PERSONS AND FAMILY RELATIONS

PRE-MID TERMS
Consist of 2 parts:
1. Persons governed by Articles 1-51 of the civil code
2. Family relations used to be governed by the Book 1 of the
Civil Code Persons and Family Relations, but with the
enactment and passage of the Family Code of the Philippines
that took effect in 1988, the entire topics on Family Relations
are now incorporated in the Family Code of the Philippines
which is a law separate from the Civil Code. Principally the
legal sources of the subject matter Persons and Family
Relations are Book 1 of the Civil Code and Family Code of
the Philippines. Any provisions from Article 52 on wards
which specifically govern Marriage and Family Relations
found in the Civil Code are no longer in effect but superseded
by the provisions of the Family Code.
5 books that cover the entire civil code
1. Book 1 - Persons and Family Relations including the Family
Code of the Philippines
2. Book 2 - Property
3. Book 3 - Succession
4. Book 4 - Obligation and contracts
5. Book 5 - Special contracts
ARTICLE 2

Provides the rule on when laws take effect

When does the law take effect? Article 2 of the Civil Code expressly provides that law take
effect after 15 days following the completion of their
publication in the OG or newspaper of general circulation in
the Philippines, unless otherwise provided.
The last phrase unless otherwise provided, has been the
subject of constant debate in the past. Specifically the issue is
confronted with the legal community in the past was as to
whether or not this phrase refers to the requirement of
publication or simply it refers to the date of effectivity.

One school of thought says that the phrase unless

otherwise provided, refers to the requirement of
publication. So those who advocate for the school of
thought takes the position that generally a law has to be
published to take effect unless the law itself dispenses
the publication. On the other hand, the opposing view,
takes the position that the phrase doesnt refer to the
requirement of the publication because publication is
always required but it only refers to the date of
effectivity. Specifically the 15 day period from
completion of publication. If the law doesnt provide for
the specific date of effectivity after completion of
publication, 15 day applies.
Example:
If a law is published today and in case the law is silent as to
the date of effectivity then you apply the 15 day period. This
means that if the law is published today you count 15 days
from today and based in the latter interpretation the law takes
effect on the 16th day because it says 15 days after the
completion of the publication.

Issue:
Which
of
these
2
interpretations is now controlling?
Tanada et al (Members of the Movement of Attorneys Brotherhood
Integrity and Nationalism - MABINI) vs Tuvera, 1986
Facts: Petitioners went to court to question the constitutionality of
some presidential issuances issued by Pres. Marcos in the exercise of
his legislative power. During the time of Pres. Marcos there was no
Congress, so legislative and executive powers were exercise by the
Office of the President. Most of the presidential issuances that time
were not published thus the reason petitioners questioned the validity
those issuances. One of the principal grounds invoked by the petitioners
was of Article 2 of the Civil Code on the requirement of publication.
Issue: WON publication is a mandatory requirement or can be
dispensed with in the light of the Article 2 of the Civil Code?
Ruling: SC settled this case and ruled that publication of the law is a
mandatory requirement if only to comply with the mandate of due

process. The reason of which is that people who are supposed to be

governed by the laws and the subjects of penalties in case of violations
cannot be expected to comply with laws of which they dont have
knowledge. This would result to violation of due process to penalize
people for not complying with law that they arent aware of. Simple
requirement of due process, therefore, publication is a must before a
law can be valid and take effect. SC further explains that the phrase
unless otherwise provided doesnt refer to the requirement of
publication instead it simply refers to the date of effectivity. This refers
to the 15 day effectivity from completion of publication, meaning that
Congress can either shorten the 15 days or provide a longer period of
more than 15 days. A good example is our Civil Code which expressly
provides that it will take effect 1 year from the date of publication.
Without the publication there is no way by which the 15 days period
can be counted.
Compared to; Philippine Veterans Bank-Employees Union vs Judge
Vega
Facts: This case encompass on RA 7169. Before the effectivity of this
law PVB due to financial issues was faced under liquidation
proceedings. Liquidation proceeding is a stage in a corporate life
prelude eventual dissolution, the winding up stage of a corporate life.
During liquidation proceedings before a corporation is put to an
end/dissolves, the law requires that its affairs shall be
liquidated/obligations be settled by converting all its assets into cash
and proceeds applied to pending liabilities. After paying all liabilities,
remaining assets will be divided among the stockholders. In case of
losses, stockholders get nothing. To pursue liquidation proceedings,
interest parties apply the case in the liquidation court the RTC in this
case at bar decided by Judge Vega. During the pendency of the
liquidation proceedings, a new law was passed RA 7169, which on the
other hand mandates the rehabilitation of the bank.

Rehabilitation meaning is a process of

salvaging of a dying bank and putting it into
life again or the process of re-opening a bank .
The process of liquidation and rehabilitation are diagrammatically
opposed each other, the former refers to death of the corporation
whereas the latter brings it back to life. There lies now the problem,
despite the effecivity of RA 7169 the liquidation court presided by
Judge Vega continues to exercise jurisdiction of the liquidation
proceedings. In effect, petitioners filed a case questioning the action of
Judge Vega. RA 7169 was signed into law by Pres. Corazon Aquino in
January 2, 1992. According to central bank RA 7169 took effect only
on March 10, 1992, 15 days from publication.
Issue:
1. WON the court presided over by Judge Vega has jurisdiction to
continue with liquidation proceedings?
2. When RA 7169 does took effect? (An argument raised by Central
Bank and Board of Liquidators)
Ruling:
SC ruled as follows:
1. General rule, a law for purposes of its effectivity must be published
and will take effect 15 days after completion of publication.
2. Exception, as when the law itself provides that it will be effective
immediately upon approval.
SC explains that in so far as RA 7169 is concerned, as stated in Section
10 of RA 7169 this law will take effect immediately upon approval. It
is clear that the legislator in enacting RA 7169 intended to make the
law effective as of the date it is approved and thereof it choose to
dispense with the requirement of publication invoking unless
otherwise provided. Moreover SC said, even assuming that
publication is necessary for the effectivity of this law, the fact is this
has been published on February 24, 1992. Pursuant to Article 2 of the
Civil Code, it took effect at the time it was published and not March 10,
1992 as imposed by Central Bank.
The disturbing portion of the decision of the SC is when it said that
The legislature has actually the authority to dispense with the
requirement of publication pursuant to the phrase unless otherwise
provided. In above case the SC said that Section 20 of RA 7169 which
states that the law shall take effect immediately upon approval is valid.
This is now in conflict with the ruling of the Tanada case as it said that
publication cannot be dispensed with and the phrase unless otherwise
provided refers to the date of effectivity and not to the requirement of
publication. Hence, these are 2 contradicting decisions (Tanada decided
in 1986 and PVB-EU in 2009).
Which of this ruling is the controlling doctrine?

We have a principle in law that in case of conflicting decisions, the later

decision is supposed to prevail over the old decisions because its latest
decision that expresses the current will/latest sentiment of the court. Its
presumed that the court taken into consideration the previous decision
and therefore superseded the old decision.

Personal take of Atty. T is the ruling of Tanadas case, as its more in

accord with the tenure of Art 2.

Example: OG date of issue is June 2015 but is actually

released to circulation on July 2015.

Justification as follows:
1) Under Article 8 Section 4 par. 3 of the Constitution, it says that no
principle or doctrine of law lay down by the Supreme Court in a
decision rendered en banc or in a division maybe modified or reversed,
except by the SC sitting en banc. SC may decide cases either en banc or
by division. En banc means that SC sit as one court, all the members
(15 justices) participating in the deliberation and vote with the issue
presented in the court. With the volumes of cases clogging with SC,
they divided themselves into 3 divisions with 5 members. Under the
constitution that the decision rendered by the court in a division
represents the decision of the entire SC. A decision rendered in any
division cannot be appealed to the SC en banc. Doctrine of law or
principle initiated by the SC either en banc or by a division can
only be modified/amended/superseded by a decision rendered by
the SC en banc. Hence, a decision made in a division cannot in
anyway supersede a decision/principle initiated by the court either en
banc or division.
2) Tanadas case was decided in SC sitting en banc whereas PVB-EU
case was decided by SC in a division. Following the rule, decision
made in Tanada which makes publication a mandatory requirement
cannot be modified or superseded by the decision rendered in the case
of PVB-EU which is only laid down by SC in a division. Even if PVBs
decision is the latest, by virtue of Article 8 Section 4 par. 3 of the
Constitution doesnt in anyway supersedes the decision on Tanadas
case.
a.

Statement of the court in PVBs case

to the effect that the legislature may
provide for the exception for the
requirement of publication as when
the law provides that it will take
effect immediately upon approval is
more of an Obiter Dictum. Obiter
dictum means a side remark/part of
the decision rendered by the court in
the case but not necessary for the
determination of the issues involved
but nonetheless it forms part of the
decision. This does not create a
biding precedent.
The ruling in Tanadas case the
publication
is
a
mandatory
requirements isnt an Obiter Dictum
but the very issue of the case. Unlike
in PVBs case publication is not an
issue since the law has been
published. Nonetheless SC made a
side remark that publication can be
dispensed with when the law itself
provides that it will take effect
immediately.

Between the 2 rulings, Tanada carries more weight. Whether the

law is penal/non-penal, general/specific or for public/private
interest, publication cannot be dispensed with.

How to determine a newspaper in general circulation?

The Old Civil Code before it was amended by EO
200, the only mode of publication is OG but
because of limited readership Pres. Aquino
promulgated EO 200 which effectively amended
Article 2. As it is now, publication of law can be
done either through OG or newspaper of general
circulation in the Philippines. This means, that it
should be done in a national newspaper. Three
common newspapers of general circulation in the
Philippines, namely as follows: Philippine Daily
Inquirer, Manila Star and Manila Bulletin.

When is a law deemed published and when do we reckon

the 15 day period for effectivity of law?
OG isnt released in a circulation on a daily basis
unlike in the newspapers which are issued everyday. Its
possible that OG is issued on a particular date but actually
released to circulation on a different date.

Lara vs Del Rosario (involving the Civil Code of the Philippines)

Facts: The Civil Code of the Philippines came out on June 1949 issue
of the OG, in this case the date when the civil code took effect was
raised as an issue. It was established that while it came out in June
1949 issue of OG the Civil Code, OG was released to circulation later
on August 1949.
Issue: When does the Civil Code of the Philippines took effect?
Ruling: SC ruled that OG took effect on August 30, 1950, thus 1 year
after completion of publication counted from August 1949 when OG
was released for circulation. Hence, publication takes effect on the
time of release of publication and not upon issuance.
However, above decision creates so much controversy because its
against the provision of Section 11 of the Administrative Code. This
expressly provides that for purposes of fixing the date of application,
the OG conclusively presumed to be published on the date indicated as
the date of issue. This is again a situation where SCs decision is
against the literal language of the law. This has been criticized by the
legal community for obviously rendering a decision contrary to the
provision of the administrative code.
Ruling on this case should only be circumscribed to the specific law
involved in the case, the Civil Code of the Philippines.
There is wisdom on this conclusive presumption on the date publication
which is the date of issue. Reason thereat is that it would be very
difficult to reckon the date of publication to the date of actual release
because not all people are well aware of the release of the OG so there
will be no uniform information as to the actual release of the OG. The
framers of the Administrative Code are deemed prudent to fix a
uniform date and that is the date of issue regardless of the actual date of
release.

When Art 2 speaks of laws, what exactly are covered by the

term laws?
Encompassing term laws covers many things, specifically
as follows:
1. Statutes laws enacted by the legislature, Senate
and the House of Representatives. Ex. RAs
2.

Presidential issuances laws issued by the

president, in his exercise of legislative powers as
delegated or directly vested upon the Office of the
President by the Constitution. The president in an
executive officer, he executes law, but in a limited
instances the President also exercises legislative
powers either by delegation from Congress or
direct authority from the Constitution. Ex.
Presidential
Decrees,
Executive
Orders,
Presidential
Proclamations,
Presidential
Memorandum, Presidential Circulars

3.

Rules and regulations promulgated by the

Administrative Bodies law promulgated by
government agencies that exercise quasi legislative
powers pursuant to a validly delegated authority.
How is this made possible that they exercise quasi
legislative powers when these are normally exercise
by Congress? With the evolution of society and
laws are getting complicated, there are
matters/subjects of legislation which are actually
beyond the expertise of Congress. Due to necessity
to come up with more sensible and effective laws,
thus society came up with the doctrine of
Administrative functions where legislature may
delegate to certain administrative bodies which are

supposed to have the expertise necessary to

implement a law passed by Congress.
Laws are couched in general terms, it contains the
general statement of the policy, objectives,
purposes, remedies and penalties, but the details as
to the implementation of the law are conspicuous
by their absence. It cant be found in the face of the
law but it usually reserves to the specific agency
tasked to implement, called the Administrative
Bodies. Note that there is a provision of the law
which provides authority to administrative bodies
to promulgate rules and regulations for the effective
implementation of laws.
Rules and Regulations created by Administrative Bodies also need to
be published
How did it happen that Administrative Bodies have the power to
legislate?
-

The principle of the Administrative Bodies in exercising

quasi-legislative or quasi-executive powers was prompted by
the changing ties because society became more complicated,
there are matters that can no longer be competently decided
by those who have the power to legislate esp. the Congress.
Not all matters concerns society which can be properly and
effectively addressed by Congress in the exercise of its
legislative powers, these matters require expertise of some
individuals which are now known as members of the
Administrative Bodies.

Most of the laws made by Congress are couched in GENERAL

TERMS. The Administrative Bodies will be the one who will fill-in the
details of these laws.
Examples of Administrative bodies:
Social Security Commission has the duty to implement social security
law.
HLURB, LTFRB, Pollution Adjudication Board, Dangerous Drugs
Board, and many more (haha)
-

They are authorized to promulgate rules, not on the basis of

their inherent right because they do not have inherent right to
legislate but pursuant to a validly delegated authority from
Congress.
A law is created by Congress, it specifically provides a
particular law some details of the implementation of the law
shall be provided by the Admin Body concerned has the duty
to implement.
Whatever rules and regulation promulgated by these Admin
Bodies pursuant to the validly delegated authority are deemed
to be laws and therefore they need to be published for them to
be valid. (the ruling in the case of PITC)
PITC v Angeles

Facts: Administrative Body involved is the Philippine International

Trading Corporation task with the duty to implement the trade
balancing law enacted during the time of Pres. Marcos and Pres.
Aquino. Pursuant to this validly delegated authority, PITC promulgated
an Administrative Order requiring all importers who apply for import
permit to import goods from socialist countries particularly the Peoples
Republic of China to submit a confirm export of Philippine products
program (so you apply for importation, you must be able to present an
exportation program). The purpose of this program is to balance the
trade between the two countries. (ex. So if an importer intends to
import 100m worth of products from China, the importer under this
Admin Order is required to present a program of exporting Philippine
products worth 100m to China to balance the trade) Some importers,
particularly the two involved in this case Remington and Firestone
failed to comply with the requirement presenting a confirmed export
program of Philippine products to China, so there importation permit
were denied. So they went to court to challenge the constitutionality of
the Administrative Order. They challenged the constitutionality of the
validity of the Admin Order on two grounds; first, they
questioned the valid authority of PITC to promulgate AO contending
that it has no authority to promulgate rules and regulation. Second,
its not published. So pursuant to Article 2 its not binding and its not
effective.

How did the SC resolve the issue?

Held: On the first ground SC in favored PITC. SC said that PITC is an
administrative body used to be an independent admin body but
subsequently became an adjunct of the DTI and being an admin body it
has the power to issue rules and regulations in the exercise of validly
delegated authority. PITC sustained its power to promulgate the
question admin order.
On the second issue SC stated that while PITC has the power to issue
rules and regulations it doesnt mean that the AO is valid because being
a law in contemplation of Article 2 it needs to be published for
purposes of validity which requirement obviously was not complied in
the case. So the AO issued by PITC was declared invalid for failure to
comply with the publication.
TAKE NOTE: not all rules and regulations promulgated by admin
bodies are required to be published because not all rules and regulations
promulgated by them are considered laws they are only considered
laws if promulgated by admin bodies for the purpose of implementing
the law, to fill-in the details of a law.
There is a need to distinguish the rules and regulations which are
merely interpretative in nature or which are internal intended to govern
the internal affairs of the particular admin agency and does not intend
to govern the general public because these are technically does not
create new laws unlike the rules and regulations that are intended to
fill-in the details of the law or intended to provide the details for the
implementation of the law because these rules and regulations are
technically new laws in addition to the existing one. A law to be
considered a law must involve the general interest of the public at
large. (ruling in the case of Victorias Milling Corp.)
Victorias Milling Corp v SSC
Facts: Social Security Law, a social legislation under which the
employees and the employers are required to remit certain amount of
money to the system. They are called premium contributions, certain
percentage of the salary of the employees are deducted, remitted to the
system and the employers concerned are also required to submit their
own counterpart called the employers contribution. Also, to be remitted
to the system and all those contributions shall form part of the pool of
resources which may be avail by the members of the system. Thats
where the members can obtain salary loans, calamity loans, and all
kinds of assistance.
In the computation of the amount of contribution, the law provides for
certain percentage. (certain percentage for the salary, certain percentage
that will be the basis for computing the contribution on the part of the
employer and on the part of the workers) In applying the computation
the law provides the base figure, the basis for the percentage of the
deduction or contribution that is the compensation of the worker. (ex.
Certain percentage of the worker, if the worker is earning 10k a month
that will be the basis for determining how much would be the
contribution) It would be necessary to determine how much the
monthly salary is. The law itself defines what compensation is, in the
prior law, compensation has been defined as all remunerations received
by the worker or employers except overtime, bonus and allowances.
But this law was later on amended. The amendatory law has redefined
the meaning of compensation. Compensation is now defined as
remuneration received by the workers, there is no more exceptions.
Because of the variance of the definition of compensation as provided
by the amendatory law, SSC as the implementing body deemed it
prudent to published or issue a circular making known to all covered
members and employers the SSCs interpretation of the amendatory law
on the definition of compensation so that the covered members will be
able to arrived at the proper computation of their respective
contributions. The circular was made known by the SSC to the
members that the computation for the purposes of determining the
contribution, allowances, overtime and bonuses shall now be
considered to form part of the compensation. (it is prejudicial to the
employers because the base figure now increases unlike the prior law
only the basic remuneration is covered).
Victorias Milling corp went to court to question the validity of the
circular on two grounds.
Issues: First, the petitioner contended that SSC has no authority to
promulgate the question circular. Second, it is not binding and effective
because it has not been published.
Held: On the first issue, SC said being an admin body it has the
authority to issue and technically SSC did not create new rules and
regulations it merely interprets an existing law. It only makes known its
official position as to how the law should be interpreted. Second, SC

said as to the requirement of publication not being a law technically or

a rule or regulation it does not need to be publish because its only
interpretative in nature, technically it is not a new law or rule and
regulation and it merely interprets an existing law.
Another exception to the rule that rules and regulations like all other
laws should be published is when the rule and regulation is internal in
nature. (ex. Requiring the female employees to wear miniskirts during
office hours is obviously internal in nature, not intended to affect the
general public, thus it is not qualified as a law so there is no publication
needed)
TAKE NOTE OF THE DISTINCTION

posted in at least 2 consecutive of the LGU concerned. As

practice, ordinances are posted in public markets, church or
other conspicuous place.
If the ordinance is punitive in nature (imposes penalty or
revenue), LGC provides that it must be published in
newspapers of gen circulation in the province, city or mun
concern. (READ LGC for further knowledge regarding this)
GENERAL REQUIREMENT: post in the bulletin board
and at least 2 consecutive place
Publication is still needed in compliance to due process

In sum the requirement of publication applies to laws either of national

or local application. Requirement of publication applies whether the
law affects the general public or directly affects private interests.

Decisions of the Supreme Court judicial decisions

-

Judicial decisions in its strict sense are not laws

but under Article 8 of the Civil Code it form part of the legal
system in the Philippines, in that sense judicial decisions are
laws

ARTICLE 3 - IGNORANCE OF THE LAW EXCUSES NO ONE

FROM COMPLIANCE THEREOF.
-

TAKE NOTE: that the judicial decision referred to in Article 8 in

relation to Article 2 are decision of the Supreme Court.

Decisions by the lower courts are not considered laws, they

do not form part of the legal system. They do not fall under
Article 2.

Only the decisions of the SC need NOT to be published. What is

the mode of publication? The answer is found in the case of De
Roy v CA

De Roy v CA
Facts: This involves an action for damages filed by the victims of an
accident the falling down of the firewall of lapidated bldg. and as a
result thereof one died and several others are injured. The owners of the
lapidated bldg. got sued and the trial court in favored of the victims and
against the owners of the property involved. Aggrieved by the
decisions, the defendants question the decision of the trial court. They
wanted to appeal the decision but for one reason or another their lawyer
filed instead of filing a notice of appeal on the 15 th day, they filed a
motion for extension to file a appeal. This was however denied by the
court taking cue from the decision lay down by Habaluyas v. Hapson,
in this case SC made a definitive ruling that the 15 day period to file a
motion for reconsideration is none extendable. Pursuant to the ruling,
the court denied the motion, this ruling however was questioned by the
defendants and raised before the SC the argument that the doctrine laid
down in Habaluyas case is not binding because it was not published in
the OG as required by Art. 2 of CC.
Held: SC rebuffed the defendants contending that there is no law
requires that the decisions of the SC to be published in the OG. It is the
duty of lawyer to keep himself abreast with the recent decisions of the
SC as published in the advance reports of the decisions of the SC or
those published in the SCRA or in law journals and maybe now through
their website.
Bottomline: Judicial decisions as form part of the legal system need
also to be published to comply the requirement of due process. But
unlike ordinary laws those which are promulgated by congress and the
president the mode of publication need not follow Art. 2 or EO 200
pursuant to the ruling of De Roy which enough that these are published
in diff. mode of publication as what has being practice today advance
reports of SC decisions or in SCRA, law journals, website and other
similar modes of publication. Not strictly thru OG or newspaper of
general circulation.
Local Laws or local ordinances
-

Laws promulgated by local legislative bodies.

These local ordinances are also considered laws only they are
local in application but in contemplation of Art. 2 and relation
to the Tanada doctrine these are also required to be published.

The mode of publication is not strictly governed by Art. 2 or EO 200.

-

The mode of publication is governed by the provisions of the

LGC, LGC as a general rule local ordinances need not be
published in OG or newspaper of gen circulation
The mode of publication is that it must be posted on the
bulletin board of the Capitol bldg, city, mun or brgy hall and

Cannot invoke as a defense that he did not know about the

law even if he is honestly have no idea about the law
If this is allowed it would be convenient for anyone to excuse
of ignorance because it is a state of mind, it would be very
difficult to divined every individuals thoughts
In order to avoid evasion of a law the framers of the CC
deemed it more prudent and practical to adopt Art 3.
Founded on necessity, practicality and convenience, policy
without which chaos would be promoted if ignorance of the
law is allowed as a defense it would encourage evasion of the
law
Basic principle in law
Based on conclusive presumption that everyone is presumed
to know the law. Actual knowledge is not required because
everyone is conclusively presumed to know the law

If everyone is presumed to know the law, why is there still a need for
publication of the law? How to reconcile the presumption from the
need of publication?
-

To reconcile the two it must be emphasized that Art. 3

presupposes Article 2
The conclusive presumption that everyone is presumed to
know the law only operates if the law has been published. If
it is not published then there is no conclusive presumption.
The publication served as the constructive notice to the public
about the existence of the law.
A law which is not published is no law at all

TAKE NOTE: Ignorance of the law should be distinguished from

ignorance of fact.
Not excused in Art 3 is ignorance pertains to questions or matters of
law. But if a person is ignorant of the fact and it is relevant to the issue
of liability, ignorance of fact may be a defense.
Why is mistake of fact a defense?
-

It is a defense because if there is invocation of mistake of

fact, it negates criminal intent.
The test is there must be a reasonable basis for the honest
mistake and the actor must not be guilty of any fault or
negligence (ruling in the case of Ah Chong)
US v Ah Chong

Facts: One night, the cook was suddenly awakened when the door of
the room where he stayed appeared to be pushed from the outside. Ah
Chong asked the fellow outside to identify himself but he got no reply.
The pushing of the door continued and so this time Ah Chong warned
the fellow outside whom he believed to be an intruder that he would
kill him if enter the room. At this time, the door was eventually pushed
open forward and in the process the chair placed against the door was
moved forward hitting Ah Chong. Believing that he was attacked by the
intruder, he picked up the knife that he hid under his pillow and swung
in wildly into the dark, turned out that it was his roommate the
houseboy. He was prosecuted with homicide and the defense he
invoked is mistake of fact. He said it was an act of self-defense, he
thought that he was under attack by an intruder.
Held: The SC considered the surrounding circumstances of the incident
and it was established that days prior to the incident there have been
reports of rampant criminalities, robberies, and thieveries committed in
the neighborhood which justified Ah Chong to keep a knife under his
pillow as a way of protection. And the fact that he warned not once but

twice as the intruder to identify and warned that he will kill him if he
enters the room. SC said that Ah Chong is not guilty of any fault or
negligence. He did what he needed to do under the circumstances to
prevent the killing. And so SC said there was a legitimate invocation of
the principle of mistake of fact because had the facts as Ah Chong
believed it to be had the intruder is really an intruder it would be a valid
act of self-defense were it not for the fact that there was a mistake.
There was reasonable basis entertained the mistake and there was no
fault or negligence on the part of Ah Chong. It was a legitimate act of
self-defense.
As opposed to the case of;
Yapyuco v Sandiganbayan
Facts: The accused are members of the police force were charged of
murder and attempted murder as a result of a shootout. The policeman
acting on a report from an informant proceeded to an area to observe
the presence of some NPA armed rebels and with the informant told
them that the suspects were on board in a Tamaraw jeepney. The
policemen pumped bullets to the vehicle hitting the passengers. When
prosecuted the police invoked mistake of fact declaimed that they
thought that the passengers were really members of the NPA.
Held: But the SC rejected their plea of mistake of fact as a defense.
First, the police have no reasonable basis to assume that the passengers
were NPA rebels because their only basis is the unverified report of the
Brgy. Captain, they did not make their own validation of the report.
They simply took the unverified report. It is an absence of reasonable
basis. Second, assuming that the passengers were really NPA rebels yet
the policemen were not justified in directly shooting at the rebels
without warning. It is a police standard operating procedure never to
fire the first shot. The most prudent thing that the police should have
done is to fire at the tires of the vehicle to immobilize the jeepney but
based on the location of the holes of bullets, it is obvious that the police
were firing their guns directly to the passengers. From the evidence, the
policemen were really aiming to shot the passengers not immobilize the
vehicle. Even if their belief were true justifying that they are not guilty
of negligence, in not following the standard operating procedure,
directly firing at the suspects without being fired upon first thats
negligence. Therefore, they cannot legitimate invoked the principle of
mistake of fact.
No reasonable basis and there is negligence on the part of the accused,
they cannot invoked mistake of fact.
TAKE NOTE that the principle initiated in Art 3 (ignorance of the law
excuses no one) applies only if the law involves a NATIONAL LAW
(Philippine Law).
If the law involved is a foreign law, ignorance of that foreign law is a
defense.
What happens if the law involved is a foreign law?
-

If a law involved is a foreign law, the party invoking or

relying should prove it by ways provided in the Rules of
Court (more on evidence class)

If there is failure to prove the foreign law, what happens?

-

In our jurisdiction, the court may apply the principle of

processual presumption. Under this principle the court will
assume that the foreign law involved is the same of our own
law (applying Philippine law). (ruling in Yao Kee v
Gonzales)
Yao Kee v Gonzales

Facts: The issue of the case is WON there was a valid marriage
between Sy Kiat and Yao Kee. According to the evidence the two got
married in China allegedly in accordance with Chinese custom or
Chinese laws on marriage, while Yao Kee was able to prove the fact
that a wedding took place in China however, failed to prove the law or
custom in China on marriage. Fact of marriage is different from the law
on marriage. Though a wedding took place, there was no enough
evidence what the law or custom in China on marriage. Without proof
of what the law in China is on marriage, the court will not be able to
determine whether the wedding was a valid marriage. In order to
resolve the issue despite the failure to prove the foreign law, the court
applied processual presumption. Determine the issue of the validity of
marriage on the basis of Philippine laws which is presumed to be the
same of that of the laws of China. SC said under Philippine law one of

the formal requisites of marriage is the presence of a solemnizing

officer. Absence of this requirement renders the marriage to be void. It
was established by the evidence Yao Kee testified that their wedding
was celebrated without a solemnizing officer. Given the facts, SC said
that the wedding took place in China was not a valid marriage applying
processual presumption.
ARTICLE 4
Laws shall have prospective application (should not operate
backward)
Prospective laws operate on facts, events or transactions that occurred
after the effectivity of the law
-

The reason of the prospectivity is due process. It would be a

grieved miscarriage of justice to penalize people for doing an
act which is not yet prohibited at the time it was done.
As a general rule it should not have a retroactive application
The people who are subjects to the law should be given fair
warning by publication.

A case which demonstrates the general principle of prospectivity law:

Buyco v PNB
Facts: Buyco is a bank borrower, he obtained loan from PNB. During
this time the government of the Philippines issued Backpay
Acknowledgement Certificate. It is granted to government employees
who rendered service during the war but were not pay their
compensation because the government ceased to function during the
war. Nonetheless, they rendered service esp those who served the
military were not paid their salaries. After the war, the government
deemed it just to pay them the salaries due in the form of backpay
acknowledgment certificate. Anyone who is granted with the certificate
is entitled to claim the money value of the certificate equivalent to their
respective claims. They can use the backpay certificate in case they
want to pay certain obligations. PNB at that time was a government
owned and controlled corp., Buyco happened to obtain loan from the
bank. When the loan fell due, Buyco offered to pay the loan in the form
of the backpay certificate. At the time PNB allowed to accept payment
in the form of backpay cert. However, before the offer of Buyco could
be acted upon by the bank the Charter of PNB was subsequently
amended. The new charter disallows the bank to accept backpay
certificate as a mode of payment and so the bank refused, declined the
offer of Buyco. Buyco went to court to compel the bank to accept the
backpay cert.
How did the court solve the issue? WON the bank can be compelled to
accept the backpay as a mode of payment of Buycos obligation.
Held: Taking cue from the principle that laws should have a
prospective application SC said that at the time the offer was made the
law enforced was still the old Charter of the bank. It was subsequently
repealed and the repealing Charter disallows backpay certificate as a
mode of payment. This law should not be given retroactive application
as to prejudice the right of Mr. Buyco. Being a law it should be given
prospective in application and therefore it should not apply to facts,
transactions and events that occurred prior to its effectivity. Since the
offer of Buyco to pay came about before the amendment of the law this
offer should be accepted pursuant to the old charter.
What are the exceptions to the rule of prospectivity?
1.
-

If the law itself provides retroactive application (unless

the contrary is provided)
No ex post facto law should be passed. Ex post facto law is a
law which gives retroactive effect but is unconstitutional.

Exception to the exception:

Ex post facto law
-

A law that punishes an act when the time it was committed it

was not yet a crime or put greater penalty for an act to which
the law has a lesser penalty at the time an act was committed.
IT CANNOT BE DONE.

Another type of ex post facto law

-

When a subsequent law was passed making the penalty

higher than the old law and making that later law applicable
to crimes committed before the new law took effect resulting

in the imposition of a higher penalty for the act committed

under the old law is also an ex post facto law.
2. When the law is penal and favorable to the accused it should be
retroactive pursuant to Art 22 of RPC
TAKE NOTE: if it is favorable to the accused it should be
retroactive in application. (People v Patalin)
Exception to the exception:
It cannot be given retroactive application in the ff. circumstances:
a. If the accused is a habitual delinquent- (within 10 years
from his last conviction of the crimes of serious physical
injuries, robbery, theft, estafa, falsification if again found
guilty of these crimes, for the 3rd time or 4th)
b. If it expressly provides that its provisions shall not apply
to pending cases or actions (even if it is favorable to the
accused) (ruling in Larga v Ranada)
Larga v Ranada
Facts: Larga was an employer who was charged with violation of the
provisions of the PAG-IBIG law. Under the PAG-IBIG law the
employee is required to remit his certain percentage of salary to the
PAG-IBIG fund. As a counterpart the employer is also required to remit
certain percentage of the salary of the employee to the PAG-IBIG. It
shall form part of the pool of resources that is applied for the benefit of
all covered employees. Under the previous law coverage under the
PAG-IBIG law is mandatory such that any employer who failed to
remit required premium may be criminally prosecuted. Larga failed to
comply the requirement was charged with the violation of the PAGIBIG law in the year 1986. During the pendency of the case the PAGIBIG law was amended. The amendment makes coverage voluntary, it
is no longer compulsory. So now, non-remittance is not a crime. Larga
moved for the dismissal of the case contending that under the
amendment now, the act of failure to remit is no longer a crime and
therefore he could not anymore be prosecuted. The SC rebuffed him
that a reading of the provisions of the amendatory law particularly
Sec10 only made applicable on a certain date there was a cut off period
for the application of the provisions. According to the law the cut off
period was Jan 1, 1987. From Jan 1 onwards contributions under the
system is no longer mandatory.
Held: SC said that it is obvious non-remittance of the required
premium before jan1, 1987 is still punishable by the old law. The
amendatory law made it clear that its provisions shall not cover
prosecutions or violations committed under the old law. The
prosecution of Larga was pursued by the government, he was not
allowed to invoked retroactive application of the amendatory law even
if it is favorable to him.
c.

If the accused himself disregards the later and invokes the

old law under which he is prosecuted

TAKE NOTE: the principle of retroactive application of penal laws

when favorable to the accused is obviously for the benefit of the
accused. If the accused chooses not to avail of the benefit, the law also
does not force it to the accused. (Illustrated in the case of Ferrer v
Pecson)
Ferrer v Pecson
Facts: Ferrer was charged with violation of Revised Motor Vehicle
Law which makes it a crime for a driver who thru fault or negligence
cause damage to property or death or physical injuries of persons. He
was charged and prosecuted before the MTC. Jurisdiction of courts is
defined by law (Judiciary organization act of 1948). Under the law
enforced at the time jurisdiction of MTC for criminal cases is limited
only to penalties that do not exceed 6 months, beyond 6 months RTC
has the jurisdiction. Under the RMV law the penalty of the crime has
the maximum of 6 years so mtc has no jurisdiction to try the case. But
the mtc nevertheless tried the case and Ferrer was convicted. Ferrer
appealed to RTC on appeal he moved for the dismissal of the case
contending that RTC had no jurisdiction bec the appeal was rendered
by MTC which has no jurisdiction. At this time, RPC was enacted.
Under the RPC the act of fault of negligence resulting to damage of
property or death or serious physical injuries of a persons, the penalty
of the offense is lower than of the RMV law and the imposable penalty
falls under the jurisdiction of MTC.
How did SC resolve the issue?

Held: SC said while generally criminal laws are given retroactive effect
if favorable to the accused this is not so when the accused himself
disregards the later law and invokes the old law under which he is
prosecuted. Ferrer invoked the old law contending that mtc had no
jurisdiction. His invocation of the old law was sustained and so the
court dismissed the case for lack of jurisdiction.
3. When the law is remedial or procedural in nature.
Laws may be classified:
a. Substantive law create rights and extinguished or
imposed obligations (ex. civil code of the phil)
b. Remedial or Procedural law do not create rights or
impose obligations but merely provide remedies or
procedure for the enforcement of rights created by
substantive laws (ex. rules of court)
o Normally they do not impair rights if given
retroactive application (ruling in Zulueta v
Brewery)
Zulueta v Asia Brewery
Facts: A dispute between Zulueta who had a contract with Asia
Brewery for distribution of beer products during the existence of the
contract, Zulueta filed against Asia Brewery for alleged breach of
contract in Ilo-ilo. Asia brewery also filed a case in Makati accusing
Zulueta faiing to pay certain obligations. Zulueta filed an action to
consolidate the Makati with Ilo-ilo and the courts of this internal
procedure that in case of consolidation, the consolidation shall be done
at the court where the first case is filed. AB took exception to the ruling
of the Makati court which allowed the consolidation and so AB
questioned the ruling of the Makati court to CA via petition for
certiorari. Under the rules then enforced petition for certiorari shall be
filed within 90 days from receipt of the order subject for the certiorari.
In the case AB received the consolidation on May 23, 1997 and so
under the rules then AB have until August 21 within which to file the
petition for certiorari. On July 1, 1997, the rules of civil procedure
came into effect which modified the rule of certiorari this time the
period to file was reduced to 60 days (2 months only). Thus, AB had
until July 22, 1997 to file the petition but it did not filed because
believed that it is entitled to the 90 days under the old rule. It filed the
petition beyond july 22 but before august 21.
Issue: WON the petition for certiorari timely filed?
Held: SC said that even if at the time AB received the order of
consolidation before the effectivity of the 1997 rules of civil procedure.
AB is already covered by the provisions of the 1997 rules of civil
procedure that took effect july 1, 1997. Under the rule AB had until
July 22 within which to file it had enough time to file but it did not. SC
said the rule should be given retroactive application because AB was
not prejudiced by the retroactive application of the rule since it still has
sufficient time.
The case illustrates the principle that in so far as remedial or procedural
laws are concern the rule is, it should be given retroactive application.
But it only applies if it would not impair vested rights because even if
the law is procedural or remedial in nature if retroactive application
would impair vested rights it cannot be applied. (ruling in Tayag v CA)
Tayag v CA
Facts: Tayag involves an action to compel recognition of a illegitimate
filiation. A minor child represented by the mother filed an action
against the executor of the estate of the deceased father Atty. Ocampo.
It was alleged that the child is the illegitimate child of the Atty but not
acknowledged. So an effort to share the estate of the deceased atty the
child represented by the mother filed an action in court. Seeking an
order he be recognized as the child of atty ocampo and therefore
entitled to a share of the estate. Defense of the administratix, that the
action was filed beyond the prescriptive period. The estate invoked art
175 of the fam code which provide among others that action to compel
recognition of a illegitimate filiation can only be file during the lifetime
of the putative parent. Since atty ocampo is already deceased the action
cannot anymre be filed. But the mother contended that 175 should not
be given retroactive application because it was filed on 1984 the law
then enforced was still the civil code of the phil. Under CC an action to
compel recognition of an illegitimate filiation shall be filed during the
lifetime of the putative parent but if the parent concerned dies during
the minority of the child the action can still be filed within 4 yrs from
the time the child reach the age of majority which was exactly what
happened in the case of the child.

Issue: WON art 175 of the fam code which took effect during the
pendency of the case shall be given retroactive application so as to
settle the issue of prescription
Held: SC ruled in favored of the minor child. It said even assuming the
matter of prescription is procedural in nature. Art 175 of fam code cant
be given retroactive in application even if generally procedural laws are
given retroactive effect. But in this case it cannot be given because to
do so would impair the vested rights of the child. The vested right of
the child is already acquired at the time the action was filed and during
the time the law enforced was still the civil code. This illustrates the
situation that even if the law is procedural in nature, retroactive
application cannot be applied if to so would impair vested right. Only
when no vested rights would be impaired can procedural laws be given
retroactive application.
TAKE NOTE: the retroactive application of procedural laws shall
extend only to cases which are still pending or undetermined at the
procedural or remedial laws took effect.
It shall not extend beyond that as to cover cases which are final and
executory. Otherwise there would be no end to litigation. (ruling in
Mun. of coron)
Mun. of Coron v Carino
Facts: Palawan involved an action of ejectment filed by the mun
against the squatters who occupied a portion owned by the government.
After due proceedings the court in favored the mun aggrieved by the
ruling the squatters appealed to the court of appeals. The problem
however was that they failed to comply with some requirements for
purposes of perfecting an appeal and thats the record of appeal. (will
understand more when taking civil procedure) One of the requirements
is the submission of the record of appeal but the squatters failed to do
so. And so CA denied the appeal on that ground and they did not do
anything about it. The decision of the trial court became final and
executory. A new came into effect, under the new rule for purposes of
an appeal record on appeal is no longer necessary invoking the
retroactive application of procedural or remedial law, the squatters filed
an action contending that under the new rule, they should be allowed to
pursue of appeal without the record on appeal.
Held: SC disagree with the contention, it said while as a gen rule
procedural or remedial laws shall be given retroactive application but
the application shall only cover cases which are still pending or
undetermined at the time the procedural or remedial takes effect. It
should not cover cases that are rendered final and executory.
4. Curative Statutes law that aims to cure, supply or correct
injustice, errors or irregularities of an existing law
Frivaldo v COMELEC
Frivaldo is a local politician of Sorsogon who during the time of
Marcos went to US to avoid persecution. He was a known figure of
opposition. While he stayed there he acquired American citizenship and
lost his Filipino citizenship. When the administration of Aquino took
over he returned to Phil and tried his luck in local politics. He ran in
1988 as governor and won but was disqualified for lack of citizenship
requirement. He again ran in 1992, he won but again was disqualified
for lack of citizenship requirement. In 1995 he again ran and won, this
time the COMELEC and SC ruled in his favor.
The issue is when should the citizenship requirement be possess by an
elected official?
Opponents of Frivaldo contended that the citizenship requirement
should be possess by the candidate at the time he filed his COC and at
the time of elections. But in this case SC decided that citizenship
should be reckoned not at the time of the filing of COC nor at the time
of elections but at the time the winning candidate is proclaimed during
at the beginning of his term.
In this case Frivaldo tried to reacquire his Filipino citizenship first by
the direct act of the congress but he failed because of political
maneuvering of his opponents. He also tried to require it by judicial
proceedings thru naturalization but the petition was dismissed due to
technicalities. And lastly he availed of the administrative proceedings.
The repatriation law PD 725, a mode of acquiring Filipino citizenship
which is less costly and simple, faster than the previous modes. He
filed for repatriation 1 yr before the elections but the application was
approved on June 30, 1995 the day of proclamation and the day his
term of office would begin. SC said citizenship requirement should be

reckoned at the time of proclamation of the candidate takes place and

during the beginning of his office.
THE MOST IMPORTANT PART OF THE DECISION: SC said if only
to erase the doubts we hold that the effect of repatriation of Frivaldo
which took effect june 30 1995 retroacts to the time repatriation was
filed that was 1 yr before the elections. So giving retroactive effect it is
deemed that at the time he filed his COC and at the time of elections, he
is already a Filipino citizen. SC justified its decision on the principle
that PD 725 repatriation act is in the nature of a curative statute and
being a curative statute it should be given retroactive application.It is
not only the curative statue is retroactive but also the effects of the
statue (TAKE NOTE OF THIS CASE)
TAKE NOTE: the principle of prospective application of laws as
enunciated in art 4 is not only limited to statutes or laws but it equally
applies to the decisions of the Supreme Court. As it is now decisions of
SC which initiates new doctrines and supersede an old doctrine should
not be given retroactive application. (ruling in Benzonan & DBP v CA)
Benzonan DBP v CA
Facts: A story of Chinese businessman based in GenSan. Pe acquired
public lands by virtue of free patent and homestead proceedings. A
mode of acquiring lands by government grants. Years after the
acquisition, Pe is in need of cash obtained a loan from DBP and a
security constituted mortgaged over the lots he acquired to the free
patent and homestead laws. The bank foreclosed the mortgage and Pe
failed to exercise his right of retention the bank consolidated the title of
foreclosed property and sold it to spouses Benzonan. It was around this
time Pe bothered to repurchased the property, invoking the provision
under the public land act 141 which says that any land acquired under
free patent and homestead proceedings which is sold by the beneficiary
by a 3rd party may be repurchased by the beneficiary or his widow or
heirs within 5 yrs from the date of conveyance. Also during this time
SC rendered a decision which enunciated a new doctrine and
superseded an old one, this was the case of Belisario v. Intermediate
Appellate Court. The decision of Belisario case superseded in the
doctrine laid down in the cases of Monge v. Angeles and Tupas v.
Damasco. Under the new doctrine, the 5 yr period to repurchase is
reckoned not on the date of conveyance but on the date of the
expiration of the 1 yr period to redeem.
TAKE NOTE: under the provisions of Act 141 it clearly says that the
repurchase may be done 5 yrs from the date of conveyance but this was
interpreted in the Belisario that 5 yrs should not be counted from
conveyance but from the expiration of the 1 yr period to redeem. (so 6
years na sha)
Issue: WON the new doctrine enunciated in Belisario which came out
in 1988 may be given retroactive application as to cover the cases
pending before 1988.
SC ruled in favor of the bank and spouses, saying that when the SC
rendered new doctrine, it should be given prospective in application.
Therefore, the new doctrine should not take effect so as to prejudice
parties who acted on the basis of the old doctrine and made the
decisions on the faith on the old doctrine. At the time Pe obtained the
loan, the foreclosure sale was conducted and at the time the bank sold
the property to the spouses the doctrine enforced was Monge v angeles.
All the significant events took place while the doctrine enforced was
that of Monge which espouses the principle that the 5 yr period shoud
be counted from the date of foreclosure. SC ruled that Pes right was
prescribed at the time he offered to redeem to repurchase the property.
The new doctrine was not given retroactive application. (TAKE NOTE
OF THIS CAUSE USEFUL WHEN YOU PRACTICE LAWYERING
LOL HAHAHAHAHAHA ANA SI ATTY)
ARTICLE 5
Acts executed contrary to the provisions of prohibitory or
mandatory laws shall be void unless the law itself authorizes the
validity
TAKE NOTE: not all laws or acts executed against prohibitory or
mandatory laws are void, there are instances that the act executed are
against the mandatory or prohibitory laws but the effects are not
necessarily void.
What instances?

a.

b.

c.

d.

Where the act is executed against mandatory or prohibitory

laws is rendered by law not void but only voidable (the law
itself provides that its not void)
Ex. Marriage at gun point
Under the fam code 1 of the essential requisites of a valid
marriage is consent freely given, neither party is allowed to
exert force, intimidation over the other bec the consent
should be given freely. Employing means to vitiate the
consent of the other is prohibited yet it is only voidable
pursuant to Art 45 of the Fam Code
A voidable contract is valid until annulled, subject to
ratification
The act is valid even if contrary to law but subject the
wrongdoer to certain liabilities, administrative, civil or
criminal
Ex. A marriage solemnized by someone who has no authority
to solemnize
Under the fam code when both of the contracting parties
believed that the solemnizing officer is authorized even if in
truth and in fact he is not the marriage remains valid but the
one solemnizing the marriage is liable (TAKE NOTE OF
THIS)
The act is void but the law recognizes and respects the effects
flowing from the void act
Ex. A contract of sale of land entered into by a Filipino and
an alien (latter is not allowed to acquire lands in the country
as provided by the consti)
If a german national enters into a contract of sale of land with
a Filipino, it is void being contrary to the constitution. If the
german sells the land to a Filipino, it is now respected by law
so the contract cannot be rescinded or cancel just because the
seller is an alien. (a void act resulted to a valid act)
Normally the act is void for the reason of public policy or
morality or customs but the law specifically makes the law
valid
Ex. Gambling generally is illegal in the country
ARTICLE 6

recognize the talents of the receipients and deserving students. It is

never a tool for advertising business to attract more enrollees.
Remember the principle that if a waiver is against public policy it
cannot be valid.
Ex. An employee cannot waived his minimum wage and accept a
lower amount (against the existing law of minimum wage)
A waiver is not valid because it prejudices third party. (ex. A owes
money from a bank, but A failed to pay the loan. B a third party
executed a deed of donation to A. A cannot waived the benefit of the
donation while generally no one is forced to accept others generosity
but this is a situation but A should accept it or the donation would be
valid even without the acceptance of A because the law will direct the B
to deliver the money to the creditor to the satisfaction of A. A cannot
deny because to do so would prejudice the bank who has claimed
against A.
ARTICLE 7
Laws can only be repealed by subsequent one.
TAKE NOTE: law can only be repealed by another law subsequently
enacted
A law ceases to operate only when there is a subsequently law repealing
it. Unless repeal takes place a law continues to take effect. Noncompliance or non-observance of the law by disuse or by contrary
practice or customs cannot invoke as a defense the fact that people
dont care about the law. Laws take effect not depending on the
recognition or faithful compliance of the people who are supposed to be
governing by the law. (ex. Giving alms to beggars)
Repeal can be done in two ways:
a.
b.

Rights may be waived except if its contrary to law, public policy,

public order, morals, and good customs or if the waiver is
prejudicial to 3rd party recognized by law
-

Rights are privileges, a favor granted (no one is compelled to

exercise, accept or enjoy it)
No one is compelled to accept a favor
Rights are never imposed
Ex. If an employee is promoted, the employee is not forced to
accept the promotion

Rights that cannot be waived:

a.
-

Right to future support

Support is indispensable to life

What is the effect if the law is repealed? The repealed law ceases to
operate as of the time repealing law takes effect.
The repealing law will not serve to undue the effects of the repealed
law except when the laws involved the repealed and repealing law are
penal laws. When the repeal is total and absolute, the result of the
repealing law will undo the result of the repealed law. The reason when
the repeal is total and absolute is obvious that the intention of the
framers is to abrogate the crime punished and obliterated the criminal
liability arising from that law. (ruling in the case people v Pimentel)

Exception:

Express repeal when the repealing law expressly provides

that it repeals a certain law
Implied repeal the repealing law is silent but the
comparison of the provisions is repealing the old law shows
that they cant together because it would result to
inconsistencies between the two laws (later law which
expresses the last will of the legislature should prevail)
repealed by implication

People v Pimentel

Right to support in arrears - support accruing in the past like

back rentals.

A case ruled by SC that the waiver is against public policy:

Cui v Arellano University
Facts: Cui enrolled himself from first year to fourth year 1 st semester
but during the 2nd sem of his 4th year his uncle who was then the dean of
Arellano accepted the offer of another university as a dean and so Cui
followed his uncle and enrolled himself to that other university then
graduated. When he applied for the bar one of the requirements is his
TOR and so he went to Arellano get his TOR from 1 st year to 4th year 1st
sem. But the school refused unless Cui reimbursed the cash equevalent
of his scholarship. So he did in order for him to take the bar. When Cui
became a lawyer he filed a case in court, he sued the school to collect
the amount he reimbursed. The school contended that while Cui was a
scholar in the school he executed a waiver, stating that he shall waive
his right to transfer to other school unless he reimburse the school of
the cash equivalent of the scholarship grant.
Issue: WON the waiver was valid
Held: SC ruled in favor of Cui and declared that the waiver is not valid
as it is contrary to public policy. The essence of scholarship grant is to

Facts: The case involved prosecution for violation on the RA 1700 or

the Anti-Subversion Law. It punishes or makes it a crime to anyone
who is a member of the communist part of Phil passed during the time
of Marcos. The accused in the case was charged with the alleged
violation of this law but during the pendency of the case RA 1700 was
repealed by a subsequent law. The repealing law now decriminalizes
membership of the CPP. The accused then moved to dismiss the case
contending that the repealing law produces of obliterating the crime and
the penalties under the old law (RA 1700).
Held: SC agreed with the accused, it said that while the general law a
repealing law does not operate to undo the results of the repealed law
the exception is when the laws involved are penal law sand the repeal
of the repealed law by the repealing law is total and absolute. The
framers intended to really abrogate, obliterate the crime as well as the
consequential liability. The case was dismissed pursuant to the
repealing law that decriminalizes membership of the CPP. (The
exception to the exception)
Exception to the exception that the repeal does not undo the result of
the repealed law, where the repealing law will not obliterate the effects
of the repealed law:
a.

When the repealing law provides for a saving clause

(illustrated in the case of Buscayno)

Buscayno v Military Commission

Facts: It involves prosecution for anti-subversion law. One of the
accused, Juliet Sison was charged with alleged violation of RA 1700
but during the pendency of the trial, the law was amended by the
Revised Anti-Subversion Law. Sison moved to dismiss the case arguing
that with the revision of RA 1700 she cannot now be prosecuted
because the crime under which she is prosecuted has been obliterate.
Invoking the principle that if total and absolute, the repealing law
obliterates the effect of the repealed law.
Held: But SC disagree saying that even if the repeal is total and
absolute but if the repealing law contains a saving clause where the
result or the effect of the repealed law still subsists. Anti-Subversion
Law contains a saving clause, it provides that violations under the old
law shall continue to be prosecuted under the old law and covered by
the new law. The crime and the consequent liability of Sison continue
because of the saving clause not affected by the repeal even if it is total
and absolute.
b.
-

When the repealing law partakes a nature of re-enacted

statute
A statute that repeals a prior statute but punishes the same act
being punished under the old statute (even if the old statute
has been repealed but the very act is still punished by the new
law, if this happens the effect of the old law will not be
obliterated it will continue to be prosecuted under the old all
because of the nature of re-enacted statute (ruling in the case
of Concepcion) (U.S. v Cuna)

People v Concepcion
Facts: This involves the president of PNB. Under the charter of the
bank officers of the bank are prohibited under paying of criminal
sanction from obtaining either directly or indirectly loans or monetary
benefits from the bank. It was discovered that Concepcion granted a
loan to certain entity, a partnership where his wife is one of the
partners. It was established that Concepcion had interest in that
beneficiary of the loan. He was prosecuted of the violation of the
charter of the bank. During the pendency of the trial the charter was
amended several times and so Concepcion argued that the charge he
was prosecuted was already gone and repealed he cannot anymore be
prosecuted because there is no crime to speak of and the case be
dismiss. SC disagreed stating that while it is true that the old charter
was already repealed it should be remembered that these repealing laws
punished just the same act which was the very act committed by
Concepcion. These series of repealing laws are re-enacted statutes and
therefore Concepcions prosecution shall be pursued even if he is being
charged and prosecuted for under a no longer existing statute. (TAKE
NOTE)
Dont be confused on the rule on repeal and declaration of
unconstitutionality of a law.
2nd paragraph of Art 7, if courts declared a law contrary to the
constitution the law shall be void and the constitution shall govern.
Effects of the declared unconstitutional law:

Orthodox view a void law is no law at all, it cannot be a

source of right neither it can be a source of obligation. It is
NOTHING, non-existent.
Operative Fact - our jurisdiction adheres to this principle.
Under this doctrine the actual existence of a law prior to its
declaration of unconstitutionality is an operative fact that
may have produce legal effects that cannot be ignored. The
effects of the law should be respected.
Premised on the theory that a law is presumed to be
constitutional. Before it was declared unconstitutional the law
took effect and was enforced and mandate compliance.
(ruling in the case of De Agbayani)
De Agbayani v PNB

Facts: De Agbayani obtained a loan from PNB as guarantee he

executed a real estate mortgage over his property. During this time a
Moratorium Law which prohibits creditors to from enforcing their
claims to debtors who suffered the war. The Moratorium Law took
effect for 8 years and during this time the bank did not do anything to
collect even if the loan of De Agbayani fell due pursuant to the mandate
of such law. But later on the Moratorium was declared unconstitutional
by the SC and so the bank immediately initiated collection proceedings

by filing an extra-judicial foreclosure of the mortgage constituted by

De Agbayani. De Agbayani filed an action in court to enjoin the bank
from foreclosing the mortgage contending that the action of the bank
has already prescribe because more than 10 years have lapsed before
the bank took the initiative in collecting the obligation. SC applied the
operative fact doctrine that during the time that the law was in effect
the bank was prevented from collecting the obligation while this law
has been declared unconstitutional 8 years after. The fact that the law
took effect is an operative fact that has produced effects that the court
cannot ignore. The effect there was that during the 8 years the law was
enforced the bank couldnt collect anything. Resolving the issue on
prescription, the 8 year period that the bank was legally prevented in
collecting the obligation should be deducted in the computation.
Deducting the 8 years the bank is still within the prescriptive period
initiated foreclosure proceedings bec 10 years is the prescriptive period.
It turned out the 15 years have lapsed and only on the 15 th year the bank
initiated the foreclosure but deducting 8 years thus it is still within the
10 year prescriptive period.
This case illustrates the principle even if the law is declared
unconstitutional and supposed to void from the very beginning the
results that flowed from the law cannot be ignored. It should be
respected. Same in the case of Ynot
Ynot v IAC
Facts: There was a law passed during the time of Marcos which
prohibits the transporting of carabaos from province to another. Ynot
despite the existence of this law transported 6 carabaos from Masbate
to Ilo-ilo and while on his way was caught by the police. In accordance
with the provisions of the PD, the carabaos were confiscated. Ynot
went to court to question the constitutionality of the PD. (focus on the
matter of damages kay maoy inline sa discussion)
Held: SC declared the PD involved unconstitutional but it doesnt
mean that the police who confiscated the carabaos can be held liable for
damages for enforcing the law. Taking cue from the operative fact
doctrine, SC said before it was held unconstitutional the PD was
enforced and being the police station commander it is his duty to
enforce the law. And so he couldnt be blame nor liable for performing
his duty because before it was declared unconstitutional its valid and
therefore deserves compliance.
Strongest argument Pres Aquino and his cabinet on the issue of DAP,
the operative fact.
Practical wisdom behind the operative fact doctrine cannot ignore
effects resulting from the law before it was declared unconstitutional
ARTICLE 9
This governs the situation when the situation is obscure or the law is
insufficient. There is actually absence of the law capable in the given
fats of the case, because human problem is so many and varied that it
cannot possibly be addressed by the existing law. Because of the
complexity of human society and human relation, so are are human
problems, we cannot expect that all human problems can be addressed
by present laws.
So what is the court supposed to do if in the gien problem the facts of
the case, there is really no law applies squarely to facts of the case. Is
the court supposed to refuse to render judgment because there is no law
applicable?
This may be addressed by Article 9 of the Civil Code. It provides that
no court or judges should decline to render in case of absence or
obscurity of insufficiency of laws. So the question is, how is the court
of the judges supposed to render judgment and serve the ends of justice
when there is no law applicable or where the law is obscure or when the
law is insufficient? When this happens, when the facts of the case
cannot squarely addressed by the existing law, the court may resort to
sources, so decisions can be based not only on laws and jurisprudence
but on some other secondary sources. But this only applies in the
absence of law or in cases when there is obscurity and insufficiency in
the law.
What could be this other secondary sources:

1. The court may refer to opinions of writers and authors. Their

opinions carry weight, opinions of experts, the opinion for certain
matter, they will be resorted by the court in rendering judgment.
2. The court may also refer to decision in other but similar or
related cases.
For example, the facts of the given case are not exactly the
same but similar to the facts to the other case and the Supreme
Court had already rendered a decision in so far in that other but
similar case is concerned. The court may take effort in the
decision in that other but similar case. Maybe the court may say
okay the decision in the other case will be applied in this case
--- that can be done.
3. Or the court may refer to decisions of foreign courts
especially in this jurisdiction in the Philippines.
We are fan of the justice system of the justice system of the
US. We are fan of, especially on novel question, we are fan of
referring to jurisprudent, decisions decided by the courts of the
US. So I would not be surprised be surprised if done day
someone will question the constitutionality of the Family Code,
requiring marriage to be solemnized between male and female.
Someone would be bold enough to question the constitutionality
of it provision. I would not be surprised if our courts will take cue
on the decision of the Supreme Court on the matter because
Supreme Court of the United States has already spoken on the
matter. Any law that limits marriage to male and female is
unconstitutional. However, on the other hand, the culture of the
Philippine society can also make difference. You will understand
that our society is not as liberal and matured as the society in the
US.
But my point is, our courts may always refer to
jurisprudence or decisions rendered by other courts on SIMILAR
CASE.
Article 9 - allows to take or make use of other sources. What is
important there is, THE COURT SHOULD NOT DECLINE TO
RENDER JUDGMENT. It is not an option for them to decline on
rendering judgment.
Article 10
Provides a rule where there is doubt as to the application and
interpretation of a law. Not all laws are perfectly crafted, in most cases
those are susceptible to various interpretation, these various
interpretations could lead to doubts, as to which is the correct and
proper interpretation of the law.
So what is the court supposed to do when there is doubt, it entertains
doubts as to the application of the certain law?
By virtue of Article 10, the court, in the case of doubt should presume
right and justice to prevail. If the court has to interpret a particular
provision of a law, it should always bear in mind that the purpose of a
particular law is right and justice.
So its decision, its interpretation and its application of particular law
should be guided by sense of justice of what is right and what is just.
Karen Salvacion vs Central Bank of the Philippines
Facts: This involves abduction and rape of a 12 year old by a foreigner,
a visiting foreigner, an Italian. During the pendency of the trial for the
criminal case, the accused (foreigner) jumped bail and evaded
prosecution. And so the family of the victim file a separate civil action
for damages arising from the same act or omission resulting of the
crime. After the due trial of the proceeding, the court rendered
judgment in favor of the victim and awarded the victim certain amount
as damage arising from the crime.

When the decision sough to be enforced by the sheriff. The

sheriff went to the China bank because the accused had maintain a bank
account there, the sheriff attempted to serve a notice of garnishment for
the satisfaction of the monetary judgment rendered by the court in favor
of the victim.
The China Bank supported by the Central Bank refused to release
the deposit pursuant to the provision of RA 6425 otherwise known as
Foreign Currency Deposit Act Both the China Bank and the Central
Bank were uniform in their position that the bank cannot be or the bank
account of the accused cannot be touch because pursuant to the
provision of RA 6425 that foreign denominated foreign bank deposit
are completely and absolutely confidential. It cannot be subject to
garnishment, attachment or execution by the express provision of the
law.
A literal application of RA 6425 would certainly defeat the
judgment of the court to prejudice and victim because there is no way
by which the judgment can be enforced and there is no way the victim
and her family can collect the judgment of the court.
So how did the Supreme Court resolved the issue: Whether or
not the provision of RA6425 can be or applicable to the case as to
defeat the execution of the monetary judgment rendered in favor of
the victim.
Ruling: The Supreme Court ruled on Article 10 of the Civil Code, the
Supreme Court said when there is doubt as to the application and
application of the law, the court should presume that the law making
body intended right and justice to prevail.
So what was right and what was just under the given
circumstances. According to the Supreme Court, what is right and just
is for the child to be allowed to collect. That is the only way she can be
given justice and right can be served on the part of the victim.
How did the Supreme Court justify or uphold the justice and right in
the decision of the case, Article 10 and so the Supreme Court went
beyond the literal language of the provision of the RA 6425.
TAKE NOTE: that the language of RA 6425 is so categorical that
foreign currency dominated deposits are actually and absolutely
confidential and cannot be subject to garnishment and attachment but
the Supreme Court went beyond the the language or the literal language
in order to serve and achieve what is right and justice.
But how did the Supreme Court justify that?
The Supreme Court said, they had inquired to the purposed of RA 6425
and the objective sought by the legislature in enacting the RA6425. It
comes out that purpose of RA 6425 is ECONOMIC. The intention
being to encourage foreign depositors and investors to put in their
money to the Philippines so that it can held make Philippine economy
boost. There will be enough money flooding the Philippine market for
the benefit of the Philippine economy. So obviously, in order to serve as
the as a come-on to foreign depositors and lenders. The framers of the
law made that deposit absolutely confidential to serve certain security
to the prospective depositors.
The intention of the law is to protect the prospective foreign lender and
depositors, it is not intended to protect transient visitors who merely
stay in a period of time in the Philippines because o that is the case, our
country will have temporary deposits and that will not serve that
purpose o improving the economy.
And so in the end, the Supreme Court said, the provision of RA 6425
cannot be applied in the case, as to protect the accused to prejudice the
victim.
In the end the Supreme Court said, justice and serve served only by
allowing the sheriff to collect and ordering the bank to release the
deposit to satisfy the monetary judgment.

Christensen vs. Aznar- Garcia

FACTS: This case involves a petition of adoption filed by the
illegitimate father to adopt his illegitimate daughter. After due
proceeding, the trail court granted the petition for the adoption but the
problem was the name approved by the court is without middle name,
only the first name and the family name of the adopting father.
But the father was not satisfied, the father wanted that the adopted
daughter should also bear the surname o the her biological mother just
as any legitimate daughter is allowed under the law. So the father went
all the way up to the Supreme Court insisting that her adoptive
daughter should be allowed to use the surname of her biological mother
as her middle name.
The problem here is, and it was the predicament which
confronted the trial court was that in our jurisdiction, there is really
absence of a law that governs that use of middle name. What we have
in our civil code is the law governing the use of surname but not the
middle name. While it is rue that we usually use the middle name for
our name, this is not a matter of law, but a matter of custom - to use the
middle name, the surname of our mother as our middle name.
ISSUE: Whether or not the adopted child be allowed to use the
surname her biological mother as her own middle name in the absence
of law that governs the use of middle name.(There is no law regarding
the use of middle name (only customary) only surname)
How did the Supreme Court addressed this issue.
HELD: The Supreme Court take cue from Article 10 of the Civil Code.
The Supreme Court said that there is doubt in the application or
interpretation of the law. So based on Article 10, the court should now
presume that the law making body intended right and justice to prevail.
How did the Supreme Court arrive in that decision?
- Again, it inquired into the purpose of the adoption of the law, it is said
that the obvious purpose is that the adoptive law is to elevated the
status of the illegitimate children to the status of the legitimate children,
so as the equipt them to all the rights and privileges that legitimate
child is enjoying.
Under our custom, legitimate children use the surname of their mother
as their middle name, so the Supreme Court said, if the purpose of the
adoption law is to level the playing field between the legitimate and
illegitimate child, so that the illegitimate child be granted the same
rights and privileges being enjoyed by the legitimate child. It would not
serve its end of justice if the illegitimate children, now the adopted
children, now considered to be legitimate should not be allowed to use
the surname of their mother as their middle name,
So the only way to achieve the justice and right is to allow the adopted
child to enjoy the same privileges enjoyed by the legitimate and that is
to use also the surname of their mother as their middle name.
Even if there is no law or specific law that governs that particular
problem, the Supreme Court still able to render justice pursuant to
Article 9 or 10 of the Civil Code.

ARTICLE 14
(Conflict of Laws)
Article 14 in relation to Article 2 of the Revised Penal Code, Article 15,
16, 17 of the Civil Code ---- these are all called the conflict of laws
rules in the Philippines.
This is actually a separate subject, private international law and
conflict of law, a separate subject in your third year!
(edi wow
hahahah)

It is said that a state is a country of laws. Society exist because of laws

but every sate has its own set of laws. That is the universal truth, that
every country has its own set of laws and every set of laws is consist of
two parts:
1. The purely internal law
2. And the so called conflict of laws rule
The conflict of laws rule are laws or rule that governs cases involving
foreign element so there is, if in case is invested with foreign element,
resolution of which will entails the application of various laws of
various countries. ---- that case is deemed to be a case involving foreign
element and therefore the resolution of the case falls for the application
of conflict of laws rule.
But if on the other hand, the case is not invested with foreign element
but by parties of Filipinos, the contract is entered into in the Philippines
and the subject matter of the contract is located in the Philippines, no
foreign element is involved. This, is purely government by the internal
law of the Philippines.
WHAT IS A CONFLICT OF LAWS RULES ON CRIME
Our conflict of rules on crime is that stipulated or prescribed by
Article 14 of the Civil Code and Article 2 of the Revised Penal Code.
Article 14 enunciates the principle of Generality and Article 2 of
the Revised Penal Code enunciate the Principle of Territoriality as a
general rule and the rule of Protected Theory as way of exception.
What is Generality, Territoriality and Protective Theory in
Criminal Law?
Article 14 of the Civil Code provides that the penal laws and those of
public safety shall be obligatory upon those who sojourn in the
Philippines subject to the principle of public international law and
treaty stipulation.
It is the principle of generality - this means to say that who ever is in
the Philippines whoever sojourns in the Philippines regardless of
nationality as a general rule is government the criminal laws of the
Philippines.
Example: If a German comes here in the Philippines and visit here
girlfriend and then the German raped the Filipina girlfriend, the
German cannot invoke as a defense that he cannot be held liable
because he is a German citizen. Under Article 14 of the Civil Code, it
provides that whoever is sojourning regardless of his nationality shall
be governed by the criminal laws of the Philippines. It is mandatory to
all, hence his nationality cannot be a defense. That is why it is called
the principle of generality because criminal law applies to all WHO
SOJOURN generally.
The only exception are cases which are govern by the Principle of
Public International Law and treaty stipulation.
Example: Obama comes here in the Philippines and committed a crime
- It is a crime but pursuant Public International Law, head of the states
are immune of criminal arrest or prosecution in a country.
Example: Ordinary Filipino law committed the same crime as
committed by Obama - he can he arrested and prosecuted and convicted
in his country.
Another exception is person may be immune criminal prosecution
and arrest in a country pursuant to some provision of treaty
stipulation.
Example: US Bases Agreement (US - PH Agreement)
= immunity of criminal arrest and prosecution in favor of
military service men who commit crime within the base.

The Principle of Generality does not apply if principles of

Public International Law or some Treaty Stipulations specifically
providing the exceptions.
So, Generality therefore refers to the subject of our Penal Laws
regardless of the nationality, so long as they are here in our territory
they are covered under our Criminal Law.

Distinguished this from Territoriality Principle. They are not the

same. While Generality focuses on the subject, the people governed by
Criminal Laws. Territoriality focuses on the jurisdiction over crimes
committed. Now, under TERRITORIALITY PRINCIPLE,
Philippine Courts has Jurisdiction over crimes committed within the
Philippine territory. So our courts authority to try, prosecute and
convict offenders is limited only within our territorial jurisdiction. If a
crime is committed abroad, as a general rule under this principle our
courts have no jurisdiction to try the offender.
That is why if a Filipino already married in the Philippines goes
to Hongkong and despite the existence of his first marriage contracts a
subsequent marriage in Hongkong. The crime of bigamy was
committed in Hongkong outside of the Teritorrial jurisdiction of the
Philippines, therefore when that Filipino citizen who contracted second
marriage in Hongkong comes back, he cannot be arrested and
prosecuted before the Philippine court because of the Principle of
Territoriality. Because jurisdiction is coterminous with the territorial
jurisdiction of the court where it sits judgment of the case. So generally
the Principle of Territoriality, our courts can only exercise jurisdiction
over crimes committed within our territory. But thats only the general
rule because Article 2 of the Revised Penal Code provides for
EXCEPTIONS. Article 2 (Revised Penal Code) enumerates 5
instances where our courts exercise jurisdiction over crimes even if
committed outside of the territory of the Philippines. It says in Article 2
that The provisions of this code Revised Penal Code shall NOT only
be enforceable within the territory of the Philippines but also outside of
its territory against those: and then it is enumerated there (the
exceptions here are consistent with the Protective Theory under
Criminal Law)
Whats PROTECTIVE THEORY?
Under this principle the State whose interests is prejudice by the
crime has jurisdiction to try the offender and impose penalty. While
Territoriality Principle, the country within whose territory the crime
is committed exercises jurisdiction.
So, among the theories on Criminal Laws on Conflict of Laws what we
have here in the Philippines is Territoriality as a general law and
Protective theory as an Exception.
What are these Exceptions pursuant to Protective Theory in Criminal
Law?
- Those who commit an offense while in Philippine Ship or
Airship. (Philippine Ship or Airship is considered to be an extension of
the Philippine territory)
- Those who shall counterfeit or forge Philippine currency or
coin or obligation and securities. (So if a Filipino works in Thailand
counterfeits Philippine money there. If he returns to the Philippine, He
can be prosecuted. It is no defense to say that he did the counterfeiting
outside the territory of the Philippines because pursuant to the
Protective Theory it is the INTEREST of the Republic of the
Philippines which was prejudice by the act of counterfeiting its
currency coin)
-Those who shall be guilty of any act in connection with the
introduction of counterfeit or forge of coin or obligations or
securities. (So one may not be the one responsible for the forging and
counterfeiting of Philippine obligations and securities, but he is guilty
of acts in connection with attempting to bring in counterfeits and forge

to the country. That is still cognizable by Philippine court even if the

act is committed outside of the territory)
-While being an officer or employee should commit any act in
exercise of his/her function. (So if Mayor Mike Rama goes to US and
with one reason or another pundles a breast of a beautiful sexy US
citizen of a country. He cannot be prosecuted here in the Philippines
because it was not done in the performance of his functions. If however
he did commit a crime while exercising his official function, that would
be prosecutable even if committed outside our territory if he comes
back.
Take NOTE: Not all public officials or employees can be
prosecuted under this provision only those who are incumbent and the
crime was committed in the exercise of his official function. Hence if
the crime is committed in their personal capacity this provision does
not apply)
-Those who shall commit any of the crimes defined under
Book 2 Title 1 of the Revised Penal Code or the So-called crimes
against National Security or the Laws of Nation. (Treason, Proposal
and Conspiracy to commit treason, Espionage, Correspondence
with hostile country, violation of neutrality, flight to an enemy
country, Piracy)
Take Note: that the Principle of Territoriality contemplates of two
theories:
-SUBJECTIVE TERRITORIALITY PRINCIPLE
-OBJECTIVE TERRITORIALITY PPRINCIPLE
The ideal scenario which calls for the Territoriality application in
Criminal Law is when the crime; all the acts of execution are
committed within the territory of the Philippines then it is a No-Brainer
that the crime is cognizable by the Philippine Court.
But a little complication may arise if The acts of executions took place
in some other countries and some other acts took place in the
Philippines. Like the crime started abroad and completed in the
Phlippines or Vice-versa.
How do you now apply the Principle of Territoriality?
So we have, SUBJECTIVE and OBJECTIVE
SUBJECTIVE TERRITORIALITY PRINCIPLE?
This espouses the Principle that crimes started in the Philippine
even if completed abroad will still be under the criminal jurisdiction of
our courts. This was the Principle applied in the case of
People Vs. Tulin
Facts: A Philippine Vessel was ceased by the pirates of the waters of
Mindoro within the territorial sea of the Philippines. From Mindoro, the
Pirates brought the vessel to Singapore and while in Singapore the
pirates with the assistance of other offenders in Singapore transferred
the Petroleum product from the Phil Vessel to another Vessel.
Subsequently the pirates and other one involve in the crime where
apprehended in the Philippines and prosecuted and after trial got
convicted. One of those convicted was a foreigner. A singaporean
citizen who was convicted as accomplish. He was convicted but
disatisfied of the judgment he appealed to the Supreme Court and in
trying to get himself off the hook the Singaporean, He argued that the
judgment of the Philippine Trial Court againts him is VOID for LACK
OF JURISDICTION because his participation occured only in
Singapore which is beyond the Territorial Jurisdiction of the Philippines
invoking obviously the Principle of Territoriality.
How did the Supreme Court HELD:
One, while the participation of the accused (alien) occurred only
in the waters of Territory of Singapore. It cannot be denied that the
crime started in the Philippines and completed in Singapore. The

participation of that alien though admittedly occurred only in Singapore

is PART and PARCEL of the entire Criminal Process. So hes
participation in Singapore cannot be separated from the entire criminal
act which started in the Philippines. Therefore, pursuant to the
subjective territoriality principle of criminal law. Our court exercise
jurisdiction over him even if act was committed beyond the Territorial
jurisdiction of this court.
Other than that, there are actually two justifications cited by the
SC in upholding the jurisdiction to try the alien offender.
The accuse was prosecuted and accused for the charge of the
crime of PIRACY and it is one of the crime defined as part the crime
committed against National Security and the Laws of Nation which is
an exception to the Principle of Territoriality. So even if his
involvement took place in Singapore under this principle he can still be
tried and convicted by Philippine Court.
OBJECTIVE TERRITORIALITY PRINCIPLE
The Reverse. Under this theory crimes that started abroad but
continued and completed in the Philippines may be tried by out courts.
So it doesnt matter where the crime started so long as it continued and
completed in the Philippines. Philippine court exercise criminal
jurisdiction over the offender and over the crime. This was precisely the
principle applied in the case of
(U.S vs. BULL)
Facts: This involve the prosecution for violation of a Special Law that
mandates human treatment of animals. This is a law that requires
individuals who transport carabaos and similar animals to provide
proper safety measures to ensure the safety of the animals while in
transit. The accused here Mr. Bull was the Captain of the Vessel which
transported the animals from Formosa. But when they arrived
Philippine waters, they got arrested and prosecuted before Philippine
court. One of the arguments raised by the accused is the matter of
Jurisdiction. He said that, the alleged crime was committed when the
animals were made to board the vessel while still in Formosa (Taiwan).
So jurisdiction is lodged in the Taiwan Court and not in the Philippine
Court.
HELD: But the Supreme Court said, while it may be true that the
crime started in Fromosa. It cannot be denied the the crime was a
CONTINUING OFFENSE when the crime was in Formosa and enter
the Philippine territory. So even if it started abroad it is still deemed
committed within Philippine territory and pursuant to the Objective
Principle territory, our court can therefore exercise jurisdiction over
him and over the crime.
So it doesnt matter where it started and where it ended. So long
as Philippine jurisdiction is a part of the crime our court exercise
Territorial jurisdiction.
QUESTION: What if the Foreign Court would like to INTERVENE
and take over the case?
ANSWER: We dont care about Foreign Courts. If they would like to
prosecute the same offender in their own country thats not anymore
our business. Thats not our concern. In sofar as we are concern, the
only question that we need to ask is Whether we have jurisdiction.
As to wether they can Intervene, the answer is NO. Because we
are superior over our own territory. The general rule is the Laws
generate their authority from the State. Evry nations Law or Laws is
effective only within its Territory. Our Laws do not take effect in
another country in the same manner that US laws, Russian Laws do not
take effect in this country so they could not intervene legally in any
judicial proceeding that we have here.
But ofcourse there are ways to Intervene. One of it is
POLITICAL INTERVENTION, they may do it through a diplomatic
process like what we did with respect to Mary Jane Veloso that was
convicted in Indonesia. We never intervened in their Judicial Process

there other than providing here maybe with Legal Assistance but we
never intervened in their process until she got convicted. Presidnet
Aquino not Interceded requesting the President of Indonesia to spare
the life of Ms. Veloso. Thats the most that we could do in the same
manner that thats the most the other country can do in so far as Judicial
process is concerned. So each county is superior in each own border. So
our concern is NOT whether they can intervene or whether they can
prosecute. Our only concern is whether in our own laws we can or we
cannot prosecute.

ARTICLE 15.
Laws relating to family rights and duties or to status, conditions, or
legal capacity of persons shall be binding upon citizens of the
Philippines although living abroad.
NATIONALITY THEORY - Article 15 enunciates the nationality
theory. It provides that insofar as the persons family rights and duties,
his status, his conditions, his legal capacity; he should be govern by his
or her own National Law. Meaning the Law of the country wherein he
is a national. Thats the personal law of the individual insofar as
Philippine jurisdiction is concern.
DOMICILIARY THEORY - other countries adheres to another
Principle. Others agree to domiciliary theory. For them personal Laws
are determined by the individuals domicile. So for example in the U.S,
the issue of status, capacity, conditions pursuant to their domiciliary
theory. These are issues that have to be determined by the laws of the
country to which their citizens are domiciled. So pursuant to this rule
even if the individual is a US citizen but he is domiciled in Russsia, any
issue so as to his family rights and duties, status, condition and legal
capacity should be determined by the Laws of Russia. That assuming
US adheres to domiciliary theory. But thats not our concern. Our
concern is what the theory we adhere to in our country. As what I said,
our country adhere to the theory of Nationality theory - so if the issue
is about status, condition, family right and duties it should be
determined by Philippine Law insofar as Filipinos are concerned. So if
you are a Filipino you are married in the Philippines you go to
Hongkong. Youre status there is married in accordance with Philippine
Law. If you are a Filipino married here, you go to Hongkong, you
cannot then obtain a divorce in Hongkong against your Filipina wife
and even if you applied for divorce an such divorce was granted in
Hongkong. That divorce decree obtain by Filipino abroad may not be
validly recognized here in the Philippines because that is a matter of
status and status insofar as Filipinos are concerned is always governed
by the Philippine Law and in the Philippines divorce is not recognized.
Take Note: Article 15 expressly mentioned FILIPINOS ONLY.
shall be binding upon citizens of the Philippine It does not say
Foreigners, so obviously the literal language or Article 15 limits only to
Filipinos. Insofar as Filipinos, we are always governed by our
Philippine Law wherever we may go on matters concerning Family
rights and duties, status, condition and legal capacity.
So the question is does Article 15 extends to foreigners? So that
foreigners also insofar as our jurisdiction is concerned issues
concerning the family rights duties, status, conditions and legal
capacity should also be determine by their respective national laws?
There is no Law in the Philippines that expressly provides that
Foreigner should also be governed by the nationality theory. Obviously,
we Filipinos, we adhere to the nationality theory by virtue of Article 15.
But Article 15 expressly and literally limits only to Filipino citizens. So
the question is does that apply to foreigners? So that if a Foreigner
comes here. Two Foreigners same sex marriage.
Example: Ms. Gonzaga is married in Brazil to another woman. They
are married there legally because Brazil recognizes same sex marriage.
They are all Brazillian citizen and they come here. Are we also bound
by Law to recognize them as Lawful spouse when we do not recognize
same sex marriage?

If Nationality theory covers foreigners, then logically they are

legal spouse because by virtue of their own country in Brazil they are
legally married to each other. If we are to apply the nationality theory
in Article 15.
If two Filipinos, lets say Ms. Gonzaga a Filipina and she has a
Filipina girlfriend and they go to Brazil and obtained same sex
marriage there and valid in Brazil. They come back here. Are we to
recognize them as Lawful Spouse? DEFINITELY NOT. Because article
15 syas, they are governed by Philippine Lawin matters of status,
conditions, legal capacity and family rights and duties. And beung
Filipinos, Philippine Law apply and under Philippine Law - we do ot
recognize same sex marriage.
Again, does Article 15 apply to foreigners as well? The answer
is YES. This was already settled in the old case of;
Recto vs Harden
Facts: Claro Recto was engaged by Mrs. Harden as her lawyer in
connection with her intention to file a divorce against his husband in
the US. The purpose was to protect the interest of Mrs. Harden in the
conjugal partnership. In the contract, Mrs. Harden undertook Atty.
Recto certain stipulated amount of Attorneys fees. But despite Atty.
Rectos services Mrs. Harden refused to pay and so Atty. Recto was
constrained to go into court in order to collect the attorneys fees. One
of the defenses interposed by the Hardens was that the contract which
stipulates the attorneys fees is void because it was entered into in
connection with the divorce. And so since the contract has something to
do with the divorce and since divorce is not valid in the Philippines,it
follows that the contract is void and cannot be enforced.
Issue: WON the contract that stipulated the attorneys fees is valid?
Held: (1) Contrary to the allegations of the Hardens, the contract
entered into by Atty. Recto and Mrs. Hardens is not for the purposes of
divorce. The contract was entered into to protect the rights Mrs. Harden
in their conjugal properties while the divorce proceedings is pending in
the US.
(2) [important part of the decision in so far as we are concerned] A part
from the fact that the contract was not really for divorce, it is
established that Mrs. Esperanza and her husband are both America
citizens. Their personal law is governed by the law of the (their) state.
Under the US law, divorce is valid, therefore, assuming that the
contract enter into was that of divorce, it is still valid upon them
because of their citizenship. They are govern by American laws which
recognizes divorce.
TAKE NOTE: In this case, SC made a reference to Art. 15 of the Civil
Code. In holding that in so far as the matter of divorce is concern, Mrs.
Harden and her husband is govern by their national law. It is thus
obvious, that in our jurisdiction, the principle of nationality does not
only govern Filipinos but also foreigners (Rule of Lexi Rexi Sitae).
And so when a foreigner comes here and there is issue as to their
status, capacity, condition, family rights or duties, this should be
resolved not by Philippine laws even if the case is filed in our courts
but on their respective national laws.
Another example (1):
If a Spaniard comes here enters into a contract with a Filipino and
there is issue whether a Spaniard is capacitated to enter into a contract,
she being 15 years old and in Spain 15 years old are capacitated, then
her capacity to enter into a contract is govern by her national law. Even
if under our law, she is still a minor. So the Filipino cannot argue that
the contract cannot be inforced because it is not valid due to the
minority of the other party, under the Philippine law. So long as he is
of age according to her own law, that should be respected in so far as
our courts are concerned.
NATIONALITY THEORY: Governs the Legal Capacity of a person
in ordinary contracts.

Example (2)
In the same manner that when a Filipino enters into a contract
abroad, in Russia wherein 15 is the age of majority. And here is a
Filipino enters into a contract in Russia, she is 16 years old. The
contract cannot be recognized as valid in the Philippines. Although it
may considered valid in Russia. The Filipino is governed by the
Philippine law on his legal capacity and being 16 years old, he is minor
even if he is of age under Russian laws.

Interesting Issues in recent years;

(1) validity of same sex marriage
Ms. A, entered into a same-sex marriage comes to the
Philippines. She applied an insurance policy that in case of death, her
lawful spouse is the benificiary - $1M insurance policy. In case she
dies, there might be issues as to the capacity of her spouse to get the
benefits because it says there lawful spouse. And to consider a lawful
spouse, our courts will have to consider the validity of same sex
marriage. How do we solve this?
(2) Change of gender pursuant to some surgical or other scientific
operations.
- in some countries it is allowed
- in the Phil, sex is determined by birth and can never be changed
regardless of physical and surgical transformation.
Case: A person born male but he grow up he realized that he is a
female. He went to court and ask his gender and name be changed from
male to female. The SC disagreed saying - gender is determined by
birth. By examination of the physical characteristics [particularly the
penis and the xxxxxx] Once it is determined, thats it! Immutability of
sex. So, surgical operation does not work in the Philippines but in other
countries it is a fact of life.
For us who study law, how are we suppose to solve issues
regarding same-sex marriage and sex change?
If Filipinos are involved, it is governed by Philippine laws, hence,
resort to Art. 15. So if a Filipino undergoes a surgery in Korea can
never be recognized in the Philippines. And this is with regards with the
present laws. There is no law in the Philippines that authorizes the
change of gender by that procedure.
But what happens if a foreigner comes here, born female changed into
male recognized as valid in their country. What happens if he comes
here and enters into a contract, are we to say that he is not a he
because he is a she?
These are very interesting questions because this is a world where
multi-racial transactions are emerging, how are we suppose to treat
them?
Two Schools of thought regarding the issues above;
(1) Consistent with Art. 15, this issue should be solved in favor of
Nationality Theory.
- So same sex marriage, so long as they are both foreigners and it
is recognized in their country, we are not to judge them. That is a
personal affair between them and their country. We cannot judge them
on the basis of our laws.
- There are so many cases involving this issue. This is the reason
that divorce is recognized in the Philippines in so far as foreigners are
concerned. It is against our laws and public policy but the SC
recognized the validity if divorce in so far as foreigners are concerned.

Van Dorn vs. Romillo

Facts: A Filipina and an American contracted marriage. After some
time, they got divorced in the US but somehow, after the divorce was
obtained, the husband came back to the Philippines and discovered her
wifes flourishing business he filed a case in court asking for an order
allowing him to take management of the business. Claiming that the
business is conjugal and as a husband, Upton (the American) is entitled
to the management of that said business. In trying to convince the court
to rule in his favor, he argued that while a divorce decree was already
obtained in the US, that decree in so far as the Philippine courts are
concerned is not valid. Because it is against public policy of the
Philippines, hence, in the eyes of the this country he is still the
husband of Alice (the Filipina). Therefore, being a husband, h should be
allowed to manage a conjugal property.
Held: While it is true that divorce is not allowed in the Philippines the
prohibition against Filipino citizens. Since Upton is an America, he is
governed by his national law which is US law. In US divorce is valid.
And so the divorce decree is valid in so far as Mr. Upton is concerned.
Take note that the SC refuses to decide as to the validity of the divorce
in so far as the Filipina is concerned. It only made the ruling that he
(Upton) is bound by the divorce decree obtained in the US. Hence, the
Philippine court recognizes divorce in so far as the foreigner is
concerned and the justification is the nationality theory.
Imelda Pilapil vs. Judge Ibay-Somera

The child was born with one gender, cannot be changed because it is
immutable.
(2) Secondary school of thought
The 3rd paragraph of article 17 of CC which provides:
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 aws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country.
This paragraph 3 of article 17 of CC Initiate the principle that in
our country our laws is superior on matters of laws concerning public
policy, public order, morals and customs our policy, our morality is
suppose to be superior than foreign laws, foreign judgment and
determination or foreign conventions. In other words, when there is a
conflict between our policy and policy of other country, our policy is
suppose to be the one to prevail. This the ruling of the case of Bank of
America v. American Realty Corp.
Bank of America v. American Realty Corp
Facts:

This case involve a international bank which is doing business in

the Philippines. It extended loans in 3 corporations base in
Panama but when the borrowers failed to pay the loan they
entered into structuring agreements and the third party mortgagor
came into the picture the American realty corporation (not one of
the borrowers) agreed to constitute a real estate mortgage over
which parcels of land in the located in the Philippines to
guarantee the payments of the loans granted to the 3 borrowers.
But then again the borrowers failed to pay the loan so the
American Bank Instituted a suit against the borrowers two cases
in Hongkong and two cases in England against the borrowers
collection of the loan.

But during the pendency of this four cases, the same bank
initiated a foreclosure proceedings over the real estate mortgage
constituted by American realty corp. The the property was
foreclose.

When American bank realty corp learn the foreclosure it file a

complaint against the damages against the bank. According to
American realty corp contentions, it was wrong for the bank to
foreclose the real estate mortgage because it already instituted
collections suits against the borrowers in foreign countries in
Hongkong and England which invoking a policy in our country
prohibiting the splitting single cause of action.

We have a rule in the philippines when the rights is violated that

gives cause of action to the aggrieved party but the remedies
available

Facts: A marriage took place between a Filipina and a German

national. After some time, the German obtained a divorce in Germany.
But after the divorce decree was final, the German filed a criminal case
of adultery against the Filipina wife when he realized that even during
their marriage, the wife cheated on him. He argued that the divorce
decree has no legal effect in the Philippines because divorce is against
public policy.
Issue: WON the German husband have the legal capacity to initiate the
complaint because in Philippine laws only an offended spouse can
initiate a case for adultery or concubinage.
Held: By virtue of the nationality theory, the German husband is
governed by his own national law. Under German laws divorce is valid.
And so, in so far as the German husband is concerned, the divorce is
valid consistent with nationality theory.
CONCLUSION: Consistent with Nationality Principle which regards
to same sex marriage and sex change, it is valid for anyway they are
foreigners.
If we can recognize divorce as valid in so far as the foreigner is
concerned, why cant we recognize same sex marriage or sex change?
THESE ARE ALL ISSUESABOUT POLICIES personal to the
individual concern.
Questions;

1. Simple collection suit.

A. What if (in a reverse situation) the Filipina filed a case of

concubinage? (Pilapil vs. Ibay-Somera)
Answer: The divorce decree is only valid so far as the foreigner is
concerned and not the Filipina. It is unfair. If it were Imelda filed the
complaint, she will have the legal capacity.
B. What happens if the persons has two-gender?
In the case of Republic vs.Cagandahan
A child born with both organs. The rule that gender is determined by
birth cannot be applied since there is two gender. This is a matter
personal to the individual concern. He should be allowed to make a
choice when he is already capable or of age. And so Jennifer chose to
be a male.
As oppose to Republic vs. Silverio

2. Foreclose the mortgage constitute

to guarantee the payments of the loans.

Either remedies is intended to collect the obligations but under

our policy prohibiting the splitting single cause of action the
creditor is not suppose to avail this two remedies. He can only
choose either of the two remedies mentioned. If the borrowers
chooses the collection he is deemed to waived the foreclosure. If
the creditor or lender chooses the foreclosure he is deemed to
abandoned the collection (this is the policy of philippine laws).
On the other hand the bank argue on the basis that, base on
the contracts between the parties the loan agreements between
the bank and the borrowers the law applicable is the law on
England ( which in the law of England it is not prohibitive to a
creditor pursue both remedies at the same time) thus, the bank

says that the philippine law prohibiting the splitting single cause
of action does not apply in this case but rather the England law.

love to Alicia and they get married. During the existence of the
marriage of his second wife, Lorenzo executed the will bequeath
all his estate to his second wife but before the proceedings could
be terminated, Lorenzo died. :(

Issue: W/N philippine law will apply or english law on that part?
Held:

The SC ruled that, it maybe true that the law applicable is the
laws of England on the basis as it was stipulated in the contracts.
Which under the said contract it should be the english law will
govern.But then again the SC argue that even though english law will
apply in so far as the contract stipulated but this will not apply in this
case because this is against the policy of the Philippines . The policy of
the Philippines is prohibiting the splitting of single cause of action.
In short this ruling is pertain to:
1. When there is conflict between a foreign law and philippine law on
matters of policy, morality, public order and etc. Our law should not be
render nugatory rather our law shall prevail over other laws or other
foreign judgment/policy.
The same principle is upheld in the case of;
Cadalin v. POEA.
Common law conflict
Fact: Cadalin involves multiple labor complaints file by Filipino
contract workers who landed jobs in some country of middle east and
one of this country is Bahrain.which there benefits are not given to
them. So when laborers return to the Philippines, they filed a multiple
suits against the employers and the agency.
Issue: whether or not it is the Bahrain law on prescription of action
based on Amiri decree or the Philippine law on prescription that shall
be the governing law.
Held: SC Ruled that, it maybe true that the contract of the parties the
law applicable is the laws of Bahrain where it performed. The one year
Prescriptive period provided in Amiri decree cannot applied in this case
because it is contrary to our protection of labor. The SC ruled that it
must be the the 3 year prescriptive period shall applied in this case as
provided under the labor code. If its about public policy, our laws,
policy should prevail.
Note: Going back to case of the validity of same sex marriage or sex
change cannot be valid in our country precisely because it is against our
public policy and morality . Just because same sex marriage is validly
recognize in other country it doest mean it recognize in the Philippines
simple because its against public policy , and morality and therefore
hold up in courts in Philippines.
But this case is never been settle. Practical advice by Atty T. is..... It
depends on which sides you are own. Take the positions where you are
ask to do.
Additional case to have a deeper understanding of the nationality theory
is under the case of Paula Llorente v. Alicia Llorente Gr. No. 124371
November 23, 2000
Conflict of law issue
The undisputed facts:

A filipino is listed as member of philippine navy, prior to the

outbreak of the war, he is ask to take station in the United States
and left his wife Paula which latter he obtained American
citizenship. After the war, he is allowed to take vacation to his
family in the Philippines. Unfortunately , he was devastated to
learn that his wife Paula(the bitch) is pregnant and was living
together with his own brother.
Then lorenzo returned to the US and bound to never reconcile to
paula. Then again he returned to the Philippines and found new

It was after the death of lorenzo, Paula resurfaced and insist that
the properties of Lorenzo should be adjudicated to her as she
being the lawful wife. Paula argue, that the divorce decree
obtained by Lorenzo abroad cannot be recognize as valid in the
Philippines.

Ruling of SC:
The SC ruled with the establish evidence that at the time when Lorenzo
obtained the divorce decree against Paula, Lorenzo was already a
naturalized American citizen. Being governed by his national law
(laws in the United States) which divorce is valid, then the divorce
decree obtained by Lorenzo is valid. Therefore, his marriage between
Alicia the second is also valid.
Be noted that the issue of dual citizenship can only be relevant
only by the view point of the third party/third state. It is enough that
individual is Filipino , if it establish then there is no question about
that.. I.e child born Filipina mother, American father born in the US. In
the Philippines`we adhered by blood but in the US they adhered jus
soli. It is not a question whether he is a Filipino or American in our
country however dual citizen is relevant for example when for he goes
to the country of china the third state question his citizenship called
effective national.
Art. 15 ( Continuation of the make-up class discussion 330-530PM)
Capacity to Enter into Other Relations or contracts is not necessarily
governed by the National Law of the person concerned.
EXCEPTIONS:
X1.

LEGAL CAPACITY (Property)

Capacity to Acquire , encumber, assign, donate or
sell property depends on the law of the
place where the property is situated .

X2.

CAPACITY TO INHERIT
Capacity to inherit depends not on the national law
of the heir, but on the national law of the
decedent.

X3.

CAPACITY TO MAKE A WILL

Extrinsic aspect of will

X4.

CAPACITY TO MARRY

Capacity to get married depends not on the national

law of the parties, but on the law of the place where the
marriage was entered into

ARTICLE 16
Enunciates the doctrine of lex rae sitae which means that real, personal
property governed by the law of the place where the property is located.
What are the matters governed by lex rae sitae?
Properties governed by lex rae sitae is a general statement.
Matters concerning properties which are governed by lex rae sitae
includes the following:
1. Legal capacity of the contracting parties

(ex. A German national who buys a property located in the Philippines.

Under German law a 15 year old is capacitated to enter into any kind of
contract because the age of majority there is 15. If this German national
enters to an ordinary contract, contract of massage service, his legal
capacity to enter into that kind of contract is governed by Article 15 the
national law of the German. It is perfectly valid even if the German is
15 years old and the age of majority here in the Philippines is 18
because it is governed by Art 15 (national law of the German). The
German has the capacity to enter into a contract because what governs
him is the German Law.
But if the contract involves property because he buys a condominium
here in the Philippines, 15 years old under German law the age of
majority, but in this contract you dont apply Art 15 the nationality rule
but instead art 16, lex rae sitae, under Phil law, 18 is the age of
majority. This time around that governs his legal capacity is not german
law but Philippine law, applying lex rae sitae. So, the contract is invalid
because one of the parties has no legal capacity to enter into that
contract.
Another matter governed by lex rae sitae is the forms and solemnities
of the contract involving property. Take note that under art 17 (1) forms
and solemnities of contract are governed by the law of the country
where the contract is celebrated lex loci celebrationis. So what about if
German national, 18 yrs old, enters into a contract in Germany with
another German, 18 yrs old, involving the sale of a condo unit in the
Phil. In Germany, oral contract is valid but in the Philippines for this
kind of contract to be valid, it has to be in writing.
Take note that the contract was executed in Germany, oral. The
property was located in the Philippines which requires written contract.
If you apply art. 17, the contract since to be valid, lex loci celebrationis
since it is valid in Germany. But since the contract is not an ordinary
contract and involves a property, and under art. 16, governing lex rae
sitae. You dont apply the law of Germany on forms and solemnities,
you dont apply art. 17 but you apply art 16 (in this situation) because if
the contract involves property, forms and solemnities of contract are
governed by lex rae sitae not lex loci celebrationis.
Third, the intrinsic validity of the contract involving property.
Generally, the intrinsic validity of contract (take note art. 17 speaks of
forms and solemnities, only the extrinsic) but under our own conflict of
laws rule, intrinsic validity of contract is determined by either by lex
voluntatis (the law expressly agreed by the parties) or lex intentionis
(the law impliedly or presumed to be intended by the parties). If
ordinary contract for intrinsic validity of contract, you apply either lex
voluntatis or lex intentionis but if the contract involves property the
intrinsic not governed by lex voluntatis nor by lex intentionis but is
governed by lex rae sitae.
What exactly is intrinsic validity of a contract?
-

It refers to the subject matter of the contract, the terms and

conditions the contract, the effect of the contract, the
interpretation of the contract. These are matters that pertain to
the intrinsic, substantive aspect of a contract as oppose to the
forms and solemnities (always apply Art 17 if it only
involves ordinary contracts). In short, if the contract involves
property either real or personal, all the aspects of that
contract; the capacity of the party, the forms and solemnities
of a contract, the intrinsic aspect of the contract and all other
matters concerning the property all are governed by lex rae
sitae as distinguished from ordinary contract because in
ordinary contract the legal capacity is determined by Art 15
nationality theory, the forms and solemnities governed by Art
17 lex loci celebrationis, intrinsic either voluntatis or
intentionis is different. The matter of prescription,
registration, accession, acquisition, eminent domain all these
that relate to properties all governed by lex rae sitae.

Exceptions to Art. 16 (lex rae sitae dont apply)

1. If the issue relates to succession (the mode of acquiring of

ownership over property)
- Second paragraph of Art 16, intestate or testate successions both as
regard to order of succession, amount of successional right, the
intrinsic validity of testamentary provisions shall be governed by the
national law of the decedent. Even if the contract or transaction
involved property but the issue relates to succession you dont apply
lex rae sitae.
What are the matters governed by nationality theory under the 2 nd
paragraph of article 16?
TAKE NOTE: there are 3 specific items governed by the national law
of the decedent.
a. order of succession (particular order as to who shall inherent, not all
heirs inherent from the decedent at once)
b. amount of successional rights (if the issue is how much will the heir
is entitled to inherent)
c. intrinsic validity of the testamentary provisions (a will is a list of the
dying wishes of the testator)
d. The capacity of the heir to inherent
-

Its not mentioned in 2nd paragraph of art 16 but yet the

capacity of the heir to inherent is still governed by the
national law of the decedent like the three items under art 16
(2). Based on Art 1039 of the civil code.

2. If the property is only incidental and the main subject is something

else (the rule of an ordinary contract governs)
3. When the dispute does not involved title or ownership of the
property but only the authority of the party to sell the property (ruling
in the case Laurel v Garcia)
Laurel v Garcia
Facts: Involves the intended sale of the Roponggi property, a property
located in Japan which the Japanese government conveyed the
ownership to RPH pursuant to reparations agreement. Reparations
agreement where the Jap govt offered to compensate the Fil people for
the damage to lives and properties the Japanese soldiers caused during
the war. The purpose of the property is to be used for consular purposes
of the Phil in Japan. During the Aquino admin, it thought of selling the
Roppongi property in pursuit of her Agrarian Reform Program, the
proceeds will be used for purposes pursuing of the CARP which is here
flagship program during her time. It was opposed by various sectors in
the Philippines for various grounds. One of whom is VP Laurel.
Issue: WON the Roppongi property can be sold to a third party.
Held: The oppositors argued that the property is part of the public
domain, being a property intended for public service for consular
purposes. And so being a part of public domain, under Art 420 of CC, it
cannot be a subject of a contract nor ownership can be attached to it
and cannot be sold or alienated because it supposed to be for the benefit
of the collective ownership of the people of the Philippines. Laurel et
al. invoked Art 420 of the CC.
The government in an effort to pursue the selling of the property
contended that Art 420 does not apply bec. the property is located in
Japan. Under lex rae sitae, the property is under the law of where it is
located. The justices of the SC is really opposed of the disposition of
the Roponggi property and so it said that the invocation of lex rae sitae
is misplaced. This conflict of law principle presupposes that the dispute
involves ownership or title of the property. If it involves the ownership
or title of the property the forms and solemnities of the contract
involving property, capacity of the contracting parties to take or transfer
ownership, or the interpretation of the contracts and the effects of the
transfer, these are the only matters that may be governed by the

principle of lex rae sitae. There is no issue at all as to the ownership or

title of the property because it was not disputed that it belongs to the
RPH. The only issue in the case is the capacity of the respondents to
sell the property and the proposed procedure to be followed in the
disposition of the Roponggi property. SC said forget about the principle
of lex rae sitae because it does not apply. Art 420 of the CC applies and
therefore being a property belonging to the public domain it cannot be a
valid subject of a contract because it is beyond the commerce of man
and therefore any disposition cannot be valid

How many witnesses are required for a particular contract to

be valid
o Also a matter that relates to forms and solemnities

So that any issue concerning any of these matters should be

determined by the law of the country where the contract was
executed.

Question: what about the intrinsic aspect of the contract? (The

subject matter, whether or not the kind of subject matter is valid?)

Personal reservation of Atty:

I think the authority of the party to sell is no different from legal

capacity of the party to enter into contract. The issue whether a party is
authorized to enter to a contract is very well governed by lex rae sitae.
Because one of the issues that is raised is whether the executive dept
has no authority to sell without the concurrence of congress, there will
be doubt any law authorizing the disposition of roppongi, the executive
department cannot of a property which forms part of the public domain.
It was argued for a property of a public domain to be validly sold, it has
to be declared as property which can be subject of alienation by the
appropriate act of congress (there has to be a law allowing it to be sold
which was not present in this case. But the supreme court whether the
excecutive dept has the authority to sell the property, this issue is not
governed by lex rae sitae.
Take note of the exceptions to the rule of lex rae sitae.
ARTICLE 17

What governs the intrinsic aspect?

Atty. Torregosa on Article 17 of Civil Code

Contracts: Article 17
Forms and solemnities of contracts, wills and other public instruments
shall be governed by the laws of the place where the contract is
executed.

The principle involved here is lex loci celebrationis

Art 17 refers only to the forms and solemnities of a contract, meaning

just the extrinsic aspect of the contract

What are the matters that are governed or that fall under extrinsic
aspect?

whether the contract is orally done, or in writing

o So if the issue is whether the contract is valid
because it was executed orally, this should be
governed by the law of the place/country where the
contract was executed.
o If the contract was executed in accordance with the
law of the place where it was executed, then the
extrinsic aspect of the contract should be valid.
Whether the contract needs to be notarized
o A contract may be in writing but not necessarily
notarized
o Whether this written, and nonnotarized contract is
valid, this is to be determined by lex loci
celebrationis.
o Look at the law of the country where the contract
was executed.
Whether the contract needs to be witnessed by instrumental
witnesses
o Like for example, in the execution of a last will and
testament, under Philippine Law, for a last will and
testament to be valid and recognized, it has to be
witnessed by at least 3 instrumental witnesses,
otherwise, the will cannot be valid
o So whether the will is executed with or without the
required instrumental witnesses, this is a matter that
refers to forms and solemnities and, therefore,
governed by, lex loci celebrationis

For example, the issue of the kind of contract, whether

the nature of the contract is valid
Example: contract for linggam massage
Is this a valid kind of contract?
The issue now refers to the intrinsic aspect of the
contract, since the question is, whether the subject
matter is valid, or whether the nature of the contract is
valid
This is now determined not by lex loci celebrationis
So even if in the country where the contract was
executed, a contract for linggam massage service is
valid, it doesnt necessarily follow that it is valid,
because LEX LOCI CELEBRATIONIS DOES NOT
GOVERN.

We do not have a specific provision in our laws that provides

for the conflict of laws rule governing intrinsic validity of
contracts.
But most of the authorities on the matter, are one in their
opinion that, what we only have in our jurisdiction is the
principle of liberality of contracts (art 1306 of the CIVIL
Code)
Principle of liberality of contracts: under art 1306 of the
Civil Code, it says there that the parties of the contract may
stipulate, may establish, any stipulations, terms and
conditions, that they may deem convenient
o PROVIDED, its not contrary to law, public order,
public policy, morals
So under our jurisdiction, the intention of the parties are
given preference (the parties of the contract, may establish,
any stipulations, terms and conditions, that they may deem
convenient)
So we give effect to the intention of the parties
Taking queue from the principle of the liberality of contracts,
authorities are one in saying that:
o For purposes of determining intrinsic validity, in
the absence of specific provisions or laws, it should
be the intention of the parties that should govern
o That is why as a general rule, for purposes of
determining the intrinsic validity of contract, we
have adopted the principle of lex voluntatis.
o Lex voluntatis- the law expressly agreed upon by
the parties to govern their contractual relations
o
How to determine lex voluntatis- determined by
the contract itself.
o Some contracts contain a provision which says that
in case of dispute arising from the terms and
conditions of this contract, the dispute of the
parties shall be determined by the laws of (insert
name of a specific country)
o By the incorporation of the choice of law clause in
the contract, its obvious that the parties expressly
intended the particular to govern a particular
dispute arising from the intrinsic aspect of the
contract (whether the subject matter, terms and
conditions, are valid.. etc.)
On any matters relating to the intrinsic aspect of the contract,
the law chosen by the parties shall govern, as expressly stated
in the contract itself, expressed in the choice of law clause;
thats lex loci voluntatis.

o
o

Exception:
Parties cannot stipulate a specific law to govern
their contract, if that country stipulated has no
bearing at all to any of the components of the
contract
Example: a contract was executed in China, the
subject matter is located in the Philippines, the
parties are Chinese national and a Filipino citizen,
the consideration is to be delivered in the
Philippines, the effect is to be performed in China,
THEY CANNOT STIPULATE IN THEIR
CONTRACT that in case of dispute, the same shall
be resolved by applying the laws of Germany
Because Germany, obviously, has nothing to do at
all, with any of the aspects of the contract; it is a
total stranger to the various components of the
contract
What happens if:
1. The law stipulated by the parties does
not apply because it does not have
bearing to the various components of
the contract
2. The contract is silent as to or did not
incorporate the choice of law clause
(In other words, when lex voluntatis does not
apply)

o
o

Lex intentionis applies.

Principle of Lex intentionis- the law impliedly or
presumed to have been intended by the parties.

How to determine the law impliedly/ presumed to have been intended

by the parties when contract is silent:

Apply the Principle of the Most Significant Relationship

theory
Most Significant Relationship theory- the country where
the most significant aspect of the contract
relate/occur/pertain, is the law impliedly/ presumed to have
been intended by the parties
Example: contract was executed in China, between Filipinos,
but contract is to be performed in the Philippines and the
subject matter is in the Philippines
o Obviously, the most significant aspects of the
contract relate to the Philippines
o Then under the principle of most significant
relationship, the Philippine Law is deemed to be the
law impliedly/presumed to be intended by the
parties.
o Therefore in that example you apply Philippine
Law, even if executed in China

Lex loci celebrationis is easy to determine, if all the components of a

contract took place in one country
So if all components of the contract took place in one country, for
instance, the offer and acceptance took place in the Philippines,
obviously, lex loci celebrationis is in the Philippines
Problem becomes complicated if the various stages of the contract took
place in various countries, like if the offer was made in the Philippines
and the acceptance was made in China
Especially now that transactions are done online
Example: Ms. Gonzaga, in the business of manufacturing and selling
condoms, her business is in Thailand. A Filipino, Mr. Commendador,
using the internet, places an order, 12 boxes of condoms. The offer was
made in the Philippines, Ms. Gonzaga accepted it, and she was in
Thailand. Suppose a problem occurs: despite the delivery of the boxes
of condoms, Mr. Commendador refuses to pay, and so Ms. Gonzaga is
forced to go to court.

Issue: which law governs the issues of the validity of

contracts, interpretation of the contract?
o Should it be Thailand, where the acceptance was
made
o Or in the Philippines where the offer was made?
Held: in the Philippines, a contract is deemed perfected, the
moment there is meeting of the minds. There is meeting of
the minds when the offer was accepted and the acceptance
was communicated to the offeror. So if Mr. Commendador
places an order, thats an OFFER. Its accepted by Ms.
Gonzaga in Thailand, thats an ACCEPTANCE.
The perfection of the contract deemed to have taken place
when the ACCEPTANCE of Ms. Gonzaga is
COMMUNICATED to Mr. Commendador.
Before that acceptance was communicated to Mr.
Commendador, the parties are not yet bound by the contract,
because there was no perfection of contract
So in this case, under art 1319 (2) of the Civil Code, the lex
loci celebrationis is the place where the offer is made;
because it is the place where the offer is made that the
acceptance is communicated.
Therefore the law presumes that the offer is made, the law
presumes that the acceptance is communicated by Ms.
Gonzaga, to Mr. Commendador, and the latter is in the
Philippines.
Its in the Philippines where he made the offer, and so the
acceptance was known to him, while he was in the
Philippines
So for purposes of lex loci celebrationis, you apply Philippine
Law