CIVIL PERSONALITY

Agatep | Mayuga | Mendoza | Miranda | Patawaran

 Sources of Islamic Law
(1) The Glorious Qu'ran
(2) Prophetic Sunna or Hadith,
(3) Ijma - consensus of the community/ of the
learned scholars or jurists
(4) Qiyas - reasoning by analogy

Supplementary sources:
(1) Istihsan or juristic preference - accepts a rule on the basis of
what is believed to constitute a more relevant legal reason
(2) Istislah - taking public interest or welfare into account
(3) Urf or custom
 Journey to P.D. 1083
13 August 1973 – Pres. Marcos issued Memorandum
Order 370 creating a Research Staff for draft of a
proposed Muslim Code (finished April 1974)
23 December 1974 – Executive Order 442 creating
the Presidential Commission to Review the Code
on Filipino Muslim Laws
29 August 1975 – Presentation of the Commission of
their report to the President
4 February 1977 – Signing of President Marcos of
P.D. 1083
What is LEGAL CAPACITY?
 Overview of Legal Capacity
and Capacity to Act

• A comparison of civil law and Islamic law on these

points shows that Arts. 8 to 12 of the MC are
“practically lifted” from Arts. 37-43 of the NCC.
• This does NOT mean that the MC is copied from
the CC (old and new)
• Historical Basis – the Iberian Peninsula had been
under Islamic domination for 8 centuries
• Taudih (Sadrush Shariat)  Spanish Civil Code 
Civil Code of the Philippines
 Civil Code Provision
Art. 37. Juridical capacity, which is the
fitness to be the subject of legal
relations, is inherent in every natural
person and is lost only through death.
Capacity to act, which is the power to
do acts with legal effect, is acquired
and may be lost
 CMPL Provision
Art. 8. Legal capacity. — Juridical
capacity, which is the fitness to be the
subject of legal relations, is inherent
in every natural person and is lost
only through death. Capacity to act,
which is the power to do acts with
legal effect, is acquired and may be
lost.
Civil Law Concept of Capacity
• Union of juridical capacity and capacity to
act forms the full civil capacity
• Juridical capacity can exist without
capacity to act, but capacity to act implies
the existence of a juridical personality
• According to Tolentino, most scholars
regard personality and juridical capacity as
one and the same
• Status – personal quality of relationship
with which third person and the state are
concerned. (Beale)
Civil Law Concept of Capacity
• Capacity – only part of status and may be
defined as the sum total of his rights and
obligations. (Graveson); “the ability, power,
qualification or competency of persons,
artificial or natural, for the performance of
civil acts depending on their state or
condition, as defined or fixed by law.”
(Tolentino)
– Juridical capacity (inherent) – Ahliatul wujub
– Capacity to act (active) – Ahliatul ada
• Illustrative cases: Barrientos v. Daarol, Republic v.
CA
 Islamic Law Concept

• Ahliyyah
– From ahl - "sufficient qualifications, the
possession of which enables the
possessor to enjoy something or be
qualified for certain matters"
– Ahliyyat al-wujup and Ahliyyat al-ada'.
First Element
Ahliyyat al-wujup: ability of a person to
acquire rights and obligations. This is the
core of legal personality (but is still a
concept distinct from “legal personality”).
May be restricted (naqisah) or full
(kamilah).
– Restricted – ability to acquire a limited number
of rights and obligations; applies to fetus and
embryo only, during pregnancy.
– Full – attributed to every human being from
birth up to death.
Second Element
Ahliyyat al-ada’: “discretion capacity”; that
ability of comprehension, discretion and
discernment sufficient for a person to
conduct his affairs by himself, Once a
person has this, he has full legal capacity,
and becomes able to receive the Shari'ah
injunctions and be accountable for actions
involving obligations and use or abuse of
rights. May be obsolete (ma'doumah) or
restricted (naqisah) or full (hamilah).
 – Obsolete – persons who have not yet attained
de age of discernment or attained it but for
some reason could not satisfy its requirements
(eg., children less than 7 yrs. old and the
insane)
– Restricted – persons who satisfy the
discernment requirement but have not yet
attained a sufficient level of mental and
physical maturity (children over the age of 7)
– Full
• Akin to the concept of CAPACITY TO
ACT under CIVIL LAW
What are the RESTRICTIONS
on Capacity to Act?
 Civil Code Provision
Art. 39. The following circumstances, among
others, modify or limit capacity to act: age,
insanity, imbecility, the state of being a deaf-
mute, penalty, prodigality, family relations,
alienage, absence, insolvency and
trusteeship. The consequences of these
circumstances are governed in this Code,
other codes, the Rules of Court, and in special
laws. Capacity to act is not limited on account
of religious belief or political opinion.
 CMPL Provision
Art. 9. Restrictions on capacity. — The
following circumstances, among others,
modify or limit capacity to act: age, insanity,
imbecility, the state of being deaf-mute, the
condition of death-illness (marad-ul-maut),
penalty, prodigality, absence, family relations,
alienage, insolvency, and trusteeship. The
consequences of these circumstances are
governed by this Code and other Islamic laws
and, in a suppletory manner, by other laws.
The capacity to act, unlike juridical
capacity, may be restricted by the
above circumstances.
 AGE
• AGE – this does not mean one does not
have a capacity to act; rather, such act
is limited or restricted
• A comparison of the age of majority or
agil baligue (age of discernment or
reason)
– CIVIL CODE:
• Art. 402, NCC: 21 years of age
• Art. 234, FC, as amended by RA 6809: 18 years
of age
 AGE
– ISLAMIC LAW:
• GR: 15 years of age
• Exception: women – date of menstruation;
men – date of ihtilam (wet dreams)

Marriage
• In the Family Code, the legal age to marry is 18 with
parental consent (Art. 14)
• Prof. Araceli Baviera comments that raising the
marriageable age to 18 ignores the biological fact
that some persons may want to get married below
that age.
• Other Civil Acts
• A minor cannot enter into contracts (Art. 1327
par. 1)
• A minor cannot make a will (Art. 797, NCC; Art.
105, CMPL).
• A minor must pay for necessaries (Art. 1489, par.
2).
• Delicts
• Minor is liable with his property for crimes
committed by them, if they have no guardian (Art.
101, par. 3).
• Quasi-delicts
• Minor shall be answerable with his property if he
causes damage, and has no parent or guardian
(Art. 2182).
• INSANITY AND IMBECILITY
• INSANITY – a condition of mental sickness
• IMBECILITY – a condition in which a person thinks
like a small child
• Civil Acts
• Testator must be of sound mind at the time of its
execution (Art. 798, NCC; Art. 105, CMPL).
• Contracts entered into during a lucid interval are
valid (Art. 1328).
• When the defect of the contract consists in the
incapacity of one of the persons, the incapacitated
person is not obliged to make any restitution except
insofar as he has been benefited by the thing or
price received by him (Art. 1399).
• Delicts
• The property of the insane or imbecile shall
answer for civil liability for crimes committed by
them, if they have no guardian or the latter is
insolvent (Art. 101 (3), RPC).
• Quasi-delicts
• If the minor or insane person causing damage has
no parent or guardian, the minor or insane shall
be answerable with his property (NCC Art. 2182).
• DEAF MUTE
• DEAF-MUTISM – sane or insane; if sane,
presumption may run against him
(Director v. Abelardo); he may make a will
but (Art. 807) but cannot be a competent
witness to a notarial will (Art. 820)
• Art. 1327. The following cannot give
consent to a contract: (2) Insane or
demented persons, and deaf-mutes who do
not know how to write.
• DIRECTOR OF LANDS v. ABELARDO (54
PHIL 687): The old rule that a deaf-mute
was presumed to be an idiot no longer
prevails; such persons are now considered
as capable of entering into contracts if
shown to have sufficient mental capacity.
• Deaf-mutes may:
• Make a will (Art. 807)
• Repudiate an inheritance (Art. 1048)
• But may not:
– Be a witness to the execution of a will
(Art. 820).
 PENALTY
Civil Law
• The RPC provides for principal penalties and accessory penalties (Art.25).
• Civil interdiction is a different penalty that also restricts capacity to act. It is
an accessory penalty imposed with imprisonment for 12 years and 1 day to
20 years (Art. 41, RPC).
• Effects of civil interdiction (Art. 34):
– Deprivation of parental or marital authority;
– Deprivation of the right to be the guardian of the person or property of
a ward;
– Deprivation of his property by acts inter vivos; and
– Deprivation of the right to manage one’s properties.
• Civil interdiction is a ground for the dissolution of partnership (Art. 1830
[7], NCC), the extinguishment of the contract of agency (Art. 1919 [3]) ,
judicial separation of property (Art. 135 [1], FC), and guardianship.

CMPL
• Art. 52 (b) – Conviction of the husband by final judgment sentencing him to
imprisonment for at least one year is a ground for divorce by faskh
 PRODIGALITY
• A spendthrift or prodigal is a person who by excessive drinking, gambling or
idleness or debauchery of any kind who shall so spend, waste or lessen his
estate as to expose himself or his family to want or suffering.
• MARTINEZ v. MARTINEZ (1 PHIL 182): The acts of prodigality must show a
morbid state of mind and disposition to spend, waste and lessen the estate
to such an extent is likely to expose the family to want of support, or to
deprive the compulsory heirs of their legitime.
• RULES OF COURT. Rule 92, Sec. 2. Meaning of word "incompetent." - Under
this rule, the word "incompetent" includes x x x persons not being of
unsound mind, but by reason of age, disease, weak mind, and other similar
causes, cannot, without outside aid, take care of themselves and manage
their property, becoming thereby an easy prey for deceit and exploitation.
 ABSENCE
• A person is absent when he disappears from his domicile, and his
whereabouts are unknown. He cannot properly administer his
properties, and so another person is appointed to administer
them.
• Art. 41 of the Family Code – presumptive death for purposes of
remarriage
• NCC provides for the periods:
– 7 years, except for the purpose of opening his estate for
succession.
– 10 years, for the purpose of opening his succession after an
absence of ten years.
– 4 years if he disappeared under dangerous circumstances (Art.
391) or
– 5 years if the person who disappeared is above 75 years old
(Art. 390).
 Condition of Death-Illness
(Marad-ul-mauit)
• Death illness is defined as illness from which death is ordinarily
apprehended in most cases, provided in the particular case in
question, it has actually ended in death. But if the disease be of
long standing and does not increase from day to day that death may
be apprehended from it or does not ultimately end in death, it will
not be regarded as death-illness.

• What is death-illness (Section 244, Indian Law) is an illness which

ends fatally provided that –
– There is proximate danger of death;
– There is subjective apprehension in the mind of the patient;
– There are external indicia (e.g. ability to say prayers or do
ordinary work).
 Condition of Death-Illness
(Marad-ul-mauit)
CMPL
• Art. 32: Fasid marriages – those contracted by a party in
a condition of death-illness, without the same being
consummated
– Contrast with Art. 27, FC – marriages in articulo mortis

• Art. 96(2): the husband who, while in a condition of

death-illness, divorces his wife, shall not inherit from
her, but she shall have the right to succeed him even
after her ‘idda expires
 Condition of Death-Illness
(Marad-ul-mauit)
Effect on marriage.–(Section 245) Marriage contracted during death-
illness is irregular but it becomes valid –
• If it is consummated; or
• If the party in health predeceases the one who is ill.

Effect on dower.–(Section 246) –

• Amount. –Specified or proper dower, whichever is less, shall be
payable.
• Guardian in death-illness as surety. –The contract would be void if
either the husband or wife is an heir, otherwise it would be valid to the
extent of one-third of his assets.

Effect on divorce.—(Section 247)—

• In the case of an irrevocable talaq (otherwise than at the wife’s request
or for an act of the wife) or li’an or ila the wife shall be entitled to
inherit to the husband during iddat but the husband will lose the right.
• In the case of khula during the death-illness of the wife, the husband is
bound to restore the consideration of the heirs but is entitled to
inherit.
 Condition of Death-Illness
(Marad-ul-mauit)
Effect on debts due from the deceased.–(Section 248) Debts acknowledged in
health or proved otherwise have priority over those proved only by
acknowledgement during death-illness.

Effect on gift.—(Section 249) Gifts are valid to the same extent as wills. Thus –
• release from a debt (i.e. gift of a debt to a debtor) is void in favor of heir
and valid to the extent of one-third to a stranger;
• release of a dower debt by the wife in death-illness is void;
• transfer of property by the husband in death-illness in lieu of dower is valid
only to the extent to which it is supported by consideration.

Effect on wakfs.—(Section 250) Wakfs take effect to the same extent as will
 Family Relations
Under family relations, the following may
be included:
• Marriage
• Divorce
• Legitimacy
• Paternity & Filiation
• Inheritance or succession
• Use of names & surnames
 Marriage
• Who to marry
• Donations & Sale
• Rights & Obligations between spouses
• Prescription
• A wife’s life
 Who to marry
Civil Law
Art. 37, Family Code. Marriages
between the following are
incestuous and void from the
beginning, whether relationship
between the parties be
legitimate or illegitimate:
(1) Between ascendants and
descendants of any degree; and
(2) Between brothers and sisters,
whether of the full or half blood.
(81a)
CMPL
Article 24. Prohibition by
consanguinity (tahrimjbin-
nasab). No marriage shall be
contracted between:
(a) Ascendants and descendants of
any degree;
(b) Brothers and sisters, whether
germane, consanguine or uterine; &
(c) Brothers or sisters and their
descendants within the third civil
degree.
 Prohibition by Affinity
Civil law
Article 38, Family Code: void
by reason of public policy
1. Between collateral blood relatives,
whether legitimate or
illegitimate, up to the fourth civil
degree;
2. Between step-parents and step-
children;
3. Between parents-in-law and
children-in-law;
CMPL
Article 25. Prohibition by
affinity (tahrim-bill-
musahara).
(a) Any of the spouses and their respective affinal
relatives in the ascending line and in the
collateral line within the third degree;
(b) Stepfather and stepdaughter when the marriage
between the former and the mother of the
latter has been consummated;
(c) Stepmother and stepson when the marriage
between the former and the father of the latter
has been consummated; and
(d) Stepson or stepdaughter and the widow, widower
or divorcee of their respective ascendants.
(2) The prohibition under this article applies even
after the dissolution of the marriage creating
the affinal relationship.
4.Between the adopting Article 64. Adoption. No
parent and the adopted adoption in any form shall
child; confer upon any person the
5.Between the surviving status and rights of a
spouse of the adopting legitimate child under
parent and the adopted Muslim law, except that said
child;
person may receive a gift
6.Between the surviving (hiba).
spouse of the adopted
child and the adopter;
7.Between an adopted child
and a legitimate child of
the adopter;
8.Between adopted children
of the same adopter;
9. Between parties where • Article 26. Prohibition due
one, with the intention to fosterage (tahrim-bir-
to marry the other, killed rada'a).
that other person’s • (1) No person may validly
spouse or his or her own contract marriage with any
spouse. woman who breastfed him
for at least five times within
two years after his birth.
• (2) The prohibition on
marriage by reason of
consanguinity shall likewise
apply to persons related by
fosterage within the same
degrees, subject to
exception recognized by
Muslim law.
 Donations & Sale
• Moderate gifts between husbands and
wives allowed during marriage [Article 87,
Family Code]
• Cannot donate to persons you’re having
extramarital affairs with [Article 739, Civil
Code]
• Husband and wife cannot sell to each
other, unless under exceptions [Article
1490, Civil Code]
 Rights and Obligations Between
Spouses
Civil law CMPL
• Family Domicile: fixed by • Family Residence: fixed by
BOTH husband and wife husband [Article 35]
[Article 68, Family Code]
• Management of • Management of
Household: duty of BOTH Household: Wife’s duty, but
husband pays for the
husband and wife [ Article expenses [Article 36]
71, Family Code]
• Support (nafaqa): husband
• Support for family: Joint required to give support
effort [Article 70, Family [Article 67]
Code]
 Prescription
DOES NOT RUN between:
• Husband and wife
• Parents and children (during minority or
insanity of the latter)
[Article 1109, Civil Code]
 A wife’s life
G.R.: Married woman, 21 years of age or
above, is qualified for all acts of civil life
X: in cases specified by law
 Under CMPL…
• Wife needs consent of husband to
…acquire property by gratuitous title
…engage in an profession or occupation or in
lawful business [Article 36]
• If widowed/divorced/repudiated: should
observe idda in varying lengths of time…
 Divorce
GR: NOT ALLOWED
X:
1. Alien spouse procures divorce [Art 26,
Family Code]
2. Filipino who subsequently acquires
another citizenship procures divorce
[Republic v. Obrecido]
3. Under CMPL…
 Succession
• Consider compulsory heirs…
 Use of Names & Surnames
• Articles 364-366 of the New Civil Code
imposes upon children the surnames they are
supposed to use
• As to married women, the wife has the
exclusive right to use the surname of her
husband to the exclusion of other women
[Silva v. Peralta]
 Alienage
• Can’t vote, cannot be voted upon (unless they
subsequently acquire Filipino citizenship)
• Generally can’t own lands (unless by
hereditary succession or unless they were
former Filipinos) – but can own properties on
the lands
• Restricted in the areas of business they can
engage in
• Restricted capacity to sue
 Insolvency
• Insolvent (muflis): debts equal to his
assets or more, or if he attempts to place
his property beyond the reach of his
creditors by transactions apparently of the
nature of a sale or the like, but subject to
some secret arrangement for his own
benefit
• when a person declared insolvent +
assignee is appointed for his assets
= insolvent cannot dispose of his property
=assignee will act for the insolvent under
the direction of the Court (Act No. 1956)
 Trusteeship
• powers of trustee limited by
The instrument creating the trust
(A1410-1475)
By law (Rule 98, ROC)
How is Personality
ACQUIRED?
 Civil Code Provision

Art. 40. Birth determines personality;

but the conceived child shall be
considered born for all purposes that
are favorable to it, provided it be born
later with the conditions specified in
the following article.
 Civil Code Provision

Art. 41. For civil purposes, the fetus is

considered born if it is alive at the time
it is completely delivered from the
mother's womb. However, if the fetus
had an intra-uterine life of less than
seven months, it is not deemed born if it
dies within twenty-four hours after its
complete delivery from the maternal
womb.
 CMPL Provision

Art. 10. Personality, how acquired. —

Birth determines personality; but the
conceived child shall be considered born
for all purposes that are favorable to it,
provided it be born alive, however,
briefly, at the time it is completely
delivered from the mother's womb.
Civil Law Concept of Personality

• Personality is the quality derived from

being a person. While a person is any
being susceptible of rights and
obligations, personality is the aptitude
of that being of becoming subject,
active or passive, of juridical relations.
(Tolentino)
• Existence of personality depends upon
birth.
Civil Law Concept of Personality

• Before birth, the fetus is not a person,

but merely a part of the internal
organs of the mother.

– HOWEVER, because of the expectancy

that it may be born, the law protects it
and reserves its rights, making its legal
existence, If it should be born alive,
retroact to the moment of its conception
Civil Law Concept of Personality

• Since the conceived child is considered

born for purposes favorable to it, it
can acquire and enjoy rights while it is
in the mother’s womb. It may be given
donations. It can also inherit by will or
intestacy.
Civil Code, Art. 41:
• If a fetus had an intra-uterine life of
less than 7 months, the Civil Code
requires that it should live at least 24
hours after complete separation from
the mother’s womb.
• In this case, if a child does not live for
24 hours after complete separation
from the mother’s womb, it does NOT
acquire civil personality.
 Islamic Law Concept of
Personality
• Civil personality has not been
mentioned explicitly by classical
Muslim jurists (fuqaha).

• Pursuant to the Code of Muslim

Personal Laws, personality begins
upon birth, and ends upon death.
Islamic Law Concept of Personality
• The Code of Muslim Personal Laws
does not distinguish between a fetus
which had an intra-uterine life of less
than 7 months, or more than 7
months.

– All that the law requires is that the child

be alive from the time of complete
separation from the mother’s womb, for
it to be considered born for all purposes
favorable to it.
Islamic Law Concept of Personality

• The duration of extra-uterine life is

immaterial.

• For acquisition of civil personality, it is

enough that the child lives for an
instant.
Islamic Law Concept of Personality

• Before birth, the fetus can enjoy

certain rights. Professor Al-Zarqa
defines those rights as four categories:
namely, the family name (Nasah);
Inheritance; bequeathed Will
(Wassiyah); and waaf.
Islamic Law Concept of Personality

A fetus may inherit, provided:

• That it is certain that the fetus is
in the womb of his mother at the
time of the death of the decedent;
and
• That it be born alive, however
briefly, at the time it is completely
delivered from the mother’s
womb.
Islamic Law Concept of Personality

If a crime is committed against its

mother, and the fetus dies, what right/s
does it have?
• Al-Sabouni: only the right to
compensation (ghurrah)
• Hanafi: right to inherit (wassiyyah)
and right to compensation, because
a fetus can have an ACTUAL and
PRESUMED existence
Islamic Law Concept of Personality

• Zahiri: fetus has life only after the first

four months. Entitled to ghurrah only
when fetus develops human features
• Malik; Al-Shafi’ie: life begins only after
it is delivered alive. Entitled to
ghurrah though
How is Personality
EXTINGUISHED?
 Civil Code Provision

Art. 42. Civil personality is

extinguished by death. The effect of
death upon the rights and obligations
of the deceased is determined by law,
by contract and by will.
 CMPL Provision
• Art. 11. Extinction of personality.
(1) Civil personality is extinguished
by death. The effect of death upon
the rights and obligations of a
deceased person is determined by
this Code, by contract, and by will.
(2) After an absence of seven years, it
being unknown whether or not the
absentee still lives, he shall be
presumed dead.
• Physical or natural death
extinguishes civil personality.

• Law: right to legal support ends,

marriage is terminated, tenure of
public office terminates.
• Contract: Rights under the contract
like indebtedness or obligations that
are recognized and secured by
contract. Estate continues personality
such that rights and obligations
which survive after death have to be
exercised and fulfilled only by the
estate of the deceased.
• RASUL: The question is not whether
it is impossible that the person may
be alive but whether the
circumstances do not present so
strong a probability of his death
that a Court should act thereon.

• Evidence of actual death is not

necessary; moral conviction is
sufficient to establish a fact of death
to demand or claim for
compensation.
 CMPL Provision
Art. 98. Succession by absentee. — The
share of an heir who is missing or
otherwise absent at the time of the death
of the decedent shall be reserved:
(a) Until he reappears and claims it;
(b) Until he is proven dead; or
(c) Until the lapse of ten years after which
he shall be presumed dead by decree of
the court.
 Art. 11 and Art. 98, CMPL
What is the correct period after which a person missing or
absent shall be presumed dead, 7 or 10 years?

• Period of 10 years is a view of Al Imamia, whereas the

period of seven years is a compromise period arrived at
after a lengthy discussion and debate on the
reasonability of the different periods posed by the
different schools of thought. This is one of the instances
where the members of the Presidential Commission has
exercised some form of ijtihad (modest).

• Alauuya proposed that the correct period is one that will be

decreed by the Judge on the bases of the circumstances
under which a person missing or absent is situated.
The ulama (elders) are not unanimous as to
the resolution of this issue –
(a) School of Iam Abi Hanifa: The person missing
or absent shall be presumed dead by decree of
the court after no one of his contemporaries is
still living. Some of the disciples of the school
said that he will be presumed dead after 90
years.
(b) School of Imam Malik: After four years. This is
based on the saying of Caliph 'Omar - Any woman
whose husband is missing and she does not know
his wherabouts must wait for four years,
thereafter observe the 'idda of four months and
ten days and after that she can be married,
narrated by Al Bukhari and Al Shafi'i.
(c) School of Imam Shafi'i: After the expiration
of a period that no one of his kind may live, the
Judge may decree his death.

(d) School of Imam Abi Hanifa: Period depends

upon the discretion of the Judge. This is
supported by Imam Shafi'i.

(e) School of Imam Ahmad: If he has been

absent or missing in a dangerous situation,
like war, his death can be decreeed by the
court after four years. If he is missing or
absent under normal and peaceful situation, it
depends upon the discretion of the court.
What are the Rules on
Simultaneous Deaths?
 Civil Code Provision
Art. 43. If there is a doubt, as between
two or more persons who are called
to succeed each other, as to which of
them died first, whoever alleges the
death of one prior to the other, shall
prove the same; in the absence of
proof, it is presumed that they died at
the same time and there shall be no
transmission of rights from one to the
other.
 CMPL Provision
Art. 12. Simultaneous death. — If, as between
two or more persons who are called to
succeed each other, there is a doubt as to
which of them died first, whoever alleges
the death of one prior to the other shall
prove the same; in the absence of such
proof, it is presumed that they died at the
same time and there shall be no
transmission of rights from one to the
other. However, the successional rights of
their respective heirs shall not be affected.
• Art. 12 is taken from Art. 33 of the Old
Spanish Civil Code of 1899 and Art. 43
of the New Civil Code. This provision
is to be read with Rule 131, Sec. 5 on
Disputable Presumptions.
• That except for purposes of succession, when two persons perish in the
same calamity, such as wreck, battle, or conflagration, and it is not
shown who died first, and there are no particular circumstances from
which it can be inferred, the survivorship is determined from the
probabilities resulting from the strength and the age of the sexes,
according to the following rules:
• If both were under the age of fifteen years, the older is
deemed to have survived;
• If both were above the age sixty, the younger is deemed to
have survived;
• If one is under fifteen and the other above sixty, the former
is deemed to have survived;
• If both be over fifteen and under sixty, and the sex be
different, the male is deemed to have survived, if the sex be
the same, the older;
• If one be under fifteen or over sixty, and the other between
those ages, the latter is deemed to have survived.
• That if there is a doubt, as between two or more persons who are
called to succeed each other, as to which of them died first, whoever
alleges the death of one prior to the other, shall prove the same; in the
absence of proof, they shall be considered to have died at the same
time.
• Art. 12 is taken from Art. 33 of the Old
Spanish Civil Code of 1899 and Art. 43
of the New Civil Code. This provision
is to be read with Rule 131, Sec. 5 on
Disputable Presumptions.
 Conclusion
• The concept of juridical capacity and
capacity to act as well as the restrictions
thereon is similar to that in Title I of Book
I of the Civil Code of the Philippines.
There is one fundamental difference,
however, in that under this Code, a
conceived child under any
circumstance is considered born for all
legal purposes favorable to it if it lives
after birth, however briefly.