Art 11-29 CivilCode

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

Custom Defined

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. (See Chief Justice Arellanos definition cited by La Jurisprudentia, Vol. 1, p. 38). *Art. 11. ** E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 95

Stimsons Law Dictionary defines a custom of aplace as that which is brought about by local usage, and is not annexed or peculiar to any particular individual. *Art. 11. **E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 95

Requisites Before the Courts can Consider Customs

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. (Patriarcha v. Orfate, 7 Phil. 370). Thus, there is no judicial notice of custom. (Art. 12, Civil Code).

(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. *Art. 11. *E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 95-96

(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.**E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 96

Law Distinguished from Custom

While ordinarily a law is written, consciously made, and enacted by Congress, a custom is unwritten, spontaneous, and comes from society. Moreover, a law is superior to a custom as a source of right. While the courts take cognizance of local laws, there can be no judicial notice of customs, even if local. (Art. 12, Civil Code).Art. 11. *E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 96

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

CUSTOMS. Custom has been defined as a rule of conduct formed by repetition of acts, uniformly observed (practiced) as a social rule, legally binding and obligatory. Courts take no judicial notice of custom. *

A custom must be proved as a fact according to the rules of evidence. A local custom as a source of right cannot be considered by a court of justice unless such custom is properly established by competent evidence like any other fact. *Art. 12. *M.S. Sta. Maria, Persons and Family Relations Law, p. 18-19

Merely because something is done as a matter of practice does not mean that courts can rely on the same for purposes of adjudication as a juridical custom.Juridical custom must be differentiated from social custom. The former can supplement statutory law or applied in the absence of such statute. Not so with the latter. *Customs which are contrary to law, public order or public policy shall not be countenanced. Custom, even if proven, cannot prevail over a statutory rule or even a legal rule enunciated by the Supreme Court (In the Matter of the Petition for Authority to Continue use of the Firm name Ozaeta, Romulo, etc., 92 SCRA 1). *Art. 12. *M.S. Sta. Maria, Persons and Family Relations Law, p. 18-19

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

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

10 months = 300 days

Thus, a debt payable in 10 months must be paid atthe end of 300 days, and not on the same date of a month, ten months later.

Examples of How Periods Are Computed

Art. 13. *E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 97

(b) 1 year = 365 days

This does not, however, apply in computing the age of a person. Thus, a person becomes 21 years old on his 21st birthday anniversary, and not on the date arrived at by multiplying 21 by 365 days.

However, in case the law speaks of years (as in prescriptive periods for crimes),it is believed that the number of years involved should be multiplied by 365. Thus, if a crime that is committed today prescribes in 10 years, the end of said period would be 365 x 10 or, 3,650 days from today.


In effect, therefore, the period will be shorter than when the calendar reckoning is used because certain years are LEAP YEARS. (See NAMARCO v. Tecson, L-29131, Aug. 27, 1969).

[NOTE: Any year, except a century year, is a leapyear if it is exactly divisible by FOUR. In the case of acentury year the same must be exactly divisible by 400


(c) March = 31 daysThis is because the month is specifically designatedby name. (Art. 13, par. 2, Civil Code). Thus, if in a contract it is stipulated that performance should be done, say in the month of March, the act can still be validly performed on March 31.

(d) One week = seven successive days. (Derby and Co. v. City of Modesto, 38 Pac. 901). But a week of labor, in the absence of any agreement, is understood to comprehend only six labor days. (Lee Tay & Lee Chay, Inc. v. KaisahanNg Mga Manggagawa, L-7791, Apr. 19, 1955).Art. 13. *E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 98

Meaning of Day Applied to the Filing of PleadingsIf the last day for submitting a pleading is today, and at 11:40 p.m. (after office hours) today it is filed, the Supreme Court has held that it is properly fi led on time because a day consists of 24 hours. (See De Chavez v. Ocampo and Buenafe, 66 Phil. 76). This presupposes that the pleading was duly received by a person authorized to do so.

[NOTE: When is mailed petition considered filed, from the date of mailing or from the time of actual receipt by the Court? The Supreme Court, in the case of Caltex (Phil., Inc. v. Katipunan Labor Union, L-7496, Jan. 31, 1956), held that the petition is considered filed from the time of mailing. This is because the practice in our courts is to consider the mail as an agent of the government, so that the date o f mailing has always been considered as the date of the filing of any petition, motion or paper. In Gonzalo P. Nava v. Commissioner of Internal Revenue, L-19470, Jan. 30, 1965, the Court held that while there is a presumption that a letter duly directed and mailed was received in the regular course of mail, still there are two facts that must first be proved before the presumption can be availed of: (a) the letter must have been properly addressed with postage prepaid, and (b) the letter must have been mailed.]*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 99

Computation of Periods

In computing a period, the fi rst day shall be excluded, and the last day included. (Art. 13, last par., Civil Code). Thus, 12 days after July 4, 2006 is July 16, 2006. In other words, we just add 12 to the first-mentioned date.

*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 99

Rule if the Last Day is a Sunday or a Legal Holiday

If the last day is a Sunday or a legal holiday, is the act due that day or the following day?It depends.(a) In an ordinary contract, the general rule is that an act is due even if the last day be a Sunday or a legal holiday. Thus, a debt due on a Sunday must, in the absence of an agreement, be paid on that Sunday. [This is because obligations arising from contracts have the force of law between the contracting parties. (Art. 1159, Civil Code).].There are, of course, some exceptions, among them the maturity date of a negotiable instrument.*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 100

(b) When the time refers to a period prescribed or allowed by the Rules of Court, by an order of the court, or by any other applicable statute, if the last day is a Sunday or a legal holiday, it is understood that the last day should really be the next day, provided said day is neither a Sunday nor a legal holiday.


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)

Theories of Territoriality and Generality

We adhere in the Philippines to that doctrine in criminal law known as the theory of territoriality; i.e., any offense com mitted within our territory offends the state. Therefore any person, whether citizen or alien, can be punished for committinga crime here. Thus, the technical term generality came into being; it means that even aliens, male or female come under our territorial jurisdiction. This is because aliens owe some sort of allegiance even if it be temporary.Art. 14. *E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 102

Illuh Asaali, et al. v. Commissioner of CustomsL-24170, Dec. 16, 1968

FACTS: On Sept. 10, 1950, at about noon time, a Philippine customs patrol team on board Patrol Boat ST-23 intercepted five (5) sailing vessels on the high seas between British North Borneo and Sulu, while they were heading towards Tawi-tawi, Sulu. The vessels were all of Philippine registry, owned and manned by Filipino residents of Sulu. The cargo consisted of cigarettes without the required import license, hence, smuggled. They were seized by the patrol boat.*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 102-103

ISSUE: May the seizure be made although the vessel was on the high seas?

HELD: Yes, for the following reasons:

(a) The vessels were of Philippine registry, hence underthe Revised Penal Code, our penal laws may be enforced even outside our territorial jurisdiction.

(b) It is well-settled in international law that a state hasthe right to protect itself and its revenues, a rightnot limited to its own territory, but extending to thehigh seas. (Church v. Hubbart, 2 Cranch 187, 234).

*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 102-103

EXCEPTION. While foreigners may be liable for committing offenses in violation of penal laws and those of public security and safety, they may however be immune from suit and, therefore, cannot be criminally prosecuted in the Philippines in certain cases where the Philippine government has waived its criminal jurisdiction over them on the basis of the principles of public international law and treaty stipulations.*M.S. Sta. Maria, Persons and Family Relations Law, p. 22

Under the 1961 Vienna Convention on Diplomatic Relations of which the Philippines is a signatory, it is provided that the person of the diplomatic agent shall be inviolable and he shall not be liable to any form of arrest or detention (Article 29, Vienna Convention).

He shall enjoy immunity from criminal jurisdiction of the receiving state (Article 31, Vienna Convention). A diplomatic agent, under Article 1 of the same convention, is the head of the mission or a member of the diplomatic staff of the mission. Also, heads of state who are officially visiting here in the Philippines are immune from Philippine criminal jurisdiction.

*M.S. Sta. Maria, Persons and Family Relations Law, p. 22

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)

NATIONALITY RULE. Regardless of where a citizen of the Philippines might be, he or she will be governed by Philippine laws with respect to his or her family rights and duties, or to his or her status, condition and legal capacity. Hence, if a Filipino, regardless of whether he or she was married here or abroad, initiates a petitionabroad to obtain an absolute divorce from his wife or her husband (whether Filipino or foreigner) and eventually becomes successful in getting an absolute divorce decree, the Philippines will not recognize such absolute divorce. *M.S. Sta. Maria, Persons and Family Relations Law, p. 23

This is so because, pursuant to the second paragraph of Article 26 of the Family Code, the only absolute divorce which the Philippines recognizes is one which is procured by the alien spouse of the Philippine citizen. Hence, in the eyes of Philippine law in so far as the Filipino is concerned and in cases where he or she is the one who procures the absolute divorce abroad, his or her status is still married and therefore should he or she marry again, he or she can be considered to have committed either concubinage in case of the husband or adultery in case of the wife(See Tenchavez v. Escano, 15 SCRA 355).

*M.S. Sta. Maria, Persons and Family Relations Law, p. 23

Article 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, whatevermay be the nature of the property and regardless of the country wherein said property may be found. (10a)

LAW GOVERNING REAL PROPERTIES. The law of the country where the real property is situated shall be the governing law over such real property. However, with respect to the order of succession and the amount of successional rights, whether in intestate or testamentary succession, they shall be regulated by the national law of the deceased and this is applicable regardless of the nature of the property. Thus, in a case where a citizen of Turkey made out a last will and testament providing that his property shall be disposed of pursuant to Philippine laws, the Supreme Court ruled that such provision is illegal and void because, pursuant to Article 10 (now Article 16) of the Civil Code, the national law should govern and therefore Turkish laws and not Philippine laws should apply (Minciano v. Brimo, 50 Phil. 867).*M.S. Sta. Maria, Persons and Family Relations Law, p. 23-24

In Bellis v. Bellis, 20 SCRA 358, where a foreigner executed a will in the Philippines but, who, at the time of his death, was both a national of the United States and also domiciled in the United States, the Supreme Court observed: Article 16, par. 2 and Article 1039 of the Civil Code render applicable the national law of the decedent, in intestate or testamentary succession, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (c) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed.*M.S. Sta. Maria, Persons and Family Relations Law, p. 24

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.*M.S. Sta. Maria, Persons and Family Relations Law, p. 24

ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent.

Appellants would, however, counter that Article 17,paragraph three, of the Civil Code, stating that

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.

prevails as the exception to Article 16, par. 2 of the Civil Code afore-quoted. *M.S. Sta. Maria, Persons and Family Relations Law, p. 24

This is not correct. Precisely, Congress deleted the phrase, notwithstanding the provisions of this and the next preceding article when they incorporated Article 11 of the old Civil Code as Article 17 of the new Civil Code, while reproducing without substantial change the second paragraph of Article 10 of the old Civil Code as Article 16 in the new. It must have been their purpose to make the second paragraph of Article 16 a specific provision in itself which must be applied to testate and intestate successions. As further indication of this legislative intent, Congress added a new provision, under Article 1039, which decrees that capacity to succeed is to be governed by the national law of the decedent.*M.S. Sta. Maria, Persons and Family Relations Law, p. 25

It is therefore evident that whatever public policy or good customs may be involved in our system of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifi -cally chosen to leave, inter alia, the amount of successional rights, to the decedents national law.Specific provisions must prevail over general ones.*M.S. Sta. Maria, Persons and Family Relations Law, p. 25

Appellants would also point out that the decedent executed two wills one to govern his Texas estate and the other his Philippine estate arguing from this that he intended Philippine law to govern his Philippine estate. Assuming that such was the decedents intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled in Minciano v. Brimo, 50 Phil. 867, 870, a provision in a foreigners will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void, for his national law cannot be ignored in regard to those matters that Article 10 now Article 16 of the Civil Code states said national law should govern.*M.S. Sta. Maria, Persons and Family Relations Law, p. 25

The parties admit that the decedent Amos G. Bellis was a citizen of the State of Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, thePhilippine law on legitimes cannot be applied to the testacy of Amos G. Bellis.*M.S. Sta. Maria, Persons and Family Relations Law, p. 25

The Renvoi ProblemRenvoi literally means a referring back; the problemarises when there is a doubt as to whether a reference in our law (such as Art. 16, par. 2 of the Civil Code) to a foreign law (such as the national law of the deceased)

(a)is a reference to the INTERNAL law of said foreign law; or(b) is a reference to the WHOLE of the foreign law, including its CONFLICTS RULES.

In the latter case, if one state involved follows the nationality theory, and the other, the domiciliary theory, there is a possibility that the problem may be referred back to the law of the fi rst state.*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 112

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 Philippinelaws 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)Art. 17. ( continuation..)

Doctrine of Lex Loci Celebrationis

The first paragraph of the Article lays down the rule of lex loci celebrationis insofar as extrinsic validity (forms and solemnities) is concerned. Thus, a contract entered into by a Filipino in Japan will be governed by Japanese law insofar as form and solemnities of the contract are concerned. Thus also, if a power of attorney is executed in Germany, German laws and not our Civil Code should determine its formal validity.(Germann and Co. v. Donaldson, Sim and Co., 1 Phil. 63).*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 117

EXTRINSIC VALIDITY. The law provides clearly that the forms and solemnities of public instruments, wills, and contracts shall be governed by the laws of the country where they are executed.

Thus, if in Japan, for example, it is required that for a holographic will to be valid the date thereof need not be in the handwriting of the testator, then such a will is valid even if under Philippine laws thecontents of a holographic will, including the date, must all be in the handwriting of the testator.*M.S. Sta. Maria, Persons and Family Relations Law, p. 26

ACTS BEFORE DIPLOMATIC AND CONSULAR OFFICIALSDiplomatic and consular officials are representatives of the state. Hence, any act or contract made in a foreign country before diplomatic and consular officials must conform with the solemnities under Philippine law. This is so, also, because the host country where such diplomatic or consular officials are assigned, by rules of international law, waives its jurisdiction over the premises of the diplomatic office of another country located in the said host country. Hence, marriages between two Filipinos solemnized by a consular official abroad must be made following Philippine laws.Thus, the issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of the marriage shall be performed by a consul-general, consul, or vice-consul abroad (See Article 10 of the Family Code).*M.S. Sta. Maria, Persons and Family Relations Law, p. 26

PROHIBITIVE LAWS. Under our law, 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.

Hence, considering that the only ways to terminate a marriage in the Philippines are by nullifying a marriage or by annulling the same on the basis of the specific grounds exclusively enumerated under the Family Code of the Philippines, and by filing an affidavit of reappearance for the purpose of terminating a subsequent*M.S. Sta. Maria, Persons and Family Relations Law, p. 26

marriage solemnized under Article 41 of the same code, any Filipino who procures an absolute divorce abroad will remain, in the eyes of Philippine law, as not having been divorced. Thus, in a case where a Filipina wife obtained a divorce abroad and later remarried an American, the Filipino husband in the Philippines can file a legal separation case against the wife for having technically committed adultery, considering that the absolute divorce is not recognized in the Philippines (See Tenchavez v. Escano, 15 SCRA 355).*M.S. Sta. Maria, Persons and Family Relations Law, p. 27

Article 30. When a separate civil action is brought to demand civil liability arising from a criminal offense, and no criminal proceedings are instituted during the pendency of the civil case, a preponderance of evidence shall likewise be sufficient to prove the act complained of.

Article 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. (16a)

Rule in Case of Conflict Between the Civil Code andOther LawsIn 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. (Leyte A. and M. Oil Co. v. Block, 52 Phil. 429).*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 119-120

Enriquez v. Sun Life Assurance Company of Canada41 Phil. 39

FACTS: A applied for a life annuity. The insurance company accepted, and intended to mail its acceptance, but never actually mailed the same. So the applicant never received the letter of acceptance. Later, the applicant died. Was the contract ever perfected?HELD: No, because acceptance was never madeknown to the applicant. This rule in the Civil Code, which requires knowledge by the offer or of the acceptance, can be applied because the Insurance Law (a special law) contains no rule on the matter. In other words, the Civil Code can supply the deficiency.*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 120

[NOTE: (a) When the action of a plaintiff against a ship-owner is upon a civil tort, Art. 2180 of the Civil Code applies; but when the case involves tortious conduct resulting in maritime collision, it is a maritime tort, and the liability of the shipowner is governed by the provisions of the Code of Commerce. (Manila Steamship Co. v. Abdulhamar,L-9534, Sep. 29, 1956).

(b) Under the Veterans Guardianship Act, RA 390 (a special law), guardianship of a minor terminates only upon reaching the age of 21 (age of majority is now 18), not upon marriage. Therefore, in a case involving monetary benefits from the Veterans Act, the special law must prevail. (Estate of Daga, L-9695, Sep. 10, 1956).].*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 120

When the Civil Code is SuperiorThere are instances when the Civil Code expressly declares itself superior to special laws:Common carriers The Code of Commerce supplies the deficiency. (Art. 1766, Civil Code).

(b) Insolvency The special laws supply the defi ciency. (Art.2237, Civil Code).*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 120-121

The Case of Usury

In case of conflict, the new Civil Code applies. (Art. 1961,Civil Code). But under another article, the new Civil Code inconsistently says that in case of conflict, usurious transactions are governed by special laws. (Art. 1175, Civil Code). See Liam Law v. Olympic Sawmill Co. & Elino Lee Chi, L-30771, May28, 1984, however, where the Supreme Court held that for sometime now usury has been legally non-existent; interest can now be charged as lender and borrower may agree upon.*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 121

CHAPTER 2

HUMAN RELATIONS

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.

Why the Code Commission Formulated a Chapter onHuman RelationsA chapter on human relations was formulated to present some basic principles that are to be observed for the rightful relationship between human beings and the stability of the social order. The lawmaker makes it imperative that everyone duly respect the rights of others. (Report, p. 39). Indeed this Chapter is calculated to indicate certain norms that spring from the fountain of good conscience. These guides for human conduct should run as golden threads through society, to the end that law may approach its supreme ideal, which is the sway and dominance of justice. *E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 122

RIGHTS MUST NEVER BE ABUSED; THE MOMENT THEY ARE ABUSED, THEY CEASE TO BE RIGHTIn the celebrated case of Dominador R. Aytona v. AndresCastillo, et al. (L-19313, Jan. 19, 1962), the Supreme Court held that although President Carlos P. Garcia was still President up to noon Dec. 30, 1961 (his successor, President Diosdado Macapagal was scheduled to assume the Presidency on said date) he should not have issued mass midnight appointments on December 26, 1961. Such an act may be regarded by the successor as an abuse of Presidential prerogatives, the appointments detracted from that degree of good faith, morality, and propriety which form the basic foundation of claims to equitable relief . . . Needless to say there are instances wherein not only strict legality, but also fairness, justice, and righteousness should be taken into account.

ANONYMOUS COMPLAINTS

ANONYMOUS COMPLAINT V. ARAULA AM 1571-CFI FEB. 7, 1978

Although the Supreme Court does not as a rule act on anonymous complaints, cases are excepted in which the charge (concealment of the pendency of a criminal case by a person at the time he applied for appointment to the judiciary) can be fully borne by public records of indubitable integrity, thus needing no corroboration by evidence to be offered by complainant, whose identity and integrity can hardly be material where the matter involved is of public interest.*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 132

INEXPERIENCED COUNSEL DE OFICIO

LAMES V. LASCIERASAM 1919, MAR. 30, 1979

FACTS: A counsel de ofi cio defended his client without the ability of a more experienced and competent lawyer. Should the counsel de ofi cio be disbarred?

HELD: No, because said incompetence does not necessarilymake him unfit to be a member of the bar.*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 133

EFFECT OF A PLEA FOR SOCIAL JUSTICE

SALONGA V. FARRALESL-47088, JULY 10, 1981

The law on obligations and contracts cannot be nullified just because of a plea for social justice. To so nullify is beyond the power of the courts.(b)Social justice provisions in the 1973 Constitution cannot defeat the law on obligations and contracts, and cannot take away rights from a person and give them to another who is not entitled thereto. Surely, this is beyond the power of the courts to grant.*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 133

EFFECT OF A VEILED THREAT ON DISPENSERS OF JUSTICE

IN RE: LAURETA AND MARAVILLA-ILUSTREGR 68635, MAR. 12, 1987

To subject justices to the threat of an investigation or prosecution for offi cial acts is to subvert their independence.*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 133

LAW AND EQUITY

ESCONDE V. BARLONGAYGR 67583, JULY 31, 1987

Justice is done according to law. As a rule, equity follows the law. There may be a moral obligation, often regarded as an equitable consideration (meaning compassion) but if there is no enforceable legal duty, the action must fail although the disadvantaged party deserves commiseration or sympathy.*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 134

BAD FAITH

SEA COMMERCIAL CO., INC. V. CAGR 122823, NOV. 25, 1999, 116 SCAD 198By appointing as dealer of its agricultural equipment, the corporation recognized the role and undertaking of the dealer to promote and sell said equipment. After being informed of the demonstration, the dealer had conducted to promote the sales of the equipment, including the operations at the dealers expense conducted for 5 months, and the approval of its service facilities by the dealer, the corporation participated in the bidding for the said equipment at a lower price, placing itself in direct competition with its own dealer. The actuations of the corporation are tainted with badfaith.*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 134

SEXUAL HARASSMENT IS ABOUT POWER EXERCISED BY A SUPERIOR OVER A SUBORDINATEPAISTE V. MAMENTA, JR.412 SCRA 403 (2003)Sexual harassment in the workplace is not about a man taking advantage of a woman by reason of sexual desire it is about POWER being exercised by a superior over his women subordinates.In the instant controversy, owing to respondents sexual harassment, the Supreme Court held that it constituted serious misconduct prejudicial to the interest of the service which warrant his dismissal from office.*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 134-135

Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same.

WILLFUL OR NEGLIGENT ACTS

The article punishes illegal acts whether done willfully or negligently. Thus, in the law of torts or quasi-delicts Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. (Art.2176, Civil Code).*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 135

The mere possession of a slot machine or even its operation for amusement and not for profit does not constitute a crime, in the absence of a law that regards its operation as a crime. In fact, a slot machine is not a gambling device per se, because by itself, it can be operated legally as well as illegally. (Owners of 51 Jackpot Slot Machines v. Director of the NBI,L-18899, Feb. 29, 1964). Slot machines which are actually made for gambling purposes are of course illegal and may be destroyed by the proper authorities.*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 135

FERNANDO V. CAGR 92087, MAY 8, 1992

Negligence has been defined as the failure to observe for the protection of the interests of another person that degree of care, precaution and vigilance which the circumstances greatly demand, whereby such other person suffers injury.Acts resulting from negligence may vary in nature,extent, and resulting consequences. This is why, particularly in criminal cases, courts are given greater leeway or discretion in imposing the proper penalty, and are not bound to mathematical formulas for the lowering of degrees of penalty. (People v. Felicisimo Medroso, Jr., L-37633, Jan. 31, 1975).*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 135-136

TORTS

Art. 20 introduces a broader concept of torts in our country, for it embraces:

The Spanish tort based on negligence. (Art. 1902, oldCivil Code, see Caguioa, Civil Law, Vol. I, p. 19).

(b) And the American tort based on malice. (Prosser, Torts, p. 4; see Caguioa, Civil Law, Vol. I, p. 19).

WHEN NO ACTION FOR DAMAGES WOULD PROSPER

If someone be damaged, he does not necessarily have the right to be indemnified. It is essential that some right of his be impaired.

Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for thedamage.

Article 21 deals with acts contra bonus mores, and has the following elements:

There is an act which is legal;

2) but which is contrary to morals, good customs, public order, or public policy;

3) and it is done with intent to injure (Albenson Enterprises Corp. v. Court of Appeals, 217 SCRA 16). It presupposes loss or injury, material or otherwise, which one may suffer as a result of such violation (Cogeo-Cubao Operators and Drivers Association v. Court of Appeals, 207 SCRA 343).*M.S. Sta. Maria, Persons and Family Relations Law, p. 33

Article 21 Distinguished from Article 20

(a) In Art. 21 The act is contrary to morals, good customs, or public policy. In Art. 20 The act is contrary to law.

(b) In Art. 21 The act is done willfully.[NOTE: Willful may mean not merely voluntarilybut with a bad purpose. (U.S. v. Ah Chong, 15 Phil. 488;People v. Parel, 44 Phil. 437).]. In Art. 20 The act is done either willfully or negligently.*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 139

CAN THERE BE AN ACTION FOR BREACH OF PROMISE TO MARRY?(a) For the recovery of actual damages, YES. Thus, if a person gives another P500 because the latter promised to marry the former, and the promise is not fulfilled, the money given can be recovered. (DOMALAGAN V. BOLIFER, 33 PHIL. 471). Thus also, if a teacher resigns from her position because of a mans promise to marry her, she can recover indemnity for damages if later on the promise is not fulfilled. (Garcia v. Del Rosario, 3 Phil. 189). The same thing may be said for the recovery of wedding expenses, such as the wedding breakfast, the ceremony, the trousseau, the issuance of invitations, if one party fails to appear.*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 141

Recovery of Moral Damages

In Hermosisima v. Court of Appeals, et al., L-14628,Sep. 30, 1960, the Supreme Court held that under the Civil Code, there can be no recovery of moral damages for a breach of promise to marry, AS SUCH, the omission in the Civil Code of the proposed Chapter on Breach of Promise Suits is a clear manifestation of legislative intent not to sanction as such, suits for breach of promise to marry, otherwise many innocent men may become the victims of designing and unscrupulous females.


However, if there be seduction (as defined in Arts. 337 and 338 of the Revised Penal Code), moral damages may be recovered under Art. 2219, par. 3, of the Civil Code.

The Court, however, implied that if there be moral seduction as distinguished from criminal seduction, there MAY BE a grant of moral damages, possibly under Art. 21. In said Hermosisima case, however, it was the woman who virtually seduced the man, by surrendering herself to him because she, a girl 10 years OLDER, was overwhelmed by her love for him. (See also Estopa v. Piansay, Jr., L-14733, Sep. 30,1960; Beatriz Galang v. Court of Appeals, et al., L-17248,Jan. 29, 1962).


Art. 22. Every person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him.

No person should unjustly enrich himself at the expense of another. (Nemo cum alterius detrimento protest). (Report, Code Commission; see also Art. 2142 on quasi-contracts). It ought to be noted, however, that when property is obtained by virtue of a final judgment of a court, Art. 22 cannot apply. (See Escudero v. Flores, 51 O.G. 3444).


The requisites for the application of this doctrine arepresent in the instant case. There is enrichment on the part of the petitioner, as the State would come into possession of and may technically appropriate the more than one thousand fruit-bearing trees planted by the private respondent. There is impoverishment on the part of Reyes, because he stands to lose the improvements he had painstakingly planted and invested in. There is lack of valid cause for the State to acquire these improvements, because, as discussed above, Reyes introduced the improvements in good faith.**M.S. Sta. Maria, Persons and Family Relations Law, p. 42

Example

A owed B a sum of money evidenced by a promissory note. At maturity, A paid, and a receipt was given him. When later on he was again asked to pay, he could not find the receipt, so to avoid trouble he paid again. Subsequently, he found the missing receipt. Can he now get back what he had intentionally (but unwillingly) paid?

ANSWER: Yes, in view of Art. 22, which incidentallytreats of an accion in rem verso.*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 150

Article 23. Even when an act or event causing damage to anothers property was not due to the fault or negligence of the defendant, the latter shall be liable for indemnity if through the act or eventhe was benefited.

UNJUST ENRICHMENT. No person can claim what is not validly and legally his or hers. Hence, he or she should not unduly profit on something which does not meritoriously belong to him or her. **M.S. Sta. Maria, Persons and Family Relations Law, p. 40ExampleWithout As knowledge, a fl ood drives his cattle to the cultivated highland of B. As cattle are saved, but Bs crops are destroyed. True, A was not at fault, but he was benefited. It is but right and equitable that he should indemnify B. (Code Commission, p. 42; See Art. 941, Civil Code of Argentina). ****E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 152

Art. 24. In all contractual, property or other relations, when one of the parties is at a disadvantage on account of his moral dependence, ignorance, indigence, mental weakness, tender age or other handicap, the courts must be vigilant for his protection.

COURT VIGILANCE. The courts must render justice and, therefore, they must be very vigilant in protecting the rights of the disadvantaged with the end in view that any decision will be in consonance with what is right and legal. **M.S. Sta. Maria, Persons and Family Relations Law, p. 43Reason for the Courts Protection of the Underdog

The law takes great interest in the welfare of the weak and the handicapped. Thus, we have parens patriae.** *E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 152

Literally, parens patria means father or parent of his country. In the U.S. (as in the Philippines), the phrase refers to the sovereign power of the state in safeguarding the rights of person under disability, such as the insane and the incompetent.(In re: Turner, 94 Kan. 115). Thus, were the law always to be applied strictly, there would be danger that injustice might arise (summun jus, summa injuria). (Reyes and Puno, Outline of Phil. Civil Law, p. 43, citing, Cicero, De Offi ciis). The State as parens patriae is under the obligation to minimize the risk to those who because of their minority, are as yet unable to take care of themselves fully. (People v. Baylon, L-35785, May29, 1974).*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 152

Meaning of Vigilant for His Protection

The phrase in general means that in case of doubt, the doubt must be resolved in favor of the underdog. Thus, in labor contracts, doubts are resolved in favor of the decent living and safety of the worker. (See Art. 1702, Civil Code).*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 153

Article 25. Thoughtless extravagance in expenses for pleasure or display during a period of acute public want or emergency may be stopped by order of the courts at the instance of any government or private charitable institution.

EXTRAVAGANCE DURING EMERGENCY. The law seeksto prevent inconsiderate and ostentatious activities during times of emergency. However, Article 25 specifically provides for the entities which are given legal standing to seek an injunction: any government or private charitable institution. **M.S. Sta. Maria, Persons and Family Relations Law, p. 44

Who Can Bring the Action?

Only a charitable institution (whether government or private) may bring the action. The Mayor of a city, should he desire to stop an alleged display of extravagance by a social organization cannot summarily order the stopping all by himself. He has to ask for a court order. A Mayor indeed cannotjust take the law into his own hands, no matter how noble orsincere his motive may be.*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 170

Article 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:

(1) Prying into the privacy of anothers residence;(2) Meddling with or disturbing the privatelife or family relations of another;(3) Intriguing to cause another to be alienatedfrom his friends;(4) Vexing or humiliating another on accountof his religious beliefs, lowly station in life, place ofbirth, physical defect, or other personal condition.

Duty to Respect Dignity and Privacy

This Article enhances human dignity and personality.Social equality is not sought, but due regard for decency and propriety. (Report, Code Commission, pp. 33-34).Remedies(a) An action for damages;(b) An action for prevention;(c) Any other relief.

[A civil action may be instituted even if no crime is involved, and moral damages may be obtained. (See Arts. 29 and2219, Civil Code).].*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 170-171

Scope Prying into the privacy of anothers residence includes by implication respect for anothers name, picture, or personality except insofar as is needed for publication of information and pictures of legitimate news value. (Prosser, Torts, p. 1050).

(b) Meddling with or disturbing the private life or family relations of another includes alienation of the affections of the husband or the wife. (Prosser, Torts, p. 916). (Thus, a girl who makes love to a married man, even if there be no carnal relations, disturbs his family life, and damages may therefore be asked of her.) Intriguing against anothers honor (gossiping) is also included.*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 171

(c) Intriguing to cause another to be alienated from hisfriends includes gossiping, and reliance on hearsay.

(d) Vexing or humiliating includes criticism of ones health or features without justifiable legal cause. (138 A.L.R. 25). Religious freedom does not authorize anyone to heap obloquy and disrepute upon another by reason of the latters religion. (Commission Report, p. 33).*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 171

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

REFUSAL OR NEGLECT IN THE PERFORMANCE OF OFFICIAL DUTYThe article refers to a public servant or employee. Taken from Art. 839 of the German Civil Code, the purpose of Art. 27 is to end the pabagsak or bribery system, where the public official for some flimsy excuse, delays or refuses the performance of his duty until he gets some kind of pabagsak. (See Bocobo, Study of Proposed Civil Code Changes, 16 Lawyers Journal, p. 97).*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 172

In a sense, it may be said that there are three kindsof bribes:

1) the pabagsak the gift given so that an illegal thing may be done.2) the pampadulas the gift given to facilitate orexpedite the doing of a legal thing.3) the pampasalamat the gift given in appreciationof a thing already done.[NOTE: An administrative case will generally beprovisionally dismissed, where a criminal case involvingthe same parties and the same charges as those of theadministrative case is sub judice. (Flores v. Ganaden, Adm. Matter No. P-152, Nov. 29, 1974).].*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 172

RELIEF AGAINST PUBLIC OFFICIALS

A public official is supposed to be an agent or at least a representation of the government and, therefore, the law exacts on him or her an obligation to be very vigilant and just so that the public can be assured that the government is truly effective in servicing their needs. Any person, suffering from the refusal or neglect of any government employee or public servant to perform his duties, is entitled to damages.*M.S. Sta. Maria, Persons and Family Relations Law, p. 47

Example(a) A goes to a government offi ce where B, an administrative clerk, instead of attending to A (upon As request) just reads the newspaper. If A suffers material or moral loss, B will be liable. Also, if B refuses to perform his duty unless given a bribe, damages may be asked of him in addition to the proper criminal and administrative liabilities.*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 175

A Chief of Police who, instead of giving legal assistanceto the victim of an assault, intimidates and harasses saidvictim, his father, and his witnesses is liable for damagesunder Art. 27. This is so even if other remedies (such asan administrative charge against the chief of police andthe filing of a criminal complaint with the offi ce of the city attorney for such assault) are also available to the victim. (Amaro, et al. v. Sumangit, L-14986, July 31, 1962).Example*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 175

Art. 28. Unfair competition in agricultural, commercial or industrial enterprises or in labor through the use of force, intimidation, deceit, machination or any other unjust, oppressive or high-handed method shall give rise to a right of action by the person who thereby suffers damages.

UNFAIR COMPETITION

The 1947 Civil Code Commission justifies the inclusion of this provision by saying that it is necessary in a system of free enterprise. Democracy becomes a veritable mockery if any person or group of persons by any unjust or highhanded method may deprive others of a fair chance to engage in business or earn a living (Report of the Code Commission, page 31).*M.S. Sta. Maria, Persons and Family Relations Law, p. 49

REASON FOR PREVENTING UNFAIR COMPETITIONThe above provision is necessary in a system of free enterprise. Democracy becomes a veritable mockery if any person or group of persons by any unjust or high-handed method may deprive others of a fair chance to engage in business or to earn a living. (Report, Code Commission, p. 31). This Article is intended to lay down a general principle outlawing unfair competition, both among enterprises and among laborers. Unfair competition must be expressly denounced in this Chapter because same tends to undermine free enterprise. While competition is necessary in a free enterprise, it must not be unfair.(Memorandum of the Code Commission, L.J., Aug. 31, 1953).*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 142

Article 29. When the accused in criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond to answer for damages in case the complaint should be found to be malicious.

If in a criminal case the judgment of acquittalis based upon reasonable doubt, the court shall so declare. In the absence of any declaration to that effect, it may be inferred from the text of the decision whether or not the acquittal is due to that ground.Article 29..continuation

CIVIL ACTION. Proof beyond reasonable doubt means that amount of proof which forms an abiding moral certainty that the accused committed the crime charged. It is not, therefore, absolute certainty. However, such degree of proof is more exacting thanwhat is needed in a civil case which is merely preponderance of evidence. Preponderance of evidence means that, as a whole, the evidence adduced by one side outweighs that of the adverse party (Sarmiento v. Court of Appeals, G.R. No. 96740, March 25, 1999).*M.S. Sta. Maria, Persons and Family Relations Law, p. 50

Example of Civil Action After Acquittal In a CriminalCase

A was accused of theft, but he was acquitted because hisguilt had not been proved beyond reasonable doubt. B, the offended party, can institute the civil action for damages for the same act and this time, mere preponderance of evidence is sufficient. (Art. 29, Civil Code).*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 183

[NOTE: An acquittal on the ground that the guilt of the defendant has not been satisfactorily established is equivalent to one on reasonable doubt, and does not preclude or prevent a civil suit under Art. 29. (Machinery and Engg. Supplies, Inc.v. Quintano, L-8142, Apr. 27, 1956).].

[NOTE: Art. 29 does not speak of an independent civilaction.]*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 183-184

Criminal and Civil Liabilities

Under the Revised Penal Code (Art. 100) a person criminally liable is also civilly liable. The two liabilities are separate and distinct from each other; the criminal aspect affects the social order; the civil, private rights. One is for the punishment or correction of the offender, while the other is for reparation of damages suffered by the aggrieved party. (Report, Code Commission, p. 45). Thus, even if the accused be acquitted because of prescription of the crime, he is released only from criminal responsibility, not civil liability; otherwise, the victim would be prejudiced. (Sombilla and Positos v. Hodges and Mogar, L-4660, May 30, 1952).*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 184

Reason for Art. 29

Criminal liability is harder to prove than civil liability because the former demands proof of guilt beyond reasonable doubt; the other, mere preponderance of evidence. Now then if criminal conviction is not obtained because of reasonable doubt there is still a chance that the civil liability can be held to exist because of preponderance of evidence.*E.L. Paras, Civil Code of the Philippines Annotated, 17th Edition 2013 p. 185

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Documents

Art 11-29 CivilCode