PERSONS Notes.docx

**PERSONS and FAMILY Relations Law** **Waldon Carbonell** **I. WHEN LAWS TAKE EFFECT** ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- **Article 2, Civil Code.** Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines unless it is otherwise provided (As amended by E.O. 200). ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- **General Rules:\ **The clause \"**unless it is otherwise provided\"** refers to the date of effectivity (i.e., as to when a law shall take effect) and not to the requirement of the publication itself, which cannot, in any event, be omitted \[*Tañada v. Tuvera,* G.R. No. L-63915 (1986)\].\ Publication is indispensable in every case, but the legislature may at its discretion provide that the usual fifteen-day period shall be shortened or extended \[*Tañada v. Tuvera,* supra\]. **Exception:** Implementing rules and regulations and those internal in nature \[*Tañada v. Tuvera,* supra\]. **II. IGNORANCE OF THE LAW** --------------------------------------------------------------------------------------- Ignorance of the law excuses no one from compliance therewith \[Art. 3, Civil Code\]. --------------------------------------------------------------------------------------- - It is founded not only on expediency and policy but also on necessity. \[*Zulueta v. Zulueta,* G.R. No. 428 (1902)\]. - Every person is presumed to know the law even if he has no actual knowledge of the law \[*Tañada v. Tuvera,* supra\]. The presumption does not apply to foreign laws because there is no judicial notice of such foreign laws; such laws must be proved like any other matter of fact \[*Ching Huat v. Co Heong*, G.R. No. L-1211 (1947)\]. **III. RETROACTIVITY OF LAWS** ----------------------------------------------------------------------------------------------- Laws shall have no retroactive effect unless the contrary is provided \[Art. 4, Civil Code\]. ----------------------------------------------------------------------------------------------- **General Rule:** All statutes should be construed as having only prospective operations. **Exceptions:** 1\. When the law itself expressly provides; a. **Exceptions to Exception**: ▪ **Ex post facto law** ▪ Impairment of the obligations in the contract 2. In case of remedial statutes; 3. In case of curative statutes; a\. **Exceptions to the Exception**: ▪ If it will violate the Constitution ▪ If it will destroy the rights of third persons ▪ Final judgment In case of laws interpreting others; 4. In case of laws creating new rights \[*Bona* 5. Penal Laws favorable to the accused \[Art. 22, RPC\]. **IV. MANDATORY OR PROHIBITORY LAWS** ----------------------------------------------------------------------------------------------------------------------------------------------------------------------- **Article 5, Civil Code.** Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity. ----------------------------------------------------------------------------------------------------------------------------------------------------------------------- **Paragraph 3, Article 17, Civil Code.** 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. **V. WAIVER OF RIGHTS** --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- **Article 6, Civil Code.** 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. --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- **Waiver -** Voluntary and intentional relinquishment or abandonment of a known legal right or privilege. It has been ruled that a waiver to be valid and effective must be couched in clear and unequivocal terms which leave no doubt as to the intention of a party to give up a right or benefit which legally pertains to him \[*RB Michael Press v. Galit,* G.R. No. 153510 (2008)\]. - The waiver should be made in a positive manner \[*Dona Adela Export International Inc. v. Tidcorp,* G.R. No. 201931 (2015)\]. **Requisites of a Valid Waiver** 1. Existence of a right; 2. Knowledge of the existence thereof; and 3. An intention to relinquish the right \[*Herrera v. Borromeo,* G.R. No. L-41171, (1987)\]. **General Rule**: Rights may be waived. **Exceptions:** 1. If the waiver is contrary to law, public order, public policy, morals or good customs; 2. If the waiver prejudices a third person; 3. If the alleged rights do not yet exist; 4. If the right is a natural right. **No compromise upon the following questions shall be valid** \[Art. 2035, Civil Code\]: 1. The civil status of persons; 2. The validity of a marriage or a legal separation; 3. Any ground for legal separation; 4. Future support; 5. The jurisdiction of courts; 6. Future legitime. **VI. PRESUMPTION AND APPLICABILITY OF CUSTOM** -------------------------------------------------------------------------------------------------------------------------- **Article 11, Civil Code:** Customs which are contrary to law, public order, or public policy shall not be countenanced. -------------------------------------------------------------------------------------------------------------------------- - Custom is defined as "a rule of conduct formed by repetition of acts, uniformly observed (practiced) as a social rule, legally binding and obligatory." - The Court had occasion to state that "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. The same evidence, if not one of a higher degree, should be required of a foreign custom \[*Yao Kee v. Sy-Gonzales*, G.R. No. 55960 (1988)\]. **General Rule:** Customs must be proved as a fact according to the rules of evidence \[Art. 12, Civil Code\]. **Exception:** If there is already a decision rendered by the same court recognizing the custom. It becomes an official act of the judicial department in which the court may take judicial notice \[Sec. 2, Rule 129, Rules of Court\]. **II. LEGAL PERIODS** ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ **Section 31 Revised Administrative Code (RAC). 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 sunset to sunrise. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ 1\. **Year** -- 12 calendar months \[*Commissioner of Internal Revenue vs. Primetown Property Group, Inc.*, G.R. No. 162155 (2007)\]. Sec. 31 of the RAC governs the computation of legal periods with respect to counting a year since it is a more recent law than Art. 13 of the Civil Code which indicated that years are of 365 days each \[*Commissioner of Internal Revenue v. Aichi Forging Company of Asia*, G.R. No. 184823 (2010)\]. 2\. **Month** -- 30 days, unless month is identified --------------------------------------------------------------------------------------------------------------------------------------------- If months are designated by their name, they shall be computed by the number of days which they respectively have \[Art., 13, Civil Code\]. --------------------------------------------------------------------------------------------------------------------------------------------- 3. **Day** -- 24 hours 4. **Night** -- Sunset to sunrise 5. **Calendar week** -- Sunday to Saturday 6. **Week** -- 7 successive days, not necessarily Sunday to Saturday. ------------------------------------------------------------------------------------- The first day shall be excluded, and the last day included \[Art. 13, Civil Code\]. ------------------------------------------------------------------------------------- **Rule if the last day is a weekend or a legal holiday\ **If the last day of the period, as thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits, the time shall not run until the next working day \[Sec. 1, Rule 22, Rules of Court\]. **Exception for contractual obligations:** The act will still be due despite the fact that the last day falls on a weekend or a legal holiday. This is because obligations arising from contracts have the force of law between the contracting parties **Art. 7, NCC -** *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 declared 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)* Legislature - repeal a statute Judiciary - declare unconstitutionality [2 kinds of repeal:] 1. Express/declared repeal - contained in the provision of a subsequent law 2. Implied/tacit repeal - takes place when provisions of subsequent law are incompatible/inconsistent with the earlier law; takes place without declaration in the subsequent law - Conflict between earlier and subsequent law: in favor of later law - "All previous laws inconsistent with the present law are hereby repealed. - Implied repeals are not favored; they rest only on presumption - There must be plain, unavoidable and irreconcilable repugnancy between two; if both laws can be reasonable construction stand together, both will be sustained. - Requisites: 1. Same law covers the same matter 2. Latter is repugnant to the earlier - When no incompatibility and both can stand together, one does not impliedly repeal another - Implied repeal for criminal act lower than that provided by a former law - Retroactivity effect - not impair/affect vested rights **Art. 8, NCC -** *Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines. (n)* - Jurisprudence - not considered as independent source of law; cannot create law; invasion of legislative power - Judge-made law - Court's interpretation of law forms part in a law; merely establishes legislative intent [Role of Jurisprudence] - Formulate and declare the law as applied concretely to the case before him [Functions] 1. To fill deficiencies of legislation - provide rule for the facts of a given case before him (neither provision of law not established custom) 2. To adapt and adjust rigid and inflexible provisions of law - Rendered inadequate by time circumstances, to changing conditions of life and society - So that the law may accomplish its mission [Doctrine of *Stare Decisis*] - Once a question of law has been examined and decided, it should be deemed settled and closed for further argument - Does not mean blind adherence - Principle should not apply when there is conflict between the law and precedent; abandon any doctrine when it violates a law **Art. 9, NCC** - *No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws. (6)* GR: Judge/court shall not decline to render judgment when the law is silent, obscure and insufficient EXC: criminal prosecutions - No law punishing an act, case should be dismissed [Duty of the court to decide] - ignorance/lack of knowledge on a certain matter or not knowing where to find the law are NOT reasons in dismissing a case [Obscurity/Deficiency of Law] - If the law is vague/obscure - the court should clarify it BY rules of statutory construction. - If law is silent/insufficient - court should fill deficiency by resorting to customs or general principles of law. - Gaps and deficiencies in law - courts are given freedom to resolve the case - Case is new - cannot follow foreign laws; power of legislature - Judiciary duties - introduce new ideas and theories into the legal system [Unjust laws] - Judge should apply the law without fear or favor; follow its mandate - What the law grants, the court cannot deny. - Judge cannot refuse to apply law because it considers it as unjust. - If the law is clear, it must be applied. [Suppletory rules (Customs)] - No express provision with respect to suppletory rules in case of deficiency in the law. - Considered existing. [Customs] - Juridical rule which results from a constant and continued uniform practice by the members of a social community, with respect to particular facts and observed conviction that it is juridically obligatory. - Requisites: 1. Plurality of acts - various resolutions of a juridical question raised repeatedly in life 2. Uniformity - identity of acts or various solutions to a juridical question 3. General practice by a great mass of the social group 4. Continued performance of these acts for a long period of time 5. General conviction that the practice corresponds to a juridical necessity or that it is obligatory 6. Practice must not be contrary to law, morals or public order. [Distinguished from Law] +-----------------------+-----------------------+-----------------------+ | **As to** | **Customs** | **Laws** | +-----------------------+-----------------------+-----------------------+ | **Origin** | Society; | Governmental power; | | | | | | | spontaneous | conscious creation | +-----------------------+-----------------------+-----------------------+ | **Form** | Tacit | Manifested on | | | | acts/usages | +-----------------------+-----------------------+-----------------------+ | | unwritten | written | +-----------------------+-----------------------+-----------------------+ [Application] - Different domicile, different customs - General rule shall be applied as to the place of performance or consummation of juridical act **Art. 10, NCC** - *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)* - Doubt in interpretation or application of laws - when all rules of interpretation fail; right and justice to prevail - Equity - attribute of justice; correct/modify law; limit excessive generality OR extend to supply deficiencies **Art. 11, NCC -** *Customs which are contrary to law, public order or public policy shall not be countenanced. (n)* - Court don't recognize the force of a custom in opposition to positive law. **Art 12, NCC -** *A custom must be proved as a fact, according to the rules of evidence. (n)* - If customs not known to who have the best means of knowing it - positive evidence of its non-existence **Art. 13, NCC -** *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)* **Art. 14, NCC -** *Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in the Philippine territory, subject to the principles of public international law and to treaty stipulations. (8a)* **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 theory** - makes nationality/citizenship as the basis for determining the personal laws of an individual - Purely personal relations and status and capacity for juristic acts. [Governed exclusively by the PH laws:] - Marriage, divorce or legal separations - to the conjugal partnership, to support the members of the family, to marital authority [Foreign adoption] - Private International Law - Created by the law of a state having jurisdiction over it - same status in effect in another state - EXC: contrary to public policy or interests of inhabitants forbid its enforcement and demand the substitution of *lex fori.* **Art. 16, NCC -** Real property as well as personal property is subject to the law of the country where it is stipulated. 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. (10a) [Law on Property] - Property is subject to the laws in [which it is located] - Principle upon voluntary submission to local laws implied in holding of property within the country - As all tangible things occupy a place in space (*[situs] of the legal relationship*) subject of the [property right] [Real Property] - Legal and actual situs of immovables are identical - Question affecting the land - governed by the law of space where it is located. - Local sovereignty - can determine the status of the lands and immovable property within its border (title,incidents,mode in which they are charged) [Personal Property] - Subject to the law of the place where it is located - Owner may be taxed even if property is separated from him and it is not his domicile, citizen or resident of the State imposing the tax. [Determination of Property] - Whether the property is movable - according to the national laws of the owner (*lex situs* govern) [Right to possession] - Right of the owner of the movable property - unless proven possession is illegal - Illegal possession - governed by the laws of the State it is found as it is against public order [Law of Succession] Considered from the point of view of : 1. [Execution of wills] - Formalities of execution - governed by the law of the place of execution (Art 17 NCC) 2. [Distribution of property] - Governed by the law of the nation of the deceased - Irrespective of the nature and location of the properties left at the time of his death [Various questions of distribution:] a. Order of succession in cases of intestacy b. Intrinsic validity of testamentary provisions (intestate succession) - to be determined by the laws of his own state or country c. Extent or amount of property which each heir is entitled to inherit d. Capacity of certain heirs to succeed e. Questions of preterition, disinheritance, and collation [Applicability of Foreign Law] - Applies when legal/testamentary succession has taken place in the PH - Foreign law is consulted ONLY in regard to the order of succession or extent of succession rights [Foreign law involved] - must be alleged or proved. **Art. 17**, NCC - *The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed.* *When the acts referred to are executed before the diplomatic or consular officials of the Republic of the* *Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution.* *Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. (11a)* *Par (1)* - No rule is better settled that that matters bearing upon execution, interpretation, and validity of a contract - determined by the law of the place where the contract is made. Par (2) - Legislative policy in this jurisdiction on ANY particular object cannot be defeated by a foreign judgment obtained by Filipino citizens. [Validity of Obligations] **Art. 18, NCC -** *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)* *[GR:]* - Deficiency in Code of Commerce and special law - this Code shall be applied. - No deficiency - Code not applied; special law shall prevail over general law [EXC:] - Where the Code does not observe the principle contained in this article with consistency - Special cases: special laws made only suppletory and thus Code is made primary law [Moral Negligence/Fault] - person is required to act with prudence towards others, not with charity; imposes diligence not altruism Failure to make sacrifices or egoism - no civil liability

PERSONS Notes.docx

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