed or cannot
be produced in court;
(b) When the original is in the possession of the party
against whom the evidence is offered, and the latter fails to
produce it after reasonable notice;
(c) When the original is a record or other document in
the custody of a public officer;
(d) When the origina l has been recorded in an existing
record a certified copy of which is made evidence by law;
(e) When the origina[ consists of numerous accounts or
other documents which cannot be examined in court without
great loss of time and the fact sought to be established from
them is only the general result of the whole."

WHAT IS HEARSAY EVIDENCE?

Hearsay evidence is that which a witness says he merely heard


from another. It is an evidence that the witness heard soniething
from another but it is not an evidence that what was heard was
true. As a rule, hearsay evidence is not admissible as evidence.
EXCEPTIONS TO THE HEARSAY RULE

l. Dying declarations;

2. Statements of a deceased person against his pecuniary


or moral interest;
3. Statements about pedigree, family reputation or tradition
about pedigree;
4. Statement about matters of public or generai interest,
or common reputation;
5. Statements as part of the res gestae;

274

INTRODUCTION TO LAW

6. Entries in the course of business, or in the performance


ofduty;
7. Official written statements;

Chapter XVI

8. Commerciallists and similar lists;


9. Learned treaties; and

LABOR LAW ANO SOCIAL LEGISLATION

10. Testimony at a former trial. (Secs. 31 to 41, Rule 140)


RULES CONCERNING ADMISSION TO
THE PRACTICE OF LAW

Section 5(5), Artide X of the New Constitution provides as


follows:

IMPORTANT TOPICS UNDER THE LABOR CODE OF THE PHILIP


PINES:

l.

"Sec. 5. The Supreme Court shall ha ve the following


powers:

Distinction between labor laws and social legislation


(a)

Labor laws

(b)

Sociallegislation

xxx

2.

Generai provisions of the Labor Code of the Philippines

(5) Promulgate rules concerning pleading, practice, and


procedure in all courts, the admission to the practice of law,
and the integration of the Bar, which, however, may be repealed,
altered, or supplemented by the National Assembly. Such rules
shall provide a simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for all courts of
the same grade, and shall not diminish, increase, or modify
substantive rights. x x x"

3.

Emancipation of tenants

4.

Regulation of Recruitment and Placement Activities

5.

Employment of non-resident aliens

6.

Conditions of employment
(a)

Hours of work

(b)

Weekly rest period

(c)

Holidays, Service Incentive Leaves and Service


Charges

(d)

Wages
(d.l) Minimum wage rate
(d.2) Forms of payments
(d.3) Time of payment
(d.4) Piace of payment
(d.5) Prohibitions regarding wages
(d.6) Wage studies and determination
275

LABOR LAW AND SOCIAL LEGISLATION

INTRODUCTION TO LAW

276

(e)
7.

8.

9.
10.

2.

Employment of minors
Jurisdiction of Labor Arbiters and the Commission

(b)

Technical rules not binding

(c)

Appeal from decision of NLRC

Unfair labor practices


(a)

Unfair labor practices of employers

(b)

Unfair labor practices of labor organizations

Strikes and lockouts

SOCIAL LEGISLATION DEFINED

Social legislation refers to those laws that are designed to


uplift the condition of workers or employees as members of the
community and as human bings with recognized dignity. They are
designed to secure the future of the worker as well as his family
because of what happens to the worker arising from the hazards,
incidents or effects of employment.

National Labor Relations Commission (NLRC)


(a)

277

EXAMPLES: Social Security Act, the Medicare Act and


provisins on compensation for injuries sustained by workers or
employees in the course of or arising from employment.

,, l

DISTINCTION BETWEEN LABOR LAWS


AND SOCIAL LEGISLATION

Termination of employment

1.

LABOR LAWS

(a)

Regular and casual employment

(b)

Probationary employment

(l)

They affect the work of the employee.

(c)

Termination by employer

(2)

Generally covers employment for profit or gain ..

(d)

Clasure of establishment and reduction of personnel

(3)

They directly affect matters of actual employment like


wages and hours of labor.

(e)

Disease as ground for termination

(4)

(f)

Termination by employee

They are designed to meet the daily needs of an employee


for sustenance.

11.

Retirement from the service

12.

13th-month pay

'

SOCIAL LEGISLATION

IMPORTANT SOCIAL LEGISLATIONS


l.

New Social Security Law (SSS)

2.

New Government Service Insurance System (GSIS)

3.

Comprehensive Agrarian Reform Law

(l)

They affect the life of the employee.

(2)

They cover employment for gain or even non-profit


enterprises.

(3)

They govern the effect of employment like payment of


compensation for injuries sustained while at work,
medicai services available to an employee who gets sick.

(4)

They involve long-range plans, benefits or aspects.

DISCUSSION
1.

LABOR LAWS DEFINED

Labor laws are those laws that govern the rights and
obligations of employers and employees, providing as well for the
rules by which such rights and obligations may be enforced.

2. . GENERAL PROVISIONS OF THE LABOR CODE OF THE


PHILIPPINES

(A) Declaration of Basic Policy


The state shall afford protection to labor, promote full
employment, ensure equal work opportunities regardless of sex, race

278

INTRODUCTION TO LAW

LABOR LAW AND SOCIAL LEGISLATION

or creed, and regulate the relations between workers and employees.


The state shall assure the rights of workers to self-organization,
collective bargaining, security of tenure and just and human
conditions of work. (Article 3, New Labor Code)

small landowners (Section 2, 7th paragraph, R.A. No.


6657);
5.

Protection of the rights of subsistent fisherman, especially


of local communities, to the preferential use of
commerciai marine and fishing resources, both inland
and offshores (Section 2, 8th paragraph, R.A. No. 6657);

6.

The State shall be guided by the principles that land has


a social function and land ownership has a social
responsibility. Owners of agricultural land have the
obligation to cultivate directly or through labor administration, the lands they own and thereby make the land
productive. (Section 2, 9th paragraph, R.A. No. 6657)

(B) Construction in Favor Of Labor


Ali doubts in the implementation and interpretation of the
provisions of this code, including its implementing rules and
regulations, shall be resolved in favor of labor. (Article 4, New Labor
Code)
3.

279

EMANCIPATION OF TENANTS

(A) Law Enacted


Republic Act No. 6657, otherwise known as the "Comprehensive Agrarian Reform Law of 1988."

(B) Policy of the State


The policy of the state is to pursue a Comprehensive Agrarian
Reform Program (CARP). The welfare ofthe landless farmers and
farmworkers will receive the highest consideration to promote social
justice and to move the nation toward sound rural development
and industrializations and the establishment of owner cultivatorship of economie size farms as the basis of Philippine agriculture.
(Section 2, 1st paragraph, R.A. No. 6657)

(C) Principles Declared Under Republic Act No. 6657


l.

2.

(D) Coverage of Carp


It shall cover, regardless of tenurial arrangement and commodity produced, ali public and private agricultural lands, as
provided in Proclamation No. 131 and Executive Order No. 229,
including other lands of the public domain suitable for agriculture.
(Section 4, R.A. No. 6657)

(E) Priorities
The Department of Agrarian Reform (DAR) in coordination
with the Presidential Agrarian Reform Council (PARC) shall pian
and program the acquisition and distribution of ali agricultural
lands through a period of ten (10) years from the effectivity of R.
A. No. 6657. (Section 7, R.A. No. 6657)

Equitable distribution and ownership of land (Section 2,


2nd paragraph, R.A. No. 6657);
Just distribution of ali agricultural lands, subject to
priorities and retention limits, taking into account
ecologica!, developmental, and equity considerations, and
subject to the payment of just compensation (Section 2,
3rd paragraph, R.A. No. 6657);

3.

Application of the principles of agrarian reform, or


sterwardship, whenever applicable in accordance with
law (Section 2, 5th paragraph, R.A. No. 6657);

4.

Formation and maintenance of economic-size family


farms to be constituted by individuai beneficiaries and

(F) Distribution Limit


No qualified beneficiary may own more than three(3) hectares
of agriculturalland. (Section 23, R.A. No. 6657)
4.

REGULATION OF RECRUITMENT ANO PLACEMENT ACTI


VITI ES

(a)

Pursuant to national development objectives and in order


to harness and maximize the use of private sector
resources initiative in the development and implemen
tation of a comprehensive employment program, the
private employment sector shall participate in the

280

LABOR LAW AND SOCIAL LEGISLATION

INTRODUCTION TO LAW

6.

recruitment and placement of workers, locally and


overseas, under such guidelines, rules and regulations
as may be issued by the Secretary of Labor. (Article 25,
Labor Code of the Philippines)
(b)

Travel agencies and sales agencies of airline companies


are prohibited from engaging in the business of
recruitment and placement of workers for overseas
employment whether for profit or not. (Article 26, Labor
Code of the Philippines)

(c)

Only Filipino citizens or corporations, partnership or


entities at least seventy-five percent (75%) of the
athorized and voting capitai stock of which is owned
and controlled by Filipino citizens shall be permitted to
participate in the recruitment and placement of workers,
locally or overseas. (Article 27, Labor Code of the Philippines)

CONDITIONS OF EMPLOYMENT

(A) Bours of Work


Article 83. Normal Hours of Work - The nomial hours of
work of any employee shall not exceed eight (8) hours a day.
Article 84. Hours Worked - Hours worked shall include (a)
all time during which an employee is required fu be on duty or to
beat a prescribed work piace, and (b) ali the time during which an
employee is suffered or permitted to work.
Rest period of short duration during working hours shall be
counted as hours worked.
Said provisions shall apply to all employees in ali establishments and undertaking whether for profit or not.

Exceptions
Said provisions do not apply to:
l.

5.

EMPLOYMENT OF NON-RESIDENT ALIENS

(A) Non-resident Aliens Need Employment Permit


Any alien seeking admission to the Philippines for employment
purposes and any domestic or foreign employer who desires to
engage an alien for employment in the Philippines shall obtain an
employment permit from the Department of Labor. (Article 40,
Labor Code of the Philippines)

l'll

ii :

li
i

~:

' ;j:.

Probibition Against Transfer of Employment

l.

Mter the issuance of an employment permit, the alien


shall not transfer to another job or change his employer
without prior approvai of the Secretary of Labor.

2.

Any non-resident alien who shall take up employment


in violation of the provision of this Title and its
implementing rules and regulations shall be punished
in accordance with the provisions of Articles 289 ;md 290
of the Labor Code.

In addition, the alien worker shall be subject to deportation


after service of his sentence. (Article 41,. Labor Code of the
Philippines)

'~ il

(B)

281

2.
3.

4.
5.
6.
7.

(B)

:tf

lll

Govemment employees
Managerial employees
Field personnel
Members of the family of the employer who are dependent
on him for support
Domestic helpers
Persons in the personnel service of another
Workers who are paid by the results as determined by
the secretary of Labor and Employment in appropriate
regulations. (Article 82, Labor Code of the Philippines)

Weekly Rest Period

It shall be the duty of every employer, whether operating for


profit or not, to provide each of his employees a rest period of not
less than twenty-four consecutive hours after every six (6)
consecutive normal work days. (Article 91, Labor Code of the
Philippines)

Why is there no definite rest day that is fixed by the Labor


Code?
Before the enactment ofthe Labor Code, the Blue Sunday Law
prohibited commerciai, industriai and agricultural establishments

INTRODUCTION TO LAW .,

282

LABOR LAW AND SOCIAL LEGISLATION

(c)

from opening on Sundays to give employees a weekly rest. This


was however, assailed by religious minorities as unconstitutional
and discriminatory because they worship and rest on other days
than Sunday. For this reason, no definite rest day was fixed by the
Labor Code.

Can an employer require work on a rest day?


Yes, but only in the following cases, as. specified by Articie 92
of the Labor Code, thus:
(a)

(b)

(c)

(d)

A)

In case of actual or impending emergencies caused by


serious accident, fire, flood, typhoon, earthquake,
epidemie or other disaster or calamity to prevent loss of
life and property or imminent danger to the public safety;
In case ofurgent work to be performed on the machinery,
equipment or installation, to avoid serious loss which the
employer would otherwise suffer;
In the event of abnormal pressure of work due to special
circumstances, where the employer cannot ordinarily be
expected to resort to other measures;
To prevent loss or damage to perishable goods;

(e)

Where the nature ofwork requires continuous operations


and stoppage of work may result in irreparable injury or
loss to the employer; and

(f)

Under other circumstances analogous or similar to the


foregoing as determined by the Secretary of Labor and
Employment.

b:
(.r~

~~

B)

(C) Holidays, Service Incentive Leaves and Service


Cbarges
RIGHT TO HOLIDAY PAY

Every worker shall be paid his regular daily wage during


regular holidays, except in retail and service establishments regularly employing less than ten (10) workers.

(b)

The employer may require an employee to work on any


holiday but such employee shall be paid a compensation
equivalent to twice his regular ra~.

As used in this article "holiday" includes New Year's Day,


Maundy Thursday, Good Friday, the ninth of Aprii, the
first of May, the twelfth of June, the fourth of July,
twenty-sixth of August, the thirtieth of November, tho
twenty-fifth and thirtieth of December, and the day
designated by law for holding generai election. (Article
94, Labor Code of the Philippines)

Regular holidays
New Year's Day

January l

Maundy Thursday

Movable date

Good Friday

Movable date

Araw ng Kagitingan
(Bataan and Corregidor Day)

April9

Labor Day

May l

Independence

June 12

National Heroes Day

Last Sunday of August

Bonifacio Day

November 30

Christmas Day

December 25

Rizal Day

December 30

Nationwide special days


Ali Saints Day

November l

Last Day of the Year

December 31

RIGHT TO SERVICE INCENTIVE LEAVE


(a)

Every employee who has rendered at least one year of


service shall be entitled to a yearly service incentive leave
of five days with pay.

(b)

This provision shall not apply to those who are already


enjoying the benefit herein provided, those enjoying
vacation leave with pay of at least five days and those
employed in establishments regularly employing less
than ten (10) employees or in establishments exempted
from granting this benefit by the Secretary of Labor after

ii

:J

(a)

283

:ii~ i

.!H

LABOR LAW AND SOCIAL LEGISLATION

INTRODUCTION TO LAW

284

(c)

285

considering the viability or financial condition of such


establishment.

Under Wage Order No. NCR-03, the pertinent portion of the


wage order states as follows:

The grant of benefit in excess of that provided herein


shall not be made a subject of arbitration or any court or
administrative action. (Article 95, Labor Code of the
Philippines)

"All private sector workers and employees in the National


Capitai Region receiving one hundred fifty-four pesos (Pl54.00) per
day payable as follows:
AMOUNT OF INCREASE

DATE OF EFFECTIVITY

RIGHT TO SERVICE CHARGES

All services charge collected by hotels, restaurants and similar


establishments shall be distributed a t the rate of eighty-five percent
(85%) for all covered employees and fifteen percent (15%) for
management. The share of the employees shall be equally
distributed among them. In case the service charge is abolished,
the share of the covered employees shall be considered integrated
in their wages. (Article 95, Labor Code of the Philippines)

Pl7.00

Fifteen days after publication


of wage order

PlO.OO

Aprii l, 1994

The following are exempted from this provision upon proper


application, thus:
l.

Exporting firms, including indirect exporters with


existing forward contracts with their foreign buyers,
principals at the time of effectivity of this wage order
may be exempt during the lifetime of the said contract
but not to exceed twelve (12) months from the effectivity
of this order.

2.

Retaillservice establishments regularly employing not


more than ten (10) workers.

3.

Distressed firms as defined in the NPWC Revised


Guidelines on Exemption.

(D) WAGES
. (d.l)

MINIMUM WAGE RATE

jl'
t-~

HISTORICAL BACKGROUND

Under Republic Act No. 602, otherwise known as the Minimum


Wage Law which took effect on Aprii 6, 1951, the minimum wage
was P4.00 for non-agricultural and P2.50 for agricultural workers.
This was increased by P2.00 under Republic Act No. 4180 and
by another P2.00 under Republic Act No. 6129, which took effect
on June 17, 1970.
The minimum wage was increased through presidential
decrees and letter of instructions during the Martial Law regime,
such as Presidential Decree Nos. 928, 1389, 1614, 1634, 1678 and
1713, and Wage Nos. l, 2, 4 and 6, and Letter of Instructions No.
174.
Now, the minimum wage rates are fixed in Republic Act No.
6727, known as the Wage Rationalization Law.
Under this law, Regional 'l'ripartite wage and productivity
Boards were constituted. These boards fix, if necessary, a feasible
minimum wage, apart from the NationalCapital Region in Manila
and in about two Autonomous Regions.

}1

(d.2) FORMS OF PAYMENTS

!,.

J l;

.ll
j

No employer shall pay the wages of an employee by means of


promissory notes, vouchers, coupons, tickets, chits or any object
other than legai tender, even when expressly requested by the
employee.
Payment of wages by check or money order shall be allowed
when such manner of payment is customary on the date of effectivity of this code, or is necessary because of special circumstances
as specified in appropriate regulations to be issued by the Secretary
of Labor or as stipulated in a collective bargaining agreement.
(Article 102, Labor Code ofthe Philippines)

LABOR LAW AND SOCIAL LEGISLATION

INTRODUCTION TO LAW

286

(d.3)

TIME OF PAYMENT

Wages shall be paid at least once every tw'? (2) weeks or twice
a month at intervals not exceeding sixteen (16) days. If on account
of force majeure or circumstances beyond the employer's contro!,
payment of wages on or within the time herein provided cannot be
made, the employer shall pay the wages immediately after such
force majeure or circumstances have ceased. No employer shall
make payment with less frequency than once a month.
The payment of wages of employees engaged to perform a task
which cannot be completed in two (2) weeks shall be subject to the
following conditions, in the absence of a collective bargaining
agreement or arbitration award:
l.

2.

That payments are made at intervals not exceeding


sixteen (16) days, in proportion to the amount of work
completed; and

For union dues, in cases where the rigbt of the worker


or bis union to cbeck-off bas been recognized by the
employer or autborized in writing by tbe individuai
worker concerned; and

iii.

In .cases wbere tbe employer is autborized by law or


regulations issued by tbe Secretary ofLabor. (Articles112
and 113, Labor Code of the Philippines)
(d.6)

WAGE STUDIES ~'1) DETERMINATION

Tbe Wage Commission in tbe Department of Labor sball


conduct a continuing study of wage rates in tbe various agricultural
and non-agricultural industries ali over tbe country. The results of
sucb study sball be periodically disseminated to tbe govemment,
labor and management sectors for tbeir information and guidance.

,IJl
J

If after sucb study, tbe Commission is of tbe opinion tbat a


substantial number of employees in a given industry are receiving
wages wbicb, altbougb complying witb tbe minimum provided by
law, are less tban sufficient to maintain tbem in bealtb, efficiency
and generai well-being, taking into account, among otbers, the
peculiar circumstances of tbe industry and its geograpbicallocation,
tbe Commission sball, witb tbe approvai of the Secretary of Labor,
proceed to determine wbetber a wage recommendation sball be
issued. (Article 120, Labor Code of the Philippines)

{r

PLACE OF PAYMENT

Payment of wages shall be made at or near the place of


undertaking, except as otherwise provided by such regulations as
the Secretary of Labor may prescribe under conditions to ensure
greater protection of wages. (Article 104, Labor Code of the
Philippines)

(E) Employment of Minors


Minimum employable age -(a) No cbild below fifteen (15)
years of age shall be employed, except wben be works directly under
the sole responsibility of his parents or guardian, and bis
employment does not in any way interfere witb bis scbooling.

(d.5) PROHIBITIONS REGARDING WAGES


No employer shall limit or otherwise interfere with the
freedom of any employee to dispose of his wages. He shall not in
any manner force, compel, or oblige his employees to purchase
merchandise, commodities, or other property from the employer or
from any other person, or otherwise make use of any store or
services of such employer or any other person.

(b) Any person between fifteen (15) and eigbteen (18) years
of age may be employed for sucb number of bours and such periods
of the day as determined by tbe Secretary of Labor in appropriate
regulations.
(c) Tbe foregoing provisions sball in no case allow the
employment of a person below eigbteen (18) years of age in an
undertaking wbicb is bazardous or deleterious in nature as
determined by tbe Secretary of Labor.

No employer, in his own behalf or in behalf of any person,


shall make any deduction from the wages of his employees, except:
i.

ii.

!~~

That final settlement is made upon completion of the


work. (Article 103, Labor Code of the Philippines)
(d.4)

287

In case where the worker is insured with his consent by


the employer, and the deduction is to recompense the
employer for the amount paid by him as premium on the
insurance;

Prohibition against child discrimination - No employer sball


discriminate against any person in respect to terms and conditions
tnl

289

INTRODUCTION TO LAW

LABOR LAW AND SOCIAL LEGISLATION

of employment on account of his age. (Articles 139 and 140, Labor


Code of the Philippines)

and executory unless appealed to the Commission by any or both


of the parties within ten (10) days from receipt of such awards,
orders, or decisions. Such appeal may be entertained only on any
ofthe following grounds (Article 223, Labor Code ofthe Philippines):

288

7.

NLRC (NATIONAL LABOR RELATIONS COMMISSION)

Jurisdiction of Labor Arbiters and the Commission - (a) The


Labor Arbiters shall have the originai and exclusive jurisdiction to
hear and decide within thirty (30) working days after submission
of the case by the parties for decision, the following cases involving
all workers whether agricultural or non-agricultural (Article 217,
Labor Code of the Philippines):
(l)

Unfair labor practices cases;

(2) Those that workers may file involving wages, hours


of work and other terms and conditions of employment;
(3) All money claims of workers, including those based
oli. non-payment or underpayment of wages, overtime
compensation, separation pay and other benefits provided by
law or appropriate agreement, except claims for employees
compensation, social security, medicare and maternity benefits;
(4)

Cases involving household services; and

(a) lf there is prima facie evidence of abu.se of discretion on


the part of the Labor Arbiter or compulsory arbitrator;
:>~>

(c) Appeal from decision of NLRC. - Decisions, awards, or


orders of the Labor Arbiters or compulsory arbitrators are final

(b) Ifthe decision, order, or award was secured through fraud


or coercion, including graft and corruption;
(c)

!l

m
f~

>l!
~M

l~

Il
l

(5) Cases arising from any violation of Article 265 of


this Code, including questiona involving the legality of strikes
and lockouts.
(b) Technical rules not binding. -In proceeding before the
Commission or any of the Labor Arbiters, the rules of evidence
prevailing in courts of law or equity shall not be controlling and it
is the spirit and intention of this Code that the Commission and
its members and the Labor Arbiters shall use every and all
reasonable means to ascertain the facts in each case speedily and
objectively and without regard to technicalities of law or procedure,
all in the interest of due process. In any proceeding before the
Commission of any Labor Arbiter, the parties may be represented
by legai counsel but it shall be the duty of the Chairman, any
Commissioner or any Labor Arbiter to exercise complete control of
the proceedings at all stages. (Article 221, Labor Code of the
Philippines)

If made purely on questiona oflaw; and

(d) lf serious errors in the findings of facts are raised which


would cause grave or irreparable damage or injury to the appellant.
To discourage frivolous or dilatory appeals, the Commission
or the Labor Arbiter shall impose reasonable penalty, including fines
or censures, upon the e:rring parties.
In all cases, the appellant shall furnish a copy of the
memorandum of appeal to the other party who shall file an answer
not later than ten (10) days from receipt thereof.
The Commission shall decide all cases within twenty (20)
working days from receipt of the answer of the appellee.
The decision of the Commission is appealable to the Secretary
of Labor on any of the following grounds:
(a)

lf there is a prima facie evidence of abuse of discretion;

(b)

If made purely on questiona oflaw; and

(c) If there is a showing that the national security or social


and economie stability is threatened.

'il!'

!:

"{

The decision of the Commission shall be immediately


executory, even pending appeal, unless stayed by an order of the
Secretary of Labor for special reasons. The decision of the Secretary
of Labor shall be inimediately executory; Provided, That the
President of the Philippines may assume jurisdiction over any cases
which he considera national interest cases.

Uti

The Philippine Constabulary and other law enforcement


agencies may be deputized. by the Secretary of Labor in the
enforcement of orders, decisions or awards. (As amended by P.D.
No. 1367; referto P.D. No. 1391)

290

8.

INTRODUCTION TO LAW

LABOR LAW AND SOCIAL LEGISLATION

UNFAIR LABOR PRACTICES

(a) To interfere with, restrain, or coerce employees in the


exercise of their right to self-organization;

CONCEPT OF UNFAIR LABOR PRACTICE AND


PROCEDURE FOR PROSECUTION THEREOF

(b) To require as a condition for employment that a person


or an employee shall not join a labor organization or shall withdraw
from one to which he belongs;

Unfair labor practices violate the constitutional right of


workers and employees to self-organization, and inimicai to the
legitimate interests of both labor and management, including their
right to bargain collectively. They disrupt industriai peace and
hinder the promotion of healthy and stable labor-management
relations.

(c) To contract out services or functions being performed by


union members when such will interfere with, restrain, or coerce
employees in the exercise of their right to self-organization;
(d) To initiate, dominate, assist or otherwise interfere with
the information of administration of any labor organization, including the giving of financial or other support to i t or its organizers or
officers;

Consequently, unfair labor practices are not only violations of


the civil rights ofboth labor and management but are also criminal
offenses against that State which shall be subject to prosecution
and punishment as herein provided.
Subject to the exercise by the President (Prime Minister), or
by the Minister of Labor, of the powers vested in them by Articles
264 and 265 of this Code, the civil aspects of ali cases involving
unfair labor practices, which may include claims for damages other
affirmative relief, shall be under the jurisdiction of the labor
arbiters. They shall resolve such cases within thirty (30) working
days from the time they are submitted for decision.

,j
!;111

,.i'd
l!
IJ!
t''

'l

~~l

Recovery of civil liability in the administrative proceedings


shall bar recovery under the Civil Code.

!j

,~i

No criminal prosecution under this Title may be instituted


without a final judgment, finding that an unfair labor practice was
committed, having been first obtained in the preceding paragraph.
During the pendency of such administrative proceeding, the running
of the period of prescription of the criminal offense herein penalized
shall be considered interrupted: Prouided, howeuer, That the final
judgment in the administrative proceedings shall not be binding
in the criminal case nor be considered as evidence of guilt but
merely as proof of compliance of the requirements therein set forth.
(As amended by B.P. Blg. 70) (Article 247, Labor Code ofthe
Philippines)
UNFAIR LABOR PRACTICES OF EMPLOYERS

It shall be unlawful for an employer to commit any of the


following unfair la.bor practices (Article 248, Labor Code of the
Philippines):

291

\li

~q

,Il

1:

!11;
'n.

~Ili

')Uf;

(e) To discriminate in regard to hire or tenure of employment


or any term of employment in order to encourage or discourage
membership in any labor organization. Nothing in this Code or in
any other law shall prevent the parties from requiring membership
in a recognized collective bargaining agent as a condition for
employment, except of those employees who are already members
of another union at the time of the signing of the collective
bargaining agreement. Employees belonging to an appropriate
collective bargaining unit who are not members of the recognized
collective bargaining agent may be assessed a reasonable fee
equivalent to the dues and other fees paid by members of the
recognized collective bargaining agent, if such non-union members
accept the benefits under the collective bargaining agreement.
Prouided, That the individuai authorization required under Artide
242, paragraph (0) ofthis Code shall not apply to non-members of
the recognized collective bargaining agent;

To dismiss, discharge, or otherwise prejudice or


discriminate against an employee for having given or being about
to give testimony under this Code;

.'lil;i
.

(g) To violate the duty to bargain collectively as prescribed


by this Code;

,_,

''
ti

(f)

(h) To pay negotiation or attorney's fees to the union or its


officers or agents as part of the settlement of any issue in collective
bargaining or any other dispute; or
(i)

To violate a collective bargaining agreement.

292

INTRODUCTION TO LAW

LABOR LAW AND SOCIAL LEGISLATION

The provisions of the preceding paragraph notwithstanding,


only the officers and agents of corporations, associations or
partnership who have actually participated in, authorized or ratified
unfair labor practices shall be held criminally liable. (As amended
by Batas Pambansa Blg. 130)

9.

(a) To restrain or coerce employees in the exercise of their


right to self-organization: Provided, That the labor organization
shall have the right to prescribe its own rules with respect to the
acquisition or retention or membership;
(b) To cause or attempt to cause an employer to discriminate
against an employee with respect to whom membership in such
organization has been denied or terminated on any ground other
than the usual terms and conditions under which membership
continuation is made available to another member;
(c) To violate the duty, or refuse to bargain collectively with
the employers, provided that it is the representative of the employees;
(d) To cause or attempt to cause an employer to pay or deliver
or agree to pay or deliver any money or other things of value, and
the nature of an exaction, for services which are not performed or
not to be performed, including the demand for a fee for union
negotiation;

'~~.,

i~

3
~~

li'i
k

,i

"

u
~
~

.,l
'l

:~

l'i
;'r{

(e) To ask for or accept negotiation or attorney's fee from


employers as part of the settlement of any issue in collective
bargaining or any other dispute; or
(f)

STRIKES ANO LOCKOUTS

Strikes, picketing, and lockouts - (a) It is the policy of tho


State to encourage free trade unionism and free collectivo
bargaining. (Article 263, Philippine Labor Relation:s Law)

UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS

It shall be unlawful for a labor organization, its officers, agents


or representatives to commit any of the following unfair labor
practices:

29:4

To violate a collective bargaining agreement.

The provisions of the preceding paragraph notwithstanding,


only the officers, members of the governing boards, representatives
or agents or members of labor associations or organizations who
have actually participated in, authorized or ratified unfair labor
practices shall be held criminally liable. (As amended by Batas
Pambansa Blg. 130) (Article 249, Labor Code of the Philippines)
~~i

(b) Workers shall have the right to engage in concerted


activities for purposes of collective bargaining or for their mutuai
benefit and protection. The right of legitimate labor organizations
to strike and picket and of employers to lockout, consistent with
the national interest, shall continue to be recognized and respected.
However, no labor union may strike and no employer may declare
a lockout on grounds involving inter-union and intra-union disputes.
(c) In cases of bargaining deadlocks, the duly certified or
recognized bargaining agent may file a notice of strike or the
employer may file a notice of lockout with the Department a t least
30 days before the intended date thereof. In cases of unfair labor
practice, the period of notice shall be 15 days and in the absence of
a duly certified or recognized bargaining agent, the notice of strike
may be filed by any legitimate labor organization in behalf of its
members. However, in case of dismissal from employment of union
officers duly elected in accordance with the union constitution and
by-laws, which may constitute union busting where the existence
of the union is threatened, the 15-day cooling-off period shall not
apply and the union may take action immediately.
(d) The notice must be in accordance with such implementing
rules and regulations as the Secretary of Labor and Employment
may promulgate.
(e) During the cooling-off period, it shall be the duty of the
Secretary to exert ali efforts at mediation and conciliation to effect
a voluntary settlement. Should the dispute remain unsettled until
the lapse of the requisite number of days from the mandatory filing
of notice, the labor union may strike or the employer may declare
a lockout.
(f)
A decision to declare a strike must be approved by a
majority of the total union membership in the bargaining unit
concerned, obtained by secret ballot meetings or referenda called
for that purpose. A decision to declare a lockout must be approved
by a majority of the board of directors of the corporation or
association or of the partners in a partnership, obtained by secret
ballot in a meeting called for that purpose. Thc decision shall be

294

INTRODUCTION TO LAW

LABOR LAW AND SOCIAL LEGISLATION

valid for the duration of the dispute based on substantially the


same grounds considered with the strike or lockout vote was taken.
The Department may, at its own initiative or upon the request of
any affected party, supervise the conduct of the secret balloting. In
every case, the union or the employer shall furnish the Department
the results of the voting a t least seven (7) days before the intended
strike or lockout, subject to the cooling-off period herein provided.

from knowledge of the occurrence of such a strike or lockout,


jurisdiction over the same or certify it to the Commission for
compulsory arbitration. For this purpose, the contending parties
are strictly enjoined to comply with such orders, prohibitions and/
or injunctions as are issued by the Secretary of Labor and
Employment or the Commission, under paih of immediate
disciplinary action, including dismissal or loss of employment
status, or payment by the locking-out employer of backwages,
damages or other affirmative relief, even criminal prosecution
against either or both of them.

(g) When in his opinion, there exists a labor dispute causing


or likely to cause a strike or lockout in an industry indispensable
to the national interest, the Secretary of Labor and Employment
may assume jurisdiction over the dispute and decide it or certify
the same to the Commission for compulsory arbitration. Such
assumption or certification shall have the effect of automatically
enjoining an impending strike or lockout as specified in the
assumption or certification order. lf one has already taken piace a t
the time of assumption or certification, all striking or locked out
employees shall have immediately return to work and the employer
shall immediately resume operations and readmit all workers under
the same terms and conditions prevailing before the strike or
lockout. The Secretary of Labor and Employment or the Commission
may seek the assistance of law enforcement agencies to ensure
compliance with this provision as well as with such orders as he
may issue to enforce the same.
In line with the national concern for and the highest respect
accorded to the right of patients to life and health, strikes and
lockouts in hospitals, clinics and similar medicai institutions shall,
to every extent possible, be avoided, and all serious efforts, not
only by labor and management but government as well, be
exhausted to substantially minimize, if not prevent, their adverse
effects on such life and health, through the exercise, however,
legitimate, by labor of its right to strike and by management to
lockout. In labor disputes adversely affecting the continued
operation of such hospitals, clinics or medicai institutions, it shall
be the duty of the striking union or locking-out employer to provide
and maintain an effective skeletal workforce of medicai and other
health personnel, whose movement and services shall be
unhampered and unrestricted, as are necessary to ensure the proper
and adequate protection of the life and health of its patients, most
especially emergency cases, for the duration of the strike or lockout.
In such cases, therefore, the Secretary of Labor and Employment
is mandated to immediately assume, within twenty-four (24) hours

~~

29ti

The foregoing notwithstanding, the President of the Philippines shall not be precluded from determining the industries that,
in his opinion, are indispensable to the national interest, and from
intervening at any time in assuming jurisdicton over any such labor
dispute in order to settle or terminate the same.
(h) Before or at any state of the compulsory arbitration
process, the parties may opt to submit their dispute to voluntary
arbitration.
i'

'-
l

.l:

)lt<

'
l

~:

:!"

lj

.,
.!...~

(i) The Secretary of Labor and Employment, the Commission


or the voluntary arbitrator shall decide to resolve the dispute within
thirty (30) calendar days from the date of the assumption of
jurisdiction or the certification or submission of the dispute, as the
case may be. The decision of the President, the Secretary of Labor
and Employment, the Commission or the voluntary arbitrator shall
be final and executory ten (10) calendar days after receipt thereof
by the parties .

illlf

Prohibited activities- (a) No labor organization or employer


shall declare a strike or lockout without first having bargained
collectively in accordance with Title VII of this Book or without
first having filed the notice required in the preceding Article or
without the necessary strike or lockout vote first having been
obtained and reported to the Department. (Article 264, Philippine
Labor Relations Law)
No strike or lockout shall be declared after assumption of
jurisdiction by the President or the Secretary or after certification
or submission of the dispute to compulsory or voluntary arbitration
or during the pendency of cases involving the same grounds for
the strike or lockout.

296

INTRODUCTION TO LAW

LABOR LAW AND SOCIAL LEGISLATION

Any worker whose employm:mt has been terminated as a


consequence of an unlawful lockout shall be entitled to reinstatement with full backwages. Any union officer who knowingly
participates in an illegal strike and any worker or union officer
who knowingly participates in the commission ofillegal acts during
a strike may be declared to have lost his employment status:
Provided, That mere participation of a worker in a lawful strike
shall not constitute sufficient ground for termination of his
employment, even ifa replacement has been hired by the empl9yer
during such lawful strike.

inclusive of allowances, and to his other benefits or their monetory


equivalent computed from the time his compensation was withheld
from him up to the time of his actual reinstatement. (As amended
by Section 34, lbid.) (Article 279, Philippine Labor Relations Law)

(b) No person shall obstruct, impede, or interfere with by


force, violence, coercion, threats or intimidation any peaceful
picketing by employees during any labor controversy or in the
exercise of the right of self-organization or collective bargaining,
or shall aid or abet such obstruction or interference.

REGULAR ANO CASUAL EMPLOYMENT .

~j

(c) No employer shall use or employ any strike-breaker, nor


shall any person be employed as a strike-breaker.
(d) No public official or employee, including officers and
personnel of the New Armed Forces of the Philippines of the
Integrated N ational Police, or arme d perso n, shall bring in,
introduce or escort in any manner any individuai who see:ks to
replace strikers in entering or leaving the premises of a strike area,
or work in place of the strikers. The Police Force shall keep out of
the picket lines unless actual violence or other criminal acts occur
therein: Provided, That nothing herein shall be interpreted to
prevent any public officer from taking any measure necessary to
maintain peace and order, protect life and property, and/or enforce
the law and legai order.

ifl
cl
p

ti,,

,/l

In regular cases of regular employment, the employer shall


not terminate the services of an employee except for a just cause
or when authorized by this Title. An Employee who is unjustly
dismissed from work shall be entitled to reinstatement without loss
of seniority rights and other privileges and to his full backwages,

This provision of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an
employment shall be deemed to be regular where the employee has
been engaged to perform activities which are usually necessary or
desirable in the usual business or trade of the employer, except
where the employment has been fixed for a specific project or
undertaking, the completion or termination of which has been
determined at the time of the engagement of the employee or where
the work or services to be performed is seasoned in nature and the
employment is for the duration of the season.
An employment shall be deemed casual if it is not covered by
the preceding paragraph: Provided, That any employee who has
rendered at least one year of service, whether such service is
continuous or broken, shall be considered a regular employee with
respect to the activity in which he is employed and his employment
shall continue while such actually exists. (Article 280, Philippine
Labor Relations Law)
PROBATIONARY EMPLOYMENT

(e) No person engaged in picketing shall commit any act of


violence, coercion or intimidation, or obstruct the free ingress to or
egress from the employer's premises for lawful purposes, or obstruct
thoroughfares.
10. TERMINATION OF EMPLOYMENT

297

Probationary employment shall not exceed six (6) months from


the date the employee started working, unless it is covered by an
apprenticeship agreement stipulating a longer period. The services
of any employee who has been engaged on a probationary basis
may be terminated for a just cause or when he fails to qualifY as a
regular employee in accordance with reasonable standards made
known by the employer to time of his engagement. An employee
who is allowed to work after a probationary period shall be
considered a regular employe. (Article 281, Philippine Labor
Relations Law)
TERMINATION BY EMPLOYER

An employer may terminate an employee for any of the


following causes:

298

INTRODUCTION TO LAW

(a) Serious misconduct or willful disobedience by the


employee of the lawful orders of his employer or represntative in
connection with his work;
(b)

Gross and habitual neglect by the employee ofhis duties;

LABOR LAW AND SOCIAL LEGISLATION

ii

:lf

:j
l

(c) Fraud or willful breach by the employee of the trust


reposed in him by his employer or duly authorized representative;
(d) Commission of a crime or offense by the employee against
the person of his employer or any immediate member of his family.
of his duly authorized representative; and
(e) Other causes analogous to the foregoing. (Article 282,
Philippine Labor Relations Law)
CLOSURE OF ESTABLISHMENT ANO REDUCTION
OF PERSONNEL

The employer may also terminate the employment of any


employee due to the installation of labor-saving devices, redundancy,
retrenchment to prevent losses or the closing or cessation of
operation of the establishment or undertaking unless the closing
is for the purpose of circumventing the provisions of this Title, by
serving a written notice on the workers and the Department of
Labor and Employment at least one (l) month before the intended
date thereof. In case of termination due to the installation of laborserving devices or redundancy, the worker affected thereby shall
be entitled to a separation pay equivalent of at least his one (l)
month pay or at least one (l) month pay for every year of service,
whichever is higher. In case of retrenchment to prevent losses in
cases of closures or cessation of operation of establishment or
undertaking not due to serious business losses or financial reverses,
the separation pay shall be equivalent. to one (l) month pay or at
least one-half (1/2) month pay for every year of service, whichever
is higher. A fraction of at least six (6) months shall be considered
one (l) whole year. (Article 283, Philippine Labor Relations Law)

299

he is paid separation pay equivalent to at least one (l) month salary


orto one-half (1/2) month salary for every year of service, whichever
is greater, a fraction of at least six (6) months being considered aa
one (l) whole year. (Article 284, Philippine Labor Relations Law)
TERMINATION BY EMPLOYEE

(a) An employee may terminate without just cause the


employer-employee relationship by serving a written notice on the
employer at least one (l) month in advance. The employer upon
whom no such notice was served may hold the employee liable for
damages.
(b) An employee may put an end to the relationship without
serving any notice on the employer for any of the following just
causes:
(l) Serious insult by the employer ofhis representative
on the honor and person of the employee;

(2) Inhuman and unbearable treatment accorded the


employee by the employer or his representative;
(3) Commission of a crime or offense by the employer
or his representative against the person of the employee or
any of the immediate members of his family; and
(4) Other causes analogous to any of the foregoing.
(Article 285, Philippine Labor Relations Law)

11. RETIREMENT FROM THE SERVICE


Any employee may be retired upon reaching the retirement
age established in the collective bargaining agreement or other
applicable employment contract.
In case of retirement, the employee shall be entitled to receive
such retirement benefits as he may be earned under existing laws
and any collective bargaining or other agreement. (Article 287,
Philippine Labor Relations Law)

DISEASE AS GROUND FOR TERMINATION

An employer may terminate the services of an employee who


has been found to be suffering from any disease and whose
continuos employment is prohibited by law or is prejudicial to his
health as well as to the health of his co-employees: Provided, That

12.

THIRTEENTH MONTH PAY

The thirteenth month pay shall not be less than one-twelfth


(1112) ofthe total basic salary eamed by an employee within a year.
It is not to be considered as part of the regular wage for purposes

300

INTRODUCTION TO LAW

LABOR LAW AND SOCIAL LEGISLATION

301

of computing overtime and premium compensation, SSS, Medicare


and company retirement plans, unless expressly stipulated to be a
part pursuant to a collective bargaining agreement between the
employer and the worker or by existing practice or policy by the
employer.

b.2) Employer of household helpers and persons in the


personal service of another in relation to such workers;

For purposes of computing the same, the "basic salary'' shall


include all remuneration or earnings paid by his employer for
services rendered but does not include allowances and monetary
benefits which are not considered or integrated as part of the
regular or basic salary, such as cash equivalent of unused vacation
and sick leave credits, overtime, premium, night differential and
holiday pay and cost-of-living allowances. However, the salary
related benefit should be included as part of the basic salary in the
computation of the 13th-month pay if by individuai or collective
agreement, company practice or policy, the same are treated as part
of the basic salary.

b.4) Employers of those who are paid on prely commission,


boundary, or task basis, and those who are paid fixed
amount for performing specific work, irrespective of the
time consumed in the performance thereof, except when
the workers are paid on piece-rate basis in which case
the employer shall be covered by this issuance insofar
as such workers are concerned.

(a)

b.3) Employer already paying their employees 13th-month


pay or more in the calendar year or its equivalent at the
time of this issuance; and

The term "its equivalent" as used in paragraph (c) shall include


Christmas bonus, mid-year bonus, cash bonuses and other payment
amounting to not less than 1/12 of the basic salary but shall not
include cash and stock dividends, costs-of-living allowances and all
the other allowances regularly enjoyed by the employee, as well as
non-monetary benefits. Where an employer pays less than l/12th
of the employees basic salary, the employers shall pay the difference.

NATURE OF THIRTEENTH MONTH PAY

The court has held that for covered employers, the payment
of a 13th moth pay is a mandatory statutory obligation, whereas,
Christmas or mid-year bonuses are contractual obligations, such
that if there exists no agreement between the employer and the
workers, or practice or policy of the employer, granting the
Christmas or mid-year bonus, the same will not accrue. The grant
of 14th-month pay is not likewise a statutory obligation but purely
a management prerogative and only the 13th-month pay is
mandated by law to be paid. It is now a basic labor standard benefit
and cannot be substituted by the grant by the employer of food
and electricity to his employees. (Framalis Farms vs. Minister of
Labor and Employment, 177 SCRA 89)

As used herein, workers paid on piece-rate shall refer to those


who are paid a standard amount for every piece-rate or unit of
work performed that is more or less regularly replicated, without
regard to the time spent in producing the same. (Section 3, Rules
Implementing P.D. No. 851) (Rules Implementing P.D. 851)
IMPORTANT SOCIAL LEGISLATIONS
(1)

BACKGROUND

The Social Security Law was approved on June 18, 1957, and
implemented on September l, 1957.

(b) EMPLOYERS EXEMPTED FROM COVERAGE

Membership in the Social Security System does not emanate


from a bilaterial or consensual agreement where the rights and
obligations of the parties are defined, but from a legai imposition
to provide social security to working men.

The following employers are not covered by the Presidential


Decree No. 851:
b.l) The Government and any of its politica! subdivisions,
including government-owned and controlled corporations,
except those corporations operating essentially as private
subsidiaries of the Government;

SOCIAL SECURITY LAW

,j

:il

As conceived, and as it is now being implemented, the


employees are mandated during their productive years to part with
a portion of their earnings which, together with the contributions

302

303

INTRODUCTION TO LAW

LABOR LAW AND SOCIAL LEGISLATION

required of their employers, are accumulated and held in. reserve


by the system to answer for the payment of benefits when they
become due.

assigned or working. lt is the employer and not the business that


is subject to Social Security compulsory coverage.

SCOPE OF THE SYSTEM

(a) SEC. 9. Compulsory Coverage - (a) Coverage in the


SSS shali be compulsory upon ali employees not over sixty (60)
years of age of their employer; Provided, That any benefit already
earned by employees under private benefits plan existing at the
time of the approvai of this Act shali not be discontinued, reduced
or otherwise impaired; Provided, further, That private plans which
are existing and in force at the time of the compulsory coverage
shali be integrated with the plan of the SSS in such a way where
the employer's contribution to his private plan is more than that
required of him in this Act he shali pay to the SSS only the
contnbution required of him and he shali continue his contributions
to such private plan less his contribution to the SSS so that the
einployer's total contribution to his private benefit pian and to the
SSS shali be the same as his contribution to his private plan before
the compulsory coverage; Provided, further, That any changes,
adjustments, modifications, eliminations or improvements in the
benefits to be available under the remaining private plan, which
may be necessary to adopt by reason of the reduced contributions
thereto as a result of the integration, shali be subject to agreements
between the employers and employees concerned; Provided, further,
That the private benefit plan which the employer shali continue
for his employees shali remain under the employer's management
and control unless there is an existing agreement to the contrary:
Provided, finally, That nothing in this Act shali be construed as a
limitation of the right of employers and employees to agree on and
adopt benefits which are over and above those provided under this
Act. (As amended by Sec. 5, R.A. No. 1792; and Sec. 5, R.A. No.
2658 and Sec. 2, R.A. No. 4587) (Sec. 9[a], R.A. 1161 as amended)
(b) Filipino recruited in the Philippines by foreign-based
employers for employment abroad may be covered by the SSS on a
voluntary basis. (As amended by Sec. 2, Pres. Decree No. 177, S1973 and Sec. 6, Pres. Decree No. 735-S-1975) (Sec. 9[b], R.A. 1161,
as amended)
In determining coverage of an employer operating different
businesses, it is immaterial as to which business the employee is

SEC. 9-A. Compulsory Coverage of the Self-employed.


- Coverage in the SSS shali also be compulsory upon ali selfemployed persons earning Pl,SOO or more per annum; Provided,
That the effectivity of coverage of certain gtoup of self-employed
shali be determined by the Commission under such rules and
regulations it may prescribe; Provided, further, That the efl'ectivity
of the coverage of the foliowing self-employed persons shall be in
accordance with Section lO(b) hereof:
l.

Ali self-employed professionals licensed by the Professional Regulations Commission or those licensed to
practice law.

2.

Partners and single proprietors of businesses.

3.

Actors and actresses, directors, scriptwriters and news


correspondents who do not fali within the definitions of
the term "employee" in Section S(d) ofthis Act.

4.

Professional athletes, coaches, trainers licensed by the


Games and Amusements Boards as well as jockeys and
trainers licensed by the Philippine Racing Commission.

Unless otherwise specified herein, ali provisions of the SSS


Law applicable to covered employees shall also be applicable to the
covered self-employed persons. (As amended by Section 3, Pres.
Decree No. 1636, S-1979)
555. BENEFITS

l.
Dependents' Pension - The dependents' pension shall
be equivalent to 10 percent of the monthly pension for each
dependent child but not exceeding five, beginning with the youngest
and without substitution. (As amended by Sec. 4, P.D. No. 1202, S
1977) (Sec. 12-A, as amended by Sec. 4, P.D. No. 1202, S-1977; [a),
R.A. 1161, as amended.)

2.

Retirement Benefits -

(a) A covered employee who had paid at least 120 monthly


contributions prior to the semester of his retirement, and;
(2.a.l) Who has reached the age of 60 years and is not
receiving monthly compensation of a t least P300 or;

304

INTRODUCTION TO LAW

LABOR LAW AND SOCIAL LEGISLATION

305

IIt

(2.a.2) Who has reached the age of 65 years, shall be


entitled for as long as he lives to the monthly pension,
Provided, That his dependents horn before his retirement of
a marriage subsisting when he was 57 years old shall be
entitled to the dependents' pension. (As amended by Sec. 4, P.
D. No. 1202, S-1977) (Sec. 12-B, as amended by Sec. 4, P.D.
No. 1202, S-1977)
(b) A covered member who is 60 years old at retirement and
who does not qualify for pension benefits under paragraph (a) above,
shall be entitled to lump sum benefit equal to the total contributioris
paid by him and on his behalf; Provided, That he is separated from
employment and is not continuing payment of contributions to the
SSS on his own. (Sec. 12-B[b], as amended by Sec. 4, P.D. No. 1202,
S-1977)

m
'Il

;[

il

:l

;l~<~

(c) The monthly pension shall be reduced upon the reemployment of a retired employee who is less than 65 years old by
an amount equivalent to one-half (1/2) his earnings over P300. He
shall again be subject to Sec. 18 and his employer to Sec. 19 of this
Act. (As amended by Sec. 7, R.A. No. 1972; Sec. 7, R.A. No. 2658;
Sec. 8, P.D. No. 735; Sec. 4, P.D. No. 1202 and Sec. 7, P.D. No.
1636, S-1979). (Sec. 12-B[c], as amended by Sec. 4, P.D. No. 1202,
S-1977)

That he has paid at least 36 monthly contributions prior to the


semester of death; Provided, further, That if the foregoing condition
is not satisfied, his primary beneficiaries shall be entitled to a lump
sum benefit equivalent to 35 times the monthly pension; Provided,
further, That if he has no primary beneficiaries, his secondary
beneficiaries shall be entitled to a lump sum benefit equivalent to
20 times the monthly pension. Provided, however, That the
minimum death benefit shall not be less than the total contribution
paid by him and his employet on his behalf nor less than Pl,OOO.
Provided, finally, That the beneficiaries of the covered employee
who dies without having paid at least three monthly contributions
shall be entitled to the mi:t;1imum benefit. (As amended by Sec. 5,
P.D. No. 1202, S-1977 and Sec. 8, P.D. No. 1636, S-1979) (Sec. 13,
, SSS Law, as amended by Sec. 5, P.D. No. 1202, S-1977 and Sec. 8,
P.D. No. 1636, S-1979)
4. Permanent Disability Benefits -(a) Upon the covered
employee's permanent total disability, if such disability occurs after
he had paid at least 36 monthly contributions prior to the semester
disability, he shall be entitled to the monthly pension and his
dependents to the dependents' pension; Provided, That if the
disability occurs before he has paid 36 monthly contributions prior
to the semester disability, he shall be entitled to a lump sum benefit
equivalent to 35 times the monthly pension; Provided, further, That
the minimum disability benefit shall not be less than the total
contributions paid by him and his employer on his behalf nor less
than Pl,OOO. Provided, further, That a covered employee who
becomes permanently totally disabled without having paid at least
three monthly contributions shall be entitled to the minimum
benefit; Provided, finally, That a member who (l) received a lump
sum benefit and (2) is re-employed not earlier than one year from
the day of his disability shall again be subject to compulsory
coverage and considered a new meniber. (As amended by Sec. 6, P.
D. No. 1202, S-1977) (Sec. 13-A, as amended by Sec. 6, P.D. No.
1202, S-1977)

(d) Upon the death of the retired employee pensioner, his


primary beneficiaries as of the date of his retirement shall be
entitled to 100 percent of the monthly pension and his dependents
to the dependents' pension. Provided, That if he has no primary
beneficiaries and he dies within 60 months from the start of his
monthly pension, his secondary beneficiaries shall be entitled to a
lump sum benefit equivalent to the bigger of (l) 20 times the
monthly pension, or (2) the difference of 60 times the monthly
pension and the total monthly pension paid by the SSS excluding
the dependents' pension. (As amended by Sec. 7, P.D. No. 1636, S1979 andE. O. No. 102, signed December 24, 1986; SSS Res. Nos.
525, 527 and 604 dated Aug. 3, 1990, Aug. 7, 1990 and Sept. 11,
1990, respectively). (Sec. 12-B[d], as amended by Sec. 4, P.D. No.
1202, S-1977)

5. Permanent Partial Disability- If the .disability is


permanent partial and such disability occurs after 36 monthly
contributions have been paid prior to the semester of disability,
the benefits shall be the monthly pension for permahent total
disability payable not longer than the period designated in the
following schedule:

3. Death Benefits- Upon the covered employee's death,


his primary beneficiaries shall be entitled to the monthly pension
and his dependents' pension to the dependent's pension; Provided,

il.'.,
'

'

:>:

INTRODUCTION TO LAW

306

LABOR LAW AND SOCIAL LEGISLATION

COMPLETE AND PERMANENT


LOSS OF USE OF

NUMBER OF.MONTHS

One thumb
One index finger
One middle finger
One ring finger
One little finger
One big toe
One hand
Onearm
One foot
One leg
One ear
Both ears

10
8
6
5
3
6
39
50
31
46

Hearing of one ear

lO

Hearing of both ears

50

Sight of one eye

25

(2)

:ll'i
(

f>

Il;
B,

1,
H,

:;!.,.
i

lO

20

+l
t

l;
l:

307

(b) Ali non-permanent employees ofthe national government


agencies and local governments (appointed for a period of at least
two months), shall eventually be compulsorily covered, either
simultaneously, in phases or by groups, upon approvai of the
President ofthe Philippines and subject to the availability offunds;
an d
(c) Ali non-permanent employees of government-owned or
controlled corporation shall be compulsorily covered upon approvai
by the System of the request for membership of their respective
governing Boards. (Sec. 3, Revised Government Service Insurance
Act.)
Employees not covered under P.D. No. 1146- Government
employees who have separate retirement schemes under speciai
laws, like Republic Act No. 910 as amended, which provides for
retirement for justices, judges and other members of the judiciary
and Republic Act No. 340 for members of the Armed Forces of the
Philippines, are covered by their respective retirement laws and
not by P.D. No. 1146. Their life insurance coverage, however, is
governed by C.A. No. 186, as amended.
BENEFITS

GSIS (GOVERNMENT SERVICE INSURANCE SYSTEM)

Qualified members and pensioners of the System are entitled


to the following benefits:

BACKGROUND

l.

The government Service Insurance System (GSIS) was created


and established to promote the efficiency and welfare of the
employees ofthe government and to pension system under Act Nos.
1638, 3055 and 1313.

Retirement Benefits (l)

Retirement Benefits for old ages (Sections 11 and


12);

(2)

Permanent Disability Benefits (Sections 14 and 15);

(3)

Survivorship Benefits for Death of Member or


Pensioner (Sections 16, 17 and 18);

COVERAGE

(4)

Funeral Benefits (Section 19);

The following are compulsorily covered by the GSIS:

(5)

Sickness Benefits (Section 20); and

(6)

Life Insurance Benefit in the form of Compulsory


Insurance Optional lnsurance if desired (SectionB
21 and 22).

The first comprehensive law on retirement and pension


benefits was Commonwealth Act No. 186 of 1936.

(a) All permanent employees below sixty (60) years of age,


shall upon employment in the government service, be compulsory
members of the System including non-permanent employees who
are already covered by R.A. No. 4968 at the time of effectivity of
P.D. 1146;

.l

308

INTRODUCTION TO LAW

LABOR LAW AND SOCIAL LEGISLATION

1109

i)

f!

\i

.:j

BASIC MONTHLY PENSION


Old age pension shall be paid to a member who:
(l)

has at least fifteen years of service;

(2)

is at least sixty (60) years of age; and

(3)

is separated from the service. (Sec. 11, Revised Govern-

ment Service Insurance Act)

DISABILITY
(l)

Permanent total disability (PTD)

(2)

Permanent partial disability (PPD)

(3)

Permanent total disability (TTD)

OTHER BENEFITS
The other benefits are the foliowing:
(l)

Funeral Benefits

(2)

Sickness Benefits

(3)

Life Insurance Benefits

(4)

Loan Privileges

(3}

COMPREHENSIVE AGRARIAN REFORM LAW

SEC. 4. Scope. - The Comprehensive Agrarian Reform Law


of 1988 shall cover, regardless of tenurial arrangement and
commodity produced, ali public and private agricultural lands, as
provided in Proclamation No. 131 and Executive Order No. 229,
including other lands of the public domain for agriculture.
More specifically, the following lands are covered by the
Comprehensive Agrarian Reform Program:
(a) Ali alienable and disposable lands of the public domain
devoted to or suitable for agriculture. No reclassification of forest
or minerai lands to agricultural lands shali be undertaken after
the approvai of this Act until Congress, taking into account
ecological, developmental and equity considerations, shall have
determined by law, the specific limits of the public domain;
(b) Ali lands of the public domain in excess of the specific
limits as determined by Congress in the preceding paragraphs; .

(c) Ali other lands owned by the government devoted to or


suitable for agriculture; and
(d) Ali private lands devoted to or suitable for agriculturo
regardless of the agricultural products raised or that can be raised
thereon.

SEC. 5. Schedule of lmplementation. - The distribution


of alilands covered by this Act shall be implemented immediately
and completed within ten (10) years from the effectivity thereof.
SEC. 6. Retention Limits. - Except as otherwise provided
in this Act, no person may own or retain, directly or indirectly, any
public or private agricultural land, the size of which shall vary
according to factors governing a viable family-size farro, such as
commodity produced, terrain, infrastructure, and soil fertility as
determined by the Presidential Agrarian Reform Council (PARC)
created hereunder, but in case shall retention by the landownor
exceed five (5) hectares. Three (3) hectares may be awarded to each
child of the landowner, subject to the following qualifications: (l)
that he is a t least fifteen (15) years of age; and (2) that he is actunlly
tilling the land or directly mimaging the farro; Provided, Thnt
landowners whose lands have been covered by Presidential Decron
No. 27 shall be allowed to keep the area originally retained by thc1m
thereunder; Provided, further, That originai homestead granteoA
or their direct compulsory heirs who stili own the originai
homestead at the time of the approvai of this Act shall retain th<l
same areas as long they continue to cultivate said homestead.
The right to choose the area to be retained, which shall bo
compact or contiguous, shall pertain to the landowner; Provided,
however, That in case the area selected for retention by the
landowner is tenanted, the tenant shall have the option to choose
whether to remain therein or to be a beneficiary in the same or
another agriculturalland with similar or comparable features. In
case the tenant chooses to remain in the retained area, he shall be
considered a leaseholder and shalllose his right to be a beneficiary
under this Act. In case the tenant chooses to be a beneficiary in
another agriculturalland, he loses his right as a leaseholder to the
land retained by the landowner. The tenant must exercise this
option with a period of one (l) year from the time the landownor
manifesta his choice of the area for retention.
In ali cases, the security of tenure to the farmers or farm
workers on the land prior to the approvai of this Act shall bo
respected.

INTRODUCTION TO LAW

310

LABOR LAW AND SOCIAL LEGISLATION

311

~~

'[

'fi

Upon the effectivity of this Act, any sale, disposition, lease,


management contract or transfer of possession of private lands
executed by the originallandowner in violation of the Act shall be
null and void; Provided, however, That those executed prior to this
Act shall be valid only when registered with the Register of Deeds
within a period of three (3) months after the effectivity of this Act.
Thereafter, ali Registers of Deeds shall inform the Department of
Agrarian Reform (DAR) within thirty (30) days of transaction
involving agriculturallands in excess of five (5) hectares.
SEC. 7. Priorities.- The Department of Agrarian Reform
(DAR) in coordination with the Presidential Agrarian Reform
Council (PARC), shall pian and program the acquisition and
distribution of ali agriculturallands through a period of ten (10)
years from the effectivity of this Act. Lands shall be acquired and
distributed as follows:
Phase One: Rice and corn lands under Presidential Decree
No. 27; ali idle or abandoned lands; ali private lands voluntarily
offered by the owners for agrarian reform; ali lands foreclosed by
government financial institutions; ali lands acquired by the
Presidential Commission on Good Government (PCGG ); and ali
other lands owned by the government devoted to or suitable for
agriculture, which shali be acquired and distributed immediately
upon the effectivity of this Act, with the implementation to be
completed within a period of not more than four (4) years.
Phase Two: Ali alienable and disposable public agricultural
lands; all arable public agriculturallands under agro-forest, pasture
and agricultural leases already cultivated and planted to crops in
accordance with Section 6, Artide XIII of the Constitution; ali public
agriculturallands which are to be opened for new development and
resettlement; and ali private agricultural lands in excess of fifty
(50) hectares; insofar as the excess hectares is concerned, to
implement principally the rights of farmers and regular
farmworkers, who are landless, to own directly or coliectively the
lands they till, which shall be distributed immediately upon the
effectivity of the Act, with the implementation to be completed
within a period of not more than four (4) years.
Phase Three: Ali other private agriculturallands commencing
with large landholdings and proceeding to medium and small
landholdings under the foliowing schedule:
(a)

Landholdings above twenty-four (24) hectares up to fifty

(50) hectares, to begin on the fourth (4th) year from the effectivity
of this Act and to be completed within three (3) years; and
(b) Landholdings from the retention limit up to twenty-four
(24) hectares, to begin on the sixth (6th) year from the effectivity
of this Act and to be completed within four (4) years; to implement
principally the right of farmers and regular farmworkers who are
landless, to own directly or collectively the lands they till.
The schedule of acquisition and redistribution of ali agricultural lands covered by this program shall be made in accordance
with the above order of priority, which shall be provided in the
implementing rules to be prepared by the Presidential Agrarian
Reform Council (PARC), taking into consideration the following:
the need to distribute lands to the fillers at the earliest practicable
time; the need to enhance agricultural productivity; and the
availability of funds and resources to implement and support the
program.
In any case, the PARC, upon recommendation by the Provincia}
Agrarian Reform Coordinating Committee (PARCCOM), may
declare certain provinces or regions as priority land reform areas,
in which case the acquisition and distribution of private agricultural
lands therein may be implemented ahead of the above schedules.
In effecting the transfer within these guidelines, priority must
be given to lands that are tenanted.
The PARC shali establish guidelines to implement the above
priorities and distribution scheme, including the determination of
who are qualified beneficiaries; Provided, That an owner-tiller may
be a beneficiary of the land he does not own but is actually
cultivating to the extent of the difference between the area of the
land he owns and the award ceiling of three (3) hectares.
ARE LANDS LEASED/HELD OR POSSESSED
BY MULTINATIONAL CORPORATIONS OR
ASSOCIATIONS COVERED?

Yes. They shall be programmed for acquisition and distribution


immediately upon the effectivity of R.A. No. 6657, with the
implementation to be completed within three (3) years. (Section 8,
R.A. No. 6657)

Potrebbero piacerti anche