PFR:The Effect and Application of Laws (Art. 1-18, CC)

Question 1

DIFFERENCES OF COMMON LAW VS. CIVIL LAW (History, Source, Role of Judges)

Answer 1

COMLAW HISTORY: Customs united in common law in England
CIVLAW HISTORY: Roman Law, Justinian Law

COMLAW SOURCE: Legal Precedents
CIVLAW SOURCE: Codified Laws

COMLAW JUDGES: Interprets the Law based on human experience
CIVLAW JUDGES: Interpret based on legal law. Acts as investigator, they apply laws created and formulated to others.

Question 2

DEFINE HUMAN POSITIVE LAW

Answer 2

In general, human positive law is a reasonable rule of action, expressly or directly promulgated by competent human authority for the common good, and usually, but not necessarily, imposing a sanction in case of disobedience.

XXX

(promulgated expressly or directly)

Question 3

Essential Elements of Human Positive Law

Answer 3

(a) Reasonable rule of action.

(b) Due promulgation — for otherwise obedience can hardly be expected.

(c) Promulgation by competent authority.

(d) Generally, a sanction imposed for disobedience.

Question 4

METHODS OF PROMULGATING THE UNIVERSAL CODE (6)

Answer 4

Schools
Churches
Different Places
Translations
Particular Codes
Laws concerning contracts

Question 5

DEFINE NATURAL LAW

Answer 5

Promulgated impliedly in our conscience and body.

Question 6

DEFINE CIVIL LAW

Answer 6

It is that branch of the law that generally treats of the personal and family relations of an individual, his property and successional rights, and the effects of his obligations and contracts.

Question 7

IS THE PHILIPPINE LEGAL SYSTEM COMMON LAW OR CIVIL LAW ?

Answer 7

Both. Our laws are a mix of both common law and civil law.

See ruling under Re: Max Shoop

xxx
(1)xxx

(2) In interpreting and applying the bulk of the written laws of this jurisdiction, and in rendering its decision in cases not covered by the letter of the written law, this court relies upon the theories and precedents of Anglo- American cases, subject to the limited exception of those instances where the remnants of the Spanish written law present well-defined civil law theories and of the few cases where such precedents are inconsistent with local customs and institutions.

(3) The jurisprudence of this jurisdiction is based upon the English Common Law in its present day form of Anglo-American Common Law to an almost exclusive extent.

(4)xxx

Question 8

CIVIL LAW VS CIVIL CODE

Answer 8

While most of our civil laws are found in the Civil Code, still the Civil Code is not the only place where we can find our civil laws.

A Civil Code is a compilation of existing civil laws, scientifically arranged into books, titles, chapters, and subheads and promulgated by legislative authority.

A codification may be necessary to provide for simplicity, unity, order, and reform in legislation.

Question 9

SOURCES OF THE CIVIL CODE (9)
HINT (S.C.L.R-D2-CT,G,CC)

Answer 9

(a) The Civil Code of Spain
(b) The Philippine Constitution of 1935
(c) Statutes or Laws (Philippine, American, European)
(d) Rules of Court (local and foreign)
(e) Decisions of local tribunals (particularly the Supreme Court)
(f) Decisions of foreign tribunals
(g) Customs and traditions of our people
(h) General principles of law and equity
(i) Ideas from the Code Commission itself

Question 10

RECITE ART. 2 OF THE CIVIL CODE AS AMENDED BY E.O 200

Answer 10

Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette or in any newspaper of general circulation in the Philippines, unless it is otherwise provided.

This Code shall take effect one year after such publication.

Question 11

HOW DO YOU COUNT THE 15 DAY PERIOD

Answer 11

Exclude the first day and include the last day

Question 12

WAYS A LAW CAN BE EFFECTIVE

Answer 12

1. When the Law provides for its effectivity (it may be shorter or longer than 15 days)

2.If no such date is made, then after 15 days following the completion of its publication in the Official Gazette or in a newspaper of general circulation.

3. Immediately- this means IMMEDIATELY AFTER PUBLICATION with the fifteen-day period being dispensed with.

Question 13

WHAT DOES “IT IS OTHERWISE PROVIDED”?

Answer 13

It refers to PUBLICATION.

Publication is an indispensable requisite the absence of which will not render a law effective.

Question 14

CAN PUBLICATION BE INDISPENSED WITH ALTOGETHER?

Answer 14

NO.

Question 15

WHAT DOES IT MEAN TO PUBLISH A LAW IN FULL?

Answer 15

Publication must be in full or it is not publication at all since its purpose is to inform the public of its contents (Tañada v. Tuvera, 146 SCRA 446).

It cannot be just the title.

The content of the law must be complete in its details, every provision and details must be included in the publication.

Question 16

WHAT LAWS NEED TO BE PUBLISHED? (8)

Answer 16

1-2. Presidential Decrees and Executive Orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature, or, at present, directly conferred by the Constitution. ;

3. Laws which refer to all statutes, including local and private laws;
4. Administrative Rules and Regulations where purpose is to enforce/implement existing law pursuant to a valid delegation;
5. Charter of a City, notwithstanding that it only applies only to a portion of the national territory and directly affects only the inhabitants of that place;
6. Circulars issued by the Monetary Board where purpose is not merely to interpret but to fill in the details of the Central Bank Act;
7. Circulars and Regulations which prescribe a penalty for its violation
8. Supreme Court Decisions

Question 17

DOES ALL PRESIDENTIAL DECREES NEED TO BE PUBLISHED?

Answer 17

All presidential decrees must be published, including even say, those naming a public place after a favored individual or exempting him from certain prohibitions or requirements.

Question 18

WHAT ARE THOSE DOES NOT NEED TO BE PUBLISHED?

Answer 18

1. Interpretative regulations and those internal in nature, regulating only the personnel of the administrative agency.
2. Letters of Instructions issued by administrative superiors on rules/guidelines to be followed by subordinates in the performance of their duties (Tañada vs. Tuvera)

Question 19

DOES ARTICLE 2 COVER THE DATE OF EFFECTIVITY OF MUNICIPAL ORDINANCES?

Answer 19

NO.

The date of effectivity of Municipal Ordinances is NOT covered by this rule but by the Local Government Code.

Question 20

RULE APPLIED TO EXECUTIVE ORDERS AND ADMINISTRATIVE RULES

Answer 20

(a) Must conform to standards of the law. (Tayug Rural Bank v. Central Bank, GR 46158, Nov. 28, 1986).

(b) Administrative Rules have the force of law. (Ibid.)

Question 21

DATE OF EFFECTIVITY OF THE NEW CIVIL CODE (NCC)

Answer 21

AUGUST 30, 1950

Question 22

RECITE ART. 3 OF THE NCC

Answer 22

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

Question 23

WHAT KINDS OF LAW IS THE MAXIM OF IGNORANCE OF LAW EXCUSES NO ONE APPLY TO?

Answer 23

Art. 3 applies to all kinds of domestic laws, whether civil or penal and whether substantive or remedial on grounds of expediency, policy, and necessity, i.e., to prevent evasion of the law.

However, the maxim refers only to mandatory or prohibitive laws, not to permissive or suppletory laws.

Question 24

WHAT IS MISTAKE OF FACT?

Answer 24

Ignorance of the fact eliminates
criminal intent as long as there is no negligence.

Question 25

DEFINE MANDATORY AND PROHIBITORY LAW

Answer 25

MANDATORY- Obligatory laws.
PROHIBITORY- Laws that impose a duty to refrain from doing a forbidden act.

Question 26

DEFINE PERMISSIVE LAW

Answer 26

Laws that are not mandatory, its compliance being discretionary.

Question 27

WHAT IS THE DOCTRINE OF PROCESSUAL PRESUMPTION?

Answer 27

Under this doctrine, if the foreign law involved is not properly pleaded and proved, our courts will presume that the foreign law is the same as our local or domestic or internal law.

xxx

Ignorance of foreign law is not ignorance of the law, but ignorance of the fact because foreign laws must be alleged and proved as matters of fact, there being no judicial notice of said
foreign laws.

Question 28

RECITE ARTICLE 4 OF THE NCC

Answer 28

Article 4. Laws shall have no retroactive effect, unless the contrary is provided.

Question 29

WHY IS THE LAW PROSPECTIVE AND NOT RETROACTIVE?

Answer 29

In general, laws are prospective, not retroactive.

The rule was that if laws were retroactive, grave injustice would
occur, for these laws would punish individuals for violations of laws not yet enacted.

Question 30

WHAT DOES “IGNORANTIA LEGIS NON EXCUSAT” MEAN?

Answer 30

Ignorance of the law excuses no one.

Question 31

EXCEPTIONS TO NON-RETROACTIVITY (6)

Answer 31

(a) If the laws themselves provide for retroactivity But in no case must an ex post facto law be passed.

(b) If the laws are remedial in nature.

If the statute is penal in nature, provided:

1) It is favorable to the accused or to the convict;
2) And provided further that the accused or convict is not a habitual delinquent as the term is defined under the Revised Penal Code. (Art. 22, Rev. Penal Code).

(d) If the laws are of an emergency nature and are authorized by the police power of the government.

(e) If the law is curative (this is necessarily retroactive for the precise purpose is to cure errors or irregularities). However, this kind of law, to be valid, must not impair vested rights nor affect final judgments.

(f) If a substantive right be declared for the first time, unless vested rights are impaired.

Question 32

WHAT IS AN EX POST FACTO LAW?

Answer 32

An example of an ex post facto law is one that makes criminal and punishable an act done before the passing of the law and which was innocent when done.

Question 33

CONCLUSIVE PRESUMPTION

Answer 33

When a law is passed by Congress, duly approved by the President of the Philippines, properly published, and consequently becomes effective pursuant to its effectivity clause or to some provision of a general law on the effectivity of statutes, the public is always put on constructive notice of the law’s existence.
effectivity.

This is true even if a person has no actual knowledge of such law.

Question 34

RECITE ART. 5 OF THE NCC

Answer 34

Art. 5. Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity.

Question 35

EXCEPTIONS PROVIDING FOR THE VALIDITY OF THE ACT THAT SHOULD BE HELD VOID (1-4)

Answer 35

(a) When the law makes the act not void but merely voidable (valid, unless annulled) at the instance of the victim.

(b) When the law makes the act valid, but subjects the wrongdoer to criminal responsibility

(c) When the law makes the act itself void, but recognizes some legal effects flowing therefrom

(d) When the law itself makes certain acts valid although generally they would have been void

Question 36

RECITE ART. 6 OF THE NCC

Answer 36

Art. 6. Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law.

Question 37

WHAT IS A WAIVER?

Answer 37

The intentional or voluntary relinquishment
of a known right, or such conduct as warrants an inference of the relinquishment of such right. Thus, a waiver may be express or implied.

Question 38

GENERAL RULE AND EXCEPTION AS TO WAIVER OF RIGHTS

Answer 38

General rule — Rights may be waived

(a) When the waiver is contrary to law, public order, public policy, morals, or good customs.

(b) When the waiver is prejudicial to a third person with a right recognized by law. (Art. 6, Civil Code). (Unless, of course, such waiver has been made with the consent of such third persons).

Question 39

REQUISITES OF A VALID WAIVER (6)

Answer 39

(a) The person waiving must be capacitated to make the waiver

(b) The waiver must be made clearly, but not necessarily
express.

(c) The person waiving must actually have the right which he is renouncing; otherwise, he will not be renouncing anything.

(d) In certain instances the waiver, as in the express remission of a debt owed in favor of the waiver, must comply with the formalities of a donation.

(e) The waiver must not be contrary to law, morals, public policy (the aim of the State in promoting the social welfare of the people), , public order (or public safety) (Ferrazini v. Gsell, 34 Phil. 693), or good customs (those which exist in a particular place). (Art. 6, Civil Code)

(f) The waiver must not prejudice others with a right recognized by law

Question 40

WHAT RIGHTS CANNOT BE RENOUNCED?

Answer 40

(a) Natural rights, such as the right to life

(b) Alleged rights which really do not yet exist yet

(c) Those the renunciation of which would infringe upon public policy

(d) When the waiver is prejudicial to a third person with a right recognized by law

Question 41

RECITE ART. 7 OF THE NCC

Answer 41

Art. 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary.

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

Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. (5a)

Question 42

WHAT IS A REPEAL OF LAW?

Answer 42

Repeal of a law is the legislative act of abrogating through a subsequent law the effects of a previous statute or portions
thereof.

Question 43

2 WAYS TO REPEAL A LAW

Answer 43

(1) Expressly- ls a repeal which is literally declared by a new law, either in specific terms, as where particular laws and
provisions are named and identified and declared to be repealed…xxx
(2) Impliedly-An implied repeal takes
place when a new law contains provisions contrary to or inconsistent with those of a former without expressly repealing them.

Question 44

IN CASE OF CONFLICT OF GENERAL LAW V. SPECIAL LAW WHICH SHOULD PREVAIL?

Answer 44

a) If the general law was enacted prior to the special law, the latter is considered the exception to the general law.

Therefore, the general law, in general remains good law, and there is no repeal, except insofar as the exception or special law is concerned.

b.)If the general law was enacted after the special law, the special law remains unless:

(1) There is an express declaration to the contrary.

(2) Or there is a clear, necessary and unreconcilable conflict.

(3) Or unless the subsequent general law covers the whole subject and is clearly intended to replace the special law on the matter.

Question 45

RULING OF ILOILO PALAY AND CORN PLANTERS ASSOCIATION INC. V. FELICIANO ABOUT IMPLIED REPEAL

Answer 45

a repealing clause in an Act which provides that “all laws and parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly” is certainly not an express repealing clause because it fails to identify or designate the Act or Acts that are intended to be repealed. Rather, it is a clause which predicates the intended repeal upon the condition that substantial conflict must be found in existing and prior acts.Such being the case the presumption against implied
repeals and the rule against strict construction regarding implied repeals apply ex proprio vigore.

Question 46

EX PROPRIO VIGORE

Answer 46

Of its own, inherent force

Question 47

HOW DO YOU RAISE THE ISSUE OF UNCONSTITUTIONALITY OF A STATUTE?

Answer 47

PETITION IN THE COURTS

Question 48

HOW DO YOU HANDLE A PARTIALLY UNCONSTUTIONAL STATUTE?

Answer 48

Where a portion of a statute is rendered unconstitutional and the remainder valid, the parts will be separated, and the constitutional portion upheld.

HOWEVER, when the parts of the statute are so mutually dependent and connected… as to warrant a belief that the legislature intended them as a whole, and that if all could not be carried into effect, the legislature would not pass the residue independently, then if some parts are
unconstitutional, all the provisions which are thus dependent, conditional or connected, must fall with them.

Question 49

RULE AGAINST UNCONSTITIONALITY OF RULES AND REGULATIONS/ADMINISTRATIVE AND
EXECUTIVE ACTS

Answer 49

Rules and regulations as well as administrative or executive
acts violative of the law and the constitution are invalid.

Question 50

RECITE ART. 8 OF THE NCC

Answer 50

Article 8. Judicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the Philippines.

Question 51

ARE JUDICIAL DECISIONS LAW?

Answer 51

NO.
However, these decisions,
although in themselves not laws, are evidence of what the laws mean.

Question 52

STARE DECISIS

Answer 52

The doctrine, which is really “adherence to
precedents,” states that once a case has been decided one way, then another case, involving exactly the same point at issue, should be decided in the same manner.

Question 53

OBITER DICTUM

Answer 53

Are opinions not necessary
to the determination of a case. They are not binding, and cannot have the force of judicial precedents. It has been said that an
obiter dictum is an opinion “uttered by the way, not upon the point of question pending.” “

Question 54

RECITE ART. 9 OF THE NCC

Answer 54

Art. 9. No judge or court shall decline to render judgment by reason of the silence, obscurity, or insufficiency of the laws.

Question 55

DUTY OF A JUDGE IF THE LAW IS SILENT

Answer 55

A judge must give a decision, whether he knows what law to apply or not.

Question 56

RECITE ART. 10 OF THE NCC

Answer 56

Art. 10. In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body
intended right and justice to prevail. (n)

Question 57

ARE WE A COURT OF LAW OR A COURT OF EQUITY?

Answer 57

BOTH.

Question 58

RECITE ART. 11 AND ART. 12 OF THE NCC

Answer 58

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

Art. 12. A custom must be proved as a fact, according to
the rules of evidence.

Question 59

WHAT IS A CUSTOM?

Answer 59

A custom is a rule of human action (conduct) established by repeated acts, and uniformly observed or practiced as a rule
of society, thru the implicit approval of the lawmakers, and which is therefore generally obligatory and legally binding.

Question 60

REQUISITES OF CUSTOM TO BE RECOGNIZED AS LEGALLY BINDING

Answer 60

(a) A custom must be proved as a fact, according to the rules of evidence; otherwise, the custom cannot be considered as a source of right

(b) The custom must not be contrary to law (contra legem), public order, or public policy. (Art. 11, Civil Code).

(c) There must be a number of repeated acts.

(d) The repeated acts must have been uniformly performed.

(e) There must be a juridical intention (convictio juris seu
necessitatis) to make a rule of social conduct, i.e., there must be a conviction in the community that it is the
proper way of acting, and that, therefore, a person who disregards the custom in fact also disregards the law.

(f) There must be a sufficient lapse of time — this by itself is not a requisite of custom, but it gives evidence of the fact that indeed it exists and is being duly observed.

Question 61

RECITE ART. 13 OF THE NCC

Answer 61

Art. 13. When the laws speak of years, months, days or nights, it shall be understood that years are of three hundred
sixty-five days each; months, of thirty days; days, of twenty-four hours; and nights from sunset to sunrise.

f months are designated by their name, they shall be computed by the number of days which they respectively have.

In computing a period, the fi rst day shall be excluded, and the last day included. (7a)

Question 62

THE REVISED ADMINISTRATION CODE IN THE COMPUTATION OF PERIODS REPEALING ART. 13 OF THE NCC

Answer 62

Sec. 31. Legal Periods. — “Year” shall be understood to be twelve calendar months; “month” of thirty days, unless it refers to a specific calendar month in which case it shall be computed according to the number of days the specific month contains; “day”, to a day of twenty-four hours and; “night” from sunrise to sunset.

Question 63

HOW DO YOU COUNT BIRTHDAYS?

Answer 63

Count base on the 365th cycle.

ex. TWENTY-ONE 365th cycle means, the person has turned 21.

Question 64

RECITE ART. 14 OF THE NCC

Answer 64

Art. 14. Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in Philippine territory, subject to the principles of public international law and to treaty stipulations. (8a)

Question 65

RECITE ART. 15 OF THE NCC

Answer 65

Art. 15. Laws relating to family rights and duties or to the status, condition and legal capacity of persons are
binding upon citizens of the Philippines, even though living abroad. (9a)

Question 66

SCOPE OF LEX NATIONALII

Answer 66

Art. 15 refers to:
(a) Family rights and duties (including parental authority, marital authority, support);
(b) Status;
(c) Condition;
(d) Legal capacity. (But there are various exceptions to this rule on legal capacity.

Question 67

RECITE ART. 16 OF THE NCC

Answer 67

Art. 16. Real property as well as personal property is subject to the law of the country where it is situated.

However, intestate and testamentary successions, both with respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the
person whose succession is under consideration, whatever may be the nature of the property and regardless of the
country wherein said property may be found.

Question 68

EXCEPTION OF LEX REI SITAE

Answer 68

(a) Order of succession.

(b) Amount of successional rights. (This refers to the amount of property that each heir is legally entitled
to inherit from the estate available for distribution).

(c) Intrinsic validity of the provisions of a will.

(d) Capacity to succeed. (Art. 1039, Civil Code)

Question 69

RECITE ART. 17 OF THE NCC

Answer 69

Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed.

When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by the Philippine laws shall be observed in their execution.

Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. (11a)

Question 70

REX LOCI CELEBRATIONIS

Answer 70

The first paragraph of the Article lays down the rule of Lex loci celebrationis insofar as extrinsic validity (forms and
solemnities) is concerned.

Question 71

EXTRATERRITORIALITY

Answer 71

Even if the act be done abroad, still if executed before Philippine diplomatic and consular officials, the solemnities of
Philippine laws shall be observed. The theory is that the act is being done within an extension of Philippine territory (the
principle of exterritoriality)

Question 72

RECITE ART. 18 OF THE NCC

Answer 72

Art. 18. In matters which are governed by the Code of Commerce and special laws, their deficiency shall be supplied
by the provisions of this Code.

Question 73

RULE IN CASE OF CONFLICT BETWEEN THE CIVIL CODE AND OTHER LAWS

Answer 73

In case of conflict with the Code of Commerce or special laws, the Civil Code shall only be suppletory, except if otherwise provided for under the Civil Code. In general, therefore, in case of conflict, the special law prevails over the Civil Code,
which is general in nature.