..

INTRODUCTIQ~ ''
TO .\." ! ' 1 • ' ~
. ~

LAW •..
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ROLANDO A. SUAREZ
.'
LL.B., SAN BEDA COLLEGE
Professor of Constitutional Law,
Constitutional Law Reviewer,
Political Law Review and Public International Law;
Former professor of different law subjects in
several colleges (i.e., San Beda College of Law,
Adamson University, MLQ, Lyceum,
University of Perpetual Help, Las Piil.as & Bii'ian,
PUP and University of Manila), Lecturer/Pre-Bar Reviewer
Powerhaus Law Review Center, Center for Global Best
Practices; IBP-MCLE; UM Review, Perpetual Help,
Las Piiias & Biflan, MLQ
Founding & Managing Partner
Suarez, Zamora, Suarez and Suarez Law Offices
Author: Political Law Reviewer; Constitutional Law Reviewer;
Six Months Before The Bar Outline I Reviewer;
Three Months Be{ore The Bar Outline I Reviewer;
Principles, Comments and Cases in Constitutional Law, Vol. I, 2011 Edition;
Principles, Comments and Cases in Constitutional Law, Vol. II, 2012 Edition;
Agrarian Reform and Social Legislation; Comparative Study;
Roman Law and Philippine Law, First and Second Editions;
Introduction to Law, First, Second, Third, and Fourth Editions;
Notes and Comments, Proclamation No. 3 and
The Provisional Constitution of the Philippines;
Agrarian Reform, Cooperatives and Taxation;
A Mile to Go for Genuine Land Reform in the Philippines;
Statutory Constructiori, First and Second Editions,
Torts and Damages; First and Second Editions;
Legal Forms; The 1987 Constitution of the
Republic of the Philippines Made Easy

FIFTH EDITION

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·-i. PREFACE
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'1.:,._))f nos-;t°"
.
0°1io . SUAREZ The continuing and overwhelming support oflaw students and
professors throughout the country inspires the author to improve
16 · Q27113 ISBN 978-971-23-6493-8 each and every edition of this book.
ACCESSION NO.
This desire, coupled with the exhaustion of the copies of the
No portion of this book may be copied or
last edition and the need for updated work considering new laws,
reproduced in books, pamphlets, outlines or notes,
procedures and jurisprudence, led to the printing of this new edition.
whether printed, mimeographed, typewritten, copied
in different electronic devices or in any other form, for The purpose of this book, however, is still the same, and that is
distribution or sale, without the written permission of to give a basic knowledge to a beginner, and not to saddle him with
the authorized representative of the publisher except lengthy discussion and explanation of codal provisions and cases.
briefpassages in books, articles, reviews, legal papers,
The author still believes that this would be more practical,
and judicial or other official proceedings with proper
effective, and more in line with the precise title of this book. He
citation. hopes that this modest work could be of help to anyone who uses it.
Any copy of this book without the corresponding Grateful acknowledgement is due to all the members of my
number and the authorized signature of the author staff in my law firm for all their assistance in the encoding and
on this page either proceeds from an illegitimate proofreading of this book.
source or is in possession ofone who has no authority
to dispose of the same. Parafiaque City, September 8, 2011.

ALL RIGHTS RESERVED

ROLANDO A. SUAREZ
No. 379 J
Reprinted: August 2016 ISBN 978- 971 -23 - 6493- 8

05-0T-00062
9 78971 2 364938

Printed by

REX pRlmlnG comPnnq, Inc.

Typogrnphy & Croutlvo Lllhogrophy
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 ACKNOWLEDGEMENT

I acknowledge the assistance rendered by the members of

my present staff, Rosalie M. Ramoran and Sherry Lyan E. Colico.
I am grateful to my daughter, Rhina Rizza M. Suarez, for her
valuable efforts and assistance to me in the printing, encoding and
arrangement of the final layout of the manuscript, and to my son,
Atty. Roland Rhonnel M. Suarez, also for his own contribution in
particular cases I have assigned to him.
I also wish to thank the whole staff of Rex Printing Co., Inc.,
for helping me throughout the entire printing process.
Above all, I am immensely grateful to God for all the blessings,
guidance, and fortune that I have received and those still to come.

,,

iv v
 DEDICATION

To my wife, Nora, and my children, Revelyn, Roland Rhonnel,

Reina Ricci and Rhina Rizza; to my beloved and deceased parents,
Marcelo A. Suarez and Elena Arevalo Suarez, my first teachers, who
taught me the rudiments of writing and the value of hard work; to
my thoughtful and loving aunt, Cornelia Arevalo Vda. De Capul; to
my kind and equally thoughtful mother-in-law, Niflea Lautchang
Vda. De Manalese, who just passed away; to my deceased brothers
and sisters, Buendegardo, Proserfina, Elvira, Manolo and Rodolfo,
with whom I have shared the blessings of a modest home and hard-
working parents; to all my former teachers who cared to enlighten
me with their knowledge; to my townmates and friends who share
my thoughts and aspirations for a better society; and above all to my
dear God who is always generous to help me in any of my endeavors,
I dedicate this humble work.

vi vii
 CONTENTS

Chapter I Law, Its Concept and Classification.......... . 1

Chapter II World's Legal System .................................. 6
Chapter III Law and Its Application............................. . 15
Chapter IV The Legal Profession and the
Qualifications and Procedure for
Admission to the Practice of Law............. .. 28
Chapter V Code of Professional Responsibility ........... 37
Chapter VI Persons......................................................... 45
Chapter VII Concept and Nature of Marriage ............... 49
Chapter VIII The Family................................................... 84
Chapter IX Property........................................................ 86
Chapter X General Principles about Contracts
and Obligations............................................ 97
I,
Chapter XI Special Contracts......................................... 114
jl
Chapter XII Succession .... ....... .... ....... .. .............. ... .. ........ 130
ll Chapter XIII Torts and Damages..................................... 138
Chapter XIV Political Law and the Constitution
of the Republic of the Philippines.............. 162
Chapter XV - Criminal Law ............. ................................... 206
Chapter XVI - Remedial Law............................................... 220
Chapter XVII - Labor Law and Social Legislation............... 261

v.iii ix
 Chapter I

LAW, ITS CONCEPT AND CLASSIFICATION

DEFINITION OF LAW
The term "law" in its broadest sense, means any rule of action
or norm of conduct applicable to all kinds of action and to all objects
of creation. In this sense therefore, it includes all laws, whether they
refer to state law, physical law, divine law and others.
In a strict legal sense, law is defined as a rule ofconduct,just and
obligatory, laid down by legitimate authority for common observance
and benefit. (Sanchez Roman, 23) Based on this definition, law has
the following elements:
1. It is a rule of conduct - Laws serve as guides of
an individual in relation to his fellowmen and to his
community;
2. Law must be just - The chapter on human relations is
I.! now precisely embedded in the New Civil Code in order
to obtain stability of the social order. Laws, as guides for
human conduct, "should run as golden threads through
i. society, to the end that law may approach its supreme
ideal which is the sway and dominance of justice" (Report
of the Code Commission, p. 39);
3. It must be obligatory - If laws are not enforced, the
purpose for which they are intended will not be served;
4. Laws must be prescribed by legitimate authority ·-
If laws are not prescribed by legitimate authority, the
people could not be expected to observe them. Authority
to make laws is conferred upon those duly chosen by
the sovereign will of the people. This is in consonance
with Section 1, Article 2 of the Philippine Constitution
which says that "sovereignty resides in the people and all
government authority emanates from them";

1

2 INTRODUCTION TO LAW
5. Laws must be ordained for the common benefit -
This recognizes the famous Latin maxim of"Salus Populi
Est Suprema Lex" - the welfare of the people shall be
the supreme law. Laws should be applied not only to
a particular group of citizens. They are supposed to be
applied equally to all citizens regardless of their religion,
political persuasion, and status in life.
CLASSIFICATION OF LAW
Physical Law - Universal rule
1. NATURAL LAW -
of action that governs the
This law derives its
conduct and movement of
force and authority
things which are non-free and
from God. It is supe-
material.
rior to other laws. It is
binding to the whole Moral Law - Set of rules which
world, in all countries establishes what is right and
and at eternal law. what is wrong as dictated by
the human conscience and as
inspired by the all times.
Divine Law
a. Divine Positive Law, i.e., Ten
Commandments
b. Divine Human Positive Law,
i.e., Commandments of the
Church.
Public Law
a. Constitutional Law - is
the fundamental law of the
2. POSITIVE LAW
land which defines the powers
of the government.
b. Admi.n istrative Law - that
law which fixes the organiza-
tion and determines the com-
petence of the administrative
authorities and which regu-
lates the methods by which
the functions of the govern-
ment are performed.
CHAPTER I 3
LAW, ITS CONCEPT AND CLASSIFICATION
c. International Law - body
of rules which regulates the
community of nations.
Private Law - Body of rules
which creates duties, rights
and obligations, and the
means and methods of set-
ting courts in motion for the
enforcement of a right or of a
redress of wrong. (Words and
Phrases, Vol. 24, 337)
a. Substantive Private Law
- those rules which declare
legal relations of litigants
when the courts have been
properly moved to action upon
facts duly presented to them.
(24 Words and Phrases, 337)
b. Procedural or Adjective
Private Law - refers to the
means and methods of setting
the courts in motion, making
the facts known to them and
effectuating their judgments.
SOURCES OF LAW
Law is derived from different sources, namely: (1) legislation;
(2) precedent; (3) custom; and (4) court decision.
(a) LEGISLATION - Before the declaration of Martial Law
in the Philippines on September 21, 1972, the power to legislate
laws is vested in the Congress of the Philippines which consists of
the Senate and the House of Representatives. Upon the imposition
of Martial Law and after the dissolution of the old Congress, the
power to legislate law is vested in the President of the Philippines.
This is the reason why the President issued presidential decrees and
letters of instructions. When the Batasang Pambansa was organized,
legislative power is principally vested in this body although the
President, under and by virtue of what is known as Amendment
No. 6, continued to issue decrees when the exigency of the situation
 4 INTRODUCTION TO LAW CHAPTER I 5
LAW, ITS CONCEPT AND CLASSIFICATION

requires and in case of other emergencies. Among many others, system in the Philippines but they are not laws. However, although
this is one of the dictatorial acts that was severely questioned judicial decisions are not laws, they are evidence of the meaning and
by several lawyers and critics of the past regime. Now, after the interpretations of the laws.
People's Revolt on February 22-25, 1986, and in accordance with In the Philippines, we adhere to the doctrine of STARE
the wishes and the will of the sovereign Filipino people, the three DECISIS which means that once a case has been decided one way,
branches of government operating under the doctrine of separation then another case involving exactly the same question or point of
of powers are restored, with each department being committed to do law should be decided in the same manner. This principle, however,
its utmost share in bringing about a more democratic and efficient does not necessarily mean that erroneous decisions, or those found
system of government that is responsive to the needs of the people. to be contrary to law must be perpetuated. On the contrary, they
(b) PRECEDENT - This means that the decisions or should be abandoned.
principles enunciated by a court of competent jurisdiction on a
question of law do not only serve as guides but also as authority
to be followed by all other courts of equal or inferior jurisdiction in
all cases involving the same question until the same is overruled or
reversed by a superior court. In the Philippines, this doctrine of stare
decisis is not applied and recognized in the same manner that it is
applied and recognized in common law countries. However, our New
Civil Code provides as follows: "x x x Judicial decisions applying or
interpreting the laws or the Constitution shall form a part of the
,; legal system of the Philippines. x x x" (Art. 8, NCC)
(c) CUSTOM - Customs have the force of law only when
they are acknowledged and approved by society through long and
uninterrupted usage.
,, In the Philippines, there are several requisites before the court
considers custom. They are as follows:
i~
a. A custom must be proved as a fact according to the
rules of evidence (Art. 12, NCC);
b. The custom must not be contrary to law (Art. 11,
NCC);
c. There must be a number of repeated acts and these
repeated acts must have been uniformly performed;
d. There must be a judicial intention to make a rule of
social conduct; and
e. A custom must be acknowledged and approved by
society through long and uninterrupted usage.
(d) COURT DECISION - Judicial decisions which apply
or interpret the Constitution and the laws are part of the legal

Chapter II
WORLD'S LEGAL SYSTEM
THE THREE PREVAILING LEGAL SYSTEMS
There are many legal systems that have existed in different
countries of the world, namely: (1) The Mesopotamian Legal System;
(2) The Anglican Legal System; (3) The Egyptian Legal System; (4)
The Romanesque Legal System; (5) The Hebrew Legal System; (6)
The Ecclesiastical Legal System; (7) The Chinese Legal System;
(8) The Maritime Legal System; (9) The Greek Legal System; (10)
ii The Slavic Legal System; (11) The Roman Legal System; (12) The
~I Keltic Legal System; (13) The Japanese Legal System; and (14) The
Mohammedan Legal System.
Of the said systems, however, there are three legal systems
that have exerted influence to our laws in the past several centuries
and which are still continuously affecting our jurisprudence. The
three are: (1) Roman Law; (2) Anglican or Common Law; and (3)
Mohammedan Law. Of the three (3) legal systems, Roman Law has
greatly influenced Philippine laws. It therefore deserves a more
extensive discussion.
ROMAN LAW
Roman Law is the body of rules and principles adopted to
guide the Romans in the conduct or observance of their personal
and official affairs without necessarily specifying the period or the
time when those rules were adopted or promulgated. Roman Law,
while in its first stage of growth, was dominated by ritualism and
strong religious tenor. It was then referred to as JUS QUIRITIUM.
Later, it was referred to as the civil law of the Romans, then known
as JUS CNILE.
6 a nd in many decisions ofihe Supreme Court from time to time.
CHAPfERII 7
WORLD'S LEGAL SYSTEM
VALUE AND IMPORTANCE OF ROMAN LAW
Many law students often ask why Roman Law was then
included in the law curriculum and why it was a three-unit subject
for many years.'
Our ·New Civil Code is basically Roman in origin. Numerous
maxims and legal principles still found in law books are continuously
being used and cited by law professors and students and even by law
practitioners in their pleadings. It is worthwhile to mention and to
remember some of them, thus:
1. Ignorantia legis non excusat - Ignorance of the law
excuses no one;
2. Dura lex sed lex - The law may be harsh, but it is still
the law;
3. Cessante ratione cessat ipsa lex - When the reason
for the law ceases, the law also ceases to exist;
4. Sic ritere tuo ut alienum non laedas - The owner of
a thing cannot make use thereof in such a manner as to
injure the rights of third person (Art. 431, NCC);
5. Patria potesta - Parental authority;
6. Negotiorum gestio - Unauthorized management;
7. Res perit domino - The thing perishes with the owner;
8. Jus possidendi - The right to possess;
9. Jus abutendi - The right to abuse;
10. Jus utendi - The right to use;
11. Jus Frllendi - The right to the fruits;
12. Jus disponendi - The right to dispose;
13. Jus vendicandi - The right to recover;
14. Nulla poena sine lege - There is no crime when there
is no law punishing it;
*Roman Law is no longer included in the curriculum, but the author thinks that
it is an important subject which provides a good foundation for law students. There
is more advantage to include this subject again in the law curriculum cons idering the
different Latin maxims and principles that are still bei ng used and cited in law books,
8 INTRODUCTION TO LAW
15. Salus populi est supreme lex - The welfare of the
people shall be the supreme law;
16. Caveat emptor - Buyers beware;
17. Solutio indebiti - Unjust enrichment;
18. Aedificum solo credit - The building follows the land;
19. Accessorium siquitur principale - Land is always
principal; and
20. N11llum temp11s occurit regi - Time runs not against
the sovereign.
Modern laws and concepts of persons and family relations,
paternal authority, marriage, divorce, concubinage, legitimation,
emancipation, adoption, guardianship, property, avulsion, alluvion,
traditio brevi manu, traditio longa manu, constitutum possessorum,
obligations and contracts, nominate and innominate contracts, sale,
lease, agency, pledge, deposits, wills and successions, quasi-delicts,
quasi-contracts, negotiorum gestio, solutio indebiti and many others
are Roman in origin. Notwithstanding the modifications and the
enormous improvements that have been made, the Philippines and
its citizens cannot remove the great influence that Roman laws still
exert in our day-to-day life, whether it is in the city or in the remote
barrio. The same thing is true to the rest of the world affected by the
Roman legal system.
Roman law is of enormous value to modern nations . It is at
hand, ready for use and able to shed light in the solution of the
numerous complex problems which confront the modern civilized
world. (Sherman, Sec. 6)
Roman legal literature is also noted for originality. The style
of Roman jurists is simple, clear, brief, and precise. Hence, its study
helps students oflaw in acquiring a correct style oflegal expression.
POLITICAL HISTORY OF ROME
(a) INTRODUCTION
The evolution of Roman Law is better understood and
appreciated by associating it with the political history of Rome. For
around thirteen centuries from the founding of Rome, there were
changes in the government as well as in the mode and the needs of
CHAPTER IT 9
WORLD'S LEGAL SYSTEM
the people. Necessarily, each period has its own extent of political
and legal development.
The importance of associating the political history of a people
with its laws was recognized by Gaius, a Roman jurist, when he said:
"Being about to take up an interpretation of our ancient statutes, I
have thought it essential that the law of the Roman people should
be traced from the foundation of the city, not because I want to write
verbose commentaries, but because in all matter, I perceive a thing
is complete only when all parts are assembled, and surely the most
important part of a thing is its beginning." (Burdick, Principles of
Roman Law and Their Relation to Modern Law, p. 87)
(b) THREE PERIODS OF ROME'S POLITICAL ms-
TORY
Roman political his tory is divided into three periods: Monarchy
(753-509 B.C.); Republic (509-31 B.C.); and the Empire (31 B.C.-
1453 A.D.)
The first period starts from the earliest times to the abolition
of the kingship. The second period starts from the abolition of the
monarchy to the unification of Italy. The third period is marked by
the breakdown of the old republican form and is characterized by
fierce political strife.
(b.1) Monarchy (753-509 B.C.)
Romulus, from whom the name of the city was derived,
is the founder of Rome. The kings who immediately succeeded
him are Numa Pompilius Tullus Hostilus and Ancus Maritus.
Numa Pompilius was described as a wise and pious ruler and is
known to have established the Roman religion and the adding
of two months to the ten-month calendar. During the reign
of Tullus Hostilus, the Romans conquered Alba Longa, the
religious center of the Latin people. Under Ancus Maritus, a
number of troublesome Latin cities were conquered and their
inhabitants were brought to Rome.
Shortly before 600 B.C., Rome was conquered by Etruscan
princess from across the Tiber. Tarquinus Priscus (616 B.C.),
the first of the Etruscan kings, drained the city's marshes and
improved the Forum, which was the commercial and political
center of the town. He carried on many wars with many
neighboring people.
10 INTRODUCTION TO LAW
Under Servius Tullius, the second Etruscan king, a treaty
was made with the Latin cities which acknowledged Rome as
the head of all Italy.
The last of the Kings of Rome, Tarquinus Superbus
(Tar-quin, The Proud), was a tyrant who opposed the people.
A rebellion of the aristocracy against him was led by Junius
Brutus at about 509 B.C. As a result, the Etruscans were driven
from the city and the rest of the Latium, and Rome became a
Republic.
(b.2) Republic (509-31 B.C.)
In this period, constant warfare and conquest prevailed.
'l'he reins of government was in the hands of the aristocratic
citizens called patricians. At first, the plebians (common
citizens) had little to do with the administration of government.
Gradually, however, they removed the barrier between them
due to their continuing demands for reform.
In the early days of the Republic, the ruling power was
divided between two patrician magistrates elected for one year.
They were called consuls which were chosen by an assembly
called Comitia Centuriata. It was made up of divisions
apportioned in such a way that the votes of the patricians
counted more than the votes of the plebians. The Senate
(Comitia Curiata), the most important body, consisted of 300
men who were chosen by the consuls from the patricians. Hence,
the plebians were oppressed, barred from office, political power,
and suffered from unjust debt laws and unfair distribution of
territory won by conquest. To seek redress, the plebians in 494
B.C. marched out of Rome and threatened to make a new city.
The patricians acceded to the demands of the plebians. The
plebians were further granted the right to be represented by
new officials, called Tribunes, which bad the right to vote on
any act of any magistrate which was unjust to any citizen.
The plebians continued to gain other rights and an
assembly of their own, called concilium plebis, was recognized.
They appointed a ten-man commission called Decemvirs to put
state laws into writing and have them engraved on 12 bronze
tablets in 450 B.C. In 445 B.C., the plebians won the right to
marry patricians by virtue of Lex Canuleia.
CHAPTER II 11
WORLD'S LEGAL SYSTEM
Sometime in 367 B.C., Licensian laws are passed which
revised debt laws, limited holdings to 300 acres of land, and
compelled the large landowners to employ a certain proportion
of the laborers. In 350 B.C., the plebians were admitted to the
dictatorship and extraordinary magistracy ·whereby supreme
power at critical times were given to one man.
The growing power of the plebes was marked by the
gradual rise of a new voting body, the Comitia Tributa, where
one man's vote counted as much as another man's vote. While
the equalization between the plebians and the patricians
was being realized, Rome was gradually extending its power
to the leadership of the Italian people. The lands that were
conquered by the Romans were welded into one single nation.
It did not exploit the conquered cities of Italy for its own
interests. Instead, it granted many of them the privileges of
human citizenship. Most of this people were given the status
of allies. They had self-government and the right to trade and
intermarry in Rome. They did not, however, have the right to
vote.
All of Italy was dotted with colonies of Roman citizens.
Most of the colonies retained their full civic rights and nearly
one-sixth of all Italy were annexed and distributed among these
Roman citizens. Thus, a common interest in the welfare of
Rome spread throughout the Italian Peninsula. The struggles
with Carthage ended with Rome's victory. One conquest led
to another. Upper Italy, Sicily, Spain, Macedonia, Greece and
Asia Minor were subdued and made Roman provinces.
Intoxicated by their sudden rise to power, the new
generation of states departed from the wise policies of their
great predecessors. They fought ruthlessly and ruined the
countries they conquered. Most of the conquered lands were
administered by governors. The governors committed abuses
while administering the government and tried to amass wealth
while in office. The exorbitant taxes enriched the greedy
collectors and the ancient simplicity of Roman life gave way
to luxury and pomp. Morals were undermined and vice and
corruption flourished. The peasants were oppressed and were
deprived of their landholdings. These events led to a bitter
hostility between the aristocratic few and the poor segments
of society. A few patriotic statesmen tried in vain to avert the
 12 INTRODUCTION TO LAW
climax. The Gracchi brothers came forward to the people. They
proposed laws to redistribute the public lands and to Jimit the
powers of the corrupt Senate. Both men fell victims to their
foes, Tiberius in 133 B.C. and Gaius 12 years later.
'l'he death of Tiberius marked the beginning of a century
of revolution and civil war that ended in the establishment of
the Roman Empire. Great men of action reorganized the state.
Among them were Sulla, Pompey, Cicero, and Caesar. They
made themselves masters of the disrupted state, sometimes
uniting to make their position secure and sometimes waging
savage civil warfare.
The thing that saved the ultimate destruction of Rome
was the emergence of three brilliant statesmen, Gaius, Julius
ti
Caesar and his nephew, Augustus.
!'.I
Scrapping the old republican framework, they remolded
the structure into an empire. All power was gradually
concentrated in the hands of a single ruler, who was backed by
the Roman Army.
,, (b.3) Empire (31 B.C.-1433 A.D.)
The reign ofAugustus marked the end of the revolutionary
period. The establishment of the empire was followed by two
centuries of profound peace, and in the provinces responsible
men held power. Roman citizenship was extended to all free
men throughout the Empire and Roman law was adminjstered
in every court. Augustus was followed by his stepson, Tiberius
(A.D. 14-37). His reign was followed by that of CaUgula,
Claudius, and Nero, the last ruler of the lin.e of Augustus upon
whose death ended the first century of peace. After another
century, the passion for a life of luxury existed in all classes.
Selfishness and self-indulgence had become the first law of
life. Slave labor had degraded the once sturdy peasantry to
the status of serfs or beggars. The mjddle class, which once
had been the backbone of the nation, had almost disappeared.
In Roman society, there were then only the rich and the very
poor. For two years, after the two centuries of peace, there
were struggles for the throne among the military commanders.
The long centuries of the Empire fall naturally into two
periods. In the earlier period, usually known as the "Principate,"
CHAPTER II 13
WORLD'S LEGAL SYSTEM
though the emperor is in fact supreme, its power is disguised
under republican forms. This existed in the period of time stated
above. As the disguise vanished in the third century A.D., the
period was then called the "Dominate" because the emperor
is no longer in theory, merely the princeps, or "first citizen";
he is dominus - "master" - of his subjects. This undisguised
autocracy took place at about 214 A.D. Diocletian ascended the
throne. This emperor introduced important reforms amounting
to a change in the Constitution. The Senate was leveled down
to that of the city council of Rome, thereby having practically no
control over the Emperor himself. From Diocletian's time until
its end, the Roman Empire remained an absolute monarchy.
He also instituted an administrative division between the
Western and Eastern halves of the Empire. This cleavage was
accentuated when Emperor Constantine transferred his capital
to Constantinople (Greek City of Byzantium on the Black Sea)
in 330 A.D. This marked the gradual disintegration of the
Western Empire, and in the 5th century, when the last Roman
Emperor of the West, Romulus Augustus, was deposed, the
Western Empire finally collapsed with the Teutonic invasions
(476 A.O.). The Eastern Empire, on the other hand, has a long
future still before it, which was only to end with the capture of
Constantine by the Turks in 1453 A.D. (Comparative Study:
Roman Law and Philippine Law, pp. 3-8, Rolando A. Suarez)
COMMON LAW
Common law is derived from case law and books of authority.
It is an unwritten law which does not emanate from the express
will of the legislature. Rather, it is founded on maxims, rules and
principles derived from time-honored usages and customs which
received acceptance from the courts oflaw.
This legal system has prevailed and is still prevailing in
England, Ireland, Australia, Wales, New Zealand, Canada and in
the United States.
MOHAMMEDAN LAW
Mohammedan law is not strange in the Philippines for it has
been and is still being observed by Muslims in Mindanao provided
it does not conflict with the general law of the land. It is derived
principally from the Koran and from writings of Islamic jurists. The
 "I

14 INTRODUCTION TO LAW

teachings of Mohammed also serve as source of this legal system.

Islamic countries who believe in Allah and his prophet Mohammed
still observe this legal system. Some of these countries are Iran,
Afghanistan, Malaysia, Indonesia, Turkey, those in Africa and Chapter Ill
others.
LAW AND ITS APPLICATION
BLENDING OF LEGAL SYSTEMS IN THE PHILIPPINES
The three legal systems have met and blended into one legal
system in the Philippines. Our New Civil Code is basically Roman COURT'S DUTY TO DECIDE EVERY CASE
in origin. Our procedural laws are still being observed by Filipino A judge cannot decline to render judgment by reason of the
Muslims insofar as they do not conflict with the general laws of the silence, obscurity or insufficiency of the laws. (Art. 9, NCC) In other
land. words, he must decide the case assigned to him whether or not he
'"\
,, knows what law shall be applied. In case of silence, obscurity or
insufficiency of the laws, a judge may still be guided by the following:

~' 1. Customs which are not contrary to law, public order or

public policy;
2. Court decisions, foreign or local, in similar cases;
II'>I 3. Legal opinions of qualified writers and professors;
""""
4. General principles of justice and equity; and
5. Rules of statutory construction.
In criminal cases, however, it is an established rule that there
is no crime when there is no law punishing it - Nulla Poena Sine
Lege. lfthere is no law, therefore, which punishes an act complained
of, the judge must dismiss the case.

INTERPRETATION OF LAWS
It is the duty of the judge to apply the law without fear or favor.
In case of doubt in the interpretation or application of the laws, it
is presumed that the lawmaking body intended right and justice to
prevail. (Art. 10, NCC)
There are many rules of statutory construction but in order not
to saddle and confuse the beginner in the study of law, it is enough
in the meantime to know the most basic rules, namely:
1. When the law and its meaning is clear and unmistakable,
there is no need to interpret it any further;

15
 INTRODUCTION TO LAW
16
2. When construction or interpretation is necessary, the
court should interpret the law according to the meaning
the legislature intended to give it;
3. If there are two possible interpretations of a law, that
which will achieve the ends desired by Congress should
be adopted;
4. Laws of pleading, practice and procedure are likely
liberally construed in order to promote their object and to
assist the parties in obtaining just, speedy and inexpensive
determination of every action and proceeding; and
5. In case of doubt in the interpretation and application of
laws and when all other rules of statutory construction
fail, it is presumed that the lawmaking body intended
1 right and justice to prevail.
1.1
11'
' ·~
APPLICATION OF LAWS
In applying the law, the court should discover the real intent
and purpose of the legislature. If that intent and purpose can be
discovered within the law, it is the duty of the court to carry out that
intention.
•J
If the same cannot be discovered within the law, the court shall
be guided by extrinsic aids.
STATUTORY CONSTRUCTION, ITS CONCEPT, PURPOSE, AND
EFFECT
Statutory Construction Defined
Statutory construction is the act or process of discovering and
expounding the meaning and intention of the authors of the law
with respect to its application to a given case, where that intention is
rendered doubtful, among others, by reason of the fact that the given
case is not explicitly provided for in the law. (Caltex [Philippines],
Inc. vs. Palomar, L-19650, Sept. 29, 1966, 18 SCRA 247)
CONSTRUCTION DISTINGUISHED FROM INTERPRETATION
Construction and interpretation have the same purpose
and that is to ascertain and give effect to the legislative intent. A
distinction, however, has been drawn between construction and
interpretation. One who interprets makes use of intrinsic aids or
CHAPTER III 17
LAW AND ITS APPLICATION
those found in the statute itself, while one who constructs makes
use of extrinsic aids or those found outside of the written language
of the law. Based on this distinction, the basic rule therefore is -
ONE MUST INTERPRET FIRST BEFORE HE CONSTRUES.
MEANING OF THE RULE: "ONE MUST INTERPRET FIRST BEFORE
HE CONSTRUES"
In trying to ascertain the legislative intent, courts should
first be guided by intrinsic aids, or those found in the law itself.
If the legislative intent could be ascertained by merely making
use of intrinsic aids, there is no need to make use of extrinsic
aids, or those found outside of the written language of the law.
This is the consistent ruling of the Supreme Court in a long line
of cases. (Commissioner of Internal Revenue vs. Lim.pan Investment
Corporation, L-28571 and L-28644, July 31, 1970; United Christian
Missionary Society vs. Social Security System, L -26712-16, Dec. 17,
1969; Hidalgo vs. Hidalgo, L-25326, May 29, 1970; Casela vs. Court
of'Appeals, L-26754, Oct. 16, 1970)
INTRINSIC AIDS DISTINGUISHED FROM EXTRINSIC AIDS
Intrinsic aids are any of the following: title, preamble, words,
phrases and sentences context; punctuation; headings and marginal
notes; and legislative definitions and interpretation clauses. All of
these are found in the law itself.
Extrinsic aids may consist of contemporaneous circumstanc-
es, policy, legislative history of the statute, contemporaneous or
practical construction, executive construction, legislative construc-
tion, judicial construction, and construction by the bar and legal
commentators.
PURPOSE OF INTERPRETATION AND CONSTRUCTION
Interpretation and construction have the same purpose and
that is to ascertain and give effect to the legislative intent.
WHEN IS IT NECESSARY AND NOT NECESSARY TO INTERPRET
AND CONSTRUCT?
When Necessary?
It is necessary to interpret or construct when any of the follow-
ing reasons exists:
 18 INTRODUCTION 'W LAW
1. When the language of the statute is ambiguous, doubtful
or obscure when taken in relation to a set of facts; and
2. When reasonable minds disagree as to meaning of the
language used in the statute.
When Not Necessary?
It is not necessary to interpret or construct when the law speaks
in clear and categorical language. 'l'he duty of the court, in such a
case, is to APPLY THE LAW, NOT TO INTERPRET IT. (Go Ka Toe
& Sons vs. Rice & Corn Board, L-23607, May 23, 1967; People vs.
Mapa, L-22301, Aug. 30, 1967; Luzon Security Co. vs. De Gracia,
L-25659, Oct. 31, 1969)
Request of Judge Tito G. Gustilo that the
second 25% grant of the special allowance for
judges be included in the computation of his
retirement benefits, A.M. No. RTJ-04-1868, August
13, 2004; Callejo, Sr., J.
Facts:
,.,,
Judge Tito G. Gustilo, then Presiding Judge of the
R'I'C of Iloilo City, Branch 23 requested that the second
tranche of the Special Allowance granted to judges under
R.A. No. 9227 be included in the computation of his re-
tirement benefits. He claimed that pursuant to OCA Cir-
cular No. 48-2004 dated March 3, 2004, the first tranche
.. " of the Special Allowance equivalent to 25% was imple-
f:' mented starting on November 11, 2003. The next 25%
(second tranche) will be implemented on November 11,
2004. In this connection, Judge Gustilo appealed to the
Chief Justice that, in the computation of his retirement
benefits, the second tranche of the Special Allowance be
included since his retirement was only one (1) month and
twelve (12) days before its implementation on November
11, 2004.
The Office of the Court Administrator (OCA)
recommended that the request be granted, citing Judge
Gustilo's service record in the judiciary, which started
on January 18, 1983, including his exemplary record of
disposing cases at an average of2.25 cases each month.
Judge Gustilo's letter and the OCA's memorandum
were referred to the Court's Chief Attorney, who recom-
CHAPTER Ill 19
LAW AND ITS APPLICATION
mended the denial of the request for not being in accord
with R.A. No. 9227 and the Guidelines promulgated by
the Court.
Held:
It is axiomatic that when the law is clear, the func-
tion of the courts is simple application, not interpretation
or circumvention. With respect to the manner of compu-
tation of the retirement benefits in light of the Special
Allowance granted under Rep. Act No. 9227, Section 5
thereof, quoted anew below, could not be any clearer;
Sec. 5. Inclusion in the Computation of Retirement
Benefits. - For purposes ofretirement, only the allowances
actually received and tranche or tranches of the special
allowance already implemented and received pursuant to
this Act by the justices, judges and all other positions in
the Judiciary with the equivalent rank of justices of the
Court of Appeals and j udges of the Regional Trial Court
as authorized under existing laws shall, at the date of
their retirement, be included in the computation of their
respective retirement benefits.
A plain reading of the above provision shows that,
for purposes of retirement, only the allowances "actually
received" and the tranche or tranches "already received
and implemented," upon the date of retirement, shall be
included in the computation of the retirement benefits.
Otherwise put, before the Special Allowance could be
considered in the computation of retirement benefits, it
should have been "actually received" and the tranche or
tranches thereof should have been "already implemented
and received" at the date of retirement.
Accrued; Meaning of. - The Guidelines promul-
gated by this Court pursuant to Rep. Act No. 9227 is even
more definite as it used the term "accrued" in this wise:
"only the special allowance actually received and that
which has accrued at the time of retirement shall be in-
cluded." As correctly reasoned by the Chief Attorney;
Notably, the phrase "has accrued at the time of
retirement" is used in the Guidelines instead of "the
tranche or tranches of the special allowance already
implemented and received" which is used in Section 5
of Rep. Act No. 9227. Nevertheless, the same meaning
 20 INTRODUCTION TO LAW
is conveyed. The word "accrue" means "to come into
existence as an enforceable claim: vest as a right" or "to
come by way of increase or addition: arise as a growth or
result" or "to be periodically accumulated in the process
of time whether as an increase or a decrease." Hence, a
Special Allowance that has not yet come into existence as
an enforceable claim or has not yet vested on the recipient
judge as a matter of right cannot be considered in the
computation of retirement benefits.
Indeed, "accrue" in its past tense is "in sense of due
and demandable; vested." In the case of Judge Gustilo,
on the date of his retirement, the second tranche of the
.. Special Allowance has not accrued as yet; hence, it cannot
be said that the same is due and demandable or that it
I
has vested insofar as he is concerned.
it Interpretation of retirement laws generally
favors the retiree, except when the law is clear and
unambiguous. - The Chief Attorney, likewise, correctly
posits that the strict application of Section 5 of Rep. Act
No. 9227 is called for by the fact that, under Section 3
thereof, the source for the Special Allowance is the
Judiciary Development Fund (JDF) established under
Presidential Decree No. 1949, which basically comes from
the docket fees paid by litigants.
... As such, the JDF as a fund source is not constant
or fixed in amount, as its amount depends on the amount
collected by the courts and the amount of increase in
docket fees that the Court would impose. The fact of
the JDF becoming insufficient has been foreseen by the
Court and is reflected in the second paragraph of 4.1 of
the Guidelines quoted above. It is worth noting tha t until
now, the first tranche of the Special Allowance has been
received only for the months of 11 November 2003 until
February 2004. The delay in r eceipt thereof may continue
if courts nationwide do not timely transmit the reports of
collections to the OCA, as the JDF should be disbursed
only if the reports of collections and the deposits under the
JDF account for the Special Allowance tally in accordance
with accounting and auditing rules.
While this Court had, in certain cases, adopted
a liberal stance in interpreting retirement laws
in favor of the retiree. it cannot do so in this case
CHAPTER III 21
LAW AND ITS APPLICATION
because, as earlier stated, Section 5 of Rep. Act
No. 9227 is quite clear and unambiguous. In other
words, there is no room for interpretation but only
simple application of the Jaw.'' (underlining and
emphasis supplied)
WHO INTERPRETS THE LAW AND WHO DETERMINES LEGISLA-
TIVE INTENT?
Anyone can interpret the law. Lawyers, policemen, arbiters,
administrative boards and agencies, government as well as private
executives are involved from time to time in the interpretation of
laws. Their interpretation, however, is not necessarily conclusive
nor can they bind the courts. Hence, in many occasions, the deci-
sions of regulatory boards and administrative agencies have been
elevated and appealed to the Supreme Court in cases where there is
abuse of discretion and authority or when there is violation of due
process or denial of substantial justice or erroneous interpretation of
the law. (Mantrade FMMC Division Employees and Workers Union
vs. Bacungan, G.R. No. 48437, Sept. 30, 1986, Second Division, Fe-
ria, J.)
The Judiciary has the delicate task of ascertaining the
significance of a constitutional or statutory provision, an executive
order, a procedural or a municipal ordinance. It discharges a role
no crucial than the roles played by the two other departments in
maintaining the rule of law. To assure stability fa legal relations
and avoid confusion, it has to speak with one voice. Logically and
rightly, it does so with finality through the highest judicial organ, the
Supreme Court. What it says is definite and authoritative, binding
on those who occupy the lower ranks. in the judicial hierarchy.
(Conde vs. Intermediate Appellate Court, G.R. No. 70443, Sept. 15,
1986, Second Division, Gutierrez, Jr. , J.)
WHICH PREVAILS - THE LETTER OF THE LAW OR THE SPIRIT
OF THE LAW?
When the language of the law is clear and unequivocal, the
court's duty is to apply it, not to interpret it. The Supreme Court,
in the case of Chartered Bank Employees Association vs. Ople, G.R.
No. 44747, Aug. 28, 1985, restated the said rule in more elaborate
language. It said: "If the language of the law is clear and unequivocal,
then read the law to mean exactly what it says. If not, look for the
intention of the legislature."
 22 INTRODUCTION TO LAW
What if the letter of the law conflicts with its spirit, which
prevails?
There are two schools of thought on this matter. In the case
of People vs. Sales, et al., G.R. No. 66469, July 29, 1986, Justice
Isagani Cruz articulated his thought on this matter. He said: "A too
literal reading oflaw is apt to constrict rather than fulfill" is usually
found not in the "letter that killeth but in the spirit that vivifieth,"
which is not really evanescent or elusive. Judges must look beyond
and not be bound by the language of the law seeking to discover by
their own lights the reason and the rhyme for its enactment. That
they may properly apply in accordance to its end, they need and
must use not only learning but also vision."
The thinking of Justice Isagani Cruz is more in line with Article
10 of the Civil Code which says:
"In case of doubt in the interpretation or application of the
laws, it is presumed that the lawmaking body intended right
~I
I ). and justice to prevail." This is also the gist of the decisions of
the Supreme Court in the old cases of Torres vs. Limhays, 56
Phil. 141; De Coster vs. Olondriz and Esendero, 50 Phil. 725;
.M'fl
and in the celebrated case of Dominador Aytona vs. Andres
Castillo, et al., L -19313, Jan. 19, 1962
Former Chief Justice Ramon Aquino, on the other hand,
finds it risky to rely on the so-called "spirit of the law." He said:
"It is dangerous to rely on the so-called spirit of the law which we
cannot see nor handle and about which we do not know very much."
(Villanueva vs. Commission on Elections, G.R. No. 54718, Dec. 4,
1985)
AIDS IN INTERPRETATION AND CONSTRUCTION
I. USE INTRINSIC AIDS BEFORE RESORTING TO
EXTRINSIC AIDS
In determining the intention of the legislature, courts should
resort first to intrinsic aids before resorting to extrinsic aids.
Intrinsic Aids are any of the following: title; preamble; the
words, phrases and sentences context; punctuation; headings and
marginal notes; legislative definition and interpretation clauses.
1. TITLE - That which expresses the subject matter of the
law. It can help in the construction of statutes but it is not controlling
CHAPTER III 23
LAW AND ITS APPLICATION
and not entitled to much weight. (Commissioner of Customs vs.
Reluvia, G.R. No. L-118860, May 29, 1969)
2. PREAMBLE - That part of the statute following the
title and preceding the enacting clause which states the reasons
or the objectives of the enactment (Ace Bus Transportation vs.
South Hudson Country Blood Bus Owners Association, 177 A. 360)
It cannot enlarge or confer powers, or cure inherent defects in the
statute. (People vs. Hon. A. Purisima, et al., G.R. No. L-42050-66,
Nov. 30, 1978)
3. WORDS, PHRASES AND SENTENCES CONTEXT
- The intention of the legislature must primarily be determined
from the language of the statute and such language consists of the
words, phrases and sentences used therein. The meaning of the law
should , however, be taken from the general consideration of the act
as a whole and not from any single part, portion or section or from
isolated words and phrases, clauses or sentences used.
4. PUNCTUATION - It is an aid of low degree in inter-
preting the language of a statute and can never control against
the intelligible meaning of the written word. However, if the
punctuation of the statute gives it a meaning which is reasonable
and in apparent accord with the legislative will, it may be used as an
additional argument for adopting the literal meaning of the words
thus punctuated.
5. HEADINGS AND MARGINAL NOTES - If the mean-
ing of the statute is clear or if the text of the statute is clear they will
prevail as against the headings, especially ifthe headings have been
prepared by compilers and not by the legislature.
6. LEGISLATIVE DEFINITION AND INTERPRETA-
TION - If the legislature has defined the words used in the statute
and has declared the construction to be placed thereon, such defini-
tion or construction should be followed by the courts. The rules are
as follows:
(a) If a law provides that in case of doubt it should be
construed or interpreted in a certain manner, the courts
should follow such instruction.
(b) In case of conflict between the interpretation clauses
and the legislative meaning, as revealed by the statute
considered in its totality, the latter shall prevail.
 24 INTRODUCTION TO LAW
(c) A term is used throughout the statute in the same sense
in which it is first defined.
(d) Legislative definition of similar terms in other statutes
may be resorted to EXCEPT where a particular law
expressly declares that its definition therein is limited in
application to the statutes in which they appear.
II. EXTRINSIC AIDS
Extrinsic aids are the following: (1) contemporaneous circum-
stances; (2) policy; (3) legislative history of the statute; (4) contem-
poraneous or practical construction; (5) executive construction; (6)
legislative construction; (7) judicial construction; and (8) construc-
•1! tion by the bar and legal commentators.
Extrinsic aids can be resorted to only after the intrinsic aids
have been used and exhausted.
I. CONTEMPORANEOUS CIRCUMSTANCES - These
are the conditions existing at the time the law was enacted:
(a) History of the times and conditions existing at the
time the law was enacted;
(b) Previous state of the law;
(c) The evils sought to be remedied or corrected by the
law; and
(d) The customs and usages of the people.
The abovementioned circumstances constitute the reasons why
the law was enacted. Hence, the one interpreting the law should
place himself in the position and circumstances of those who used the
words in question and be able to feel the atmosphere, the conditions
and the reasons why the law was enacted.
2. POLICY - The general policy of the law or the settled
policy of the State may enlighten the interpreter of the law as to the
intention of the legislature in enacting the same. Hence, if a new
agrarian law is enacted today and few years from now, there will
arise the need to find out why such a law is enacted, the conditions,
the prevailing sentiment of the people, the policy of the State and
the executive order issued by the Office of the President preceding
the legislative enactment will throw light upon the intention of the
legislature in enacting said law. The same thing is true if death
sentence is imposed for drug pushers and for those currently
CHAP'fER III 25
LAW AND ITS APPLICATION
involved in the so-called "satanism" offenses. The conditions of
the times and the very destructive and heinous crimes committed
even in broad daylight, whether in the city or in the provinces, will
convince future interpreters of the law that such a penalty is needed
to protect society.
3. LEGISLATIVE HISTORY OF THE STATUTE -
Such history may be found in reports oflegislative committee, in the
transcript of stenographic notes taken during a hearing, legislative
investigation, or legislative debates.
Are personal opinions of some legislators appropriate aids of
construction?
As a general rule, they are not appropriate aids of construction.
However, ifthere is unanimity among the supporters and oppositors
to a bill with respect to the objective sought to be accomplished, the
debates may then be used as evidence of the purpose of the act.
4. CONTEMPORANEOUS AND PRACTICAL CON-
STRUCTION - Those who lived at or near the time when the law
was passed were more acquainted with the conditions and the rea-
sons why that law was enacted. Their understanding and applica-
tion of the law, especially if the same has been continued and acqui-
esced by the judicial tribunals and the legal profession, deserve to be
considered by the courts.
5. EXECUTIVE CONSTRUCTION - The construction
given by the executive department deserves great weight and should
be respected if said construction has been formed and observed for a
long period of time. The rules to remember are as follows:
(a) Congress is deemed to have been aware of the contem-
poraneous and practical construction made by the officers
charged with the administration and enforcement of the
law.
(b) The courts should respect that contemporaneous cons-
truction EXCEPT if it is clearly erroneous.
(c) Executive construction has more weight if it is rendered by
the Chief Legal Adviser of the government who can issue
opinions to assist various departments of the government
charged with the duty to administer the law.
The opinion, however, of the Chief Legal Adviser is subservient
to the ruling of the Judiciary which is in charge of applying and
interpreting laws.
26 INTRODUCTION '1'0 LAW
6. LEGISLATIVE CONSTRUCTION - Legislative con-
struction is entitled to consideration and great weight but it cannot
control as against the court's prerogative to decide on what is the
right or wrong interpretation.
7. JUDICIAL CONSTRUCTION - It is presumed that
the legislature was acquainted with and had in mind the judicial
construction of former statutes on the subject. It is also presumed
that the statute was enacted in the light of the judicial construction
that the prior enactment had received. With respect to a statute
adopted from another state, it is presumed that it was adopted with
the construction placed upon it by courts of that state.
Should this construction be followed?
It should be followed only if it is reasonable, in harmony with
justice and public policy and consistent with the local law.
JUDICIAL INTERPRETATION OF A STATUTE
CONSTITUTES PART OF THE LAW AS OF THE
DATE IT WAS ORIGINALLY PASSED.
In G.R. No. 172409, Feb. 4, 2008, entitled "Ross Industrial
Construction, Inc., et al. vs. NLRC, et al.," the Supreme Court ruled:
xxx
"The Court reiterates the settled rule that an appeal
from the decision of the Labor Arbiter involving a mon-
etary award is only deemed perfected upon the posting of
a cash or surety bond within ten (10) days from such deci-
sion.xx x
"Contrary to petitioners' assertion, the appeal bond
is not merely procedural but jurisdictional. Without
said bond, the NLRC does not acquire jurisdiction over
the appeal. Indeed, non-compliance with such legal
requirements is fatal and has the effect of rendering the
judgment final and executor)'. It must be stressed that
there is no inherent right to an appeal in a labor case, as it
arises solely from the grant of statute."
"While indeed the Court has relaxed the application
of this requirement in cases where the failure to comply
with the requirement was justified or where there was
substantial compliance with the rules, the overpowering
CHAPTER III 27
LAW AND ITS APPLICATION
legislative intent of Article 223 remains to be for a strict
application of the appeal bond requirement as a requisite
for the perfection of an appeal and as a burden imposed
on the employer.
Moreover, no exceptional circumstances obtain in the
case at the bar which would warrant a relaxation of the
bond requirement as a condition for perfecting the appeal.
It is only in highly meritorious cases that th[e] Court opts
not to strictly apply the rules and thus prevent a grave
injustice from being done and this is not one ofthose cases."
xxx
"The judicial interpretation of a statute constitutes
part of the law as of the date it was originally passed,
since the Court's construction merely establishes the
contemporaneous legislative intent that the interpreted
law carried into effect. Such judicial doctrine does not
amount to the passage of a new law but consists merely of
a construction or interpretation of a pre-existing one, as is
the situation in this case." xx x
8. CONSTRUCTION BY THE BAR AND LEGAL COM-
MENTATORS - It is presumed that the meaning publicly given
a statute by the members of the legal profession is a true one and
regarded as one that should not be lightly changed. (50 Am Jur,
p. 312) The opinion and commentaries of text writers and legal
commentators, whether they are Filipinos or foreigners, may also be
consulted as, in fact, they are oftentimes cited or made as references
in court decisions.
SIMPLIFICATION OF THE RULE REGARDING THE USE OF EXTRIN-
SIC AIDS
Extrinsic aids, such as those mentioned above, are entitled to
respect, consideration and weight but the courts are at liberty to
decide whether they are applicable or not to the case brought to it
for decision.
 CHAPTER IV 29
THE LEGAL PROFESSION AND THE QUALIFICATIONS
AND PROCEDURE FOR ADMISSION TO THE PRACTICE OF LAW

d.2.5 History
d.2.6 Economics
Chapter IV d.3 He must have completed a Bachelor of Laws degree
in a law school or university approved and recognized
THE LEGAL PROFESSION AND by the Secretary of Education.
THE QUALIFICATIONS AND PROCEDURE e. Moral and other Qualifications - He must be of
good moral character, and that no charges against him, involving
FOR ADMISSION TO THE PRACTICE OF LAW moral turpitude have been filed or are pending in any court in the
Philippines.
f. Bar Examinations - He must pass the Bar Examina-
QUALIFICATION FOR ADMISSION TO THE PRACTICE OF LAW
tions.
There are two basic requirements that should be complied with
f. l In order that a candidate may be deemed to have
before a person can engage in the practice oflaw.
passed his examinations successfully, he must have
obtained a general average of 75% in any subject. In
FIRST REQUIREMENT (Before Admission to the Bar)
determining the average, the subjects in the exami-
He should first be admitted to the bar. This requirement is nation shall be given the following relative weights:
accomplished by complying with the following requirements (Sec. 2 Civil Law, 15%; Labor and Social Legislation, 10%;
in relation to Secs. 5, 6, and 14, Rule 138, ROC): Political and International Law, 15%; Taxation,
10%; Remedial Law, 20%; Legal Ethics and Practi-
a. Citizenship - He must be a citizen of the Philippines;
cal Exercises, 5%.
b. Age - He must at least be twenty-one (21) years of age;
g. Oath - He must take the lawyer's oath before the
c. Residence - He must be a resident of the Philippines; Supreme Court itself. (Sec. 17, Rule 138, ROC)
d. Education Qualification h. Attorney's Roll - He must sign the roll of attorneys and
receive from the Clerk of Court of the Supreme Court a certificate of
d.1 He must have completed a four-year high school
the license to practice. (Secs. 18 and 19, Rule 138, ROC)
course which is a prerequisite to a bachelor's degree
in arts or sciences;
SECOND REQUIREMENT (After Admission to The Bar)
d.2 He must have completed a bachelor's degree with
The lawyer must remain in good and regular standing. This
any of the following subjects as major or field of
requires the following:
concentration:
(a) He must be a member of the IBP (Integrated Bar of the
d.2.1 Political Science
Philippines);
d.2.2 Logic
(b) He must regularly pay all IBP membership dues and
d.2.3 English other lawful assessment;
d.2.4 Spanish (c) He must observe faithfully the rules and ethics of the
profession; and
28 (d) He should be subject to judicial disciplinary control.
30 INTRODUCTION TO LAW
PURPOSE OF IMPOSING SAID REQUIREMENTS
The said requirements are imposed to see to it that those who
are admitted to the practice of law are mentally and morally fit to
discharge their duties to their clients, to the courts, and to the public
in general.
PROCEDURE FOR ADMISSION TO THE PRACTICE OF LAW
Anyone who desires to be admitted to the practice of law
should pass the Bar Examinations conducted by a committee of bar
examiners appointed by the Supreme Court.
Examinations for admission to the Bar of the Philippines shall
take place annually in the City of Manila. They shall be held in four
(4) days to be designated by the Chairman of the committees on bar
examiners. The subject s shall be distributed as follows:
First day: Political and International Law (morning) and
Labor and Social Legislation (afternoon);
Second day: Civil Law (morning) and Taxation (afternoon);
Third day: Mercantile Law (morning) and Criminal Law
(afternoon);
Fourth day: Remedial Law (morning) and Legal Ethics and
practical exercises (afternoon). (Secs. 8 and 11,
Rule 38, ROCJ
The Committee of bar examiners shall be composed of a Justice
of the Supreme Court, who shall act as chairman, and who shall be
designated by the court to serve for one (1) year, and eight members
of the Integrated Bar of the Philippines who shall hold office for a
period of one year. The names of the members of this Committee
shall be published in each volume of the Official Reports.
Not later than February 15th after the examination, or as
soon thereafter as may be practicable, the committee shall file its
report on the result of such examination. The examination papers
and notes of the committee shall be filed with the clerk and may be
examined by the parties in interest, after the court has approved
the report.
In order that a candidate may be deemed to have passed his
examinations successfully, he must have obtained a general average
of 75% in all subjects, without falling below 50% in any subject. In
determining the average, the subjects in the examination shall be
CHAPTER IV 31
THE LEGAL PROFESSION AND THE QUALIFICATIONS
AND PROCEDURE FOR ADMISSION TO THE PRACTICE OF LAW
given the following relative weights: Civil Law, 15%; Labor and
Social Legislation, 10%; Mercantile Law, 15%; Criminal Law, 10%;
Political and International Law, 15%; Taxation, 10%; Remedial
Law, 20%; Legal Ethics and Practical Exercises, 5%.*
CONSEQUENCE OF FAILURE TO PASS SAID EXAMINATION
Candidates who have failed the Bar Examinations for three
times shall be disqualified from taking another examination unless
they show to the satisfaction of the court that they have enrolled in
and passed regular fourth year classes as well as attended a pre-bar
review course in a recognized law school.
The professors of the individual review subjects attended by
the candidates under this rule shall certify under oath that the
candidates have regularly attended classes and passed the subjects
under the same conditions as ordinary students and the ratings
obtained by them in the particular subject. Now, failure to pass
the Bar Examinations for five (5) times perpetually disqualifies the
candidate from taking the Bar Examinations.
PRACTICE OF LAW IS MORE OF A PRIVILEGE THAN A RIGHT
The practice of law is not a matter of right. It is a privilege
accorded only to those who measure up to certain rigid standards of
mental and moral fitness. Anyone who is granted the said privilege
is expected to maintain the said rigid standards.
In three separate cases, the Supreme Court made the following
statement s:
Tan vs. Sabandal, B.M. No. 44
Bequia vs. Sabandal, SBC 66, Feb. 24, 1992
Melencio-Herrera, J.
"The practice of law is not a matter of right. It is a privilege
bestowed upon individuals who ar e not learned in the law but who
are also known to possess good moral character."
. *In the forthcoming bar examinations, there are some changes which will be
introduced by t he Supreme Court (i.e., There will be multiple choice questions. The
Bar candidates will be asked to ·indicate the best answer among several answers
mentioned in the examination question. There will still be the same type of questions
that have been used for many years. This will test the written ability of the Bar
candidates insofar as essay questions a re involved).
 32 INTRODUCTION TO LAW
Legarda vs. Court of Appeals
G.R. No. 94457, June 10, 1992
En Banc, Per Curiam
"Lawyers are indispensable part of the whole system of admi-
nistering justice in this jurisdiction. At a time when strong and
disturbing criticisms are being hurled at the legal profession, strict
compliance with one's oath of office and the Canons of Professional
Ethics is imperative."
"Lawyers should be fair, honest, respectable, above suspicion
and beyond reproach in dealing with their clients. The profession is
not synonymous with an ordinary business profession. It is a matter
•II
'I of public interest."
>I
fl
PRACTICE OF LAW IS A PROFESSION AND NOT A BUSINESS
Law advocacy is not a capital that yields profits. The returns it
gives birth to are simple rewards for job done or service rendered. It is
a calling that, unlike mercantile pursuits which enjoy a greater deal
of freedom from government interference, is impressed with public
interest, for which it is subject to State regulation (Metropolitan
Bank and Trust Company vs. Court ofAppeals, G.R. Nos. 86100-03,
Jan. 23, 1990, Second Division, Regalado, J.)
Membership in the legal profession is achieved only after a
long and laborious study. By years of patience, zeal and ability,
the attorney acquires a fixed means of support for himself and his
family. This is not to say, however, that the emphasis is on the
pecuniary value of this profession but rather on the social prestige
and intellectual standing necessarily arising from and attached to
the same person of the fact that everyone is deemed an officer of
the court. (Conrad vs. Navarro, Adm. Case No. 2033; Ortigas vs.
Navarro, Adm. Case No. 2148, May 9, 1990, En Banc, Per Curiam)
On the one hand, the profession of an attorney is of great
importance to an individual and the prosperity of his life may
depend on its exercise. The right to exercise it ought not to be lightly
or capriciously taken fro:m him. On the other hand, it is extremely
desirable that the respectability of the Bar should be maintained
and that its harmony with the Bench should be preserved. For these
objects, some controlling power, some moderation, and judgment,
must be exercised. (Conrad vs. Navarro, supra; Ortigas vs. Navarro,
supra)
CHAPTER IV 33
THE LEGAL PROFESSION AND THE QUALIFICATIONS
AND PROCEDURE FOH ADMISSION TO THE PRACTICE OF LAW
THE DUTIES OF A LAWYER
The lawyer has the following duties:
1. To maintain allegiance to the Republic of the Philippines
and to support the Constitution and obey the laws of the Philippines;
2. To observe and maintain the respect due to the courts of
justice and judicial officers;
3. To counsel or maintain such actions or proceedings only
as appear to him to be just, and such defense only as he believes to
be honestly debatable under the law;
4. To employ, for the purpose of maintaining the causes
confided to him, such means only as are consistent with truth and
honor, and never seek to mislead the judge or any judicial officer by
an artifice or false statement of fact or law;
5. To maintain inviolate the confidence, and at every peril
to himself, to preserve the secrets of his client, and to accept no
compensation in connection with his client's business except from
him or with his knowledge and approval;
6. To abstain from all offensive personality and to advance
no fact prejudicial to the honor or reputation of a party or witness,
unless required by the justice of the cause with which he is charged;
7. Not to encourage either the commencement or the
continuance of an action or proceeding, or delay any man's cause,
from any corrupt motive or interest;
8. Never to reject, for any consideration personal to himself,
the cause of the defenseless or oppressed; and
9. In the defense of a person accused of a crime, by all fair
and honorable means, regardless of his personal opinion as to the
guilt of the accused, to present every defense that the law permits to
the end that no person may be deprived oflife or liberty, but by due
process oflaw.
LAWYER'S COMPENSATION
An attorney shall be entitled to have and recover from his client
not more than a reasonable compensation for his services, with a
view of the importance of the subject matter of the controversy, the
extent of the services rendered, and the professional standing of the
attorney. No court shall be bound by the opinion of attorneys as
34 INTRODUCTION TO LAW
expert witnesses as to the proper compensation, but may disregard
such testimony and base its conclusion on its own professional
knowledge. A written contract for services shall control the amount
to be paid therefore unless found by the court to be unconscionable
or unreasonable.
DISCIPLINARY POWER OVER ATTORNEYS
A member of the bar may be removed or suspended from his
office as attorney by the Supreme Court for any deceit, malpractice,
or other gross misconduct in such office, grossly immoral conduct,
or by reason of his conviction of a crime involving moral turpitude,
or for any violation of the oath which he is required to take before
admission to practice, or for a willful disobedience of any lawful order
of a superior court, or for corruptly or willfully appearing as such
attorney for a party to a case without authority to do so. The practice
of soliciting cases at law for the purpose of gain, either personally or
through paid agents or brokers, constitutes malpractice.
The Court of Appeals or the Regional Trial Court may suspend
an attorney from practice for any of the causes named in the last
preceding section, and after such suspension, such attorney shall
not practice his profession until further action of the Supreme Court
in the premises.
Upon such suspension, the Court of Appeals or the Regional
Trial Court shall forthwith transmit to the Supreme Court a certified
copy of the order of suspension and a full statement of the facts upon
which the same was based. Upon the receipt of such certified copy
and statement, the Supreme Court shall make full investigation of
the fact involved and make such order revoking or extending the
suspension, or removing the attorney from his office as such, as the
facts warrant.
No attorney shall be removed or suspended from the practice of
his profession, until he has had full opportunities upon reasonable
notice to answer the charges against him, to produce witnesses in
his own behalf, and to be heard by himself or counsel. But if upon
reasonable notice he fails to appear and answer the accusation, the
court may proceed to determine the matter ex parte.
INTEGRATED BAR OF THE PHILIPPINES
The Supreme Court ordained the integration of the Philippine
Bar on January 16, 1973.
CHAPTER IV 35
THE LEGAL PROFESSION AND THE QUALIFICATIONS
AND PROCEDURE FOR ADMISSION TO THE PRACTlCE OF LAW
Under the 1987 Constitution, the Supreme Court has the
power, among others, to promulgate rules concerning the Integrated
Bar. Article VIII, Section 5 of the 1987 Constitution provides as
follows:
"Sec. 5. The Supreme Court shall have the following
powers: xx x
"(5) Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice of law,
the Integrated Bar, xx x." (Underscoring supplied)
INTEGRATION OF THE BAR DEFINED
This is the official unification of all lawyers in the Philippines
under one official national organization which is known and called
as INTEGRATED BAR OF THE PHILIPPINES.
LEGAL AND CONSTITUTIONAL BASIS
Section 5(5) of Article VIII of the 1987 Constitution is the
constitutional basis.
The legal basis is founded on the principle that - THE INHE-
RENT POWER OF THE SUPREME COURT TO REGULA'I'E THE
BAR INCLUDES THE AUTHORITY TO INTEGRATE THE BAR.
SUPPORTING ARGUMENTS IN SUPPORT OF
CONSTITUTIONALITY AND LEGALITY
(1) To compel a lawyer to be a member of the Integrated
Bar does not violate his constitutional freedom to associate (or the
corollary right not to associate).
(2) Integration does not make a lawyer a member of any
group of which he is not already a member. He became a member of
Lhe Bar when he passed the Bar Examinations.
(3) For the court to prescribe dues to be paid by the members
does not mean that the Court levies a tax. "A membership fee in the
integrated bar is an exaction for regulation, while the purpose of a
Lax is revenue. If the cotui has the inherent power to regulate the
Uar; it follows that as an incident to regulation, it may impose a
membership fee for that purpose. x xx"
36 INTRODUCTION TO LAW
(4) The Supreme Court, in order to further the State's
legitimate interest in elevating the quality of professional services,
may require that the cost of improving the profession in this fashion
be shared by the subjects and beneficiaries of the regularity program
- the lawyers.
(5) And because it is a new regulation in exchange for new
benefits , it is not retroactive, it is not unequal, it is not unfair. (In re
Integration of the Bar of the Philippines, 22 SCRA 22-28-31, 1973; In
re Edilion, A.M. No. 1928, August 3, 1978)
Chapter V
CODE OF PROFESSIONAL RESPONSIBILITY
BACKGROUND
In 1917, the Philippine Bar Association adopted Canons 1 to 32
ofthe Canons of Professional Ethics of the American Bar Association.
Ln 1946, it adopted Canons 33 to 4 7 of the Canons of Professional
Ethics of the American Bar Association. These Canons served as
the ethical rule that were followed and enforced by the courts, and
which were observed as guiding principles of the lawyers, the courts,
the Bar, and the public to ensure that due respect is given to the law
profession.
In 1980, the Integrated Bar of the Philippines adopted a
ode of Professional Responsibflity. It was submitted later to the
Supreme Court for approval. On June 21, 1988, the Supreme Court
promulgated the Code of Professional Responsibility.
THE CODE OF PROFESSIONAL RESPONSIBILITY IS BINDING
UPON ALL LAWYERS
The Code has twenty-two (22) Canons, thus:
Canon 1 A lawyer shall uphold the constitution, obey
the laws of the land and promote respect for
law and for legal processes.
Canon2 A lawyer shall make his legal services available
in an efficient and convenient manner
compatible with the independence, integrity
and effectiveness of the profession.
Canon 3 A lawyer in making known his legal services
shall use only true, honest, fair, dignified and
objective information or statement of facts.
37

38 INTRODUCTION TO LAW
A lawyer shall participate in the improvement
Canon4
of the legal system by initiating or supporting
efforts in law reform and in the improvement of
the administration of justice.
Canon5 A lawyer shall keep abreast of legal develop-
ments, participate in continuing legal educa-
tion programs, support efforts to achieve high
standards in law schools as well as in the prac-
tical training of law students and assist in dis-
seminating information regarding the law and
jurisprudence.
' ..f Canon6 These canons shall apply to lawyers in govern-
ment service in the discharge of their official
tasks.
~ I·
Ii Canon 7 A lawyer shall at all times uphold the integrity
and dignity of the legal profession and support
the activities of the integrated bar.
Canons A lawyer shall conduct himself with courtesy,
fairness and candor toward his professional
colleagues, and shall avoid harassing tactics
against opposing counsel.
Canon9 - A lawyer shall not, directly or indirectly, assist
in the unauthorized practice of law.
Canon 10 A lawyer owes candor, fairness and good faith
to the court.
Canon 11 A lawyer shall observe and maintain the
respect due to the courts and to judicial officers
and should insist on similar conduct by others.
Canon 12 A lawyer shall exert every effort and consider
it his duty to assist in the speedy and efficient
administration of justice.
Canon 13 A lawyer shall rely upon the merits of his
cause and refrain from any impropriety which
tends to influence, or gives the appearance of
influencing the court.
Canon 14 - A lawyer shall not refuse his services to the
needy.
CHAPTERV 39
CODE OF PROFESSIONAL RESPONSIBILITY
Canon 15 A lawyer shall observe candor, fairness and
loyalty in all his dealings and transactions
with his client.
Canon 16 A lawyer shall hold in trust all moneys and
properties of his client that may come into his
possession.
Canon 17 A lawyer owes fidelity to the cause of his
client and he shall be mindful of the trust and
confidence reposed in him.
Canon 18 A lawyer shall serve his client with competence
and diligence.
Canon 19 A lawyer shall represent his client with zeal
within the bounds of the law.
Canon20 A lawyer shall charge only fair and reasonable
fees.
Canon 21 A lawyer shall preserve the confidences and
secrets of his client even after the attorney-
client relation is terminated.
Canon 22 A lawyer shall withdraw his services only for
good cause and upon notice appropriate in the
circumstances.
GOOD MORAL CHARACTER IS THE CORNERSTONE OF THE
CODE OF PROFSSIONAL RESPONSIBILITY
BASIS:
1. Rule 138, Section 2, Revised Rules of Court
2. Canon 1, Rule 1.01
They provide as follows:
Rule 138, Sec. 2.
"Section 2. Requirements for all applicants for admission
to the Bar. - Every applicant for admission as a member of
the bar must be citizen of the Philippines, at least twenty-one
(21) years of age, of good moral character, and a resident of
the Philippines; and must produce before the Supreme Court
satisfactory evidence of good moral character and that no
40 INTRODUCTION TO LAW
charges against him, involving moral turpitude, have been
filed or are pending in any court in the Philippines."
Canon 1, Rule 1.01
"Canon 1. A lawyer shall uphold the constitution, obey
the laws of the land and promote respect for law and for legal
processes."
"Rule 1.01. A lawyer shall not engage in unlawful,
dishonest, immoral or deceitful conduct.
TO GIVE TEETH TO RULE 138, THE REVISED RULES OF COURT
PROVIDES THE FOLLOWING IN RULE 138, SECTION 27, THUS:
"Section 27. Attorneys removed or suspended by Supreme
Court on what grounds. - A member of the bar may be removed or
suspended from his office as attorney by the Supreme Court for any
deceit, malpractice, or other gross misconduct in such office, grossly
immoral conduct, or by reason of his conviction of a crime involving
moral turpitude, or for any violation of the oath which he is required
to take before the admission to practice, or for a willful disobedience
of any lawful order of a superior court, or for corruptly or willfully
appearing as an attorney for a party to a case without authority to
do so. The practice of soliciting cases at law for the purpose of gain,
either personally or through paid agents or brokers, constitutes
malpractice.
GOOD MORAL CHARACTER IS NOT ONLY A REQUISITE TO
ADMISSION TO THE PRACTICE OF LAW, BUT IT IS ALSO A
CONTINUING CONDITION TO REMAIN AS A MEMBER OF THE
LEG,A L PROFESSION
It is a continuing requisite and condition for a lawyer to remain
as a member of the legal profession for they are always required to
conform to the highest standards of morality. At anytime, or when
a lawyer commits a wrongdoing which indicates the moral unfitness
for the profession, whether it be professional or non-professional,
justifies disciplinary action. (Emilio Grande vs. Atty. Evangeline De
Silva, A.C. No. 4838, July 29, 2003)
In B.M. No. 1154, June 8, 2004, entitled "In the matter of
the Disqualification of Bar Examinee Haron S. Meling in the 2002
Bar Examinations and for Disciplinary Action as a member of the
Philippine Shari'a Bar," the Supreme Court said.
CHAPTERV 41
CODE OF PROFESSIONAL RESPONSIBILITY
Practice of law is not a right, but a privilege bestowed
upon individuals who are not only learned in the law, but who
are also known to possess good nwral character. Respondent's
concealment speaks of his lack ofgood moral, character and
results in the forfeiture of the privilege bestowed on him as a
member of the Shari'a Bar. - Practice oflaw, whether under the
regular or the Shari'a Court, is not a matter of right but merely a
privilege bestowed upon individuals who are not only learned in the
law but who are also known to possess good moral character. The
requirement of good moral character is not only a condition precedent
to admission to the practice of law, its continued possession is also
for remaining in the practice oflaw.
The standard form issued in connection with the application
to take 2002 Bar Examinations requires the applicant to aver
that he or she "has not been charged with any act or omission
punishable by law, rule or regulation before a fiscal, judge, officer
or administrative body, or indicted for, or accused or convicted
by any court or tribunal of, any offense or crime involving moral
turpitude; nor is there any pending case or charge against him/her."
Despite the declaration required by the form, Meling did not reveal
that he has three (3) pending criminal cases. His deliberate silence
constitutes concealment, done under oath at that. (In the Matter of
the Disqualification of Bar Examinee Helton S. Meling, B.M. No.
1154, June 8, 2004)
The disclosure requirement is imposed by the Court to determine
whether there is satisfactory evidence of good moral character of
Lhe applicant. The nature of whatever cases are pending against
Lhe applicant would aid the Court in determining whether he is
endowed with the moral fitness demanded of a lawyer. By concealillg
Lhe existence of such cases, the applicant then flunks the test of
fitness even if the cases are ultimately proven to be unwarranted
or insufficient to impugn or affect the good moral character of the
applicant.
Meling's concealment of the fact that there are three (3)
pending criminal cases against him speaks of his lack of the requisite
~ood moral character and results in the forfeitme of the privilege
bestowed upon him as a member of Shari'a Bar.
THE REQUIREMENT OF GOOD MORAL CHARACTER HAS THREE
(3) OSTENSIBLE PURPOSES
These purposes are:
1. To protecL the public;
 42 INTRODUCTION TO LAW
2. To protect the public image of lawyers; and
3. To protect prospective clients (Dantes vs. Dantes, A.C.
6486, Sept. 22, 2004)
WHAT IS THE CONCEPT OF GOOD MORAL CHARACTER?
There is no exact definition of the term "good moral character."
It has been held that moral character is what a person really is, as
distinguished from good reputation or from the opinion generally
entertained of him, the estimate in which he is held by the public
in the place where he is known. Moral character is not a subjective
term but one which corresponds to objective reality. The standard of
•• personal and professional integrity is not satisfied by such conduct
't
as merely entitles the person to escape the penalty of criminal law.
Good character includes at least common humility. (Royong vs.
Oblema, 7 SCRA 859)
The requirement of good character is of much greater import,
as far as the general public is concerned, than the possession of
the legal learning. Lawyers are expected to abide by the tenets of
morality, not only upon admission to the Bar but also throughout
their legal career, in order to maintain one's good standing in that
exclusive and honored fraternity. Good moral character is more than
just the absence of bad character. Such character expresses itself in
the will to do the unpleasant thing ifit is right, and the resolve not
to do the pleasant thing if it is wrong. This must be so because "vast
interests are committed to his care; he is the recipient of unbounded
trust and confidence; he deals with the client's property, reputation,
his life, his all." (Cordon vs. Balicanta, A.C. No. 2797, Oct. 4, 2002)
DISBARMENT AND DISCIPLINE OF ATTORNEYS; HOW IS THIS
CONSTITUTED?
SECTION 1 (RULE 139-B)-Proceedings for the disbarment,
suspension or discipline of attorneys may be taken by the Supreme
Court motu proprio, or by the Integrated Bar of the Philippines
(IBP) upon the verified complaint of any person. The complaint
shall state clearly and concisely the facts complained of and shall be
supported by a-ffidavits of persons h aving personal knowledge of the
facts therein alleged and/or by such documents as may substantiate
said facts.
The IBP Board of Governors may, motu proprio or upon
referral by the Supreme Court or by a Chapter Board of Officers, or
CHAPTERV 43
CODE OF PROFESSIONAL RESPONSIBILITY
at the instance of any person, initiate and prosecute proper charges
against erring attorneys including those in the government service.
Six (6) copies of the verified complaint shall be filed with the
Secretary ofany ofits chapters who shall forthwith transmit the same
to the IBP Board of Governors for assignment to an investigator.
LEOPOLDO V. CREDITO, ET AL. vs.
ATTY. SALVADORT. SABIO
Oct. 19, 2005
FACTS:
The labor arbiter ordered the reinstatement of the employee/
laborers of Binalbagan Isabela Sugar Company (Biscom) and
awarded to them the amount of P9,679,133.38 as total backwages.
The NLRC reversed the said decision which prompted the
complainants, led by Credito, to ask Atty. Salvador T. Sabio, to
file a petition for certiorari with the Supreme Court. Complainants
collected amounts from members ranging from P30 to PlOO each to
defray the expenses in filing the petition.
However, the Court dismissed the petition on March 2, 1992,
for failure to pay the proper docket and filing fees and for lack of the
required certification against forum shopping. Respondent allegedly
did not tell petitioners of the dismissal for three (3) years.
Complainants sought the disbarment of respondent for
negligence of duties. The matter was referred to the IBP, which
initially found respondent guilty of simple negligence and illegal
and unjust actuations as a practicing lawyer for which the penalty
of 2-year suspension was recommended. 'fhe IBP Board of Directors
reduced the penalty to a "warning" that a similar offense in the
future would be dealt with more severely.
HELD:
1. Canon 17 of the Code of Professional Responsibility
provides that lawyers owe fidelity to the cause of their clients
and must therefore be always mindful of the trust and confidence
reposed in them. Under Canon 18, they are mandated to serve their
clients with competence and diligence. Specifically, they are not to
"neglect a legal matter entrusted to (them), and (their) n egligence
in connection therewith shall render (them) liable." Additionally,
they are required to keep their clients informed of the status of the
 44 INTRODUCTION TO LAW
latter's cases and to respond within a reasonable time to request
for information. Even before joining the Bar, lawyers subscribe to
an oath to conduct themselves "with all good fidelity as well to the
courts as to their clients."
2. The dismissal of complainants' petition before the
Supreme Court was due to the failure of respondent to pay the
total revised docket and other legal fees as well as to attach the
required certification on forum shopping. He attempted to rectify
those procedural lapses by filing a Motion for Reconsideration.
Nonetheless, there is no denying the fact that he overlooked basic
procedural requirements that a normally prudent practitioner could
and should not have left unattended, especially when the rights
sought to be protected were those of the underprivileged like the
" present complainants.
3. Lawyers engaged to represent clients in a case bear the
responsibility of protecting the latter's interest with warmth, zeal
and utmost diligence. They must constantly keep in mind that their
actions or omissions would be binding on the clients.
4. In Garcia vs. Atty. Manuel, bad faith was ascribed to a
lawyer for failing to inform the client of the status of a case. In view
of their highly fiduciary relationship with their counsel, clients have
every reason -to expect from the former periodic and full updates on
case developments.
DISPOSITION:
Atty. Sabio was found guilty of violating Canons 17 and 18
of the Canons of Professional Responsibility and for which he was
SUSPENDED from the practice oflaw for one (1) year effective upon
receipt of decision, with stern warning that similar acts in the future
will be dealt with more severely.
Chapter VI
PERSONS
CONCEPT OF A PERSON
In Roman law, a person is one who is capable to exercise
ownership and legal rights and to incur and contract obligations.
Under this concept, a slave is not considered a person he being merely
regarded then as a chattel, a thing that can be sold or disposed of at
the discretion of the master. Hence, a slave does not have the legal
capacity to exercise ownership and to incur and contract obligations.
The old and the new Constitutions of the Philippines, on
the other hand, guarantee equal protection of the laws and this
means that no persons or class of person, whether rich or poor and
regardless of his religious belief and political persuasion, shall be
denied the same protection of the laws which is enjoyed by other
persons or other classes of persons in the same place and in like
circumstances. Special favor or privilege for any individual or class
i.s prohibited. (Sec. 1, Art. III, 1987 Constitution)
Under the New Civil Code, a person may be a natural or a
juridical person. A natural person refers to a human being and a
juridical person refers to any of the following:
(1) The state and its political subdivision;
(2) Other corporations, institutions and entities for public
interest or purposes, created by law;
(3) Corporations, partnerships and associations for private
interest or purpose to which the law grants a juridical
personality, separate and distinct from that of each
shareholder, partner or member. (Art. 44, NCC)
CAPACITY
In Roman law, legal capacity is referred to as full proprietary
capacity. To have this kind of capacity, a human being must be free,
45
46 INTRODUCTION TO LAW
a citizen and a sui juris. The capacity already acquired and being
enjoyed may be lost or diminished. The degree of diminution may
either be MAXIMA or MEDIA or MINIMA.
Under the New Civil Code, a person has full or complete civil
capacity if he has juridical capacity and capacity to act. Juridical
capacity is the fitness to be the subject oflegal relations. Capacity to
act is the power to do acts with legal effect.
Article 37 of the New Civil Code provides as follows:
"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."
Capacity to act, unlike juridical capacity, may be restricted or
limited. The restrictions are those mentioned in Article 38 of the
New Civil Code, to wit:
CODE:MISPC
M Minority
I Insanity
S State of being deaf-mute
P Prodigality
C Civil Interdiction
Civil interdiction shall deprive the offender during the time of
his sentences of the rights of parental authority, or guardianship,
either as to the person or property of any ward, or marital authority,
of the right to manage his property and of the right to dispose of such
property by any act or any conveyance inter vivos. (Art. 34, RPC)
Article 38 of the New Civil Code speaks of restrictions on
capacity to act, while Article 39 speaks of circumstances which
modify or limit capacity to act. Said articles provide as follows:
"Art. 38. Minority, insanity or imbecility, the state
of being a deaf-mute, prodigality and civil interdiction are
mere restrictions on capacity to act, and do not exempt the
incapacitated person from certain obligations, as when
the latter arise from his acts or from property rela tions,
such as easement."
CHAPTER VI 47
PERSONS
"Art. 39. The following circumstances, among oth-
ers, modify or limit capacity to act: age, insanity, and
imbecility, the state of being deaf-mute, penalty, prodi-
gality, family relations, alienage, absence, insolvency
and trusteeship. The consequences of these circumstanc-
es 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."
"A married woman, twenty-one years of age or
over, is qualified for all acts of civil life, except in cases
specified by law."
WHEN DOES THE PERSONALITY OF A NATURAL PERSON BEGIN?
Personality of a natural person begins at conception (not at
birth) provided that birth should occur later. This is on the basis of
Article 40 of the New Civil Code which provides as follows:
"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."
WHEN DOES THE PERSONALITY OF A PRIVATE CORPORATIONS
(PRIVATE JURIDICAL PERSON) BEGIN?
It begins from the moment a certificate of incorporation is
granted to it by the Securities and Exchange Commission. From
this moment, it has a personality separate and distinct from its
stockholders.
WHEN IS A FETUS CONSIDERED BORN?
Article 41 answers this question. It says: "For civil purposes,
Lhe 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 ofless than seven months, it is not deemed born if
it dies within twenty-four hours after his complete delivery from the
maternal womb."
Under Articles 40 and 41 therefore, a conceived child can
he a recipient of a donation provided it is favorable to him. This
means that if the donation is burdensome to the conceived child, the
donation is not considered valid.
 48 INTRODUCTION TO LAW

NOTE:
(1) If the fetus had an intra-uterine life of less than seven
months, the child must have lived within twenty-four (24) Chapter VII
hours after its complete delivery from its maternal womb.
(Last sentence, Art. 41)
CONCEPT AND NATURE OF MARRIAGE
(2) If the fetus had an intra-uterine life of at least seven (7)
months, it is considered born if it is alive after its complete
delivery from the mother's womb. CONCEPT
The concept of marriage both in Roman law and in the New Civil
Code are fundamentalJy the same. It is regarded as a permanent
union of a man and a woman. It is only in that sense that the concept
I"I is similar for while the Romans regard marriage as a union of a man
and a woman in a lifelong consortium, the New Civil Code came
out with a more strict and conservative concept and definition of
marriage. Still later, the New Family Code amended this definition.

DEFINITION OF MARRIAGE

REQUISITES OF AVALID MARRIAGE

Article 52, New Civil Article 1, New Family Code

Code
Marriage is not a Marriage is a special contract,
mere contract but an of permanent union, between a
inviolable social in- man and a woman entered into in
stitution. Its nahtre, accordance with law for the estab-
consequences and in- lishment of' conjugal and family
cidents are governed life. It is the foundation of the fam·
by law and not subject ily and an inviolable social insti-
to stipulation, except tution whose nature, consequence,
that the marriage and incidents are governed by law
settlements may, to and not subject to stip11lation, ex-
a certain extent, fix cept that marriage settlements
the property relations may fix the property relations d1tr·
during the marriage. ing the marriage within the limits
(n) provided by this Code. (52a)

49

50 INTRODUCTION TO LAW
Article 53, New Civil Code
Art. 53. No marriage shall
be solemnized unless all these
requisites are complied with:
1. Legal capacity of the con-
tracting parties;
2. Their consent, freely given;
3. Authority of the person
performing the marriage;
.,
Ii
and
4. A marriage license, except
in a marriage of exceptional
character. (Sec. la, Art.
3613)
Hence, unlike an ordinary contract, the parties, both under
the New Civil Code and the Family Code, cannot just terminate
their marriage as they wish, for the consequences and incidents of
marriage are governed by law. Notaries Public who draw or execute
documents destroying the inviolability of marriage are subject to
disciplinary action.
Articles 2 and 3, New
Family Code
Art. 2. No marriage shall
be valid, unless these essential
requisites are present:
1. Legal capacity of the con-
tracting parties who must
be a male and a female; and
2. Consent freely given in the
presence of the solemnizing
officer. (52a)
Art. 3. The formal requi-
sites of marriage are:
1. Authority of the
solemnizing officer;
2. A valid marriage license
except in the cases provided
for in Chapter of this Title;
and
3. A marriage ceremony
which takes place with the
appearance of the contract-
ing parties before the sol-
emnizing officer and their
personal declaration that
they take each other as
husband and wife in the
presence of not less than
two witnesses of legal age.
(53a, 55a)
" u..i o 1..1 a
CHAPT~]_Jhl ~ 51
CONCEPT AND NAT~ OF MARRIAGE +J.
I~ ~
UNDER ARTICLES 2 AND 3 OF iJtE NE"'tf tr'Py :
C'B:'
ESSENTIAL' QUISITES •
· "Art. 2. No marriage sh all~y valid,
1
i\~\
.,lj
essential requisites are prese~hi - 0;frri 3
(1) Legal capacity of thJ.i.f.Entracting parties who
these
must be male and a female; ESSION NO. 7
(2) Consent freely giuen in the presence of the
solemnizing officer." (Underscoring supplied)
FORMAL REQUISITES
"Art. 3. The formal requisites of maniage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases
provided for in Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with
the appearance of the contracting parties before the sol-
emnizing officer and their personal declaration that they
take each other as husband and wife in the presence ofnot
less than two witnesses of legal age." (53a, 55a) (Under-
scoring supplied)
ESSENTIAL REQUISITES
The absence of any of the said essential requisites renders the
contract of marriage uoid ab initio except as may be provided in
Section 35(2) of the Family Code.
Hence, it is required that:
(1) The contracting parties must be a man and a woman who
should have the legal capacity to ente1· into a contract of marriage.
This means that both of them must at least be 18 years of age, and
that they are not legally prohibited from marrying.
(2) Both ofthem must give consent to the marriage. It is their
consent, not the consent of the parents that is referred to in Article
2(1).
 4.. '4 , .. , .,
52 ~'. INTRODUCTION TO LAW CHAPTER VII 53
,
. .~\
1
CONCEPT AND NATURE OF MARRIAGE

FORMAL,REQUISIT~S i ~ gularity shall be civilly,

criminally and adminis-
ABSENCE OF LEGAL AUTHORITY OF THE SOLEMNIZING OFFI-
tratively liable.
CER TO SOi:-EMNIZE MARRIAGE
Examples: Examples: Examples:
ABSENCE OF MARRIA.G~ LICENSE
t .. 1. Lack of legal capac- 1. Lack of paren- 1. Lack of legal age of
Renders the marriage void except when the marriage is ity of the contract- tal consent. the witnesses.
contracted with either or both parties believing in good faith at ing parties. 2. Consent of a 2. Presence of only one
the time of the marriage that the solemnizing officer had the legal 2. Lack of consent of party is vi ti- witness.
authority to do so. any of the parties ated.
3. Failure to comply
to the marriage.
with the procedural
RENDERS THE MARRIAGE VOID 3. The parties are not requirements in Ar-
at least 18 years of tide 12.
A marriage ceremony must publicly take place under said age (considered as
conditions but the marriage ceremony may be solemnized elsewhere 4. Non-absence of the
lack of legal capac-
in the following cases: 3-month period as
ity}.
provided Ill Article
1. In case of marriages contracted at the point of death 15.
(articulo mortis); 5. Requirement of no-
tice in Article 17 is
2. In case of marriages in remote places; or
not complied with.
3. In case both parties request the solemnizing officer in
writing to that effect. (Art. 8, FC) There is a need of consent to the marriage to be given, in the
order mentioned, by the father, the mother, the surviving parent or
EFFECTS OF THE FOLLOWING: guardian, or persons having legal charge of them.
1. Absence of any of essential or formal requisites; The consent shall be manifested in wriiing by the interested
party, who personally appears before the local civil registrar, or in
2. Defects in any of the essential requisites; and the form of an affidavit made in the presence of two witnesses and
3. Irregularity in the formal requisites attested before any official authorized by law to administer oath.
(Art. 14, FC)
REQUIREMENTS If ANY OR BOTH OF THE CONTRACTING
PARTIES ARE BETWEEN 18 AND 21 YEARS OLD AND IF ANY OR REQUIREMENT IF ANY OF THE CONTRACTING PARTIES IS
BOTH ARE NOT EMANCIPATED BY MARRIAGE BETWEEN 21 AND 25 YEARS OLD
The party concerned shall be obliged to ask parental advice.
Absence of Any of Defects in Any
Irregularity in the If said advice is not obtained, or if such advice is not favorable,
the Essential or of the Essential
Formal Requisites or if the parent or guardian concerned refuses to give any advice,
Formal Requisites Requisites
no marriage license shall issue till after three (3) months following
the completion of publication of the application for marriage license.
It shall render the It shall render It shall not affect the
marriage void ab initio the marriage void- validity of the marriage (Art. 15, FC)
except as stated in able as provided in but the pal'ty 01· parties
Article 35(2). Article 45. responsible for the irre-
54 INTRODUCTION TO LAW CHAPTER VII 55
CONCEPT AND NATURE OF MARRIAGE

EFFECT IF MARRIAGE IS CELEBRATED WITHIN THE THREE
(3) MONTHS PERIOD ON THE BASIS OF A MARRIAGE LICENSE
ISSUED IN VIOLATION OF THE SAID PERIOD
The marriage is valid but the parties responsible of the
irregularity shall be civilly, criminally and administratively liable.
In other words, the same is treated merely as an irregularity. (Art.
4,FC)
AUTHORITY OF THE SOLEMNIZING OFFICER
Marriages solemnized by any person not legally authorized to
perform marriages are void unless such marriages were contracted
with either or both parties believing in good faith that the solemnizing
officer had the legal authority to do so. (Art. 35[2], FC)
or irregularly obtained. The marriage is valid just the same but
the guilty parties shall be civilly, criminally, and administratively
liable. (Art. 4, 3rd par., FC)
FORMALITIES OF MARRIAGE
No prescribed form or religious rite for the solemnization of
the marriage is required. It shall be necessary, however, for the
contracting parties to appear personally before the solemnizing
officer and declare in the presence of not less than two (2) witnesses
of legal age that they take each other as husband and wife. This
declaration shall be contained in the marriage certificate which
shall be signed by the contracting parties and their witnesses and
attested by the solemnizing officer. (Art. 6, FC)

NOTE: VOID AND VOIDABLE MARRIAGE

1. Under the Family Code, mayors are excluded from the The distinctions between a void and voidable marriage as to its
list of those who are authorized to solemnize marriage. concept and its effect are as follows:
Later, or under the New Local Government Code, the
mayors are now authorized to solemnize marriage. (Sec. Void marriage Voidable marriage
444 [XVIII], Local Government Code)
1. It is void ab initio. It is 1. The marriage is valid until it
2. Any incumbent member of the Judiciary may solemnize void from the very begin- is annulled.
marriages within the court's jurisdiction. ning and therefore no
marriage legally exists.
3. If the marriage is celebrated by a priest, imam or
minister of a church, it is required that at least one of the 2. The marriage can never 2. The marriage can be ratified
contracting parties belongs to the solemnizing officer's be ratified. by free cohabitation.
church or religious sect. (Art. 7[2], FC) 3. No conjugal partnership 3. There is conjugal partner-
is created. ship unless the marriage set-
4. The marriage shall be solemnized publicly in the chambers
tlements provided otherwise.
of the judge or in open court, in the church, chapel or
temple, or in the office of the consul-general, EXCEPT in 4. There is no need for a 4. A judicial decision is needed
cases of marriages in articulo mortis, or where both of the judicial declaration that to annul the marriage.
parties request the solemnizing officer in writing in which the marriage is void.
case the marriage may be solemnized at a house or place 5. The validity of the mar- 5. The validity of the marriage
designated by th.em in a sworn statement to that effect. riage may be attacked may not be attacked after
(Art. 8, FC) even after the death of one party dies.
one party.
MARRIAGE LICENSE
Without a marriage license, the marriage is void. But for as
long as there is a marriage license, it is immaterial if it is illegally
 56 INTRODUCTION TO LAW CHAPTER VII 57
CONCEPT AND NATURE OF MARRIAGE

WHAT ARE OTHER VOID MARRIAGES?

6. The status of children 6. The status of children born
born out of marriages that out of voidable marriages: The following marriages are void:
are void ab initio - They (1) Those conceived before a 1. Voicl because of psychological incapacity
are illegitimate children decree of annulment are
except as provided under Legitimate Children; "Art. 36. A marriage contracted by any party, who at the
Article 54 of the Family time of the celebration, was psychologically incapacitated to
Code which provides as (2) Those conceived after a comply with the essential marital obligations of marriage,
follows: decree of annulment are shall likewise be void even if such incapacity becomes manifest
Illegitimate children. only after its solemnization."
Art. 54. Children con-
ceived or born before the REPUBLIC OF THE PIDLIPPINES vs.
judgment of annulment COURT OF APPEALS
or absolute nullity of the 198 SCRA268
marriage under Article
36 has become final and FACTS:
executory shall be consid- On August 16, 1990, respondent Roridel 0. Molina filed a
ered legitimate. Children verified petition for declaration of annulment of her marriage to
I 1
conceived or born of the Reynaldo Molina.
subsequent marriage un-
,, der Article 53 shall like- The petition alleged that Roridel and Reynaldo were married
wise be legitimated. on April 14, 1985, at the San Agustin Church in Manila; that a son,
Andre 0. Molina was born; that after a year of marriage, Reynaldo
showed signs of"immaturity and irresponsibility" as a husband and
WHAT MARRIAGES ARE VOID FROM THE BEGINNING? a father since he preferred to spend more time with his peers and
friends on whom he squandered his money; that he depended on his
Under Article 35 of the Family Code, the following marriages
parents for aid and assistance; and, was never honest with his wife
shall be void from the beginning:
in regard to their finances, resulting in frequent quarrels between
(1) Those contracted by any party below eighteen years of them. That sometime in February 1986, Reynaldo was relieved of his
'.(. age even with the consent of parents or guardians; job in Manila, and since then, Roridel had been the sole breadwinner
of the family; that in October 1986, the couple had a very intense
(2) Those solemnized by any person not legally authorized to quarrel, as a result of which their relationship was estranged; that
perform marriages unless such marriages were contracted in March 1987, Roridel resigned from her job in Manila and went to
with either or both parties believing in good faith that the live with her parents in Baguio; that a few weeks later, Reynaldo
solemnizing officer had the legal authority to do so; left Roridel and their child, and had since then abandoned them;
(3) Those solemnized without license, except those covered that Reynaldo had thus shown that he was psychologically incapable
by the preceding Chapter; of complying with essential marital obligations and was highly-
immature and a habitually quarrelsome individual who thought of
(4) Those bigamous or polygamous marriages not falling
himself as a king to be served; and that it would be to the couple's
under Article 41;
best interest to have their marriage declared null and void in order
(5) Those contracted through mistake of one contracting to free them from what appeared to be an incompatible marriage
party as to the identity of the other; and from the start.
(6) Those subsequent marriages that are void under Article Reynaldo admitted that he and Roridel could no longer live
53. together as husband and wife, but contended that their misunder-
58 INTRODUCTION TO LAW
standings and frequent quarrels were due to: (1) Roridel's strange
behavior of insisting on maintaining her group of friends even after
their marriage; (2) Roridel's refusal to perform some of her marital
duties such as cooking meals; (3) and Roridel's failure to run the
household and handle their finances.
During the pre-trial on October 17, 1990, the following were
stipulated:
1. That the parties herein were lega1ly married on April 14,
1985 at the Church of St. Augustine, Manila;
2. That out of their marriage, a child named Albert Andre
Olaviano Molina was born on July 29, 1986;
3. That the parties are separated-in-fact for more than three
years;
4. That the petitioner is not asking support for her and her
child;
5. That the respondent is not asking fo·r damages; and
6. rrhat the common child of the parties is in the custody of
the petitioner wife.
Evidence for herein respondent wife consisted of her own
testimony and that of her friends Rosemarie Ventura and Maria
Leonora Padilla as well as of Ruth G. Lal as, a social worker and of
Dr. Theresita Hidalgo-Sison, a psychiatrist of the Baguio General
Hospital and Medical Center. She also submitted documents marked
as Exhibits "A" to "E-1." Reynaldo did not present any evidence as
he appeared only during the pre-trial conference.
On May 14, 1991, the trial court rendered judgment declaring
the marriage void. The appeal of petitioner was denied by the Court
of Appeals which affirmed in toto RTC's decision. Hence, the present
recourse.
ISSUE:
In his petition, the Solicitor General insists that "the Court
of Appeals made an erroneous and incorrect interpretation of the
phrase 'psychological incapacity' (as provided under Art. 36 of the
Family Code), and made an incorrect application thereof to the facts
of the case," adding that the appealed decision tended "to establish
in effect the most liberal divorce procedure in the world which is
anathema to our culture."
CHAPTER VII 59
CONCEPT AND NATURE OF MARRIAGE
In denying the Solicitor General's appeal, the respondent
Court relied heavily on the trial court's findings "that the marriage
between the parties broke up because oftheir opposing and conflicting
personalities." Then it added its own opinion that "the Civil Code
Revision Committee (hereinafter referred to as the Committee)
intended to liberalize the application of our civil laws on personal
nud family rights x x x." It concluded that:
As a ground for annulment of marriage, we view psychological
incapacity as a broad range of mental and behavioral conduct on
Lhe part of"irreconcilable differences" and "conflicting personalities"
in no wise constitutes psychological incapacity. It is not enough
to prove that the parties failed to meet their responsibilities and
duties as married persons; it is essential that they must be shown
to be incapable of doing so, due to some psychological (not physical)
illness.
The evidence adduced by respondent merely showed that she
and her husband could not get along with each other. There had
been no showing of the gravity of the problem neither its judicial
antecedence nor its incurability. The expert testimony of Dr. Sison
showed no incurable psychiatric disorder but only incompatibility.
COURT
Q - It is therefore the recommendation of the psychiatrist
based on your findings that it is better for the Court to
annul (sic) the marriage?
A - Yes, Your Honor.
Q - There is no hope for the marriage?
A - There is no hope, the man is also living with another
woman.
Q - Is it also the stand of the psychiatrist that the parties
are psychologically unfit for each other but they are
psychologically fit with the other parties?
A - Yes, Your Honor.
Q - Neither are they psychologically unfit for their professions?
A - Yes, Your Honor.
In the case of Reynaldo, there is no showing that his alleged
p •rsonality traits were constitutive of psychological incapacity
 60 INTRODUCTION TO LAW
existing at the time of marriage celebration. While some effort
was made to prove that there was a failure to fulfill pre-nuptial
impressions of "thoughtfulness and gentleness." On Reynaldo's part
and of being "conservative, homely and intelligent" on the part of
Roridel, such failure of expectation is not indicative of antecedent
psychological incapacity. If at all, it merely shows love's temporary
blindness to the faults and blemishes of the beloved. (Italics supplied)
2. Void because of psychological incapacity
"Art. 38. A marriage contracted by any party, who at the
time of the celebration, was psychologically incapacitated to
comply with the essential marital obligations of marriage,
shall likewise be void even if such incapacity becomes manifest
only after its solemnization."
I I
3. Void because of incestuous relationship
Art. 37. Marriages between the following are incestuous
and void from the beginning, whether the 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.
3. Void for reasons of public policy
Art. 38. The following marriages shall be void from the
beginning for reasons of public policy:
1. Between collateral blood relatives, whether legiti-
mate or illegitimate, up to the fourth civil degree;
2. Between step-parents and step-children;
3. Between parent-in-law and children-in-law;
4. Between the adopting parent and the adopted child;
5. Between the surviving spou se of adopting parent
and the adopted child;
6. Between the surviving spouse of the adopted child
and the adopter;
CHAPTER VII 61
CONCEPT AND NATURE OF MARRIAGE
7. Between an adopted child and a legitimate child of
the adopter;
8. Between adopted children of the same adopter; and
9. Between parties where one, with the intention to
marry the other, killed that other person's spouse,
or his or her own spouse.
Question - Is there a need to file an action for declara-
tion of nullity of the said marriage?
Answer - Yes.
Question - Is there a prescriptive period within which
said action shall be filed?
Answer - The action for declaration of nullity of the marriage
under Article 36 of the Family Code shall prescribe in ten (10) years
after its celebration. In other instances, the action or defense for the
declaration of absolute nullity shall not prescribe.
Question - What is voidable marriage?
Answer - A voidable marriage is one which is valid until it
is annulled for any of the following cases, existing at the time of the
marriage:
1. NO AGE REQUIREMENT - That the party in whose
behalf it is sought to have the marriage annulled was
eighteen (18) years of age or over but below twenty-one
(21) and the marriage was solemnized without the consent
of the parents, guardian or pers on having substitute
parental authority over the party, in that order, unless
after attaining the age of twenty-one (21), such party
freely cohabited with the other and both lived together as
husband and wife.
2. UNSOUND MIND - That either party was of unsound
mind, unless such party after coming to reason, freely
cohabited with the other as husband and wife.
3. FRAUD - That the consent of either party was
obtained by fraud, unless such party afterwards, with
full knowledge of the facts constituting the fraud, freely
cohabited with the other as husband and wife.
62 INTRODUCTION TO LAW
4. FORCE,INTIMIDATION,ANDUNDUE INFLUENCE
- That the consent of either party was obtained by force,
intimidation or undue influence, unless the same having
disappeared or ceased, such party thereafter freely
cohabited with the other as husband and wife.
5. IMPOTENCE - That either party was physically
incapable of consummating the marriage with the
other, and such incapacity continues and appears to be
incurable.
6. SEXUALLY-TRANSMISSIBLE DISEASE - That
either party was afflicted with a sexually-transmissible
disease found to be serious and appears to be incurable.
ESSENTIAL REQUISITES:
(1) LEGAL CAPACITY, and (2) CONSENT FREELY GIVEN
LEGAL CAPACITY
This means that the parties must have the necessary age
and that there must be no impediment caused by a prior existing
marriage or by a certain relationship, whether on account of affinity
or consanguinity.
RULES TO REMEMBER
(1) Marriageable age for either male or female shall be 18
years or upwards. (Art. 5, FCJ
(2) If either or both of the contracting parties (not having
been emancipated by previous marriage) are between 18 and 21
years old, there must be consent to the marriage by the father,
mother, surviving parent or guardian or persons having legal charge
of them, in the order mentioned. (Art. 14, FC)
(3) Any contracting party between the age of 21 and 25 shall
be obliged to ask their parents or guardian for advice, or if it be
unfavorable, the marriage license shall not be issued till after
three (3) months following the completion of the publication of the
application therefore. (Art. 15, FC)
( 4) If parental consent or parental advice is needed, there
must be a certificate that the contracting parties have undergone
marriage counselling. Failure to attach certificate of marriage coun-
CHAPTER VII 63
CONCEPT AND NATURE OF MARRIAGE
selling shall suspend the completion of the publication of the appli-
cation. (Art. 16, FC)
(5) Marriage celebrated without the required license, except
when otherwise provided by law like marriage in articulo mortis,
shall be null and void. (Art. 35[3], FC)
(6) Marriage contracted by any party below 18 years of age,
even with parental consent, shall be null and void. (Art. 35[1], FC)
CONSENT FREELY GIVEN
The consent referred to in Article 2 of the Family Code refers to
the consent of the contracting parties. If there is no consent or when
the parties do not have the intention to be bound, the marriage is
void. If there is consent, but there was error, fraud, intimidation or
force, the marriage is voidable. (Art. 45, FC)
WHAT CONSTITUTES FRAUD AS A GROUND FOR ANNULMENT
OF MARRIAGE?
Article 46 of the Family Code answers this question. It provides
as follows:
(1) Non-disclosure ofa previous conviction by final judg-
ment of the other party of a crime involving moral turpitude;
(2) Concealment by the wife of the fact that at the time
of the marriage, she was pregnant by a man other than her
husband;
(3) Concealment of sexually transmissible disease,
regardless of its nature, existing at the time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism
or homosexuality or lesbianism at the time of the marriage.
No other misrepresentation or deceits as to character, health,
rank, fortune or chastity shall constitute such fraud as will give
grounds for action for the annulment of marriage.
EFFECTS OF ANNULMENT OF VOIDABLE MARRIAGE
It has four effects namely:
(1) WITH RESPECT TO EDUCATION AND SUPPORT
- The court shall provide for their education and support. (Art. 49,
FC)
 64 INTRODUCTION TO LAW
(2) WITH RESPECT TO CUSTODY OF CHILDREN -
The custody of the children is provided for as the court deems best.
(Art. 49, FC)
(3) WITH RESPECT TO ATTORNEY'S FEES AND
LITIGATION EXPENSES - They are taken from the community
property, if the action is successful. (Art. 90, NCC)
(4)WITH RESPECT TO THE GUILTY PARTY -
Damages are assessed against the guilty party in case of annulment
due to:
(a) Lack of authority of the solemnizing officer concealed
from one party;
(b) Concealment of impotence, or of a prior marriage
still in force;
I I
1. I (c) Concealment of incestuous relationship or of quasi-
incestuous disqualification under Article 82;
(d) Knowledge of insanity of one party. (Art. 91)
STATUS OF CHILDREN BORN-OUT OF MARRIAGES AB IN/TIO
They are illegitimate children except as provided under Article
54 of the Family Code which provides as follows:
Art. 54. Children conceived or born before the judgment of
annulment or absolute nullity of the marriage under Article 36
has become final and executor shall be considered legitimate.
Chlldren conceived or born of the subsequent marriage under
Article 53 shall likewise be legitimate.
STATUS OF CHILDREN BORN OUT OF VOIDABLE MARRIAGES
It depends. Those conceived BEFORE an appealable decree of
annulment are legitimate children. Those conceived AFTER such
decree of annulment are illegitimate children.
RESTRICTIONS AND PRECAUTIONS TO BE OBSERVED BY THE
COURT IN ISSUING THE DECREE OF ANNULMENT
Art. 48. In all cases of annulment or declaration of absolute
nullity of marriage, the court shall order the prosecuting attorney or
fiscal assigned to it to appear on behalf of the state to take steps to
CHAPrERVII 65
CONCEPT AND NATURE OF MARRIAGE
prevent collusion between the parties and to take care that evidence
is not fabricated or suppressed.
In all cases referred to in the preceding paragraph, no judgment
shall be based upon a stipulation of facts or confession of judgment.
CAPACITY AND RIGHT TO RE MARRY UNDER ARTICLE 26 OF
THE CIVIL CODE
REPUBLIC OF THE PHILIPPINES vs.
CIPRIANO ORBECIDO II
G.R. No. 154380, Oct. 5, 2005
FACTS:
Cipriano Orbecido III married Lady Myrna M. Villanueva
on May 24, 1981, Ozamiz City. They are blessed with a son and a
daughter.
In 1986, Cipriano's wife left for the U.S. with their son. A few
years later, Cipriano discovered that his wife had been naturalized
as an American citizen. Much later, Cipriano learned from his son
that his wife obtained a divorce decree and then married a certain
innocent Stanley.
Cipriano thereafter :filed with the trial court a petition for
a uthority to remarry invoking paragraph 2 of Article 26 of the
l"amily Code. No opposition was filed. The court granted the petition.
The Republic, through the OSG, moved for the reconsideration. OSG
raisedapurequestionoflaw - WHETHERORNOTRESPONDENT
CAN REMARRY UNDER ARTICLE 26 OF THE FAMILY CODE.
OSG's contentions: (1) That paragraph 2 of Article 26 of the
Ci'amily Code is not applicable to the instant case because it only
applies to a marriage celebrated between Filipino citizen and an
a lien; (2) the proper remedy is to file a petition for annulment or for
legal separation; (3) that there is no law that governs respondent's
i-;it,uation.
Respondent admits that Article 26 is not directly applicable to
his case but insists that when his naturalized alien wife obtained a
divorce which capacitated her to remarry, he is likewise capacitated
by operation of law pursuant to Section 12, Article II of the
'onstitution.
66 INTRODUCTION TO LAW
HELD:
Records of the proceedings of the Family Code deliberations
showed that the intent of Paragraph 2 of Article 26, according to
Judge Alicia Sempio-Diy, a member of the Civil Code Revision
Committee, is to avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who, after obtaining a
divorce, is no longer married to the Filipino spouse.
Interestingly, Paragraph 2 of Article 26 traces its origin to the
1985 case of Van Dorn v. Romillo, Jr. (No. L-68470, 8 Oct. 1985,
139 SCRA 139). The Van Dorn case involved a marriage between
a Filipino citizen and a foreigner. The Court held therein that a
divorce decree validly obtained by the alien spouse is valid in the
Philippines, and consequently, the Filipino spouse is capacitated to
remarry under Philippine law.
Does the same principle apply to a case where at the time of the
celebration of the marriage the parties were Filipino citizens, but
later on, one of them obtains a foreign citizenship by naturalization?
The jurisprudential answer lies latent in the 1998 case of Quita
v. Court ofAppeals (G.R. No. 124862, 22 December 1998, 300 SCRA
406). In Quita, the parties were, as in this case, Filipino citizens
when they got married. The wife became a naturalized American
citizen in 1954 and obtained a divorce in the same year. The Court
therein hinted, by way of obiter dictum, that a Filipino divorced by
his naturalized foreign spouse is no longer married under Philippine
law and can thus remarry.
Thus, taking into consideration the legislative intent and ap-
plying the rule ofreason, [the Court] hold[s] that Paragraph 2 of Ar-
ticle 26 should be interpreted to include cases involving parties who,
at the time of celebration of the marriage, were Filipino citizens,
but later on, one of them becomes naturalized as a foreign citizen
and obtains a divorced decree. The Filipino spouse should likewise
be allowed to remarry as if the other party were a foreigner at the
time of the solemnization of the marriage. To rule otherwise would
be to sanction absurdity and injustice. Where the interpretation of
a statute according to its exact and literal import would lead to mis-
chievous results or contravene the clear purpose of the legislature, it
should be construed according to its spirit and reason, disregarding
as far as necessary the letter of the law. A statute may therefore be
extended to cases not within the literal meaning of its terms, so long
as they come within its spirit or intent.
CHAPTER VII 67
CONCEPT AND NATURE OF MARRIAGE
If [the Court] [was] to give meaning to the legislative intent to
avoid the absurd situation where the Filipino spouse remains mar-
ried to the alien spouse who, after obtaining a divorce is no longer
marrie~l to the Filipino spouse, then the instant case must be deemed
as coming within the contemplation of Paragraph 2, Article 26.
Twin elements for the application of Paragraph 2 of Article
26. - In view of the foregoing, we state the twin elements for the
application of Paragraph 2, Article 26 as follows:
1. There is a valid marriage that has been celebrated
between a Filipino citizen and a foreigner;
2. A valid divorce is obtained abroad by the alien spouse
capacitating him or her to remarry.
The reckoning point is not the citizenship of the parties at
the time of the celebration of the marriage, but their citizenship
at the time a valid divorce is obtained abroad by the alien spouse
capacitating the latter to remarry.
In this case, when Cipriano's wife was naturalized as an Ame-
rican citizen, there was still a valid marriage that has been celebrated
between her and Cipriano. As fate would have it, the naturalized
alien wife subsequently obtained a valid divorce capacitating her to
remarry. Clearly, the twin requisites for the application of Paragraph
2 of Article 26 are both present in this case. Thus, Cipriano, the
"divorced" Filipino spouse should be allowed to remarry.
[The Court] [is] also unable to sustain the OSG's theory that
the proper remedy of the Filipino spouse is to file either a petition
for annulment or a petition for legal separation. Annulment would
be a long and tedious process, and in this particular case, not even
feasible, considering that the marriage of the parties appears to
have all the badges of validity. On the other hand, legal separation
would not be sufficient remedy for it would not sever the marriage
t.ie; hence, the legally separated Filipino spouse would still remain
married to the naturalized alien spouse.
Competent evidence of divorce decree and naturalization of
wife; Foreign law allowing divorce. - However, [the Court] note[s]
that the records are bereft of competent evidence duly submitted by
respondent concerning the divorce decree and the naturalization of
respondent's wife. It is settled rule that one who alleges a fact has
lhe burden of proving it and mere allegation is not evidence.
 68 fNTRODUCTJON TO LAW
Accordingly, for his plea to prosper, respondent herein must
prove his allegation that his wife was naturalized as an American
citizen. Likewise, before a foreign divorce decree can be recognized
by our own courts, the party pleading it must prove the divorce
decree as a fact and demonstrate its conformity to the foreign law
allowing it. Such foreign law must also be proved as our courts
cannot take judicial notice of foreign laws. Like any other fact, such
law must be alleged and proved. Furthermore, respondent must
also show that the divorce decree al1ows his former wife to remarry
as specifically required in Article 26. Otherwise, there would be no
evidence sufficient to declare that he is capacitated to enter into
another marriage.
Nevertheless, [the Court] [is] unanimous in our holding that
paragraph 2 of Article 26 of the Family Code (E.0. No. 209, as
amended by E.O No. 227), should be interpreted to allow a Filipino
. ' citizen, who has been divorced by a spouse who had acquired foreign
citizenship and remarried, also to remarry. However, considering
that in the present petition there is no sufficient evidence submitted
and on record, we are unable to declare, based on respondent's bare
allegations that his wife, who was naturalized as an American citizen,
had obtained a divorce decree and had remarried an American,
that respondent is now capacitated to remarry. Such declaration
could. only be made properly upon respondent's submission of the
aforecited evidence in his favor.
The petition by the Republic of the Philippines is GRANTED.
The assailed Decision dated May 15, 2002, and Resolution dated
July 4, 2002, of the Regional Trial Court of Molave, Zamboanga del
Sur, Branch 23, are hereby SET ASIDE.
LEGAL SEPARATION
INTRODUCTION
In the Philippines, we do not have absolute divorce (divorce a
vinculo matrimoni). We only have relative divorce or legal separation
(divorce a mensa et thoro). In absolute divorce, the marriage is
dissolved and the parties can remarry. In relative divorce or legal
separation, however, the marriage bond is not dissolved and the
parties are not entitled to remarry. In effect, the parties are merely
separated from bed and board.
CHAPTER VII 69
CONCEPT AND NATURE OF MARRIAGE
GROUNDS FOR LEGAL SEPARATION
There are ten (10) grounds for legal separation under Article
55 of the Family Code, to wit:
(1) Repeated physical violence or grossly abusive conduct
directed against the petitioner, a common child, or a child
of the petitioner;
(2) Physical violence or moral pressure to compel the
petitioner to change religious or political affiliation;
(3) Attempt ofrespondent to corrupt or induce the petitioner,
a common child, or a child of the petitioner, to engage
in prostitution, or connivance in such corruption or
inducement;
(4) Final judgment sentencing the respondent to imprison-
ment of more than six (6) years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous
marriage, whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the
petitioner; or
(10) Abandonment of petitioner by respondent without justi-
fiable cause for more than one year.
For purposes of this Article, the term "child" shall include a
child by nature or by adoption. Under Article 97 of the Civil Code,
there are only two (2) grounds for legal separation, namely:
(1) For adultery on the part of the wife and for concubinage
on the part of the husband as defined in the Penal Code;
or
(2) An attempt by one spouse against the life of the other.
WITHIN WHAT TIME SHOULD AN ACTION FOR LEGAL SEPARA-
TION BE FILED?
Article 57 of the Family Code provide that an action for legal
Hoparation shall be filed within five (5) years from the time of the
n currence of the cause.
70 INTRODUCTION TO LAW
EVIDENCE REQUIRED AS BASIS FOR JUDGMENT IN ACTION
FOR LEGAL SEPARATION
Simple preponderance of evidence is required. No previous
criminal conviction is necessary. No decree oflegal separation shall
be based upon a stipulation of facts or a confession ofjudgment.
WHAT IS ADULTERY?
Adultery is a crime committed by any married woman who
shall have sexual intercourse with a man not her husband; and by
a man who has carnal knowledge of her, knowing her to be married,
even if the marriage be subsequently declared void. (Art. 333, RPC)
NOTE:
1. Article 333 of the Revised Penal Code specifies that the
crime is committed by a married woman. Therefore, if
a woman is single or not married, and she bas sexual
intercourse with her two or more boyfriends, she cannot
be held liable for adultery.
2. Adultery may be proved by circumstantial evidence.
WHAT IS CONCUBINAGE?
Any husband who shall keep a mistress in the conjugal dwelling
or, shall have sexual intercourse, under scandalous circumstances,
with a woman who is not his wife, or shall cohabit with her in any
other place, shall be punished by prision correcional in its minimum
and maximum periods. (Art. 334, RPC)
REQUISITES FOR LEGAL SEPARATION
The requisites for legal separation are those provided in
Articles 57, 58, 59, and 60 of the Family Code:
First: Time Constraint
"Art. 57. An act for legal separation shall be filed
within five (5) years from the time of the occurrence of
the cause."
Second: Cooling Off Period
"Art. 58. An action for legal separation shall in no
case be tried before six (6) months shall have elapsed
since the filing of the petition."
CHAPTER VII 71
CONCEPT AND NATURE OF MARRIAGE
Third: Reconciliation
"Art. 59. In every case, no legal separation may
be decreed unless the court has taken steps toward the
reconciliation of the spouses and is fully satisfied despite
such efforts, that reconciliation is highly improbable."
Fourth: No Legal Separation on the
Basis of Stipulation ofFacts
"Art. 60. No decree oflegal separation shall be based
upon a stipulation of facts or a confession of judgment.
In any case, the court shall order the prosecuting
attorney or fiscal assigned to it to take steps to prevent
collusion between the parties and to take care that the
evidence is not fabricated or suppressed."
EFFECTS OF LEGAL SEPARATION
The effects of legal separation are those mentioned in Articles
61, 62, 63, 198, and 213 of the Family Code:
Art. 61 - states the effects after the petition for legal
separation is filed.
Art. 62 - states the effects during the pendency of legal
separation.
Art. 63 - states the effects of the decree of legal separa-
tion.
Art. 49 - (1st paragraph) states the effects of the pending
petition for legal separation.
Art. 198 - (2nd paragraph) states the effects of a final
judgment granting the petition for legal separation.
Art. 213 - states the effects of separation with respect to
parental authority.
EFFECTS AFTER FILING OF THE PETITION (ART. 61, FC)
1. After the filing of the petition for legal separation, the
spouses shall be entitled to live separately from each other.
2. The court, in the absence of a written agreement between
the spouses, shall designate either of them or a third person
to administer the absolute community or conjugal partnership
72 INTRODUCTION TO LAW
property. The administrator appointed by the court shall have the
same powers and duties as those of a guardian under the Rules of
Court.
EFFECTS DURING PENDENCY OF LEGAL SEPARATION
(ART. 49, FC)
During the pend ency of the action and in the absence ofadequate
provisions in a written agreement between the spouses, the Court
shall provide for the support of the spouses and the custody and
support of their common children. The Court shall give paramount
consideration to the moral and material welfare of said children and
their choice of the parent with whom they wish to remain as provided
for in Title IX. It shall also provide for appropriate visitation rights
of the other parent.
EFFECTS OF THE DECREE OF LEGAL SEPARATION (ART. 63, FC)
1. The spouses shall be entitled to live separately from each
other, but the marriage bonds shall not be severed.
2. The absolute community or the conjugal partnership
shall be dissolved and liquidated but the offending spouse shall
have no right to any share of the net profits earned by the absolute
community or the conjugal partnership, which shall be forfeited in
accordance with the provisions of Article 43(2).
3. The custody of the minor children shall be awarded to
the innocent spouse, subject to the provisions of Article 213 of th[e]
Code.
4. The offended spouse shall be disqualified from inheriting
from the innocent spouse by intestate succession. Moreover,
provision in favor of the offending spouse made in the will of the
innocent spouse shall be revoked by operation oflaw.
EFFECTS DURING THE PROCEEDING FOR LEGAL SEPARATION
OR OF ANNULLMENT OF MARRIAGE
During the proceedings for legal separation or for annulment of
marriage, and for declaration of nullity of marriage, the spouses and
their children shall be supported from the properties of the absolute
community or the conjugal partnership. (Art. 198, 1st par.)
After the final judgment granting the petition, the obligation
of mutual support between the spouses ceases. However, in case of
CHAPTER VU 73
CONCEPT AND NATURE OF MARRIAGE
legal separation, the court may order that the guilty spouse shall
give support to the innocent one, specifying the terms of such order.
(Art. 198, 2nd par.)
PARENTAL AUTHORITY IS EXERCISED BY THE PARENT DESIG-
NATED BY THE COURT (ART. 213, FC)
In case of separation of the parents, parental authority shall
be exercised by the parent designated by the Court. The Court shall
take into account all relevant considerations, especially the choice
of the child over seven (7) years of age, unless the parent chosen, is
unfit.
EFFECT OF RECONCILIATION OF THE PARTIES (ARTS. 65 AND
66, FC)
If the spouses should reconcile, a corresponding joint
manifestation under oath duly signed by them shall be filed with
the court in the same proceedings for legal separation. (Art. 65)
'l'he reconciliation referred to in the preceding Article shall
have the following consequences:
(1) The legal separation proceedings, if still pending, shall
thereby be terminated at whatever stage;
(2) The final decree of legal separation shaH be set aside,
but the separation of property and any forfeiture of the share of
the guilty spouse already effected shall subsist, unless the spouses
agree to revive their former property regime.
The court's order contajning the foregoing shall be recorded in
ihe proper civil registries.
IN CASE OF BREACH OF MUTUAL OBLIGATION OR MUTUAL
HELP AND SUPPORT
(1) An action for support may be filed.
(2) An action for receivership, separation of property or for
administration by the wife may be filed in case of desertion by the
husband.
(3) Judicial admonition and other measures may be taken by
the court. However, the court cannot compel cohabitation.
 74 INTRODUCTION TO LAW
IN CASE OF BREACH OF MUTUAL OBLIGATION TO OBSERVE
RESPECT AND FIDELITY
(1) A petition for legal separation may be filed.
(2) The convicted spouse shall forfeit his or her right to
support.
(3) The guilty spouse shall be disinherited.
(4) The guilty spouse shall not be capable to succeed.
"Art. 128. If a spouse without just cause abandons the other
or fails to comply with his or her obligations to the family, the
aggrieved spouse may petition the court for receivership, for judicial
separation of property, or for authority to be the sole administrator
of the conjugal partnership property, subject to such precautionary
conditions as the court may impose.
I I
The obligations to the family mentioned in the preceding
paragraph refer to marital, parental, or property relations.
A spouse is deemed to have abandoned the other when he or she
left the conjugal dwelling without intention ofreturning. The spouse
who has left the conjugal dwelling for a period of three months or
has failed within the same period to give any information as to his or
her whereabouts shall be prima facie presumed to have no intention
of returning to the conjugal dwelling."
AS REGARDS THE OBLIGATION OF THE SPOUSE TO LIVE
TOGETHER
1. 'l'he spouse who leaves the conjugal home or refuses to live
therein, without just cause, shall not have the right to be supported.
(Art. 127[1])
2. When the consent of one spouse to any transaction of the
other is required by law, judicial authorization shall be obtained in
a summary proceeding. (Art. 127[2])
3. In the absence of sufficient conjugal partnership property,
the separate property of both spouses shall be solidarily liable for
the support of the family. The spouse present shall, upon petition in
a summary proceeding, be given judicial authority to administer or
encumber any specific separate property of the other spouse and use
the fruits or proceeds thereof to satisfy the latter's share.
CHAPTER VII 75
CONCEPT AND NATURE OF MARRIAGE
ABSOLUTE DIVORCE
Question - Do we have absolute divorce in the Philippines?
Answer - We do not have absolute divorce in the Philippines.
Muslim.divorce was previously declared valid and recognized under
Republic Act No. 394 but this law is valid only for a period of twenty
(20) years from June 18, 1949.
Therefore, actions for absolute divorce between Filipinos or
between foreigners or between Filipino and a foreigner will not
prosper in the Philippine courts. If said action is brought in a foreign
court by a foreigner and the same is granted, the foreign court has
jurisdiction to grant the absolute divorce and provided further that
said divorce is recognized as valid according to the national law
of the parties. If said action is brought in a foreign country by a
Filipino citizen, the same even if granted, will not be recognized in
the Philippines.
CONJUGAL PARTNERSHIP OF GAINS
Article 106 of the Family Code defines conjugal partnership of
gains as follows:
Under the regime of conjugal partnership of gains, the husband
and wife place in a common fund the proceeds, products, fruits
and income from their separate properties, and those acquired by
either or both spouses through their efforts or by chance, and, upon
dissolution of the marriage or of the partnership, the net gains or
benefits obtained by either or both spouses shall be divided equally
between them, unless otherwise agreed in the marriage settlements.
DEFINITION OF PARAPHERNAL PROPERTY
Art. 109. The following shall be the exclusive property of each
spouse:
(1) That which is brought to the marriage as his or her own;
(2) 'l'hat which each requires during the marriage by
gratuitous title;
(3) That which is acquired by right of redemption, by barter
or by exchange with property belonging to only of the
s pouses; and
(4) That which is purchased with exclusive money of the wife
or of the husband.
 76 INTRODUCTION TO LAW CHAPTER VII 77
CONCEPT AND NATURE OF MARRIAGE

RIGHTS AND OBLIGATIONS BETWEEN HUSBAND'S RIGHT TO FIX RESIDENCE

HUSBAND AND WIFE
As a rule, the husband shall fix the residence of the family.
However, the wife may establish a separate residence, IF:
Question - What are the duties of Husband and Wife?
1. The husband maltreats her or grossly insults her;
Answer - They are obliged:
2. The husband continuously refuses to support her;
(1) To live together;
3. The husband is immoderate or barbaric in his demands
(2) To observe mutual respect and fidelity; and for sexual intercourse;
(3) To render mutual help and support. 4. The wife is virtually driven out of the conjugal home by
the husband; and
SCOPE OF DUTY TO LIVE TOGETHER 5. The husband continually indulges in illicit relations with
The husband and the wife have a right to live together and this another woman.
includes cohabitation and sexual intercourse. With the enactment of
Republic Act No. 8353 otherwise known as Anti-Rape Law of 1997, CAN THE WIFE ACQUIRE ANY PROPERTY BY GRATUITOUS TITLE?
I " a husband may be held liable for the rape of his wife. However, the The wife cannot, without the husband's consent, acquire
subsequent forgiveness by the wife shall extinguish the criminal any property by gratuitous title EXCEPT from her ascendants,
liability except when the marriage is void ah initio. descendants, parent-in-law and collateral relative within the fourth
degree.
MUTUAL RESPECT AND FIDELITY
WHAT IS A MARRIAGE SETTLEMENT?
Mutual respect simply means that each shall respect the other.
They can disagree or reprimand each other but it is unlawful for It is an ante-nuptial contract entered into by the prospective
them to inflict force or physical harm, EXCEPT when either of them spouses for the purpose of fixing the conditions with respect to their
SURPRISES the other in the act of committing sexual intercourse present and future property.
with another person. Even under this situation, Article 247 of the
Revised Penal Code imposes a penalty of destierro to the guilty WHO ARE THE PARTIES TO A MARRIAGE SETTLEMENT?
spouse.
It depends. Ifthe future spouses are of age, they are the parties
Infidelity, on the other hand, is a ground for legal separation to the marriage settlement. If one or both of the spouses are minors
or disinheritance under Articles 55(8) and 63(4) of the Family Code. (under 21), the parties are:
(1) The future spouses even if they are minors;
MUTUAL HELP AND SUPPORT
(2) The parent or guardian; and
Husband does not marry his wife to make the latter his slave
(3) The family council if there is no guardian or parent.
and vice-versa. They should help and support each other within
their available resources and to see to it that they assist each other
in the rearing of their children for civic efficiency and development SYSTEMS THAT MAY BE ADOPTED BY THE PARTIES TO GOVERN
THEIR PROPERTY RELATIONS
of moral character.
Under Article 11 of the Revised Penal Code, defense of the A. Absolute Community
spouse is a justifying circumstance provided the other requisites (1) Present and future property (with certain exceptions) is
therein are present. to be owned in common.
78 INTRODUCTION TO LAW CHAPTER VII 79
CONCEPT AND NATURE OF MARRIAGE

(2) Expenses are borne by the common property. IN THE ABSENCE OF MARRIAGE SETTLEMENT, OR WHEN THE
AGREED REGIME IS VOID, WHAT GOVERNS THE PROPERTY
B. Relative Community of Gains (Conjugal Partnership) RELATIONS BETWEEN HUSBAND AND WIFE?
(1) Present property continues to be owned by the respective The system of absolute community of property as established
spouses; by the Family Code shall govern. (Art. 75, FC)
(2) Future property is separate if acquired gratuitously, but Art. 75. The future spouses may, in the marriage
common if acquired by onerous title at the community's settlements, agree upon the regime of absolute commu-
expenses; and nity, conjugal partnership of gains, complete separation
(3) Fruits and earnings are common. of property, or any other regime. In the absence ofa mar-
riage settlement, or when the regime agreed upon is void,
C. Absolute Separation the system of absolute community or property as estab-
lished in this code shall govern.
(1) Present and future property is owned by the holder or
acquirer. Art. 76. In order that any modification in the mar-
riage settlements may be valid, it must be made before
(2) Fruits are separately owned by the owner of the producing the celebration of the marriage, subject to the provisions
property. of Articles 66, 67, 128, 135 and 136.
(3) Family expenses are contributed by each spouse according Art. 77. The marriage settlements and any modifi-
to stipulation or in proportion to their respective income. cation thereof shall be in writing, signed by the parties
and executed before the celebration of the marriage.
D. Dotal Systemm (Dowry) They shall not prejudice third persons unless they are
(1) Property of the wife is managed by the husband during registered in the local civil registry where the marriage
the marriage. contract is recorded as well as in the proper registries of
property.
(2) Fruits go to the husband.
(3) Expenses are borne by the husband. CONCEPT OF DONATION PROPTER NUPTIAS
(4) Upon cessation of common life, the property is returned. Propter nuptias (donations by reason of marriage) are those
which are made before its celebration, in consideration of the same
WHAT SYSTEMS GOVERN? and in favor of one or both of the future spouses.
Art. 74. The property relations between husband and wife
REQUISITES OF DONATION PROPTER NUPTIAS
shall be governed in the following order:
The donation must be made:
(1) By marriage settlements executed before the
marriage; (1) Before the marriage;
(2) By the provisions of this Code; and (2) In favor of either spouses or both; and
(3) By the local custom. (3) In consideration (by reason) of the marriage.
80 INTRODUCTION TO LAW CHAPTER VII 81
CONCEPT AND NATURE OF MARRIAGE

DISTINCTION BETWEEN DONATION PROPTER NUPTIAS AND
ORDINARY DONATION
Propter Nuptias
1. Acceptance is not required.
2. The future spouses cannot
give more than 1/5 of their
present property. (Art. 84)
3. It can include future
property.(Art. 84)
4. The donor must free the
property except from ser-
vitudes unless otherwise
stipulated.
5. The donation may be
revoked for the following
reasons:
Ordinary Donation
1. Acceptance is required.
2. The donor can give not
more than what he can give
by will.
3. It cannot include future
property.
4. The donor need not free
the property unless the
donation is onerous.
5. The donation may be re-
voked for the following rea-
sons:
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND
AND WIFE COMMON TO HUSBAND AND WIFE
Art. 69. - The husband and the wife shall fix the
family domicile. In 'c ase of disagreement, the court shall
decide.
Art. 70. - The spouses are jointly responsible for
the support of the family. The expenses for such support
and other conjugal obligations shall be paid from the
community property and, in the absence thereof, from
the income or fruits of their separate properties. In
case of insufficiency or absence of said income or fruits,
such obligations shall be satisfied from their separate
properties.
Art. 72. - When one of the spouses neglects his or
her duties to the conjugal union or commits acts which
tend to bring danger, dishonor or injury to the other or
to the family, the aggrieved party may apply to the court
for relief.

(a) The condition is not (a) Breach of conditions. Art. 73. - Either spouse may exercise any legitimate
fulfilled. profession, occupation, business or activity without the
(b) Ingratitude. consent of the other. The latter may object only on valid,
(b) The marriage does not serious, and moral grounds.
(c) Appearance of children.
take place.
In case of disagreement, the court shall decide whether
(c) The marriage is an-
or not:
nulled due to the bad
faith of the donee. (1) The objection is proper; and
(d) There is legal (2) Benefit has accrued to the family prior to the objection or
separation due to the thereafter. Ifthe benefit has accrued prior to the objection,
fault of the donee. the resulting obligation shall he enforced against the
separate property of the spouse who has not obtained
(e) Lack of required consent.
parental consent to
the marriage. The foregoing provisions shall not prejudice the rights of
creditors who acted in good faith.
(0 Governed by Statute of
Frauds. Art. 68. - The husband and wife are obliged to live
together, observe mutual love, respect and :fidelity, and
render mutual help, and support.

TO LIVE TOGETHER
This is both a duty and a right. This includes cohabitation
'I

82 INTRODUCTION TO LAW CHAPTER VU 83

CONCEP'f AND NATURE OF MARRIAGE

or consortium and sexual intercourse. If there is, however, a legal (4) The husband or the wife during the marriage or
separation, there is no more duty to have sexual intercourse. afterwards, cannot be examined without the consent of the other as
to any communication received in confidence by one from the other
WIFE MAY ESTABLISH A SEPARATE DOMICILE during the marriage. (Sec. 21[a], Rule 130)

The wife may establish a separate domicile in the following (5) A Filipino woman who marries an alien acquires his
cases: nationality if so provided by her husband's laws. (Commonwealth
Act No. 63)
(1) If the husband maltreats her. (Arroyo vs. Vasquez de
Arroyo, 42 Phil. 54) (6) A foreign woman who marries a Filipino may become a
Filipino provided she herself may be lawfully naturalized. (Sec. 15,
(2) If the husband grossly insults her. (Talanan vs. Willis, Commonwealth Act No. 473)
[CA] 35 O.G. 1369)
(3) If the husband is immoderate or barbaric in his demands
for sexual intercourse. (Goitia vs. Campos-Rueda, 35 Phil.
252)
(4) If the husband continuously indulges in illicit relations
with another even if the concubine or concubines are not
brought into the marital abode. (Dadivas vs. Villanueva,
54 Phil. 92)
(5) If the husband refuses to support the family or
continuously gambles. (Panuncio vs. Sula, [CA] 34 O.G.
6122)
(6) If the husband insists on living with his own parents. (Del
Rosario vs. Del Rosario, CA 4600 O.G. 6122)
(7) If she is virtually driven out of their home by her husband
and she is threatened with violence if she should return.
(Garcia vs. Santiago and Santiago, 53 Phil. 952)

OTHER CONSEQUENCES OF MARRIAGE

(1) A husband and wife can chastise or reprimand each other
but may not inflict force except when either catches the other in the
act of sexual intercourse with another. (Art. 247, RPC)
(2) Marriage emancipates a person from parental authority
as to person.
(3) A husband cannot be examined for or against his wife
without her consent; nor a wife for or against her husband without
his consent, except in a civil case by one against the other, or in a
criminal case for a crime committed by and against the other. (Sec.
20[b], Rule 130)
 CHAPTER VIII 85
THE FAMILY

(c) For debts secured by mortgage on the premises before or

after such constitution; and
(d) For debts due to Jaborers, mechanics, architects, builders,
materialmen and others who have rendered service or
Chapter VIII furnished material for the construction of the building.
(Art. 155, FC)
THE FAMILY

FAMILY DEFINED
The family is a basic socia] institution which public policy
cherishes and protects. No custom, practice or agreement which is
destructive of the family shall be recognized or given effect.

FAMILY SUITS ARE DISCOURAGED

No suit between the same family shal1 prosper unless it should
appear from the verified complaint or petition that earnest efforts
toward a compromise have been made, but that the same have
failed. If it is shown that no such efforts were in fact made, the case
must be dismissed. (Art. 151, FC)

FAMILY HOME DEFINED

Article 152 of the Family Code defin es a fami]y home as: "The
dwelJing house where a person and his family reside, and the land
on which it is situated."
The family home may be created judicially or extrajudiciaUy.
If thus created, it is exempt from: (1) execution; (2) forced sa1e; and
(3) attachment.

ADVANTAGES OF A FAMILY HOME

It is exempt from execution, forced sale, or attachment. It is
liable only:
(a) For non-payment of taxes;
(b) For debts incurred prior to the constitution of the family
home;

84
 CHAPTER IX 87
PROPERTY

(a) Buildings, roads and construction of all kinds

adhered to the soil;
(b) Trees, plants, and growing fruits, while they are
Chapter IX
attached to the land or form an integral part of an
immovable;
PROPERTY
(c) Everything attached to an immovable in fixed man-
ner, in such a way that it cannot be separate there-
PROPERTY DEFINED from without breaking the material or deterioration
of the object;
Things which are or may be the object of appropriation are
considered as property. The word "thing" is broader than the concept (d) Statues, reliefs, paintings, or othe1· objects for use or
of property. More specifically, property refers to things which are ornamentation, placed in buildings or on lands by
I I' susceptible to appropriation and already possessed and found in the owner of the immovable in such a manner that it
the possession of man. Things are those same objects before their reveals the intention to attach them permanently to
'1 ' I' the tenements.
appropriation by man. The stars and the planets are included in
the concept of "things" but since they cannot be appropriated, they 3. Real property by destination or purpose - those
cannot be considered property. attached to an immovable in such a manner that they constitute an
i.d eal identity (i.e., machinery used in a cement plant):
PRINCIPAL CLASSIFICATION OF PROPERTY
(a) Statues, reliefs, paintings, or other objects for use or
Under the New Civil Code, property may either be: (1) Immov- ornamentation, placed in buildings or on lands by
able or real property; or (2) Movable or personal property. the owner of the immovable in such a manner that it
reveals the intention to attach them permanently to
CLASSIFICATION OF REAL OR IMMOVANBLE PROPERTIES the tenements:
CODE: NIDA (b) Machinery, receptacles, instruments or implements
intended by the owner of the tenement for an industry
N - Nature
or works which may be carried on in a building or on
I Incorporation a piece of land, and which tend directly to meet the
D Destination need of the said industry or works;
A Analogy
(c) Animal houses, pigeon houses, beehives, fish ponds
or breeding places of similar nature, in case their
1. Real property by nature - Those which by their very
owner has placed them or preserved them with the
nature are immovable, i.e., (a) land, building, roads and construction
intention to have them permanently attached to
of all kinds adhered to the soil; and (b) mines, quarries, and slug
the land, and forming a permanent part of it; the
dumps, while the matter thereof forms part of the bed, and waters
either running or stagnant. animals in these places are included;

2. Real property by incorporation - Those which are (d) Fertilizer actually used on a piece ofland;
attached to an immovable in a fixed manner (i.e., building): (e) Docks and structures which, through floating, are
intended by their nature and object to r emain at a
86 fixed place on a river, lake or coast.
 88 INTRODUCTION TO LAW CHAPTER IX 89
PROPERTY

. 4. Real property by analogy - This includes rights over (a) Power of eminent domain;
immovable property (e.g., servitudes and contracts for public works):
(b) Police power; and
(a) Contracts for public works, and servitudes and other
real rights over immovable property. (c) Power of taxation.
3. Limitations imposed by the owner himself such as those
NOTE: arising from a contract of mortgage, pledge or lease.
(a) A building whether built on a rented land or not and
whether it was built by the owner of the land or not is Real property. ILLUSTRATIONS:

(b) A house is an immovable property but once it is demolished
it ceases to be an Immovable property. ' New Ala bang Village. In going to and from said school, parents
(c) A barong-barong cannot be considered immovable.
I•
MOVABLE OR PERSONAL PROPERTIES
The following are deemed to be personal properties:
1. Those movables susceptible of appropriation which are
not included in the preceding article (e.g., pencil, watch);
2. Real property which by any special provision as law is
considered as personal property (e.g., growing crops);
3. Forces of nature which are brought under control by
science (e.g., electricity);
4. In general, all things which can be transported from place
to place without impairment of the real property to which
they are fixed (e.g., picture frame hanging on the wall).
DEFINITION AND CONCEPT OF OWNERSHIP
Ownership is the right to enjoy and dispose of a thing, without
other limitations than those established by law. (Art. 428, NCC)
Hence, the ownership is not absolute. It may be restricted by
the following limitations:
1. Limitations imposed by law:
(a) Right of way;
(b) Easement of party wall; and
1. De La Salle Alabang is established and situated inside
and schoolchildren have to pass through the subdivision road of
the village. The subdivision developers or the association therein
can impose reasonable rules and regulations for security reasons
but it cannot absolutely disallow schoolchildren living in adjacent
absolutely subdivisions to pass through the subdivision road going
to De La Salle College where they are enrolled and duly admitted.
2. One can own a stereo and use it freely in his house but it
does not mean that he can use it in full volume at 2:00 a.m., to the
detriment of his neighbors who are already sleeping. This is based
on the Latin maxim Sic Utere Tuo Ut Alienum Non Laedas. This
maxim is expressed in a similar v·e in in Article 431 of the New Civil
Code which says: "The owner of a thing cannot make use thereof in
such a manner as to injure the rights of the third person."
3. Maintaining Ihaw-Ihaw establishments inside a subdivi-
sion area can be abated.
4. The government has the power to impose taxes on
the earnings of its citizens to support the costs of operation of
government. It has also the power to expropriate private properties
for public use and provided that just compensation is paid.
5. X mortgaged his house and lot to Y bank. He is bound to
observe the conditions of the Contract of Real Estate Mortgage.
EXTENT OF OWNERSHIP
Extent of one's ownership which a person has over a parcel of
land is defined in Article 437 which provides as follows:

(c) Easement of waters. "Art. 437. The owner of a parcel ofJand is the owner
of its surface and of everything under it, and he can
2. Limitations imposed by the State; construct thereon any works or make any plantations
90 INTRODUCTION TO LAW CHAPTER IX 91
PROPERTY

and excavations which he may deem proper, without If the finder is a trespasser, he is not entitled to any share.
detriment to servitudes and subject to special laws However, if the things found be of interest to the science or the arts,
and ordinances. He cannot complain of the reasonable the State may acquire them at their just price which shall be divided
requirements of aerial navigation." according to the provisions of Article 438.

As a rule therefore, the owner of a parcel of land is the owner
of its surface and of everything under it subject only to the following
limitations: (a) servitudes; (b) special laws; (c) ordinances; (d)
reasonable requirements of aerial navigation; and (e) the Latin
maxim of Sic Utere Tuo Vt Alienum Non Laedas.
OWNERSHIP OF A HIDDEN TREASURE
Article 438 of the New Civil Code defines who is the owner of a
hidden treasure. It says:
"Art. 438. Hidden treasures belong to the owner of
the land, building, or other property on which it is found."
Nevertheless, when the discovery is made on the property of
another, or of the State or any of its subdivisions, and by chance,
one-half thereof shall be allowed to the finder. If the finder is a
trespasser, he shall not be entitled to any share of the treasure.
If the things found be of interest to the science or the arts
the State may acquire their just price, which shall be divided i~
conformity with the rule stated.
DEFINITION OF HIDDEN TREASURE
"Art. 439. By treasure is understood, for legal pur-
poses, any hidden and unknown deposit of money, jew-
elry, or other precious objects, the lawful ownership of
which does not appear."
MODES OF ACQUIRING OWNERSHIP
The modes of acquisition stated in our New Civil Code are
Roman in origin. All those mentioned in Roman law books as modes
of acquisition, except mancipatio and addictio, are still mentioned
in the New Civil Code. This is shown in the comparative list below.
It will be noted that accession is not listed in the New Civil
Code as a mode of acquiring ownership. In Roman law, it is a specific
mode of acquiring ownership. If anything therefore is acquired by
or through accession, it is, on the basis of the New Civil Code, to be
treated as acquisition in accordance with law.
ROMAN LAW NEW CIVIL CODE

Simply stated, the law states three (3) instances or situations: Original Modes Original Modes
1. Occupation 1. Occupation
(a) The hidden treasure may be found in one's own
property; (a) Animals ferae (a) Wild animals or those ac-
naturae quired by hunting or fishing
(b) The hidden treasure may be found on a building;
(b) New things (b) Hidden treasure(Thesaurus
(c) The hidden treasure may be found on the property of in Roman Law)
another.
(c) Res Hostis (c) Abandoned thing (Res
If one finds a hidden treasure in his own land or building, he Dereclita in Roman Law)
owns it exclusively. If the finder is married, the treasure belongs to
2. Accessio 2. Intellectual creation
the conjugal property.
2a. Natural Accession (a) Copyrights on any literacy,
If the hidden treasure is found on the land or building of dramatic, historical, legal,
continua
another by chance, the finder owns one-half of the hidden treasure scientific or other works;
and the other half of the hidden treasure belongs to the owners of 2a.l Alluvion
the land or building. 2a.2 Avulsion
92 INTRODUCTION TO LAW CHAPTER IX 93
PROPERTY

Thesaurus - Hidden Treasure (Art. 438)

2a.3 lnsula nata (b) Invention or discovery; and
Accessio - Accession (Art. 440)
2a.4 Alveus Dere- (c) Letter
clictus 1. · · Accessio continua - Accession by attachment or
2b. Artificial Accessio incorporation
continua
1.1 Alluvion - Alluvion (Art. 457)
2b.l On real pro-
1.2 Avulsion - Avulsion (Art 459)
perty
2b. l.1 lnaedifica- 1.3 Insula Nata - Formation of islands (Arts. 464-465)
tio 1.4 Alveus Dereclictus - Change of course of rivers
2b.l.2 Satio Im- (Arts. 462-463)
plantatio
ARTIFICIAL
2b.2. On person-
al property ON REAL PROPERTY:
2b.2.1 Commixtio 1. lnaedificatio - Building (Arts. 445 to 446)
2b.2.2 Confusio 2. Satio Implantatio - Sowing and Planting (Arts. 445
2b.2.3 Adjudicatio to 446)
2b.2.4 Specificatio
ON PERSONAL PROPERTY:
3. Prescriptio
1. Commixtio - mixture of solids (Arts. 472 to 473)
2. Confusio - mixture ofliquids (Arts. 472 to 473)
DERIVATIVE MODES 3. Adjudicatio - award by court judgment (i.e.,
1. Succession damages awarded by the courts like those provided
in Art. 2206)
2. Donation
4. Specificatio - specification (Art. 474)
3. Prescription
4. Law 2. Accessio discrete - Accessio Discreta (Art. 441)
5. Delivery (Traditio in Roman Law) 1. Natural fruits - same concept (Art. 442)
2. Civil fruits - same concept (Art. 442)
NOTES:
3. Industrial fruits - same concept (Art. 442)
Roman law terms mentioned below have their counterparts in
the New Civil Code, thus: ATTRIBUTES OF OWNERSHIP
Animals ferai naturae - Wild animals (Art. 713) 1. Jus Utendi - Right to use
Res Derelicta - Abandoned property (Art. 719, last par.) 2. Jus Possidendi - Rights to possess
94 INTRODUCTION TO LAW
3. Jus Fruendi - Right to the Fruits
4. Jus Disponendi - Right to dispose
5. Jus Vindicandi - Right to recover
ILLUSTRATION:
If X owns a house and lot, he has the right to live there and
use it. If he wants, he can also sell, mortgage or lease it. Ifhe sells,
he ceases to have control, ownership and possession of the same in
favor of the buyer. If he leased the same for one (1) year, he still
retains the ownership but not the possession because his right is
transferred to the lessee by virtue of the lease contract.
If the lessee fails or refuses to vacate the house and lot after
the expiration of the lease contract, the owner can sue the lessee
for unlawful detainer because while the possession of the lessee
is lawful in the beginning, it became unlawful after he failed and
refused to vacate upon demand and after the expiration of the
stipulated period.
If there are unpaid rentals, the lessor has also the right to
demand payment of the same because they are considered fruits of
ownership. This right is separate and distinct from the right of the
lessor to demand that the lessee vacates the leased premises but
these two (2) rights can be subject of and incorporated in one (1)
complaint.
IMPORTANT ARTICLES OF THE NEW CIVIL CODE ON OWNERSHIP
AND POSSESSION
"Art. 492. The owner or lawful possessor of a thing
has the right to exclude any person from the enjoyment
and disposal thereof. For this purpose, he may use such
force as may be reasonably necessary to repel or prevent
an actual or threatened unlawful physical invasion or
usurpation of his property."
A, resident of Manila, bought a farm lot in Dasmarifias,
Cavite. Because his job is in Manila, A visits his farm lot only
during weekends. One Sunday, he visited his farm lot and saw X
planting tomatoes in his farm lot. He told him that he owns the
lot and he cannot therefore plant tomatoes. X countered by saying
that a lthough he is not the owner, he does not want the farm lot to
CHAPTER IX 95
PROPERTY
be idle and that is the reason why he planted tomatoes. One thing
led to another and they have an altercation. In the process, A lost
his temper and he pulled off the tomatoes and threw them away.
Simultaneously, A shouted at X and told him to leave his premises.
X threw the tomatoes back to the face of A and the latter countered
by slapping X on the face. Cooler heads intervened and thereafter,
X left the premises.
Is A liable for slapping the face ofX?
It is submitted that A is not liable because his act of slapping
X was done in the process of defending himself from an actual
aggression.
Self-defense includes defense of his person and of his rights to
property.
Art. 523. Possession is the holding of a thing or the enjoyment
ofa right.
Art. 524. Possession may be exercised on one's own name or in
that of another.
Art. 525. The possession of a thing or rights may be had in
one (1) or two (2) concepts; either in the concept of
owner, or in that of the holder of the thing or right to
keep or enjoy it, the ownership pertaining to a nother
person.
Art. 526. He is deemed a possessor in good faith who is
not aware that there exists in his title or mode of
acquisition any flaw which invalidates it.
He is deemed a possessor in bad faith who possesses in any
case contrary to the forgoing.
Mistake upon a doubtful and difficult question of law may be
the basis of good faith.
X rented a car from Aviz, the owner. Although Xis not the
owner, he is entitled to possess the car during the stipulated period
of the lease.
If X believes in good faith of Aviz' representation that it is
the owner, and based on this belief, he is using the car and makes
representation to Y, a friend, that he is a lessee, he is deemed a
possessor in good faith.
96 INTRODUCTION TO LAW
If the car is in truth and in fact owned by Z, and X knows that
the car he rented is owned by Z, and he continues to use it based on
his arrangements with Aviz, then Xis a possessor in bad faith.
EFFECTS OF POSSESSION
Art. 539. Every possessor has a right to be respected
in his possession; and should he be disturbed therein he
shall be protected in or restored to said possession by the
means established by the laws and Rules of Court.
A possessor deprived of the possession through
forcible entry may within ten (10) days from the filing
of the complaint present a motion to secure from the
competent court, in the action for forcible entry, a writ
of preliminary mandatory injunction to restore him in
his possession. The court shall decide the motion within
thirty (30) days from filing thereof.
A possessor, whether he is a possessor in the concept of owner
or holder, has three (3) rights under Art. 539, thus:
(a) He has the right to be respected on his possession;
(b) If he is disturbed in his possession, he has the right to
be protected or restored to his possession by any lawful
means; and
(c) If he is deprived of his possession through forcible entry,
he can secure a writ of preliminary mandatory injunction
to restore him in his possession.
NOTES:
1. Art. 539, second paragraph thereof, states. "A possessor
deprived of the possession THROUGH FORCIBLE ENTRY x x x."
The remedy, therefore, of securing a writ of preliminary ma ndatory
injunction is not available ifthe complaint is unlawful detainer.
2. In forcible entry, the possession is not lawful from the
beginning. In unlawful detainer, the possession is lawful in the
beginning but it became unlawful after the lessee failed and refused
to vacate upon demand and after the contract of lease.
Chapter X
GENERAL PRINCIPLES ABOUT
CONTRACTS AND OBLIGATIONS
CONTRACTS AND OBLIGATIONS
When two (2) persons enter into a written agreement, the terms
and conditions they have agreed upon are stated therein. They are
bound by the said conditions (Art. 1308) and they should therefore
comply with the same in good faith. (Art. 1159) Hence, in a contract
of lease, the lessee is bound to pay the agreed rentals in return for
the use of leased premises. The lessor, on the other hand, has the
right to demand the payment of the agreed rentals on due date and
during the effectivity of the lease. If this is not complied with by the
lessee, the lessor has the right to demand that the lessee vacate the
leased premises.
The observance of the conditions provided in a written
agreement is premised on the fact that prior to the act, they have
discussed the terms of the agreement and subsequently thereafter,
they have a meeting of the minds.
Hence, Article 1305 of the New Civil Code defines a contract
as follows:
"Art. 1305. A contract is meeting of minds between
two (2) persons whereby one binds himself, with respect
to the other, to give something or to render some service."
ELEMENTS OF A CONTRACT
CODE:CSC
1. Essentials elements
C - Consent
S - Subject matter
C - Consideration
97
98 INTRODUCTION TO LAW
Without these essential elements, there can be no contract.
2. Naturals elements - Unless otherwise stipulated,
these elements are presumed to exist. Hence, in a contract of sale,
warranty against eviction and warranty against hidden defects are
presumed to exist.
3. Accidental elements - Those agreed upon by the
parties like agreement to pay in five (5) equal installments.
WHEN IS A CONTRACT PERFECTED?
It depends.
A consensual contract like sale is perfected by mere consent.
(Art. 1315, NCC)
A real contract like pledge is perfected by delivery of the thing
pledged. (Art. 1316, NCC)
A formal contract like donation of a parcel of land where a
subdivision chapel shall be built requires a public instrument. (Art.
749, NCC)
CAN THE CONTRACTING PARTIES AGREE ON ANY TERM OR
CONDITION?
Yes, provided they are not contrary to law, morals, good
customs, public order or public policy. (Art. 1306, NCC)
LAW
A written agreement of separation between husbands and wife
is contrary to law.
Agreement to pay a rate of interest higher than that imposed
by law is void.
MORALS
Agreement to pay excessive attorney's fees is immoral.
Promise to marry based on a carnal consideration is immoral.
GOOD CUSTOMS
Agreement between a man and a woman, both between 18 and
21 years old, not to seek parental consent is unlawful and contrary to
good customs. Likewise, an agreement between a man and a woman,
CHAPTERX 99
GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS
both between 21 and 25 years old, not to seek parental advice is
also unlawful and contrary to good customs. In the Philippines,
seeking the advise and consent of parents before marriage and ifthe
parties are within the ages prescribed in the New Family Code is an
established custom. ·
PUBLIC ORDER
Agreement to have a live performance of nude dancers in Plaza
Miranda is contrary to morals, public order and public policy.
PUBLIC POLICY
Agreement exempting a public utility bus operator and the
driver from liability in case of accident arising from gross negligence
is contrary to law and public policy.
BASIC PRINCIPLES TO REMEMBER ABOUT CONTRACTS
1. As a rule, contracts are perfected by mere consent. (Art.
1315,NCCJ
2. The contracting parties are bound by the contract they
have entered into. (Art. 1318. NCC)
3. As a rule, a contract takes effect only as between the
parties, their assigns and heirs subject to the following exceptions:
(a) Except in the case where the rights and obligations
arising from the contracts are not transmissible by their nature
or by stipulation and by provision oflaw (Art. 1311, NCC); and
(b) Except where there is a stipulation in favor of a third
person.
4. If there is a stipulation in favor of a third person (Stipula-
tion Pour Autrui), the following requisites must be complied with:
(a) 'l'he contracting parties must have clearly and
deliberately conferred a favor of a third person;
(b) A mere incidental benefit or interest of a person is
not sufficient;
(c) A third person must communicate his acceptance
to the obligor before the revocation of the contract or of the
stipulation by the original parties. (Art. 1311, 2nd par.)
100 INTRODUCTION TO LAW
5. The parties to a contract may stipulate on anything
provided that the terms and conditions they have agreed is not
contrary to the law, morals, good customs, public order, and public
policy. (Art. 1306, NCC)
6. As a rule, an una uthorized person cannot enter into a
contract in the name of another. If he wants to do so, the following
are required:
(a) He must be duly authorized by the person whom he
represents, either expressly or impliedly;
(b) He must have right to represent said person;
(c) The contract entered into by him must subsequently
be ratified by the person he represents. (Art. 1317, NCC)
7. Obligations arising from contract have the force of law
between the contracting parties and should be complied. with in good
faith. (Art. 1159, NCC)
8. Contracts are obligatory in whatever form they may have
been entered into, provided that all the requisites for their validity
are present. Ifa certain form is required by the law, that requirement
is absolute and indispensable. (Art. 1356, NCC)
9. Any third person who induces another to violate the
contract shall be liable for damages to the other contracting party.
(Art. 1314, NCCJ
10. In order to judge the intentions ofthe contracting parties,
their contemporaneous and subsequent acts shall be principally
considered. (Art. 1317, NCC)
EXPLANATIONS
(a) AS A RULE, CONTRACTS ARE PERFECTED BY MERE
CONSENT
Article 1315 refers to consen sual contracts like a contract
of sale. This kind of contract is perfected by mere consent. From
the moment of perfection, the parties are bound not only to the
fulfillment of what have been expressly stipulated but also to all the
consequences which, according to their nature may be in keeping
with good faith, usage and law.
As already discussed, a real contract is not perfected by, mere
consent but by delivery.
CHAPI'ER X 101
GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS
Formal contracts must comply with a special form before it can
be perfected. For instance, ifX will donate his lot to Yin order that
the latter can build a chapel in said lot, the donation must be in a
public i11strument.
(b) THE CONTRACTING PARTIES ARE BOUND BY THE
CONTRACT THEY HAVE ENTERED INTO (ART. 1318,
NCC)
The reason why a party entered into a contract is precisely to
have an evidence of proof of what they have entered into. Without
the consent of the other contracting party, one cannot just abandon
what has already been agreed upon simply b ecause his friend
advised him that it is not beneficial to him or that he wants it to be
changed by another term he wants. If this is allowed or tolerated,
a contract will be a useless formality and that there will be more
confusion and misunderstanding between the parties. Such is not
the reason why parties entered into a contract.
(c) AS A RULE, A CONTRACT TAKES EFFECT ONLY AS
BETWEEN THE PARTIES, THEIR ASSIGNS AND THEIR
HEIRS
A sells his car to B and they executed a Deed of Sale to e vidence
the same. Article 1311 says that said contract takes effect only as
between A and B, their assigns and heirs. Other relatives, not being
privies to the contracts, are not therefore bound by the said contract
of sale.
If before the delivery of the car, A dies, and it turns out that
the car sold by A to Bis a car stolen by A from Y, the real owner,
B cannot compel the son of A to deliver the car for even during the
lifetime of A, he has clearly no right to ownership and possession.
The son of A, even if he likes to deliver the car to B, cannot do so for
he has equally no right whatsoever to the car.
(d) THE PARTIES TO A CONTRACT MAY STIPULATE ON
ANYTIDNG PROVIDED THAT IT IS NOT CONTRARY
TO LAW, MORALS, GOOD CUSTOMS, PUBLIC ORDER,
AND PUBLIC POLICY
This has been already discussed in this book.
(e) NO ONE MAY CONTRACT IN THE NAME OF ANOTHER
WITHOUT AUTHORITY
Article 1317 should be construed in relation to Article 1897.
102 INTRODUCTION TO LAW
Article 1317 does not state whether the person entering into
a contract in the name of the other is an agent. It merely says: "No
one may contract in the name of another without being authorized
by the latter, or unless he has by law a right to represent him."
Assuming however, that the one entering into said contract is
an agent acting for and in behalf of a certain principal, then the
following rules shall apply:
1. If the agent acts with authority and in behalf of the
principal, the transaction is valid and the principal
is bound. Th.e agent is not personally liable unless he
deliberately binds himself. (Art. 1897, NCC)
2. If the agent acts with authority but not in behalf of the
principal and he acts for himself, the principal is not
bound, except if the transaction involves things belonging
to the principal.
3. If the agent acts without authority but in behalf of his
principal, the transaction is unenforceable. (Art. 1403)
However, such transaction may be ratified. If ratified, the
transaction is valid from the very beginning. (Art. 1883,
2nd par.)
4. If the agent acts without authority and in behalf of
himself, the transaction is valid whether or not the subject
matter belongs to the principal, provided that the agent
can legally transfer the ownership of the thing at the time
of delivery. Otherwise, the agent will be held liable for
eviction.
(t) OBLIGATIONS ARISING FROM CONTRACT HAVE THE
FORCE OF LAW BETWEEN THE CONTRACTING PAR-
TIES AND SHOULD BE COMPLIED WITH IN GOOD
FAITH
If A leases his apartment to B and they executed a formal
contract of lease, there are rights and obligations arising from the
said contract. A, the lessor, is duty-bound to yield possession of his
apartment to B and in return B shall pay A the agreed rentals for
the use of the leased premises. Each one of them has a duty and
obligation to comply with said contract in good faith.
CHAPTER X 103
GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS
(g) OBLIGATIONS DERIVED FROM THE LAW ARE NOT
PRESUMED
Legal obligations must be clearly expressed in the law which
creates it for they cannot merely be presumed.
(h) CONTRACTS ARE OBLIGATORY IN WHATEVER FORM
THEY MAY HAVE BEEN ENTERED INTO, PROVIDED
THAT ALL THE REQUISITES FOR THEIR VALIDITY
ARE PRESENT
As a rule, all contracts are valid regardless of form, provided
that aU the essential requisites for their validity are present.
However, when a specific form is required for their validity, then
that form should be observed.
A form may be important for enforceability. Hence, Article
1403 of the New Civil Code provides as follows:
"Art. 1403. The following contracts are unenforceable,
unless they are ratified.
1. Those entered into the name of another person by
one who has been given no authority or legal representation, or
who has acted beyond his powers;
2. Those that do not comply with the Statue of Frauds
as set forth in this number. In the following cases, an agreement
hereafter made shall be unenforceable by action, unless the
same, or same note or memorandum thereof, be in writing,
and subscribed by the party charged, or by his agent; evidence,
therefore, of the agreement cannot be received without the
writing, or a secondary evidence of its contents:
{a) An agreement that by its tei·ms is not to be
performed within a year from the making thereof.
(b) A special promise to answer for the debt,
default, or miscarriage of another.
(c) An agreement made in consideration of
marriage, other than mutual promise to marry.
(d) An agreement for the sale of goods, chattels of
thing in action, at a price not less than five hundred pesos
(P500.00), unless the buyer accepts and receives part of
such goods and chattels, or the evidences, or some of them,
of such things in action, or pays at the time some part of
104 INTRODUCTION TO LAW
the purchase money; but when a sale is made by auction
and entry is made by the auctioneer in his sales book, at
the time of the sale, of the amount and kind of property
sold, terms of sale, price, names of the purchasers and
person on whose account the sale is made, it is a sufficient
memorandum.
(e) An agreement for the leasing for a longer
period than one year, or for the sale of real property or of
an interest therein.
(f) A representation as to the credit of a third
person.
3. Those where both parties are incapable of giving
consent to a contract.
A form may be important for convenience. Hence, Article
1358 of the New Civil Code provides as follows :
"Art. 1358. The following must appear in a public
document:
1. Acts and contracts which have for their object the
creation, transmission, modification or extinguishment of real
rights over immovable property; sales of real property or of an
interest therein are governed by Articles 1403, No. 2, and 1405;
2. The cession, repudiation or renunciation of heredi-
tary rights or of those of the conjugal partnership of gains;
3. The power to administer property, or any other
power which has for its object an act appearing or which should
appear in a public document, or should prejudice a third person;
4. The cession of actions or rights proceeding from an
act appearing in a public document.
All other contracts where the amount involved exceeds five
hundred pesos (P500.00) must appear in writing, even a private
one. But sales of goods, chattels, or things in action are governed by
Articles 1403, No. 2 and 1405.
(i) ANY THIRD PERSON WHO INDUCES ANOTHER TO
VIOLATE THE CONTRACT SHALL BE LIABLE FOR
DAMAGES TO THE OTHER CONTRACTING PARTY
A third person, if not a party or a privy to the contract, has no
interest therein whatsoever. This article (Art. 1314, NCC), penalizes
CHAPTER X 105
GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS
said third person for damages if he induces another to violate his
contract.
(j) IN ORDER TO JUDGE THE INTENTION OF THE CON-
TRACTING PARTIES, THEIR CONTEMPORANEOUS
AND SUBSEQUENT ACTS SHALL BE PRINCIPALLY
CONSIDERED
When the terms and conditions are clear and they leave no
doubt as to the intention of the contracting parties, the literal
meaning of the stipulations shall control. The evident intention of
the parties prevails over the wordings of the contract. In order to
judge this intention, the contemporaneous and subsequent acts of the
parties shall be principally considered. (Art. 1314, NCC)
Rules in the interpretation of the contracts are enumerated on
Articles 1370 to 1379 of the New Civil Code. Rule 130 of the Revised
Rules of Court shall supplement the foregoing rules.
CONCEPT OF OBLIGATION
There was a time when an obligation was classified into
obedential and conventional. Obediential obligations are those
imposed by tbe will of God or the Law of Nature. Conventional
obligations are those resulting from the will or consent of the
contracting parties. This is how seventeenth century civilians
classified obligations.
In Roman law, an obligation arises when one binds himself to
give (DARE) or to perform any duty stipulated (PRAESTARE). As
used in Roman law, an obligation is a tie or a bond (vinculumjuris)
which binds or holds two or more persons together, creating both a
duty and a right, the duty of the debtor to pay, and the right of the
creditor to he paid.
Under the New Civil Code, an obligation is now defined as "a
juridical necessity to give, to do or not to do." (3) This definition,
however, has been criticized as defective because it views obligations
only from the side of the debtor.
The better definition of obligation, according to retired Justice
J.B.L. Reyes, is that given by Arias Ramos, (4) thus:
"An obligation is a juridical relation whereby a person (called .
the creditor) may demand from another (called the debtor), the
observance of a determinate conduct (the giving, doing or not doing),
106 INTRODUCTION TO LAW
and in case of breach, may demand satisfaction from the assets of
the latter."
SOURCES OF OBLIGATION
Obligation may arise from: (1) law; (2) contracts; (3) quasi-
contracts; (4) acts or omissions punished by law; and (5) quasi-
delicts. (Art. 1557, NCC)
Obligations arising from law are those expressly provided in
the New Civil Code or in special laws. These are demandable. (Art.
1158,NCC)
Obligations arising from contracts have the force of law
between the contracting parties and should be complied with in good
faith. (Art. 1159, NCC)
Obligations arising from criminal offenses are governed
by penal laws subject to the provisions of Article 2177 and of the
pertinent provisions of Chapter 2, Preliminary Title on Human
Relations, Title XVII of the New Civil Code.
Obligations arising from quasi-contracts shall be subject to the
provisions of Chapter I, Title XVII of the New Civil Code.
NATURE AND EFFECTS OF OBLIGATIONS
From the viewpoint of the subject matter of the obligation, it
may either be:
1. A Real Obligation to give a specific thing or to give a
generic thing; or
2. A Personal Obligation to do or not to do.
OBLIGATION OF A PERSON OBLIGED TO GIVE SOMETHING
A person obliged to give something has the following obligation:
1. He is obliged to take care of it with the proper diligence of
a good father of a family, EXCEPT if the law or stipulation
of the parties requires another standard of care. (Art.
1163, NCC)
NOTES:
1. If the parties have agreed on the kind of diligence to be
observed, that which is stipulated shall be observed.
CHAPTER X 107
GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS
2. If there is no agreement, the proper diligence of a good
father of a family shall be observed.
3. If the law requires that a specific kind of diligence shall be
observed, this prevails over any kind of agreement.
EXAMPLE: A stipulation that JD Transit, Inc., will carry
its passengers by using ordinary diligence is void for the
law specifically requires that a common carrier shall
carry its passengers "safely as far as human care and
foresight can provide, using the utmost diligence of very
cautious persons, with due regard for all circumstances."
(Art. 1755, NCC)
OBLIGATION TO GIVE A DETERMINATE THING
The obligation to give a determinate thing includes the
obligation to deliver all its accessions and accessories, even though
they may not have been mentioned. (Art. 1166, NCC)
WHEN IS A THING SPECIFIC OR DETERMINATE AND WHEN IS IT
GENERIC OR INDETERMINATE?
A thing is specific or determinate when it is capable of particular
designation.
EXAMPLE: This Toyota Corolla Car with Plate No. NLX-844.
A thing is generic or indeterminate when it refers to a class,
and cannot be pointed out with the particularity.
EXAMPLE: A house.
EFFECT OF OBLIGATION TO DELIVER A SPECIFIC THING AND A
GENERIC THING
There is a great difference. The obligation to deliver a specific
thing is extinguished by a fortuitous event, EXCEPT in the following
cases:
1. When expressly provided by law;
2. When expressly agreed upon by the parties;
3. When the nature of the obligation requires the assumption
ofrisk. (Art. 1174, NCC)
108 INTRODUCTION TO LAW CHAPl'ER X 109
GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS

EXAMPLE: EFFECT IF THERE IS FRAUD, NEGLIGENCE OR DELAY

1. X is obliged to give Y this book. Before X can deliver it
to Y, his library was burned and said book was likewise
burned. Here, the obligation to deliver is extinguish ed.
The obligation to deliver a gen eric thing is not
extinguished by fortuitous events.
Those who in the performance of their obligations are guilty of
fraud, negligence or delay, and those who in any manner contravene
the tenor thereof, ARE LIABLE FOR DAMAGES.
KINDS OF DAMAGES

2. Xis obliged to Ya ballpen. If said ballpen is lost, it can be 1. Moral damages For moral anguish, bes-
replaced by another ballpen. mirched reputation, sleep-
less nights, serious anxiety,
etc.
EFFECT OF OBLIGATION
2. Exemplary damages To deter others from com-
If a person obliged to do something fails to do it, or if he does mitting the same act.
it in contravention of the tenor of the obligation, the effects are as
follows: 3. Actual damages To compensate the aggrieved
party for actual losses suf-
1. The obligation shall be executed at his cost (debtor's cost); fered.
2. It may be decreed that what has been poorly done be 4. Liquidated damages Damages agreed upon by the
undone. (Art. 1167, NCC) parties.
5. Temperate damages When the exact amount of
EFFECT OF OBLIGATION NOT TO DO
da mages cannot be deter-
If the obligation con sist in not doing, and t he obligor does what mined.
has been forbidden him, it shall be undone at his expense. (Art. 6. Nominal damages To vindicate a right. The
1168,NCCJ assessment of nominal
damages is left to the dis-
DEBTOR IS IN DEFAULT FROM THE TIME OF DEMAND cretion of the court.
Those obliged to deliver or to do som ething are in default from
RESPONSIBILITY ARISING FROM FRAUD (DOLO)
the time of demand, judicial or extrajudicial. Without this dem and,
the debtor is not in default. 1. It is demandable in all obligations. Any waiver of an
action for future fraud is void. (Art. 1171, NCC)
In the following instances, however, demand is not needed:
2. Liability due to fraud cannot be reduced by the courts.
1. When the obligation expressly so provides;
3. There is deliberate intention to cause damage.
2. When the law expressly so provides;
3. When time is of the essence of the contract; RESPONSIBILITY ARISING FROM NEGLIGENCE (CULPA)
4. When demand would be useless, as when the obligor has I. It is also demanda ble but such liability may be regulated
rendered it beyond his power to perform. (Art. 1169, NCC) by the courts according to the circumstances.
2. It can be reduced in certain cases.
3. There is no deliberate intention to the case damage.
110 INTRODUCTION TO LAW CHAPTER X 111
GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS

KINDS OF CULPA (NEGLIGENCE) IS A PERSON RESPONSIBLE FOR THOSE EVENTS WHICH

COULD NOT BE FORESEEN, OR WHICH THOUGH FORESEEN
1. Culpa contractual or Contractual negligence.
ARE INEVITABLE?
2. Culpa aquiliana or Quasi-delict. As a rule, there is no liability for fortuitous event (that which
3. Culpa criminal or Criminal negligence. could not be foreseen, or which even foreseen was inevitable)
EXCEPT IN THE FOLLOWING CASES:
DISTINCTION (a) When expressly specified by law;
(b) When expressly stipulated by the parties; and
CULPA CULPA
CULPA CRIMINAL (c) When the nature of the obligation requires the assumption
CONTRACTUAL AQUIL/ANA
of risk.
(a) There is a pre- (a) There is no pre- (a) There is no pre-
existing obligation existing obliga- existing obliga-
(a contract, either tion. ti on. KINDS OF OBLIGATION
expressed or (a) Pure obligation as distinguished from conditional
implied) obligation.
(b) Preponderance (b) Preponderance (b) The crime must (b) Alternative obligation as distinguished from facultative
of evidence is re- of evidence is be proven beyond obligation.
quired. needed. reasonable doubt.
(c) Joint obligation as distinguished from solidary obligation.
(c) Defense of a good (c) Defense of good (c) This defense can-
(d) Divisible obligation as distinguished from indivisible
father of a family father of a family not be interposed.
in the selection in the selection of If the employee obligation.
and supervision the employees is is insolvent or (e) Obligation with a penal cause.
of employees is a proper defense incapable to pay
not proper and of the employer. the civil aspect
DEFINITION AND ILLUSTRATION
complete defense or liability, the
but this can employer is sub- 1. Pure Obligation - it is an obligation without a condition
mitigate liability sidiary liable. or a term and therefore, it is demandable at once.
for damages.
(d) The existence of (d) The negligence (d) The innocence EXAMPLE: I promise to pay you Pl00.00 upon demand.
a contract must of the defendant of the accused is
2. Conditional Obligation - it is one with a condition.
be proved. If it is must be proven. presumed until
proved and it is the contrary is
also proven that proved. EXAMPLES:
the contract was (a) I will give a car to you if you pass the Bar Examina-
not complied with, tions in September 2003. In this example, the condition is a
it is presumed that suspensive one because the giving of the car depends on the
the debtor is at results of the examination to be given in September 2003.
default.
(b) I will give you my car today but if you fail in the Bar
Examinations to be given in September 2003, I will be the owner
of the car again. In this example, the condition is a resolutory
one because the happening of the condition extinguishes the
obligation.
112 INTRODUCTION TO LAW CHAPTER X 113
GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS

3. Alternative Obligation - It is one where out of the two parties may agree that A will deliver 250 kilos of rice today and
(2) or more prestations which will be given, only one is due. another 250 kilos of rice tomorrow.
EXAMPLE: 8. Indivisible Obligation - An obligation which is not
I will give you any of the following: My 24 karat gold capable of partial performance.
ring worth P30,000.00, or my Lancer car, 1978 model, worth
P30,000.00, or my residential lot in the province worth EXAMPLE:
P30,000.00. In this example, I can give any of the three proper- A agreed to deliver DX Toyota Corolla to Y. Here, the
ties I have mentioned and ifl give one of them, I have complied subject matter is not capable of partial performance because
with the obligation. the car cannot be divided into two.
4. Facultative Obligation - It is one where only one 9. Obligation with a Penal Cause - In obligations with a
prestation has been agreed upon but the obligor may render another penal clause, the penalty shall substitute the indemnity for damages
in substitution. and the payment of interest in case of non-compliance.
EXAMPLE: EXAMPLE:
I promise to give Marie my 14 karat gold ring worth X agreed to finish the painting job of the Cultural Center
P15,000.00 but it is agreed that I could give her a secondhand Building within sixty (60) days. It was stipulated that in case
car with the same value as a substitute. of delay, X will be liable to pay a penalty of Pl,000.00 per day of
5. Joint Obligation - In a joint obligation, an obligor delay, if it turns out therefore that X fails to finish the painting
answers only for a part of the entire liability. job within the sixty (60) days and it was only on the 65th day
that he finished the job, X will be liable to pay a penalty of
EXAMPLE: P5,000.00.
X and Y borrowed Pl,000.00 from A and it is agreed that
EXTINGUISHMENT OF OBLIGATIONS
they are joint debtors of A. X will only be liable to pay P500.00.
This is so because they are joint debtors. Obligations are extinguished by any of the following reasons:
6. Solidary Obligation - Where both or all of the debtors Art. 1231. Obligations are extinguished:
can be held liable for the whole liability they have incurred.
1. By payment or performance;
EXAMPLE: 2. By the loss of the thing due;
X and Y borrowed Pl,000.00 from A and it is agreed that 3. By the condonation or remission of the debt;
they are solidary debtors. X can be held liable for the whole 4. By the confusion or merger of the rights of creditor
Pl,000.00 and so is Y. The creditor can run against both or
and debtor;
against any one of them because they are solidary debtors.
5. By compensation;
7. Divisible Obligation - A divisible obligation is an
obligation which is capable of partial performance. 6. By novation.

EXAMPLE: Other causes of extinguishment of obligations, such as

annulment, rescission, fulfillment of a resolutory condition,
A agreed to deliver 500 kilos of rice to B. Here, the subject and prescription, are governed elsewhere in th[e] Code.
matter is capable of partial performance in the sense that the

Chapter XI
SPECIAL CONTRACTS
The author has chosen to cover only the contracts discussed
in this chapter on account of their usefulness and importance in
day-to-day life. Everyday, contacts of sale, agency, partnership,
loan, pledge, mortgage and transportation are usually heard and
encountered not only by lawyers but also by laymen. It is therefore
important for a beginner in the study of law to have a basic and
working knowledge of the abovementioned contracts by way of
preparing them to a deeper and more detailed study oflaw.
I. SALE
DEFINITION OF A CONTRACT OF SALE
Contract of sale is a contract whereby one of the contracting
parties obligates himself to transfer the ownership of and to deliver
a determinate thing, and the other to pay therefore a price certain
in money or its equivalent. (Art. 1458, NCC)
ESSENTIAL ELEMENTS OF A CONTRACT OF SALE
The essential elements of a contract of sale are as follows:
CODE:C-S-C
C - Consent
S - Subject matter
C - Cause
1. Consent or meeting of the minds-the vendor agrees
to sell and transfer ownership of his property to the vendee in return
for the price the latter agrees to pay the vendor.
114
CHAPTER XI 115
SPECIAL CONTRACTS
2. Subject matter - the subject matter of the contract
must be specific. If the parties have not agreed on the subject matter
of their transaction, they have no meeting of the minds.
3. - · Cause or consideration -The price may be in the form
of money or its equivalent, as stated in the last sentence of Art.
1458. Therefore, a contract of sale may either be oral or in writing.
FORM OF A CONTRACT OF SALE
No particular form is needed to make a contract of sale valid as
between the parties. For as long as all the essential requisites for its
validity are present, a contract of sale shall be valid and obligatory,
regardless of its form. Therefore, a contract of sale may either be
oral or in writing.
However, there are contracts of sale which must be in writing
like a sale of a "piece of land or any interest therein," or a sale of
personal property ifthe price is P500.00 or more, or a sale which will
be performed only after the period of more than one (1) year from the
execution of the agreement.
Hence, the following articles of the New Civil Code provide as
follows:
"Art. 1874. When a sale of a piece of land or any interest
therein is through an agent, authority of the latter shall be in
writing; otherwise, the sale shall be void."
"Art. 1403. The following contracts are unenforceable,
unless they are ratified:
1. Those entered into the name of another person by
one who has been given no authority or legal presentation, or
who bas acted beyond his powers;
2. Those that do not comply with the Statute of Frauds
as set forth in this number. In the following cases, an agreement
hereafter made shall be unenforceable by action, unless the
same, or some note or memorandum thereof, be in writing,
and subscribed by the party charged, or by his agent; evidence,
therefore, of the agreement cannot be received without the
writing, or a secondary evidence of its contents.
(a) An agreement that by its terms is not to be
performed within a year from the making thereof;
116 INTRODUCTION TO LAW
(b) A special promise to answer for the debt,
default or miscarriage of another;
(c) An agreement made in consideration of
marriage, other than a mutual promise to marry;
. (d) An agreement for the sale of goods, chattels
or things in action, at a price not less than five hundred
p~sos (P500.00), unless the buyer accept and receive part
of such goods and chattels, or the evidences, or some of
them, of such things in action, or pay at the time some
part of the purchase money; but when a sale is made by
auction and entry is made by the auctioneer in his sales
book, at the time of the sale, of the amount and kind of
property sold, terms of sale, price, names of the purchasers
and person whose account the sale is made, it is sufficient
memorandum;
(e) An agreement for the leasing for a longer period
than one (1) year, or for the sale of real property or of an
interest therein;
(f) A presentation as to credit of a third person.
3. Those where both parties are incapable of giving
consent to a contract."
BRIEF DISCUSSION OF THE ESSENTIAL REQUISITES
CONSENT - A contract of sale is perfected at the moment
there is a meeting of minds and therefore it is perfected by mere
consent. Delivery of payment is not essential for the perfection of a
contract of sale.
More specifically, the contract of sale is perfected at the moment
there is a meeting of the minds upon the thing which is the object of
the contract and upon the price. (Art. 1475, 1st par.)
EXAMPLES:
1. When A sells his car to B and they are facing each other
when B agreed to pay Pl0,000.00, the price asked by
A, the contract of sale is perfected from the moment A
accepted the offer ofB unconditionally.
2. A placed an advertisement in a newspaper to sell his car.
B, an interested buyer, called by telephone and told him
that he is amenable to pay the priced asked by A without
CHAPTER XI 117
SPECIAL CONTRACTS
condition. From that moment, there is a perfected contract
of sale.
3. A wrote a letter to B and offered to sell his car to him.
Upon receipt of said letter, B wrote a letter reply accepting
the offer of A and which letter was received by A on
February 1, 2002 at 7:00 p.m. Before receiving the letter,
however, A wrote a letter to Band informed him that he is
withdrawing his offer. Here, there is no perfected contract
of sale because prior to the date and time A received B's
letter acceptance, he had already withdrawn his offer
before he knew of the acceptance. Therefore, there is no
meeting of the minds.
SUBJECT MATTER - The subject matter of the contract of
sale must be specific or determinate, not generic or indeterminate.
As already stated in the last chapter, a specific thing is a thing which
can be designated with particularity.
Future things may be the object of sale provided they are
already in existence at the time of perfection of the contract.
REQUISITES OF A VALID SUBJECT MATTER
1. The subject matter must be specific or determinate.
2. The subject matter must be lawful.
3. The seller must have the right to transfer the ownership
thereof at the time of delivery.
CAUSE OR CONSIDERATION - Without a lawful cause or
consideration, the contract of sale is void. The cause in a contract of
sale is a price certain, in money or its equivalent.
OBLIGATIONS OF THE SELLER
The principal obligations of the seller are as follows:
1. To deliver the determinate object of the contract;
2. To transfer its ownership;
3. To warrant (against eviction and against hidden defects);
4. To pay for the expenses of the deed of sale; and
5. To preserve the thing from the moment of perfection up to
the time of delivery.
118 INTRODUCTION TO LAW
OBLIGATIONS OF THE BUYER
The principal obligations of the buyer are as follows:
1. To accept delivery; and
2. To pay the price - at the time and place stipulated in the
contract.
II.AGENCY
DEFINITION
Article 1868 of the New Civil Code defines agency as a contract
whereby a person binds himself to render some service or to do
something in representation of or in behalf of another with the
consent or authority of the latter.
In Rallos vs. Go Chan & Sons Realty Corporation, et al.,
G.R. No. L-24332, January 31, 1978, agency was defined as "a
relationship between two parties whereby one party called the
principal, authorizes another, called the agent, to act for and in his
behalf in transactions with third persons."
Article 1868 gives the impression that the agent must always
expressly represent the principal. This, of course, is not necessarily
true for there are cases when the agent acts in behalf of himself
and yet the principal would still bound such as when the contract
involves things belonging to the principal.
WHEN IS A CONTRACT OF AGENCY PERFECTED?
Agency is perfected by the meeting of the offer and acceptance
upon the thing and the cause which are to constitute the contract.
(Art. 1319, NCC)
Acceptance must be made expressly or impliedly. It may be
implied from the acts of the agent, from his silence and from his
inaction according to the circumstances. (Art. 1870, NC)
ACCEPTANCE OR AGENCY BETWEEN PERSONS WHO ARE
PRESENT AND BETWEEN PERSONS WHO ARE ABSENT
1. Between persons who are present - The acceptance of
a person may also be implied if the principal delivers his power of
attorney to the agent and the latter receives it without any objection.
CHAPTER XI 119
SPECIAL CONTRACTS
2. Between persons who are absent - The acceptance of
the agency cannot be implied from the silence of the agent, except:
(a) When the principal transmits his power of attorney
to the agent, who receives it without any objection.
(b) When the principal entrusts to him by letter or
telegram a power of attorney with respect to the business in
which he is habitually engaged as an agent, and he did not
reply to the letter or telegram.
BASIC PRINCIPLES OF AGENCY
(1) It has the following characteristics:
(a) It is consensual, bilateral, nominate, principal, and
preparatory to contract;
(b) It is consensual because it is perfected by mere
consent except when it involves the sale of land or any interest
therein. It is bilateral because the principal and the agent
have reciprocal obligations. It is nominate because a contract
of agency is preparatory to a subsequent contract.
(2) The appointment of an agent by the principal is based on
trust. Therefore, the agent is expected to act within the scope of his
authority and to act in behalf of his principal.
(3) As already explained above, a situation may arise when
the agent is authorized by the principal but he acts in behalf of
himself. It is also possible that the agent is not authorized but he
acts in behalf of his principal. Because of these possibilities, the
following situations may arise, to wit:
(a) The agent acts with artthority and in behalf of
the principal - The transaction is valid and the principal is
bound by the acts of the agent. The agent assumes no personal
liability unless he deliberately bound himself.
(b) The agent is authorized by the principal but he
acts in behalf of himself, not in behalf of the principal
- As a rule, the principal is not bound by the acts of the agent
except if it involves things belonging to the principal.
(c) The agent acts withortt authority but in behalf
of the principal - The transaction is unenforceable but it
may be ratified. If ratified, the contract is validated from the
very beginning.
120 INTRODUCTION TO LAW
(d) The agent acts without authority and in his
own behalf - The transaction is valid, whether or not the
subject matters belongs to the principal provided that the
agent can legally transfer the ownership of the thing at the
time of delivery. Otherwise, he will be held liable for eviction.
OBLIGATIONS OF AN AGENT
Art. 1881. To act within the scope of his authority.
Art. 1884. To carry out the agency and be liable for damages
in case of non-performance; and to finish the
business already begun on the death of the
principal, should delay entail any danger.
Art. 1886. To advance necessary funds, if stipulated, except
if principal is insolvent.
Art. 1887. To act in accordance with the instructions of the
principal (in default thereof, he shall do all that a
good father of a good family would do, as required
by the nature of the business).
Art. 1888. Not to carry out the agency if its execution
would manifestly result in loss or damage to the
principal.
Art. 1889. To be liable for damages, if there being a conflict
between his interests and that of the principal, he
prefers his own.
Art. 1891. To render an account of his transaction and to
deliver to the principal whatever he may have
received by virtue of the agency even though it
may not be owing to the principal (stipulation
exempting the agent from this obligation is
VOID).
OBLIGATIONS OF THE PRINCIPAL (FROM Arts. 1910, 1912, and
1913)
CODE: CARI
C Comply
A Advance
R Reimburse
I Indemnify
121
CHAPTER XI
SPECIAL CONTRACTS
Art. 1910. To comply with all the obligations which the
agent may have contracted withfo the scope of
his authority.
Art. 1912. To advance to agent, if latter requests (1st par.)
sums necessary to execute the agency.
To reimburse the agent for all advances he (2nd
par.) made, even if business was not successful
provided that the agent is free from fault.
Art. 1913. To indemnify the agent for all damages which the
execution of agency may have caused the agent,
without his fault or negligence.
CASES WHEN PRINCIPAL IS NOT LIABLE FOR EXPENSES
INCURRED BY AGENT
Article 1918 provides as follows:
1. If the agent contravenes instructions of the principal
unless the latter wishes to avail himself of the benefits
derived from the contract;
2. When expenses were due to the fault of the agent;
3. When the agent incurred them knowing that unfavorable
result would ensue, ifthe principal was not aware thereof;
and
4. When stipulated that the agent bears the expenses, or
that the agent bears the expenses, or that the agent would
be allowed only a certain sum.
IMPORTANT ARTICLES 10 REMEMBER
Art. 1916. When two persons contract with regard to the same
thing, one with the agent and the other with the principal, and the
two contracts are incompatible with each other, that of prior date
shall be preferred, without prejudice to the provisions of Article
1544.
Art. 1544. If the same thing should have been sold to diiforent
vendees, the ownership shall be transferred to the person who may
have first taken possession thereof in good faith, if it should be
movable property.
Should it be immovable property, the ownership shall belong
to the person acquiring it who in good faith first recorded it in the
Registry of Property.
 INTRODUCTION TO LAW CHAPTER XI 123
122
SPECIAL CONTRACTS

Should there be no inscription, the ownership shall pertain to thereto, in which case, a public instrument shall be
the person who in good faith was first in the possession; and, in the necessary. (Art 1771, NCC)
absence thereof, to the person who presents the oldest title, provided 5. A contract of partnership is void, whenever immovable
there is good faith. · property is contributed thereto, if an inventory of said
property is not made, signed by the parties, and attached
PREFERENCE: to the public instrument. (Art. 1773)
1. IF PROPERTY IS MOVABLE
a) To the first possessor in good faith. NECESSARY FORMALITIES IN CREATING A PARTNERSHIP

2. IF THE PROPERTY IS IMMOVABLE 1. A contract of partnership having a capital of P3,000.00

or more, in money or property, shall appear in a public instrument
(a) To the first registrant in good faith;
and recorded in the Securities and Exchange Commission. However,
(b) To the first possessor in good faith, if there is no even if this is not complied with, the partnership and the members
inscription; and thereof remain liable to the third persons. (Art. 1772, NCC)
(c) To the possessor who represents the oldest title, if 2. If what is contTibuted is real property, an inventory
there is no first registrant and first possessor in good should be attached and there must be a public instrument regarding
faith. the partnership and an inventory of the said property signed by
the parties should be attached to the public instrument. If this
CODE: RPO is not complied with, the partnership is void and has no juridical
R - Registrant in good faith personality even as between the parties.
P - Possessor in good faith
KINDS OF PARTNERSHIP
0 - Oldest title
According to liability, a partnership may be general or limited:
III. PARTNERSHIP GENERAL PARTNERSHIP - A partnership where all the
parties are general partners who are liable even to extent of their
DEFINITION individual properties, after the exhaustion of the partnership assets.
By the contract of partnership, two (2) or more persons bind LIMITED PARTNERSHIP - A partnership where one
themselves to contribute money, property, or industry to a common partner is a general partner and the others are limited partners. A
fund, with the intention of dividing the profits among themselves. It limited partner is liable only to the extent of his contribution.
may also be formed to exercise a possession. (Art. 1767, NCC)
As to its object, a partnership is either universal or particular.
BASIC PRINCIPLES TO REMEMBER UNIVERSAL PARTNERSHIP - This may refer to universal
1. Partnership is based on MUTUAL TRUST by or among partnership of all present property or to a universal partnership of
the partners. (delectus personarum) all profits.

2. Like a corporation, it has a personality separate and
distinct from the individual partners. (Art. 1768, NCC)
3. The partners may contribute money, property or industry
to common fund.
4. A partnership may be constituted in any form except
where immovable property or real rights are contributed
(a) Universal partnership of all present property -
A partnership of all present property is that in which
the partners contribute all the property which actually
belongs to them to a common fund, with the intention of
dividing the same among themselves, as well as all the
profits which they may acquire therewith. (Art. 1779, 1st
par., NCC)
124 INTRODUCTION TO LAW CHAPTER XI 125
SPECIAL CONTRACTS

(b) Universal partnership of all profits - Comprises all 7. Liquidating Partner - A partnership who takes
that the partners may acquire by their industry or work charge of liquidating the
during the existence of the partnership. (Art. 1779, 2nd affairs of the partnership
par., NCC) after its dissolution.

PARTICULAR PARTNERSHIP - A particular partners hip IV.LOAN

has for its object determina te things, or the exercise of a profession
or vocation.
KINDS OF PARTNERS
A partner may be a capitalist partner or an industrial partner
insofar as their contribution to the partnership is concerned.
A partner may be a general partner or a limited partner insofar
as liability is concerned.
A person may be a managing partner, silent partner, liquidat-
ing partner or a secret partner insofar as participation in the part-
nership is concerned.
DEFINITION
DEFINITION
By the contract of loan, one of the parties delivers to another,
either something not consumable so that the latter may use the
same for certain time and return it, in which case the contract is
called a commodatum; or money or other consumable thing, upon
the condition that the same amount of the same kind and quality
shall be paid, in which case the contract is simply called a loan or
mutuum.
Commodatum is essentially gratuitous.
In commodatum, the bailor retains the ownership of the thing
loaned, while in simple loan, ownership passes to the borrower. (Art.
1993, NCC)

1. Capitalist partner - The partner who contributes KINDS OF LOAN

money or property to the
partnership.
2. Industrial Partner - The partner who contributes
his industry.
3. General Partner - A partner who is liable be-
yond the extent of his contri-
bution to the partnership.
4. Limited Partner - A partner who is liable only
to the extent of his contribu-
tion.
DISTINCTIONS
5. Secret Partner - A partner whose connection
with the firm is kept secret.
6. Silent Partner - A partner who does not take
active participation in the
management of the part-
nership although he may be
known to be a partner.
1. Commodatum - One where the bailor (lender) delivers
a non-consumable thing so that the bailee (borrower) may
use it for a certain time and return it.
EXAMPLE: A borrowed B's car which he will use for
three (3) days while taking a vacation in Baguio. B agreed
to lend his car to A for free. A should return B's car.
2. Mutuum or Simple Loan - One where or other con-
sumable thing is loaned with the obligation of paying the
same amount of the same kind/quality.
1. COMMODATUM
(a) Essentially gratuitous.
(b) Ownership is retained by the bailor or lender.
(c) It is loan for use or temporary possession.
(d) It involves real or personal property.
126 INTRODUCTION TO LAW CHAPTER XI 127
SPECIAL CONTRACTS

(e) The same thing that was borrowed shall be returned. 2. That the pledgor or mortgagor be the absolute owner of
the thing pledged or mortgaged;
2. MUTUUM
3. That the persons constituting the pledge or mortgage
(a) May be gratuitous or onerous. · · have the free disposal of their property, and in the absence
(b) Ownership goes to the borrower. thereof, that they be legally authorized for the purpose.
(c) It is a loan for consumption. Third persons who are parties to the principal obligation may
secure the latter by pledging or mortgaging their own property.
(d) It refers to personal property.
(e) Same amount that was borrowed shall be returned. DISTINCTIONS

3. BASIC PRINCIPLES TO REMEMBER REAL MORTGAGE PLEDGE

(a) A contract of loan is a real contract. Therefore, it is
perfected upon delivery of the thing loaned. 1. Constituted on real 1. Constituted on personal
property. (Art. 2124) property. (Art. 2094)
(b) Delivery of the thing loaned is essential because the 2. As a rule, mortgagor retains 2. The thing pledged must be
purpose of the contract is either to transfer its use or the property. placed in the possession of
its ownership.
the creditor, or of a third
(c) Commodatum is purely personal and the borrower person by common agree-
cannot lend the thing he borrowed to another. ment.
3. Not valid against third 3. Not valid against third
V. PLEDGE AND MORTGAGE persons if not registered. persons unless a description
(Art. 2125) of the thing pledged appear
DEFINITION in a public instrument. (Art.
Pledge is a real contract whereby one person (called pledgor) 2096, NCC)
delivers a movable to another (called pledgee) as security for the
principal obligation and with the understanding that when the
obligation is paid or fulfilled, the thing pledged shall be returned by DISTINCTIONS
the pledgor to the pledge.
REAL MORTGAGE CHATTEL MORTGAGE
Mortgage is a real contract whereby one person (called the
mortgagor) offers his real property to another (called mortgagee) as 1. Constituted in immovables. 1. Constituted on movables.
security for the principal obligation and with the understanding that 2. May guarantee future 2. Cannot guarantee future
when the obligation is paid or fulfilled, the mortgage or encumbrance obligations. obligation.
on the said property shall be cancelled and released.

PROVISIONS COMMON TO PLEDGE AND MORTGAGE

VI. ANTIClffiESIS
Art. 2085. The following requisites are essential to the contracts
of pledge and mortgage: DEFINITION

1. That they be constituted to secure the fulfillment of a Article 2132 of the New Civil Code defines antichresis as
principal obligation. follows: x x x "By the contract of antichresis, the creditor acquires
128 INTRODUCTION TO LAW CHA¥fERXJ 129
SPECIAL CONTRACTS

the right to receive the fruits of an immovable of his debtor, with the COMMON CARRIER PRIVATE CARRIER
obligation to apply them to the payment of the interest, ifowing, and
thereafter to the principal of his credit x x x." 1. A common carrier offers its 1. It is not available to the
services to the public. (Art. public but only to certain
1732,NCCJ persons.
DISTINCTIONS

PLEDGES ANTICHRESIS
CRITERIA AS TO WHETHER A CARRIER IS COMMON OR PRIVATE
1. Pledge is constituted on 1. Antichresis is constituted on
personal property. immovable property. If the carrier is obliged to carry all persons applying for passage
2. Not applicable (no fruits). 2. The creditor has the right to and there is no legal excuse to refuse, it is public carrier. Otherwise,
the fruits of the immovables. it is a private carrier.

VIGILANCE REQUIRED OF A COMMON CARRIER

DISTINCTIONS
1. It is bound to observe EXTRAORDINARY DILIGENCE
ANTICHRESIS MORTGAGE in the vigilance over the goods.
1. The creditor acquires the 1. The creditor has no right to 2. It is bound to observe EXTRAORDINARY DILIGENCE
right to receive the fruits of the fruits. for the safety of its passengers.
an immovable of his debtor.
EXTRAORDINARY VIGILANCE OVER THE GOODS
Common carriers are responsible for the LOSS, DESTRUC-
BASIC PRINCIPLES TION OR DETERIORATION of the goods unless the same is due
1. The amount of the principal and of the interest shall be to any of the following causes.
specified in writing, otherwise, the contract of antichresis 1. Flood, storm, earthquake, lightning, or other natural
is VOID. (Art. 2134, NCC) disaster or calamity.
2. The actual market value of the fruits at the time of 2. Act of the public enemy in war, whether international or
a pplication thereof to the interest and principal shall be civil.
measured of such application.
3. Act or omission of the shipper or owner of the goods.
3. The creditor is obliged to pay the taxes and charges upon
4. The character of the goods or defects in the packing or in
the estate unless otherwise stipulated.
the containers.
VII. COMMON CARRIERS 5. Order or act of competent public authority.

DEFINITION EXTRAORDINARY DILIGENCE FOR THE SAFETY OF PASSENGERS

Article 1732 of the New Civil Code defines common carriers
as follows: x x x "Common carriers are persons, corporations, firms
or associations engaged in the business of carrying or transporting
passengers or goods or both, by land, water, or air, for compensation
offering their services to the public."
Art. 1755. A common carrier is bound to carry the passengers
safely as far as human care and foresight can provide, using the
utmost diligence of very cautious persons, which a due regard for all
the circumstances.
 CHAPTER XII 131
SUCCESSION

WHAT INHERITANCE INCLUDES

The inheritance includes all the property, rights and obligations
of a person which are not extinguished by his death. (Art. 776, NCC)
Chapter XII In other words, all property and transmissible rights and obligations
existing at the time of the death of a person, including accession
SUCCESSION or those accruing therefrom, are included in the inheritance of a
person. (Art. 781, NCC)

CONCEPT AND DEFINITION OF SUCCESSION The rights to the succession are transmitted from the moment
of the death of the decedent. (Art. 777, NCC)
In the early stages of Roman Jaw, the parents were required to
declare before the Comitia Curiata who were their heirs. Their sons KINDS OF SUCCESSION
and daughters, and who were acknowledged as sui heredes or under
potestas, have the right to share in their estate. Testamentary and 1. Testamentary Succession
intestate successions were already known to the Romans. As between 2. Legal or Intestate Succession
these two kinds of successions, however, intestate succession (ab
intestato) was the primitive institution. 3. Mixed Succession

From the concept of intestate succession, the concept of
testamentary succession grew. By then, the Romans considered it
a disgrace to die intestate. If only to avoid intestacy, there was a
practice then to execute a testament called PER AES ET LIBRAM
under and by virtue of which, a person who is not an heir (SUUS
HERES) or not a member of the family, was appointed as heir.
The concept of succession in general is the same both in Roman
law and under the New Civil Code. It means succeeding or entering
into the place or property rights of another.
Article 774 of the New Civil Code defines succession as "A
mode of acquisition by virtue of which the property, rights and
obligations to the extent of the value of the inheritance, of a person
are transmitted through his death to another or others either by his
will or by operation oflaw."
Based on the said definition, succession has therefore the
following elements: (1) It is a mode of acquisition; (2) Property rights
and obligations to the extent of the value of the inheritance of a
person are transmitted to another; (3) The same are transmitted
through death; and (4) The transmission is either by will or by
operation oflaw.
130
(a) Testamentary Succession Succession which
results from the designation of an heir, made in a
will executed in the form prescribed by law. (Art.
779, NCC)
(b) Legal or Intestate Succession - Succession pre-
scribed by operation of law and which takes place if
a person dies without a wiH, or he has a will but the
same is void or has subsequently Jost its validity.
(Art. 780, NCC)
WHAT IS A WILL?
A will is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree, the
disposition of his estate, to take effect after his death. (Art. 783,
NCC)
CHARACTERISTICS OF A WILL
1. A will must comply with the formalities of the law.
2. The making of a will is strictly a personal act and cannot
be left in whole or in part to the discretion of a third person
nor can it be accomplished through the instrumentality of
an agent or attorney. (See Art. 784, NCC)
132 INTRODUCTION TO LAW
3. It is a formal act because there are legal formalities that
should be complied with. (See Art. 783, NCC)
4. The will is effective only after the death of the testator.
(See Art. 777, NCC)
5. A will may be revoked by the testator at any time before
his death. Any waiver or restriction of this kind is void.
(Art. 828, NCC)
6. The wm must be executed voluntarily and freely and
without force, duress, fear or threat. The same are grounds
for the disallowance of the will. (See Art. 839, NCC)
WHO CAN MAKE A WILL?
AU persons who are not expressly prohibited by law can make a
will. (Art. 796, NCC) It is essential, however, that the testator must
be of a sound mind at the time of the execution of the will (See Art.
798, NCC) and at least 18 years of age or over. (See Art. 797, NCC)
WHEN IS A PERSON OF SOUND MIND?
To be of sound mind, it is not necessary that the testator be
in full possession of all his reasoning faculties, or that his mind is
wholly unbroken, unimpaired, or unshattered by disease, injury or
other cause.
It shall be sufficient if the testator was able at the time of
making the will to know the nature of the estate to be disposed of, the
proper objects of his bounty, and the character of the testamentary
act. (Art. 799, NCC)
WILLS ALLOWED UNDER THE NEW CIVIL CODE
1. Ordinary or Notarial Will; and
2. Holographic Will.
Ordinary or Notarial Will - It is a will which is attested
and acknowledged before a Notary Public.
Holographic Will - It is a will which is entirely written,
dated and signed by the hand of the testator himself. It is subject
to no other form and may be made in or out of the Philippines, and
need not be witnessed. (See Art. 810, NCC)
CHAPTER XII 133
SUCCESSION
REQUISITES OF A VALID WILL
1. It must be in writing and executed in the language and
dialect known to the testator. (Art. 804, NCC)
2. The will must be subscribed at the end thereof by the
testator himself or by the testator's name written by some
other person in his presence and by his express direction.
(Art. 805, NCC, opening par.)
3. The will must be attested and subscribed by three or more
credible witnesses in the presence of the testator and of
one another. (Last sentence of opening paragraph, Art.
805,NCC)
4. The testator or the person required by him to write his
name and the instrumental witnesses of the will, shall
also sign each and every page thereof, except the last, on
the left margin.
5. All the pages shall be numbered correlatively in letters
placed on the upper part of each page. (See Art. 805, NCC)
6. The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator
signed the will and every page thereof, or cause some
other person to write under his express direction, in the
presence of the instrumental witnesses and all the pages
thereof in the presence of the testator and of one another.
7. If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them. The attestation
shall state:
a. The number and pages used and upon which the will
is written;
b. That the testator signed (or expressly caused another
person to sign) the will and every page thereof in the
presence of the instrumental witnesses;
c. That the instrumental witnesses witnessed and
signed the will and all the pages thereof in the
presence of the testator and of one another.
134 INTRODUCTION TO LAW CHAPTER XII 135
SUCCESSION

ACTUA L EXAMPLE OF AN ATTESTATION CLAUSE ACTUAL EXAMPLE OF AN ACKNOWLEDGMENT OF A WILL

AITESTATION CLAUSE
ACKNOWLEDGMENT
This instrument consists of pages including this page,
was on this __ day of , 20__ , in the Municipality Republic of the Philippin.e s )
of Province of , signed by the testator, Province/City of _ _ _ __ ) S.S.
_ _ _ _ _ _ _ _ at the bottom of the instrument and at the left-
hand margin of each and every page thereof, in the presence of all At the Municipality/City of ______ in said province,
and each of us, and thereupon, at his request, have witnessed and on this day of , 20_, personally
signed the will and all pages thereof in the presence of the testator appeared the Testator , and his three (3) instrumental
and of each other. witnesses, to wit: , , and
_ _ _ _ _ _ _ _, all known to me to be the same persons who
executed and attested, respectively, the foregoing Last Will and
(Name) (Address) Testament, consisting of (_ )pages, including this one
on which this acknowledgment is written, and they all acknowledged
to me that the Testator signed the will and every page thereof on the
(Name) (Address) left margin in the presence of the Testator and of one another, that
all the pages of said will are numbered correlatively in letters placed
on the upper part of each page, and that the attestation clause is
(Name) (Address)
in a language known to the instrumental witnesses; they further
acknowledged to me that the said will and attestation are their own
ACTUAL EXAMPLE OF AN ATIESTATION CLAUSE WHERE free and voluntary act and deed. The Residence Certificates of the
TESTATOR CAUSED SOME OTHER PERSON TO WRITE HIS NAME said Testator and three (3) instrumental witnesses were exhibited
to me, to wit:
AITESTATION CLAUSE
No. issued at on , 20__
This instrument consists of _ _ pages including this page,
No. issued at on , 20_
was on this day of , 20_, in the Municipality of
_ _ _ _ _ Province of , announced and published No. issued. at on , 20_ _
to us by the testator to be his last will and testament, and
No. issued at on ,20 _ _
said testator caused Mr. to write his name, under
his express direction at the bottom of said instrument and the left- Witnessed my hand and notarial seal at the place and on the
hand margin of each and every page thereof, in the presence of all of date first above-stated.
us, and we thereupon, at the testator's request, have witnessed and
signed the will and all pages thereof in the presence of the testator
and of each other.
Notary Public
Until December 31, 20_
(Name) (Address)
(Seal and Documentary Stamp)
(Name) (Address) Doc. No. _ _ __
Page No. _ _ _ _
Book No. _ __ _
(Name) (Address) Series of 20 _ __
136 INTRODUCTION TO LAW CHAPTER XII 137
SUCCESSION

QUALIFICATIONS OF WITNESSES TO NOTARIAL WILLS testator, the will may still be established, and the estate
distributed in accordance therewith, if its contents, and
A witness to the execution of a notarial will must be: due execution, and the fact of its unauthorized destruction,
(a) of sound mind; cancellation, or obliteration are established according to
· · the Rules of Court. (Art. 830, NCC)
(b) at least 18 years old;
(c) not blind;
(d) able to read and write;
(e) domiciled in the Philippines;
(f) must not have been convicted offalsification of a document,
perjury or false testimony.

A WILL CAN BE REVOKED OR ALTERED

IN CASE OF SUPPLEMENT OR ALTERATION

After the execution of a will, another will may be executed
either to alter the same or to make an explanation or addition to the
will already made. This will is called a codicil which is derived from
Latin "codex" and which means "a little will."
In case of conflict between a will and a codicil, the latter prevails
because it expresses the last will and wish of the testator.
A codicil shall be executed as in the case of a will. (Art. 826,
NCCJ

IN CASE OF REVOCATION
A will may be revoked by the testator at any time before his
death. Any waiver or restriction of this right is void. (Art. 828, NCC)
However, no will shall be revoked except in the following cases:
1. By implication oflaw; or
2. By some will, codicil or other writing executed as provided
in case of wills; or
3. By burning, tearing, cancelling, or obliterating the will
with the intention of revoking it, by the testator himself,
or by some other person in his presence, and by his express
direction. If burned, torn, cancelled, or obliterated by
some other person, without the express direction of the
 CHAPTER XIII 139
TORTS AND DAMAGES

Chapter XIII
TORTS AND DAMAGES
DEFINITION OF A QUASl-DELICT
Article 2176 of the New Civil Code defines a quasi-delict in
this manner: Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, ifthere is no pre-existing contractual
relation between the parties, is called a quasi-delict and is governed
by the provisions of this chapter.
becomes a crime. In such a case, the civil liability for such act or
omission will be governed by the Revised Penal Code which provides
as follows:
··· "Art. 1161. CIVIL OBLIGATIONS ARISING FROM
CRIMINAL OFFENSES SHALL BE GOVERNED BY THE
PENAL LAWS, SUBJECT TO THE PROVISIONS OF ART.
2177, AND THE PERTINENT PROVISIONS OF CHAPTER 2,
PRELIMINARY TITLE ON HUMAN RELATIONS, AND OF
TITLE XVIII OF THIS BOOK REGULATING DAMAGES."
IF THERE IS NO INTENTION TO CAUSE DAMAGE
If the act or omission that caused the damage was committed
unintentionally, it is fault or culpa. Otherwise, it is dolo, an act that
becomes a crime.

REQUISITES OF A QUASl-DELICT DISTINCTIONS

This article states the requisites of a quasi-delict, to wit: CULPA CULPA CULPA
(a) There must be an act or omission; CONTRACTUAL AQUILIANA CRIMINAL
(b) Such act or omission causes damage to another; (a) There is no pre- (a) There is no
a) This a pre-
(c) Such act or omission is caused by fault or negligence; and existing obliga- existing obliga- pre-existing
(d) There is no pre-existing contractual relation between the tion (express or ti on. obligation.
parties. implied). (b) The crime
(b) Preponderance (b) Preponderance must be proven
QUASl-DELICT IS A CIVIL WRONG of evidence is of evidence is beyond reason-
A quasi-delict is a civil wrong, not a crime, because it is not required. needed. able doubt.
caused by an intentional or malicious act, but by mere fault or (c) Defense ofa (c) Defense of a (c) This defense
negligence. good father of good father of cannot be
It is independent of contract because if the said act or omission a family in the a family in the interposed. If
is in violation of a contract, then the result would be that there is a selection of the selection of the the employee
mere breach of contract. employees is employees is a is insolvent or
not a proper proper defense incapable to
THE ACT OR OMISSION MUST BE WITHOUT INTENT TO CAUSE and complete of the employer. pay the civil as-
DAMAGE defense of the pect or liability,
employer. the employer
The act or omission must be without intent to cause damage is subsidiarily
because if there is intent to cause damage, the act or omission liable.

138
140 INTRODUCTION TO LAW CHAPTER XIII 141
TORTS AND DAMAGES

(d) The existence of (d) The fault or (d) The innocence not pass through Divisoria or Quiapo but he will pass through a long
a contract must negligence of of the accused highway where vehicles travel at a fast speed, until he reached the
be proved. Ifit the defendant is presumed dangerous Kennon road, going to Baguio City. Here, he is employed
is also proven must be proven. until the con- as a driver of a public utility bus which is engaged in the business
that the con- trary is proved. of transporting passengers, and therefore, the degree of care and
tract was not diligence required of the carrier is extraordinary diligence, as
complied with, required by Articles 1733 and 1755 ofthe New Civil Code.
it is presumed
that the debtor "Art.1733. COMMON CARRIERS, FROM THE NATURE
is at fault. OF THEIR BUSINESS AND FOR REASONS OF PUBLIC
POLICY, ARE BOUND TO OBSERVE EXTRAORDINARY
(e) Negligence is (e) Negligence is (e) Negligence is DILIGENCE IN THE VIGILANCE OVER THE GOODS AND
only incidental direct, substan- direct, substan- FOR THE SAFETY OF THE PASSENGERS TRANSPORTED
to the perfor- tive and inde- tive and inde- BY THEM, ACCORDING TO ALL THE CIRCUMSTANCES
mance of an pendent. pendent. OF EACH CASE.
existing obliga-
tion based on a SUCH EXTRAORDINARY DILIGENCE IN THE
contract. VIGILANCE OVER THE GOODS IS FURTHER EXPRESSED
IN ARTICLES 1734, 1735, AND 1745, NOS. 5, 6, AND 7,
WHILE THE EXTRAORDINARY DILIGENCE FOR THE
WHAT IS NEGLIGENCE? SAFETY OF THE PASSENGERS IS FURTHER SET FORTH
IN ARTICLES 1755 AND 1756."
Article 1173 of the New Civil Code defines negligence as the
omission of that diligence which is required by the circumstances of "Art. 1755. A COMMON CARRIER IS BOUND TO
pen;ons, place, and time. CARRY THE PASSENGERS SAFELY AS FAR AS HUMAN
CARE AND FORESIGHT CAN PROVIDE, USING THE
Based on this definition, the degree of care, precaution and
vigilance that should be observed depends on the circumstances of UTMOST DILIGENCE OF VERY CAUTIOUS PERSONS,
persons, place and time. That which may be considered therefore WITH A DUE REGARD FOR ALL THE CIRCUMSTANCES."
as sufficient care and precaution in a set of circumstances, may be Take note that as provided in Article 1733, common carriers
insufficient in another set of circumstances that confront the same
"are bound to observe extraordinary diligence" x x x "according to
individual.
all circumstances of each case," and as provided in Article 1755, the
Hence, when A drives his car in a thickly populated place like common carrier "is bound to carry the passengers safely as far as
Divisoria or Quiapo, he should know, even without being told, that human care and foresight can provide, using the utmost diligence of
during day time, there are not only plenty of people who cross the very cautious persons, with a due regard for all the circumstances."
streets but that there are also a lot of cars, jeepneys, buses, carts and
delivery panels in both sides of the streets. Under the circumstances, The Supreme Court has therefore defined negligence in this
A should observe a higher degree of care and precaution because if manner:
he does not observe this, there is not only a great possibility but also
"Negligence is want of care required by the circumstances.
a great danger that he will hit or injure a pedestrian, or that be will
It is a relative or comparative, not an absolute term, and its
bump or hit another vehicle.
application depends upon the situation of the parties and
A may not be driving his car but a PUB (public utility bus) with the degree of care and vigilance which the circumstances
approximately 50 passengers from Manila to Baguio. Here, he will reasonably require. Where the danger is great, a high degree
142 INTRODUCTION TO LAW
of care is necessary, and the failure to observe it is a want of
ordinary care under the circumstances." (Corliss vs. Manila
Railroad Co., L-21291, March 28, 1969)
WHAT IS THE TEST TO DETERMINE NEGLIGENCE?
The test is this: Would a prudent man (in his position) foresee
harm to the person injured as a reasonable consequence of the
course about to be pursued? If so, the law imposes a duty on the
actor to refrain from that course, or to take precaution against its
mischievous results, and the failure to do so constitutes negligence.
Reasonable foresight of harm is necessary before negligence can be
held to exist. (Picart vs. Smith, 37 Phil. 809)
DEGREE OF CARE OF NEGLIGENCE THAT IS REQUIRED
That standard or degree of care or diligence that should be
observed is that which is expected of a good father of a family unless
the law or stipulation of the parties requires another standard of
care.
WHAT ARE THE DEFENSES THAT CAN BE INTERPOSED IN
QUASl-DELICT?
In the string of cases that have already been decided by the
Supreme Court, the following defenses have been interposed and
were considered meritorious, to wit:
(1) LAST CLEAR CHANCE - In Picart vs. Smith, the
plaintiff who was riding a pony was originally at fault,
he being in the wrong side of the bridge, but defendant
Smith had the last clear chance to avoid the impending
harm by merely swerving. Since he failed to do this, it
was he who was held liable for damages.
(2) CONTRIBUTORY NEGLIGENCE - 'l'he defendant
may claim that plaintiff's own negligence contributed to
his injury. This defense, however, will merely mitigate
the award of damages. In the Phoenix case, the driver of
the car was on his way home after taking a shot or two of
liquor but his negligence is merely contributory and the
damages therefore were mitigated.
CHAPTERXIIT 14.3
TORTS AND DAMAGES
(3) PROXIMATE CAUSE OF THE LOSS OR INJURY IS
THE NEGLIGENCE OF PLAINTIFF - In the Phoenix
case, the Supreme Court held that both parties were
negligent but the immediate and proximate cause of the
accident and of the car driver's injuries was the wrongful
and negligent manner in which the truck was parked or
the truck driver's "lack of due care."
(4) DEFENSE OF DUE DILIGENCE IN THE SELEC-
TION AND SUPERVISION OF EMPLOYEES - This
is available as a defense only in culpa aquiliana but not
in the case of culpa contractual.
(5) ASSUMPTION OF RISK - The defense was allowed
in Afialda vs. Hilsole, et al. (85 Phil. 67) but this was
rejected in !locos Norte Electric Company vs. Court of
Appeals. The maxim "volenti non fit injuria" relied upon
by petitioner finds no application in the latter case. The
court's reasoning is as follows: "It is imperative to note the
surrounding circumstances which impelled the deceased
to leave the comforts of a roof and brave the subsiding
typhoon. The deceased was on her way to her grocery
store to see to it that the goods were not flooded. As such,
can she be punished for exercising her right to protect
her property from the floods by imputing upon her the
unfavorable presumption that she assumed the risk of
personal injury? Definitely not."
(6) PRESCRIPTION - A motion may be filed on the
ground that the action (based on quasi-delict) has already
prescribed. This is based on the provision of Article 1146
of the New Civil Code which provides, "following actions
must be instituted within four years."
(7) FORCE MAJEURE - This is a defense that can be
interposed by the possessor or user of the animal under
Article 2183.
(8) FAULT OF ENGINEER, ARCHITECT OR CON-
TRACTOR - This defense can be interposed by the
owner of the building if third persons suffer damages be-
cause of defect in construction committed either by the
engineer, contractor or architect.
144 INTRODUCTION TO LAW CHAPTER XIII 145
TORTS AND DAMAGES

OLD CASES UMALI vs. BACANI

PICART vs. SMITH
37 Phil. 813
PRINCIPLE: "WHERE BOTH PARTIES ARE GUILTY OF
NEGLIGENCE, BUT THE NEGLIGENT ACT OF
ONE SUCCEEDS THAT OF THE OTHER BY AN
APPRECIABLE INTERVAL OF TIME, THE ONE
WHO HAS THE LAST REASONABLE OPPOR-
TUNITY TO AVOID THE IMPENDING HARM
AND HAS TO DO SO IS CHARGEABLE WITH
THE CONSEQUENCES, WITHOUT REFER-
ENCE TO THE PRIOR NEGLIGENCE OF 1'HE
OTHER PARTY."
FACTS:
Plaintiff Picart was riding a pony on a bridge, he saw an
approaching automobile and he improperly pulled his horse over to
the railing in the right, the wrong side of the bridge. The driver of
the automobile sounded his horn but Picart made no move to go to
the right side. He guided bis car to the right without diminution
of speed until he was only a few feet away. He turned to the right
but passed so closely to the horse that the latter being frightened,
jumped around and was killed by the passing car.
Picart was thrown off his horse and suffered contusions. He
sued Smith for the value of his animal, medical expense and damage
to his apparel.
69 SCRA263
PRIN~IPLE: THE TEST TO DETERMINE THE EXISTENCE
OF NEGLIGENCE, AS ENUNCIATED IN
PICART VS. SMITH IS THIS: "DID THE DEFEN-
DANT IN DOING THE ALLEGED NEGLIGEN'f
ACT USE THAT REASONABLE CARE AND
CAUTION WHICH AN ORDINARILY PRUDENT
PERSON WOULD HAVE USED IN THE SAME
SITUATION? IF NOT, THEN HE IS GUILTY OF
NEGLIGENCE."
In this Case, the Court Found out that a Series Of
Negligence were Committed by the Defendant And
his Employees.
FACTS:
As a result of a strong typhoon that hit Alcala, Pangasinan on
May 14, 1972, banana plants near Alcala Electric Plant fell on the
electric wire which caused it to be cut. One end of the wire was left
hanging on the electric post and the other fell on the ground under
the fallen banana plants. Knowing this, the Barangay Captain told
an employee of the electric plant about it and asked him to fix it.
Manuel Saynes, a boy living nearby, got in contact with the live cut
wire which led to his death. Fidel Saynes, father of Manuel Saynes,
filed an action for damages against Teodoro Umali, owner and
manager of the electric plant.

ISSUE: UMALl'S CONTENTION:

Who is at fault?
HELD:
Plaintiff Picart was originally at fault but defendant Smith
had the last clear chance to avoid the impending harm by merely
swerving. Smith failed to do this and he should therefore be
chargeable for the consequence of his acts, without reference to the
prior negligence of the other party.
The death of Manuel is due to a fortuitous event (referring to
the strong storm that caused the banana plants to fall and cut the
electric wire).
ISSUE:
Is the owner of the electric plant liable for damages?
HELD:
Umali was held liable for damages. The employees of Alcala
Electric Plant were already aware of the possible damage caused by
146 INTRODUCTION TO LAW
the storm to the electric lines which is dangerous to life and property,
but they did not cut off from the plant the fl.ow of electricity along
the lines. They could have done this pending inspection of the wires.
Likewise, they did not take the necessary precaution to eliminate
the source of danger to the electric line, knowing that all banana
plants were standing on elevated ground and which are higher than
the electric post. The court also took note of Cipriano Baldomero's
negligence. He, being an employee of the electric plant and aware of
the live cut wire, did not take the necessary precaution to prevent
anybody from approaching the place.
CULION ICE, FISH, ETC. vs. PHILIPPINE MOTORS
55 Phil. 129
PRINCIPLE: WHEN A PERSON HOLDS HIMSELF OUT AS
BEING COMPETENT 1'0 DO THINGS, HE WILL
BE HELD LIABLE FOR NEGLIGENCE IF HE
FAILS TO EXHIBIT THE CARE AND SKILL OF
THE ONE ORDINARILY SKILLED IN THE PAR-
TICULAR WORK WHICH HE ATTEMPTS TO
DO.
FACTS:
The manager of defendant corporation accepted the job of
changing the gasoline engine of plaintiff's boat. After installing a
new fuel tank and a new carburetor, the boat was taken out for
trial. During this period, a back fire occurred in the cylinder of the
engine. The boat was ultimately destroyed. Plaintiff filed an action
to recover the value of the boat from the defendant.
ISSUE:
Is that fire an avoidable accident? Who is negligent?
HELD:
The burning of the boat resulted from an accident but this
accident was in no sense an unavoidable accident. It should not have
occurred if he observed the care and skill of one ordinarily skilled
in the particular work which he attempts to do. When a person
holds himself out as being competent to do things, he will be held
liable for negligence if he fails to exhibit the care and skill of one
ordinarily skilled in the particular work which he attempts to do.
The defendant was held liable for the value of the vessel.
CHAPTER XIII 147
TORTS AND DAMAGES
CANGCO vs. MANILA RAILROAD
38 Phil. 768
PRINCIPLE: IF A PRUDENT MAN COULD FORESEE HARM
AS A RESULT OF THE COURSE HE WILL
ACTUALLY PURSUE, IT IS HIS DUTY TO
GUARD AGAINST 'l'HE CONSEQUENCES OF
HIS ACTS.
FACTS:
Plaintiff is residing in San Mateo, Rizal, and he used to ride
on defendant's train because of a pass supplied by the company. He
was about to alight from the train but his feet came in contact with a
sack of watermelons, and his feet slipped from under him and he fell
violently. His body rolled from the platform and was drawn under the
moving car, where his right arm was badly crushed and lacerated.
Plaintiff sued defendant for damages. The defendant contends,
among others, that the said accident would not have happened had
plaintiff waited until the train came to a full stop.
ISSUE:
Is said contention tenable?
There is a breach of contract of carriage and MRR failed to
exercise due care in not providing for safe exit of passengers. The
watermelons are in the platform where they shouldn't be placed,
rather they should have been removed from the platform.
HELD:
The plaintiff may have assumed the risk from boarding the
car under a condition open to his view but it is not fair for him to
assume the risk that the motorman, knowing the existence of such a
situation, will increase his peril by accelerating his speed before he
is planted safely in the platform. Reasonable men give their conduct
by the circumstances which are before them or known to them.
The situation, as aforementioned, is known to the motorman but
he failed to take the precaution which is required of a prudent and
reasonable man in a given situation. The defendant was held liable
for damages.
148 INTRODUCTION TO LAW CHAPTERXlil 149
TORTS AND DAMAGES

NEW CASES as one of its determining factors, and thereby precludes his right to
recover damages. The perils of the road were known to and hence
PHILIPPINE LONG DISTANCE TELEPHONE assumed by Antonio. By exercising reasonable care and prudence,
COMPANY, INC. vs. COURT OF APPEALS he could have avoided the injuries, even assuming that there was
G.R. No. 57079, Sept. 29, 1989 some alleged negligence on the part of PLDT.
The warning signs could not have completely prevented the
PRINCIPLE: THE VICTIM IS SOLELY RESPONSIBLE FOR accident. The only purpose of said signs was to inform and warn the
THE CONSEQUENCE OF HIS IMPRUDENCE. public of the presence of excavations on the site. Antonio already
HE HAD THE LAST CLEAR CHANCE OR OP- knew of the presence of said excavations. It was not the lack of
PORTUNITY TO AVOID THE ACCIDENT knowledge of these excavations which caused the jeep to fall into the
NOTWITHSTANDING THE NEGLIGENCE HE' excavation but the unexplained sudden swerving of the jeep from the
IMPUTES TO PLDT FOR LEAVING AN OPEN inside lane towards the accident mound. He cannot charge PLDT for
TRENCH UNCOVERED.
his injuries where his own failure to exercise due and reasonable
ANTONIO'S NEGLIGENCE IS NOT MERELY care was the cause thereof.
CONTRIBUTORY BUT GOES TO THE VERY
It is both a societal norm and necessity that one should exercise
CAUSE OF THE OCCURRENCE OF THE ACCI-
a reasonable degree of caution for his own protection. Antonio
DENT, AND WHICH PRECLUDES HIM TO RE-
had the last clear chance or opportunity to avoid the accident,
COVER DAMAGES.
notwithstanding the negligence he imputes to PLDT. As a resident
FACTS: of Lacson Street, he passed on that street almost every day and had
knowledge of the presence and location of the excavations there. His
Antonio sued PLD1' for the injuries he sustained when his negligence exposed him to danger. Hence, he is solely responsible for
jeep ran over a mound of earth and fell into an open trench, an the consequence of his imprudence.
excavation allegedly undertaken by PLDT for the installation of its
underground conduit system. PHOENIX CONSTRUCTION, INC.
The complaint alleged that Antonio failed to notice the open vs. INT. APPELLATE COURT
trench which was left uncovered because of the creeping darkness G.R. No. 65·2 95, March 10, 1987
and the lack of any warning light signs.
PRINCIPLE: THE VICTIM, THE DRIVER OF THE CAR, AND
Antonio was on the inside lane before it swerved to hit the THE DUMP TRUCK OWNED BY PHOENIX, INC.
"accident mound." ARE BOTH NEGLIGENT BUT THE IMMEDI-
Antonio is familiar not only of the street but also of the ATE CAUSE OF THE VICTIM'S INJURY WAS
excavations on the street as it appears that he passes on that street THE WRONGFUL AND NEGLIGENT MANNER
almost everyday. IN WHICH THE TRUCK WAS PARKED OR THE
TRUCK DRIVER'S LACK OF DUE CARE.
ISSUE:
FACTS:
Is Antonio guilty of contributory negligence, and if so, does this
merely mitigate the damages he is claiming, or does this preclude After a dinner cocktail meeting with his boss where he had
his right to recover damages? taken a shot or two ofliquor, A went home at about 1:30 A.M., driv-
ing his car. On his way home after crossing an intersection, his car
HELD: headlights suddenly failed. He switched his headlights to ''bright,"
The negligence of Antonio was not only contributory to his and there, he saw a Ford dump truck which is about 2 1h meters
injuries but goes to the very cause of the occurrence of the accident, away from his car.
150 INTRODUCTION TO LAW CHAPTER XIII 151
TORTS AND DAMAGES

The dump truck is owned by Phoenix, Inc. It was parked on the
right hand side of the street, facing the incoming traffic. It partially
blocks the way of the incoming traffic. It has no lights and no early
warning devices.
A tried to avoid a collision by swerving his car to the left but
to no avail. His car smashed into the dump truck. As a result, A
s uffered physical injuries, facial scars, nervous breakdown and loss
of two gold bridge dentures. A sued Phoenix and its driver.
A'S CONTENTION - The legal and proximate cause of his
injuries was the negligent manner in which Phoenix driver had
parked the dump truck.
HELD:
ON THE ISSUE OF NEGLIGENCE AND PROXIMATE
CAUSE OF INJURY - Both were negligent but the immediate
and proximate cause of the accident and of A's injuries was the
wrongful and negligent manner in which the truck was parked or
the truck driver's "lack of due care."
The collision of A's car with the dump truck is a natural
and foreseeable consequence of the truck driver's negligence. 'fhe
negligence of the truck driver, far from being a "passive and static
condition" was rather an indispensable and efficient cause.
The improper parking of the dump truck created an unreason-
able risk of injury for anyone driving, and for having created this
risk, the truck driver must be held responsible.
A's negligence, although later in point of time than the
truck driver's negligence, is merely contributory and the damages
therefore that he will recover is subject to mitigation by the courts,
in accordance with Article 2179 of the Civil Code.
ON THE ISSUE OF DAMAGES - In a suit for damages
arising from a quasi-delict where the plaintiffs negligence was
contributory, the demands of substantial justice may be satisfied by
allocating most of the damages on a 20-80 ratio.
Based on this, the following were awarded:
(1) 20% of the damages awarded by the appellate court shall
be borne by the plaintiff;
(2) 80% shall be paid by the driver and his employer who
shall be solidarily liable to A;
(3) The award of exemplary damages shall be borne exclu-
sively by the defendant Phoenix.
ON THE HISTORICAL FUNCTION OF THE LAST CLEAR CHANCE
DOCTRINE
The last clear chance doctrine of the common law was imported
into our jurisdiction, but it is a matter for debate whether, or to what
extent, it has found its way into the Civil Code of the Philippines.
The historical function of the doctrine in the common law was to
mitigate the harshness of another common law doctrine or rule,
that of contributory negligence. (Phoenix Construction, Inc. vs.
Intermediate Appellate Court, ibid.)
VERGARA vs. COURT OF APPEALS
G.R. No. 77679, Sept. 30, 1987
PRINCIPLE: THE OWNER OF THE CAR CANNOT BE FAULT-
ED BECAUSE HE LOST CONTROL OF HIS CAR
WHEN IN ORDER TO AVOID A HEAD-ON COL-
LISION WITH A PASSENGER BUS WHICH
SUDDENLY SWERVED IN'fO HIS LANE, HE
VEERED HIS CAR TO THE SHOULDER OF THE
HIGHWAY AND COLLIDED WITH A PRIVATE
JEEP.
FACTS:
A and his friend were travelling by car to Manila from Baguio.
From the opposite direction, the following were travelling: a tricycle,
a passenger bus, a private jeep in that order. The bus tried to
overtake the tricycle but in doing so, it swerved into the lane of A.
This prompted A to veer his car to the shoulder of the highway to
avoid a head-on collision. A, however, lost control of his car causing
it to collide with a private jeep. No charges were filed against the
owner of the passenger bus. A became the accused in a criminal
case of reckless imprudence resulting to damage to property and
multiple physical injuries. A claimed that he is not guilty of criminal
negligence because he lost control of his car when the bus swerved
into his lane.
ISSUE:
Is the defense of A tenable?

152 INTRODUCTION TO LAW
HELD:
The owner of the car cannot be faulted because he lost control
of his c~r when in order to avoid a head-on collision with a passenger
bus which suddenly swerved into his lane, he veered his car to the
shoulder of the highway and collided with a private jeep.
The real culprit is the passenger bus but there were no charges
that were filed. The court held that although A was not criminally
negligent, and therefore not held liable for a crime, there is enough
evidence to prove that A should have exercised a little more caution
and discretion in reacting to the treat of a bead-on collision. For this
reason, he was adjudged civilly liable for the hospital expenses and
unearned salaries of the victims.
RADIO COMMUNICATION OF THE PHILIPPINES,
INC. vs. COURT OF APPEALS
G.R. No. 79528, March 13, 1991
PRINCIPLE: RCPl'S CLAIM OF GOOD FAITH PREDICATED
ON THE EXHAUSTION OF SOCIAL CONDO-
LENCE FORMS IS OF NO MOMENT. GROSS
NEGLIGENCE AND CARELESSNESS CAN BE
ATTRIBUTED TO DEFENDANT IN NOT SUP-
PLYING ITS STATIONS WITH ADEQUATE SO-
CIAL CONDOLENCE FORMS.
FACTS:
Minerva and Flores Timan sent a telegram of condolence to
their cousins, Mr. and Mrs. Hilario Medoranda through Radio Com-
munication of the Philippines, Inc. (RCPI), to convey their deepest
sympathy for the death of the mother-in-law of Hilario, to wit:
"Mr. and Mrs. Hilario Medoranda
Trinidad, Calbayog
May God give you courage and strength to bear your
loss, our deepest sympathy to you and members of the family
MINER & FLORY"
The condolence telegram was correctly transmitted as far as
the written text was concerned. However, the condolence message as
communicated and delivered to the addressee was typewritten on a
I
II
'I
CHAPI'ERXHI 153
TORTS AND DAMAGES
"HAPPY BIRTHDAY'' card and placed inside a "CHRISTMASGRAM"
envelope.
Believing that the transmittal of the aforesaid telegram in
that manner was done intentionally and with gross breach of
contract resulting in ridicule, contempt, and humiliation of the
private respondents and the addressees, including t~eir friends and
relatives, the Spouses Timan demanded an explanation.
The Timam; were not satisfied with the explanation of RCPI,
hence, their complaint for damages against RCPI.
The trial court decided in favor of the Timans, and the Court of
Appeals affirmed the decision of the lower court in toto.
RCPI argued that it still correctly transmitted the text of the
telegram and was received by the addressee on time despite the fact
that there was error in the social form and envelope used.
RCPI asserted that there was no showing that it has any
motive to cause harm or damage to the Timans.
ISSUE:
Is RCPI guilty of negligence? Is RCPI guilty of bad faith, fraud
and malice?
HELD:
Anyone who avails of the facilities of a ~legram. compa?y
can choose to send his message in the ordinary form or m a socia]
form. In the ordinary form, the text of the message is delivered in
an envelope matching the purpose of the occasion and the words
and intent of the message. The sender pays a higher amount for the
social telegram than for ordinary form. Hence, when RCPI typed the
message of condolence in a birthday card and delivered the same in a
colorful Christmasgram envelope, it committed a breach of contr~ct
as well as gross negligence. Its excuse that it had rw1 out of social
condolence cards and envelope is flimsy and unacceptable.
It could not have been faulted had it delivered the message
in the ordinary form and reimbursed the difference in the cost .to
the sender. But by transmitting it unfittingly, through other special
forms, clearly, albeit outwardly, portraying the opposite feelings of
joy and happiness and thanksgiving, RCPI only exac~rbated the
sorrowful situation of the addJ:essee and sende1·s. This botchery
exposed not only RCPI's gross negligence but also its callousness and

154 INTRODUCTION TO LAW
disregard for the sentiments of its clientele, which is tantamount to
wanton misconduct, for which it must be held liable for damages.
It is not surprising that when the Timan's telegraphic message
reached their cousin, it became the joke of the Medoranda's friends,
relatives, and associates who thought that the unpardonable mix-
up was a mockery of the death of the mother-in-law of the sender's
cousin. Thus, it was not unexpected that because of this unusual
incident, which caused much embarrassment and distress to
Timans, he suffered nervousness and hypertension resulting in his
confinement for three days at the hospital.
Under the circumstances, defendant's plea of good faith
predicated on the exhaustion of social condolence forms cannot
be accepted. Gross negligence or carelessness can be attributed to
defendant in not supplying its various stations with such sufficient
and adequate social condolence forms when it held out to the public
the availability of such social condolence forms and accepted for a
fee the transmission of message on said forms. Knowing that there
are no such forms as testified to by its material control manager,
and entering into a contract for the transmission of message in such
forms as testified to by its material control manager, and entering
into a contract for the transmission of message in such forms,
defendant committed acts of bad faith, fraud and malice.
ST. FRANCIS HIGH SCHOOL, ET AL. vs.
COURT OF APPEALS
G.R.No.82465,Feb.25,1991
PRINCIPLE: THE SCHOOL AND THE TEACHERS ARE NOT
NEGLIGENT. THE INCIDENT HAPPENED NOT
IN THE SCHOOL AND NOT IN A SCHOOL DAY,
AND WHILE THE TEACHERS AND THE STU-
DENTS WERE HOLDING A PURELY PRIVATE
AFFAIR, A PICNIC.
THE CLASS ADVISER OF THE CLASS WHERE
FERDINAND BELONGED, DID HER BEST AND
EXERCISE DILIGENCE OF A GOOD FATHER
OF A FAMILY TO PREVENT ANY UNTOWARD
INCIDENT OR DAMAGES TO ALL STUDENTS.
FACTS:
Ferdinand Castillo is a 13-year-old first year high school
student at St. Francis High School. He wanted to join a school picnic
II
CHAPTER XIII 155
TORTS AND DAMAGES
at a beach but he was not allowed by his parents. He was allowed,
however, to bring food to the teachers and to return home after doing
so. Nevertheless, Ferdinand went on with the teachers to the beach
because of their persuasion.
While the teachers and the students were in the water, including
Ferdinand, one of the female teachers who was apparently drowning,
was rescued by Ferdinand. Unfortunately, it was Ferdinand himself
who drowned.
The school and the teachers were sued for damages by
Ferdinand's parents. They contended that the defendants failed to
exercise the proper diligence of a good father of a family in preventing
their son's drowning, and prayed for actual, moral and exemplary
damages, attorney's fees and costs of suit.
The trial court rendered judgment against the teachers,
ordering all of them to pay plaintiffs P30,000.00 as actual damages,
P20,000.00 as moral damages, Pl5,000.00 as attorney's fees and to
pay the costs. The case against the school, however, was dismissed.
The Court of Appeals ruled that the school and the teachers are
guilty of negligence and therefore liable for the death of Ferdinand.
ISSUE:
(1) Are defendants guilty of negligence?
(2) Is Article 2180 applicable to this case?
(3) Is the award of exemplary and moral damages proper?
HELD:
ON THE ISSUE OF NEGLIGENCE - The school and the
teachers are not guilty of negligence. In the case at Bar, the teachers/
petitioners were not in the actual performance of their assigned
tasks. The incident happened not within the school premises, not on
a school day, and most importantly, while the teachers and students
were holding a purely private affair, a picnic. The incident happened
while some members of the class of the school were having a picnic
at the beach. The picnic had no permit from the school head or its
principal because this picnic was not a school-sanctioned activity
neither is it considered as an extra-curricular activity.
Mere knowledge by petitioner/principal of the planning of the
picnic by the students and their teachers does not in any way show
acquiescence or consent to the holding of the same. The application

156 INTRODUCTION 1'0 LAW
therefore of Article 2180 has no basis in law and neither is it
supported by any jurisprudence. If we were to affirm the findings of
the appellate court on this score, employers will forever be exposed
to the risk and danger of being hailed to Court to answer for the
misdeeds or omissions of the employees even ifs uch act or omission
be committed while they were not in the performance of their duties.
No negligence could be attributable to the teachers to warrant
the award of damages to Ferdinand's parents. The class adviser
of the class where Ferdinand belonged did her best and exercised
diligence of a good father of a family to prevent any untoward
incident or damages to all the students who joined the picnic. In
fact, she invited the P.E. instructors and scout masters who have
knowledge in first-aid application and swimming. Moreover, the
petitioners brought life savers in case of emergency. Petitioners did
all what is humanly possible to save the child.
It was held that the Court of Appeals committed an error in
applying Article 2180 of the Civil Code in rendering the school liable
for the death of Ferdinand.
ON THE ISSUE OF AWARDING MORAL OR EXEMPLA-
RY DAMAGES - No moral or exemplary damages may be award-
ed in favor of Ferdinand's parents. The case does not fall under any
of the grounds to grant moral damages. Petitioners are not guilty of
any fault or negligence. Hence, no moral damages can be assessed
against them.
While it is true that Ferdinand's parents gave their consent
to their son to join the picnic, this does not mean that petitioners
were already relieved of their duty to observe the required diligence
of a good father of a family in ensuring the safety of the children.
But here, petitioners were able to prove that they had exercised
that required diligence. Hence, the claim for moral or exemplary
damages becomes baseless.
MAJORITY OPINION - The majority opinion holds the
view that the teachers involved were not in the actual performance
of their assigned tasks, hence, any act or omission caused by them
cannot bind their employer, St. Francis High School.
DISSENTING OPINION - Justice Padilla dissented.
He maintained that although the excursion may not have been
attended by the appropriate school authorities, the presence or
stamp of authority of the school nevertheless pervaded by reason of
the participation of not of one but of several teachers.
I
I,
CHAPTER XIII 157 I
TORTS AND DAMAGES
MANDARIN VILLA, INC. vs. COURT OF APPEALS, ET AL.
G.R. No. 119850, June 20, 1996
PRINCIPLE: THE TEST FOR DETERMINING THE EXIS-
TENCE OF NEGLIGENCE IN A PARTICULAR
CASE MAY BE STATED AS FOLLOWS: DID THE
DEFENDANT IN DOING THE ALLEGED NEG-
LIGENT ACT USE THE REASONABLE CARE
AND CAUTION WHICH AN ORDINARY PRU-
DENT MAN WOULD HAVE USED IN THE SAME
SITUATION. IF NOT, THEN HE IS GUILTY OF
NEGLIGENCE.
FACTS:
Atty. Clodualdo De Jesus hosted a dinner for his friends at
Mandarin Villa Seafood Village, Greenhills, Mandaluyong City, on
October 19, 1989. After the dinner, the waiter handed to him the
bill in the amount of P2,658.50. Atty. De Jesus gave his Bankcard
to the waiter who gave it to the cashier for verification. Thereafter,
the waiter informed Atty. De Jesus that his credit card had expired.
Atty. De Jesus remonstrated that his credit card had yet to expire
on September 1990, as embossed on its face. It was again submitted
for computer verification. The same information was shown-CARD
EXPIRED. Atty. De Jesus and his guests returned to their table and
at this juncture, Prof. Lirog, another guest, uttered the following
remarks: Clody (referring to Clodualdo De Jesus, may problema ba?
Baka kailangang maghugas na kami ng pinggan? Thereafter, De
Jesus left and get his BPI Express Credit Card from his car and
offered it to pay their bill. This was honored and accepted by the
cashier after verification.
De Jesus filed a case for damages. After trial, judgment was
rendered as follows:
1. Petitioner and Bankard shall pay, jointly and severally,
De Jesus: (a) P250,000.00, as moral damages; (b) Pl00,000.00 as
exemplary damages; and (c) P50,000.00 as and for attorney's fees
and litigation expenses. This was modified by the Court of Appeals
by reducing moral damages to P25,000.00; reducing exemplary
damages to Pl0,000.00; and setting aside attorney's fee.
ISSUES:
Mandarin raises these issues: (1) Whether it is negligent; (2)
If negligent, whether such negligence is the proximate cause of De
Jesus' damage?
158 INTRODUCTION TO LAW
HELD:
The Supreme Court approved the decision of the Court of
Appeals.
1. Whenever the words CARD EXPIRED flashes on the
screen of the verification prudence, petitioner should check the
credit card's expiration date embossed on the card itself. If approved,
petitioner should honor the card provided it is not invalid, cancelled
or otherwise suspended. But if expired, petitioner should not honor
the card. In this case, De Jesus' Bankcard Credit Card has an
embossed expiring date of September 1990. Clearly it is not expired
on October 19, 1989, when the same was wrongfully dishonored by
the petitioner. Hence, the petitioner did not use the reasonable care
and caution which an ordinary person would have used in the same
situation, and such petitioner is guilty of negligence.
2. While it is true that De Jesus did not have sufficient cash
on hand when he hosted a dinner at petitioner's restaurant, this fact
alone did not constitute negligence on his part, whether it can be
claimed that the same is the proximate cause of De Jesus damage.
We take judicial notice of the comment practice among major
establishments, petitioner included, to accept payment by means of
credit cards in lieu of cash.
3. The humiliation and embarrassment of De Jesus was
brought about not by the remark of Prof. Lirog but by the fact of
dishonor by the petitioner of De Jesus' valid BANKCARD credit
card. If at all, the remark of Prof. Lirog served only to aggravate the
embarrassment then felt by De Jesus.
PERLA COMPANIA DE SEGUROS, INC., ET AL. vs. SPS.
GUADENCIA SARANGAYA III, ET AL.
G.R. No. 147746, Oct. 25, 2005
PRINCIPLE: REQUISITES TO SUSTAIN THE ALLEGATION
OF NEGLIGENCE BASED ON THE DOCTRINE
OF RES IPSA LOQUITUR.
(1) REQUISITES FOR EXEMPTING CIR-
CUMSTANCES OF CASO FORTUITO
FACTS:
Spouses Guadencio Sarangaya III and Primitiva Sarangaya
erected a building known as "Super A Building," a semi-concrete,
CHAPTER XIII 159
TORTS AND DAMAGES
semi-narra one-storey commercial building fronting the provincial
road of Santiago, lsabela. It was subdivided into three doors, each
of which was leased. The 2-storey residence of the Sarangayas was
behind the second and third doors of the building.
In 1988, petitioner leased the first door of the "Super A
Building." It renovated its rented space and divided it into two. The
left side served as an office and the right side was used by Pascual,
Branch manager of petitioner as a garage for a 1981 model 4-door
Ford Cortina, a company provided car. One day, after one of his trips
to Pampanga, he decided to "warm up" the car. When he switched the
key, the engine made an "odd" sound and did not start. He started
the car again. This time, the engine was revived but he heard an
unusual sound. He then saw a small flame coming out of the engine.
Startled, he turned it off, alighted from the vehicle and stated to
push it out from the garage when suddenly, fire spewed out of its
rear compartment and engulfed the whole garage. He was trapped
inside and suffered burns in his face, legs and arms.
At the time, the respondents were busy watching television.
Much later, fire spread inside their house, destroying all their
belongings, furniture, and appliances.
The City fire marshall conducted an investigation and
submitted a report to the provincial fire marshall that the fire was
"accidental," and that petitioner had no fire permit as required by
law.
A criminal complaint for Reckless Imprudence resulting to
Damages in Property was filed against Pascual. Petitioner corpora-
tion was asked to pay P7,992.350, inclusive of the value of the com-
mercial building.
Respondents Spouses :filed a civil complaint based on quasi-
delict against petitioners for a "Sum of Money and Damages,"
alleging that Pascual acted with gross negligence while the
petitioner corporation lacked the required diligence in the selection
and supervision of Pascual as its employee.
During the trial, respondents presented witnesses who
testified that few days before the incident, Pascual was seen buying
gasoline in a customer from a nearby gas station. He then placed the
container in the rear compartment of the car.
Pascual insisted that the fire was purely an accident, a caso
fortuito, hence, he was not liable for damages. Petitioner corporation
160 INTRODUCTION TO LAW CHAPTER XIII 161
TORTS AND DAMAGES

refused liability for the accident on the ground that it excercised due (a) When the cause of the unforseen and unexpected
diligence of a good father of a family in the selection and supervision occurrence was independent of the human will;
of Pascual as its Branch Manager. (b) When it was impossible to foresee the event which
The trial court ruled in favor of the respondents. It was affirmed instituted the caso fortuito; or, if it could be foreseen, it was
by the CA with modification as to the award of damages. Hence, this impossible to avoid;
petition. (c) When the occurrence must be such as to render it
impossible to perform an obligation in a normal manner; and
ISSUE:
(d) When the person tasked to perform the obligation
Is Pascual negligent? Is the incident a case of caso fortuito? must not have participated in the course of conduct that
aggravated the accident.
HELD:
The circumstances or record do not support the defense of
(1) To sustain the allegation of negligence based on the
doctrine of res ipsa loquitor, the following requisites must concur: Pascual. Clearly, there was no caso fortuito because of his want of
care and prudence in maintaining the car.
(a) The accident is of a kind which does not ordinarily
occur unless someone is negligent; Under the second requisite, the instrumentality or agency that
triggered the occurrence must be one that falls under the exclusive
(b) The cause of the injury was under the exclusive control of the person in charge thereof. In this case, the car where
control of the person in charge; and the fire originated was under the control of Pascual.
(c) The injury must not have been due to any voluntary Under the third requisite, there is nothing in the records to
action or contribution on the part of the person injured. show that respondents contributed to the incident. They had no
Under the first requisite, the occurrence must be one that does access to the car and had no responsibility regarding its maintenance
not ordinarily occur unless there is negligence. "Ordinary" refers to even if it was parked in a building they owned.
the usual course of events. Flames spewing out of a car engine, when
it is switched on, is obviously not a normal event. Neither does an
explosion usually occur when a car engine is revived.
Hence, in this case, without any direct evidence as to the cause
of the accident, the doctrine ofres ipsa loquitor comes into play, and
from it, we draw the inference that based on the evidence on hand,
someone was in fact negligent and responsible for the accident.
Here, the fact that Pascual, as the caretaker of the car, failed
to submit any proof that he had it periodically checked (as its year-
model and condition required) revealed his negligence. A prudent
man should have known that a 14-year old car, constantly used in
provincial trips, was definitely prone to damage and other defects.
For failure to prove care and diligence in the maintenance of the
vehicle, the necessary inference was that Pascual had been negligent
in the upkeep of the car.
(2) The exempting circumstance of caso fortuito may be
availed only:

Chapter XIV
POLITICAL LAW AND THE CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
BASIC PRINCIPLES AND DEFINITION
I. DEFINITION
A. POLITICAL LAW
Political law is that branch ofjurisprudence which treats of the
science of politics, or the organization of government. (Black's Law
Dictionary, Sixth Edition, p. 1158)
Our Supreme Court defined political law in more specific terms
by saying that it is the branch of public law which deals with the
organization and operation of the governmental organs of the state
and defines the relations of the state with the inhabitants of its
territory. (People vs. Perfecto, 43 Phil. 887)
B. PIDLIPPINE POLITICAL LAW
Philippine Political Law, on the other hand, deals specifically
with the study of the structure and powers of our government as well
as the study of Constitutional Law, Administrative Law, Election
Law, Law of Public Officers, the Law on Municipal Corporations,
all of which are covered by and included in the study of Philippine
Political Law.
C. ADMINISTRATIVE LAW
It is study of the laws that regulate the administrative organi-
zation and operations of the governmental organs of the State and
determines the competence of the administrative authorities and
the remedies available to the individual in case of violation of his
rights.
D. ELECTION LAW
It is study of the laws, rules and procedures involving the con-
duct of election of all public officials who will exercise the powers of
162
CHAPTER XIV 163
POLITICAL LAW AND THE CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
government as allocated to and within their functions and respon-
sibilities.
E. LAW OF PUBLIC OFFICERS
It is a study of the creation, modification, and dissolution of
public office as well as the eligibility of public officers, the manner
of their election or appointment and assumption of office, their
rights, duties, powers, inhibition and liabilities, and the modes of
terminating their official relations.
F. LAW ON MUNICIPAL CORPORATIONS
This is a study of the general principles governing municipal
corporations, the laws affecting the creation, organization and
government of provinces, cities, municipalities and barangays;
the scope and application of the powers of municipal corporations,
including municipal ordinances, contracts, liabilities, and enter-
prises.
THE 1987 CONSTITUTION
CONSTITUTION
A. WHAT IS A CONSTITUTION?
Reference has been made to the definition by Cooley that a
Constitution is a "body ofrules and maxims in accordance with which
the powers of sovereignty are habitually exercised." With particular
reference to the Constitution of the Republic of the Philippines, it is
a written instrument enacted by the direct action of the people by
which the fundamental powers of the government are established,
limited and defined, and by which those powers are distributed
among the several departments for their safe and useful exercise
and for the benefit of the body politic. (Malcolm and Laurel, Phil.
Constitutional Law 6)
In Marcos vs. Manglapus (177 SCRA 668, September 15, 1989),
the Supreme Court had an occasion to articulate the meaning of a
Constitution and refers to it as a "law for rulers and people, equally
iii war and in peace, and covers with the shield of its protection all
classes of men at all times, and under all circumstances." This is
referred to as the Social Contract Doctrine. The Supreme Court said:
"The Constitution xx x is a law for rulers and people,
equally in war and in peace, and covers with the shield of
its protection all classes of men, at all times, and under
164 INTRODUCTION TO LAW
all circumstances. No doctrine involving more pernicious
consequences was ever invented by the wit ofman than that
any of its provisions can be suspended during any of the
great exigencies of government." (Marcos vs. Manglapus,
177 SCRA 668, September 15, 1989)
BASIC PRINCIPLES OF THE CONSTITUTION
a. The Constitution is the supreme law of the land:
A Constitution is a legislation direct from the people acting in
their sovereign capacity, hence, it is more superior than an ordinary
law or statue which is merely a legislation from the people's
representatives subject to limitations prescribed by the Constitution.
No man-made law, therefore, can prevail as against the Con-
stitution.
b. Being the supreme law of the land, it is the symbol and
monument of the people's will:
As such, it should be submitted for ratification of the people
following the principle that "x x x sovereignty resides in the people
and all government authority emanates from them." (Sec. 1, Art. II,
1973 and 1987 Constitutions)
c. The Constitution outlines the infrastructure of the
government:
It is through the Constitution that the fundamental powers of
the government are established, limited and defined, and by which
those powers are distributed among the several departments of the
government for their safe and useful exercise and for the benefit of
the body politic.
d. The Constitution must be obeyed by all:
It governs the poor and the rich, the governed and the governors,
the mighty and the weak, and regardless of the color of one's skin,
his religion or his political persuasion.
e. The courts are the ultimate guardians of the Constitution:
It is the court that implements the laws prescribed in the
Constitution which would certainly give the people whatever is just
and fair as the case may be.
CHAYfERXIV 165
POLITICAL LAW AND THE CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
CLASSIFICATIONS OF THE CONSTITUTION AND ITS DEFINITION
A Constitution may be written or unwritten, conventional or
cumulative, and rigid or flexible.
(a) A written or rigid Constihition is one the provisions
of which have been reduced to writing and embodied in one or more
instruments at a particular time.
EXAMPLE: Philippine Constitution. An unwritten Consti-
tution is one which has not been reduced to writing at any
specific time but it is the collective product of a gradual political
development, consisting of unwritten usages and customary rules,
judicial decisions, dicta of statesmen, and legislative enactments of
a fundamental character written but scattered in various records
without having any compact form in writing. The three most
conspicuous historical instances of such constitutions are those of
Athens, Rome, and England. The latter is almost the sole example of
a progressive modern State retaining such a Constitution. (Malcolm
and Laurel, Phil. Constitutional Law, pp. 9-.l 3)
(b) Conventional or cumulative - A conventional Con-
stihttion is enacted deliberately and consciously by a constituent
body or ruler at a certain time and place. A cumulative Constitu·
tion is a product of a gradual political development.
(c) Rigid or flexible - A rigid Constitution is one which
can be amended through a formal and difficult process. A flexible
Constitution is one which can be changed by ordinary legislation.
Q - What is the nature of the powers of a Constitutional
Convention?
A - There are three theories, thus:
(1) The powers of the Constitutional Convention are
in the nature of sovereign powers, hence, it is more
supreme over the other departments of the govern-
ment.
(2) The Constitutional Convention is inferior to the
other departments of the government because it de-
rived its powers from the legislature which created
it.
(3) It is independent and co-equal with the other de-
partments of government. (Cruz, Constitutional
Law, pp. 14-15, 1998 Edition)
166 INTRODUCTION TO LAW
ADVANTAGES AND DISADVANTAGES OF A WRITTEN CONSTITUTION
Advantages:
1. It serves as the best guide and reference of the people
when their rights and liberties are transgressed and
violated.
2. It provides stability to a nation and its people.
3. With a written law on their side, the people feel more
secure and confident that they are well protected against
abuse of authority.
4. In times of chaos and political uncertainties, it serves as
a link and a bridge to pass over to better times.
5. In case of external aggression, it serves as the rallying
point and inspiration of the people to protect their country
against the invaders, or even against any form of foreign
control.
6. It lays down in clear terms the principles of their political
creed and aspirations, the policies that govern the state
and its people, all of which protect them from frequent
and violent fluctuations of public pulse.
7. Both in times of peace and war, it holds the people
together.
Disadvantages:
1. The rules, principles and policies upon which it is based
are difficult to change even when they turn out, at times,
to be inconvenient.
2. It is likely to encroach on the domain ofordinary legislation
instead of confining itself to fundamental principles.
3. When there is an urgent need for a change, the prescribed
rules or procedures to effect such change often results to
bitter or, probably, violent, clashes of opinion.
ADVA NTAGES AND DISADVANTAGES OF AN UNWRITTEN CONS-
TITUTION
An unwritten Constitution is advantageous in the sense that
it is flexible and elastic. It is not advantageous in the sense that iL
is subject to perpetual change at the will of only a few number of
people.
CHAPTER XIV 167
POLITICAL LAW AND THE CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
PURPOSE OF CONSTITUTION
The purpose of a Constitution is "to prescribe the permanent
framework of a system of government, to assign to the different de-
partments their respective powers and duties, and establish certain
fixed principles on which the government is founded." (Malcolm and
Laurel, Philippine Constitutional Law, 7) Likewise, it serves as a
security and sanctuary of the right of all citizens, rich or poor, weak
or strong, lettered or unlettered, and regardless of religious and po-
litical persuasion. In times of peace and war, it holds the State to-
gether.
THE 1987 CONSTITUTION MAY BE CHANGED
The 1987 can be changed either by amendment or revision.
This is referred to as formal amendment.
A change may also be affected when our courts of justice
interpret ambiguously worded provisions of the Constitution to
make it conform with realities. This being not in accordance with the
formal process of amendment, as called for, it is understood that in
so doing, the Supreme Court is merely modifying its interpretations
of the ambiguously worded constitutional provisions involved and it
does so in accordance with the principle that it has the last word in
the construction of any law and even of the Constitution itself.
Q - Distinguish revision from amendment.
A - Revision is the rewriting or overhauling of the entire
instrument.
AMENDMENT is a change or alteration for the better; an
amendment or change within the lines of the original instrument
which bring about improvement.
Q - What are the steps required in the revision or amendment
of the constitution?
A - There are two (2) steps required in the process ofrevision
or amending the Constitution, namely: (1) Proposal; (2)
Ratification.
1. PROPOSAL - Proposal is the motion of initiating
suggestions or proposals on amendment or revision,
which may either be by:
(a) Congress, upon a vote of three-fourths of all its
members; or

168 INTRODUCTION TO LAW
(b) A Constitutional Convention; or
(c) People's initiative. (Secs. 1 and 2, Art. XVII)
2. RATIFICATION - Ratification is the sovereign act
vested in the Filipino people either to reject or approve
the proposals to amend or revise the Constitution. The
ratificatory is found and outlined in Section 4, Article
XVII of the Constitution.
Q - How may the constitution be revised?
A - There are two (2) modes of revising the Constitution, to
wit:
(a) By the Congress, upon a vote of the three-fourths of
all its Members; or
(b) By a Constitutional Convention.
If the Congress chooses to call a Constitutional Con-
vention, it may either:
(a) Call a Constitutional Convention by a vote of two-
thirds of all its Members (Sec. 3, Art. XVII);
(b) Submit to the electorate the question of calling such
a body by a majority vote of all its Members. (Ibid.)
Q - How may the Constitution be amended?
A - Amendment may be effected: (a) by Congress, upon a vote
of the three-fourths of all its Members; (b) by a Constitu-
tional Convention; (c) By People's Initiative.
Q - What is People's Initiative?
A - It is a method whereby the people themselves can directly
propose amendments to the Constitution?
Q - Who can propose amendments or revision of the
Constitution?
A - Amendments revisions may be proposed either by (1)
Congress or (2) by the Constitutional Convention.
Q - If the proposal is made by Congress, what is the
required vote?
A - Three-fourths of all its members.
Q - If the proposal is made by a Constitutional Con-
vention, what is the required vote?
CHAPTER XIV 169
POLITICAL LAW AND THE CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
A - The convention, once organized, is free to decide the vote
required to carry a proposal.
THE BILL OF RIGHTS
DUE PROCESS OF LAW
A. DEFINITION AND PURPOSE
Through the years, several definitions have been written about
due process oflaw. In Darmonth vs. Wordward (4 Wheat, 518 L . ed.
629 [1819]), it was defined as a law which hears before it condemns,
which proceeds upon inquiry, and renders judgment only after
a trial. In the old case of U.S. vs. Lin Su Fan (10 Phil. 104), due
process was interpreted to mean:
(a) That there is law prescribed in harmony with the general
powers of the legislative department of the Government.
(b) That the law is reasonable in its operation;
(c) That the law is enforced according to the regular methods
of procedures prescribed; and
(d) That the law is applicable alike to all people of the State
or to all of a class.
The due process clause i:::; a guaranty against any kind of abuse
and arbitrariness, by anyone in any of the branches of government.
More specifically, the purpose of the due process clause is:
(a) To prevent undue encroachment against the lite, liberty
and property of individuals.
(b) To secure the individual from the arbitrary exercise of
powers of government, unrestrained by the established
principles of private rights and distributive justice.
(c) To protect property from confiscation by legislative enact-
ments from seizure, forfeiture, and destruction without
a trial and conviction by the ordinary modes of judicial
procedures.
B. PERSONS
In Roman law, a person is one who is capable of exercising
ownership and legal rights to incur and contract obligation. Under
this concept, a slave is not considered a person, he being merely
170 INTRODUCTION TO LAW
regarded as a chattel, a thing that can be sold or disposed of at the
discretion of the master. Hence, a slave does not have the legal
capacity to exercise ownership and to incur and contract obligations.
Under the New Civil Code, a person may be natural or a
juridical person. A natural person refers to a human being and a
juridical person refers to any of the following:
1. The State and its political subdivisions;
2. Other corporations, institutions and entities for public
interest or purpose created by law; their personality
begins as soon as they have been constituted according to
the law;
3. Corporations, partnerships and associations for private
interest or purpose to which the law grants a juridical
property, separate and distinct from that of each
shareholder, partner or member. (Art. 44, NCC)
Under our Constitution, natural and artificial persons are
covered and protected by the due process clause, except that with
respect to artificial persons, the protection is only insofar as their
property is concerned. (South Bell and Co. vs. Natividad, 40 Phil.
136)
C. LIFE
The right to lifo is not merely a right to the preservation oflife
itself but also to the security of the limbs and organs of the human
body against any unlawful harm. This constitutional guarantee
includes the rights of an individual to pursue a lawful calling or
occupation; to express, write or even paint his ideas for as long as
he does not unlawfully transgress the rights of others; to exercise
his freedom of choice, whether this is in the area of politics, religion,
marriage, philosophy and employment, or even in the planning ofhis
family, and in general, to do and perform any lawful act or activity
which, in his judgment, will make his life worth living.
Under the new Constitution, the right to life may further be
construed to mean and to include an "improved quality of life" (Sec.
9, Art. II), "full respect for human rights" and the "dignity of every
human person" (Sec. 11, Art. II), ''just and dynamic social order"
to ensure "the prosperity and independence of the nation and free
the people from poverty through policies that provide adequate
social services, promote full employment, a rising standard ofliving,
and an improved quality of life for all" (Sec. 9, Art. II), "the right to
CHAPTER XIV 171
POLITICAL LAW AND TI-ill CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPlNES
health" and "balanced and healthful ecology in accord with rhythm
and harmony of nature" (Secs. 15 and 16, Art. II), the right to "social
justice," (Sec. 10, Art. II) the "right of workers" and the "promotion
of their welfare" (Sec. 18, Art. II), and "equal access to opportunities
for public service" (Sec. 26, Art. II).
All these are declared principles and state policies, the
promotion and enforcement of which are guaranteed by the express
provision of Article II of the 1987 Constitution. In that sense, they
could reasonably be claimed as part of the right to life, to hold
otherwise would, in effect, render nugatory the very assurance and
undertaking of the State to promote and guarantee the same to all
citizens alike, without discrimination.
D. LIBERTY
Liberty refers to something which is more than mere freedom
from physical restmint or the bounds of a prison. It means freedom
to go where one may choose, and to act in such manner, not
inconsistent with the equal rights of others, as his judgment may
dictate for the promotion of his happiness; to pursue such callings
and avocations as may be most suitable to develop his capacities,
and give to them their highest enjoyment, within the bounds oflaw.
(Munn vs. Illinois, 94 U.S. 143)
A person is free to do anything he wants provided he does not
violate the law and the better rights of others. This freedom, how-
ever, should be construed as freedom to do right, and never wrong,
according to Apolinario Mabini, hence, in exercising this freedom,
one should be "guided by reason and the upright and honorable con-
science of the individual; commanding obedience to those rightfully
placed in power and acknowledge as the most fit to guide."
E. PROPERTY
Property refers to thing which are susceptible of appropriation,
and which are already possessed and found in the possession of man.
(Castan, 8th ed., Part II, pp. 367-369)
It could either be immovable or real property, as enumerated
in Article 415 of the Civil Code, or movable or personal property,
as enumerated in Articles 416 and 417 of the Civil Code. All those
properties, including the right to own and possess the same, as well
as the right to acquire, or use if for any lawful purpose and by any
lawful means, the right to earn a living, the right to the fruits of one's
employment or profession (Century Textile Mills, Inc. vs. NLRC, 161
172 INTRODUCTION TO LAW
SCRA 528), the right arising from a perfected mining claim, or a
perfected homestead, or a final judgment, are protected and cannot
be taken away from the owner without due process of law.
F. REQUIREMENTS OF DUE PROCESS AT A GLANCE
The due process clause should be interpreted both as a
substantive and as a procedural guarantee. Hence, the requirements
of due process are: (1) substantive due process; and (2) procedural
due process.
1. SUBSTANTIVE DUE PROCESS
Substantive due process is a guarantee that life, liberty and
property shall not be taken away from anyone without due process
oflaw. If a law is invoked to take away one's liberty and property,
the more specific concern of substantive due process is not to find out
whether said law is being enforced in accordance with procedural
formalities but whether or not the said law is a proper exercise of
legislative power. This will necessarily require the following. There
must be a valid law upon which it is based:
(a) The law must have been passed or approved to accomplish
a valid governmental objective.
(b) The objective must be pursued in a lawful manner.
(c) The law as well as the means to accomplish the objective
must be valid and not oppressive.
2. PROCEDURAL DUE PROCESS
Procedural due process refers to the regular methods of
procedure to be observed before one's life, liberty or property can be
taken away from him. Simply stated, it means that the procedure to
be observed must be fair.
Procedural due process therefore is a guarantee to obtain a fair
trial in a court of justice according to the mode of proceeding appli-
cable to each case. Now, this includes not only any court of justice
but also any and all administrative boards, bodies or tribunals.
THE TWO (2) ASPECTS OF PROCEDURAL DUE PROCESS ARE
THE FOLLOWING:
1) PROCEDURAL DUE PROCESS IN ADMINISTRATIVE
PROCEEDINGS
173
CHAPTER XIV
POLITICAL LAW AND THE CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
2) PROCEDURAL DUE PROCESS IN JUDICIAL PRO-
CEEDINGS
The requirements of due process in judicial proceedings, as laid
down in Banco Filipino vs. Palanca (37 Phil. 921) are as follows:
(1) There must be an impartial court or tribunal clothed with
judicial power to hear and determine the matter before it;
(2) Jurisdiction must be lawfully acquired over the person
of the defendant and over the property which is subject
matter of the proceeding;
(3) The defendant must be given an opportunity to be heard;
and
(4) Judgment must be rendered upon lawful hearing.
PROCEDURAL DUE PROCESS IN ADMINISTRATIVE PROCEED-
INGS
The requirements of due process in administrative proceedings,
as laid down in Ang Tibay vs. Court of Industrial Relations (69 Phil.
635), are as follows:
(1) The right to hearing, which includes the right to present
one's case and submit evidence in support thereof;
(2) The tribunal must consider the evidence presented;
(3) The decision must have something to support itself;
( 4) The evidence must be substantial;
(5) The decision must be rendered on the evidence presented
at the hearing, or at least contained in the record and
disclosed to the parties affected;
(6) The tribunal or body or any of its judges must act on
its own independent consideration of the law and facts
of the controversy and not simply accept the views of a
subordinate in arriving at a decision; and
(7) The board or body should, in all controversial questions,
render its decision in such a manner that the parties to
the proceedings can know the various issues involved,
and the reason for the decision rendered.
174 INTRODUCTION TO LAW
SEARCH AND SEIZURE
There are actually three (3) rights mentioned in Section 2,
Article III of the Constitution thus:
1. One is the right of the people to be secure in their per-
sons. houses, papers, and effects against unreason·
able searches and seizures of whatever nature and for
any purposes. The right is "inviolable."
2. No search warrant shall issue exceP1.lwon probable
~ to be determined personally by the judge after
examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly
describing the place to be searched and the persons or
things to be seized.
3. No warrant of arrest shall issue except upon
probable cause to be determined personally by the
judge after examination under oath or affirmation of
the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the
persons or thing to be seized. (Compressed in the second
sentence of Sec. 2 which says, "and no search warrant or
warrant of arrest shall issue except upon probable cause
xxx.'~
PRIVACY OF COMMUNICATION AND CORRESPONDENCE
GENERAL RULE:
The privacy of communication and correspondence shall be
inviolable.
EXCEPTIONS:
1. Except upon lawful order of the court; or
2. When public safety or order requires otherwise as pres-
cribed by law.
COVERAGE OF THE GUARANTEE
The constitutional protection to privacy or communication and
correspondence includes tangible or intangible objects.
CHAPTER XIV 175
POLITICAL LAW AND THE CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
EXAMPLE:
1. TANGIBLE OBJECTS - Letters, telegrams, signals,
cables, telephone, client's file and other documents.
2. INTANGIBLE OBJECTS - Under Republic Act No.
4200, it is illegal for any person, not authorized by all the
parties to any private communication by means of tape
recorder. (People vs. Sy Juco, Phil. 667)
FREEDOM OF SPEECH AND OF THE PRESS
MEANING OF FREEDOM OF SPEECH AND OF THE PRESS
Freedom of speech and that of the press implies, the right to
freely utter and publish whatever the citizen may please, and to
be protected from any responsibility for so doing, except so far as
such publication, from their blasphemy, obscenity, or scandalous
character, may be a public offense, or as by their falsehood and
malice they may injuriously affect the standing, reputation or
pecuniary interests of individuals. (Cooley's Const. Limitations, 8th
ed., 886; U.S. vs. Sotto, 38 Phil. 666)
WHAT ARE INCLUDED IN THE FREEDOM OF EXPRESSION?
It includes the following:
(1) Free speech and free press
(2) Freedom of assembly
(3) Freedom of petition
(4) Freedom ofreligion
(5) Right of association or right to form associations
(6) Right to religious freedom
WHAT ARE INCLUDED IN TERMS "SPEECH AND EXPRESSION"?
The terms include the following:
1. The right to freely utter, print and publish any statement
without previous censorship of the government. (U.S. vs.
Sotto, 38 Phil. 666)
2. The right of peaceful picketing. (Cafeteria Employees
Union vs. Angeles, 64 Suppt. Crt. 126)
176 INTRODUCTION TO LAW
3. The right to a lawful strike.
4. The right to disseminate information concerning the facts
of a labor dispute.
5. Expression by means of radio, television, and motion
picture.
6. The right to express grievances against the government;
criticize the affairs of government.
7. The right to display posters, notices, flags and banners.
WHAT IS INCLUDED IN THE TERM "PRESS"
The included newspapers, magazines, journals, books and any
sort of publication.
FREEDOM OF RELIGION
RELIGION DEFINED
In a broad sense, religion includes any form of belief in regard
to the relation of human beings to some supernatural powers, or
as defined in Aglipay vs. Ruiz (64 Phil. 201), it is a "profession of
faith to an active power that binds and elevates man to his creator."
Persons holding the same religious beliefs are generally associated
in groups which may or may not be organized as corporations.
In a more specific or restricted sense, religion is a system of
belief, or worship, or philosophy not necessarily in the existence of
God, or a power of a more superior being, but in a philosophy or way
of life detached from any reverence or obedience to God.
There are those who pray in any place of their choice for they
believe that the temple of God is not necessarily the altar we know
with all images of saints, but in a philosophy or way oflife detached
from any reverence or obedience to God.
In all these instances, their faith and way oflife is their r eligion
which the Constitution gu a rantees to be inviolable. The reason for
this is because the Constitution guarantees the freedom to believe,
this is being absolute. What is regulated and subject to the police
power of the State is when that belief is translated into action and
the acts performed is harmful to the better rights of others.
CHAPTER XIV 177
I
I
P OLITICAL LA w AND nm CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
LIBERTY OF ABODE AND TRAVEL
MEANING OF LIBERTY OF ABODE AND TRAVEL
It is the right of the person to have his home or to m aintain or
change his home, dwelling, residence or habitation in whatever place
he has chosen, within the limits prescribed by law (First Sentence,
Sec. 6), and to go where he pleases without interference from anyone,
except in the interest of national security, public safety, or public
health, as m ay be provided by law. (Second Sentence, Sec. 6)
The exceptions aforementioned means that the liberty of abode
and travel is subject to the police power of the State.
RIGHT TO INFORMATION
TWO RIGHTS GUARANTEED BY SECTION 1
The two rights guaranteed by Section 7 are (1) the right to
information on matters of public concern (First Sentence, Sec. 7);
and (2) the right to access to official records, and to documents, and
papers pertaining to official acts, transactions or decisions, as well
as to government research data used as basis for policy development.
RATIONALE OF SECTION 1
The strength of democratic and republican government, such
as ours, depends on the active support and cooperation of the
sovereign people who choose and elect the officers who will re present
them. Just as they are the ones upon whose hands lie the sovereign
will and a uthority to elect them, they a re undoubtedly entitled to
know, at the very least, if they are served or not served well; if the
government entrusted to their care is properly managed or not; if
the funds and properties which the people own are properly kept
and spent.
It is in the pursuit or exercise of this right that people are
granted the right to know and to be informed "on matter s of public
concern."
It is through the exercise of this right that those in government
are on their toes, so to speak, for they are aware that the vigilant
public, assisted by broadcast and print media, are all there
watching them, particularly the performance of their functions and
responsibilities.
 178 INTRODUCTION TO LAW CHAPTERXN 179
POLITICAL LAW AND THE CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES

They know that sooner or later, they will be exposed to the full
light of public scrutiny. (Valmonte vs. Belmonte, Jr., 170 SCRA 256
[1989}) They will be more cautious and careful, and more than this,
they will be transparent in their dealings and transactions.
SCOPE OF THE RIGHT
The right to information includes the right to be informed on
"matters of public concern." This, in turn, includes access "to official
acts, transactions or decisions, as well as to government research
data used as basis for policy development."
documents will not be assured and it will be more inconvenient to
the people who seek access to official records.
Another control and regulation which the government may
impose happens when there is an imperative need to preserve
confidentiality, or to protect national security. In such cases, the
higher interest of the State, or of the government, is at stake and
may not be prejudiced only or the benefit of convenience of one or a
few persons.
RIGHT OF ASSOCIATION

LIMITATIONS ON THE RIGHT TO INFORMATION ON MAlTERS OF RIGHT OF ASSOCIATION UNDER THE 1987 CONSTITUTION AND
PUBLIC CONCERN AND ON THE COROLLARY RIGHT TO ACCESS UNDER THE 1935 AND 1973 CONSTITUTIONS
TO OFFICIAL RECORDS
.
'
Said right are "subject to such limitations as may be provided
by law." The limitations referred to may either be a limitation 1935 1973 1987
imposed by statutory law, or by any regulation which a particular CONSTITUTION CONSTITUTION CONSTITUTION
office may impose to maintain order and efficiency or to insure the Article III, Article IV, Article III,
safety of the records in its custody. Section 1(6) Section 7 Section 8
Among the many government offices whose records are usually
inspected, examined or copied, are the records of the Securities and "The right to "The right to "The right of
Exchange Commission, Registry of Deeds, courts in all levels, Land form association or form association or the people, includ-
Registration Authority, National Bureau of Investigation, National societies for pur- societies for pur- ing those employed
Intelligence Administration, National Labor Commission and other poses not contrary poses not contrary in the public or pri-
quasi-judicial offices, Social Security System, Government Service to law shall not be to law shall not be vate sectors, to form
Insurance System, Department of Labor and Employment, Bureau abridged." abridged." unions, associa-
of Domestic Trade, Department of Foreign Affairs and their auxiliary tions, or societies for
offices, and the National Archives, among others. From day to day, purposes not con-
thousands of people go to these offices for such purposes. trary to law shall
Access to official records of said offices and other government not be abridged."
offices for that matter is guaranteed by Section 7, but it reserves
the right to impose regulations which are necessary precisely to
protect the safety of the documents in their possession. With the
advent of computer and modern technology, for instance, the records WHAT IS THE DIFFERENCE?
in the Securities and Exchange Commission, or that of the Land All the said provisions guarantee the right to fo1·m associations
Registration Authority, are now in microfilms and researchers or societies for purposes not contrary to law. Section 8, Article III of
are now required to pay some fees to have copies, upon proper the present Constitution, however, merely makes an emphasis (1)
application. that the right of association is a "right of the people, including those
In other words, controls and system are in place not to prohibit employed in the public and private sectors; and (2) that the said
access, but to regulate access. Without these, the safety of the right now includes to form unions."

180 INTRODUCTION TO LAW
Even without the said constitutional provision, the right of
association is a part and parcel of the freedom of expression and
assembly, and like the latter, it is subject to limitations imposed by
law and to the dominant police power of the state.
PROBLEM:
CAN THE LAWYER'S NAME IN THE ROLL OF ATTORNEYS BE
CANCELLED FOR HIS FAILURE TO PAY HIS MEMBERSHIP DUES
IN THE INTEGRATED BAR OF THE PHILIPPINES
Bar integration does not compel a lawyer to associate with
anyone. It is his choice to attend or not to attend meetings of the
Integrated Bar, to vote or not to vote in the election of officers of the
Integrated Bar of the Philippines.
.. The only compulsion to which a lawyer is s ubjected to is the
payment of the annual dues. Even on the assumption that Integrated
Bar compels a lawyer to pay his annual dues, this is justified as a
valid exercise of the police power of the state.
Admission to the practice of law is not a right but a privilege.
(In re Marcial Edillion, 84 SCRA 554)
TAKING OF PRIVATE PROPERTY
FOR PUBLIC USE
Private property can be taken from its owner but s ubject to the
following conditions:
1. That the private property is taken for public use.
2. That the owner of the said property should be paid just
compensation.
3. That due process of law shall be observed in the taking
of the said property.
4. That the taking shall only be exercised by the State
or by those to whom the power has been lawfully
delegated.
TERMS USED
PUBLIC USE - The use is synonymous with public benefit,
public utility, or public advantage, and to authorize the exercise of
CHAPTERXN 181
POLITICAL LAW AND THE CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
the power of imminent domain to promote such public benefit, etc.,
especially where the interest involved are of considerable magnitude.
(Guido vs. Rural Progress Administration, 84 Phil. 847)
JUST COMPENSATION - It is a fair and full equivalent of
the loss sustained. It is the market value to which must be added the
consequential damages, if any, or from which must be conducted his
consequential benefit, ifany. (Manila Railway Co. vs. Fabie, 17 Phil.
207; Manila Railway Co. vs. Velasquez, 32 Phil. 286)
Republic Act No. 7160, otherwise known as the Local
Government Code, provides that the amount to be paid for the
expropriated property shall be determined by the proper court based
on the fair market value at the time of the taking of the property.
The value determined by the assessor may, however, be contested
in court.
FAIR MARKET VALUE - It is the price at which a willing
seller would sell and a willing buyer would buy, neither being
under normal pressure. (Manila Co. vs. Caligsihan, 40 Phil. 326;
Municipality of Bustos vs. Santos, C.A. G.R. No. 22547-R, June 29,
1962)
DUE PROCESS OF LAW - It is a law which hears before it
condemns, which proceeds upon inquiry, and renders judgment only
after trial. (Darmouth vs. Wood Mart, 4 Wheat, 518 L. ed. 629)
PROHIBITION AGAINST IMPAIRMENT
OF OBLIGATION OF CONTRACTS
To have clear understanding of Section 10, a law student
should know the following basic principles about contracts.
WHAT ARE THOSE PROHIBITED?
A. Article 1306, New Civil Code
Article 1306. The contracting parties may establish
such stipulations, clauses terms and conditions as they
may deem convenient, provided they are not contrary
to laws, morals, good customs, public order, or public
policy.
Under this provision, the contracting parties are free to enter
into any kind of contract they choose as they are likewise free to
182 INTRODUCTION TO LAW
"establish such stipulations, clauses, terms and conditions as they
may deem convenient."
This right, however, is not absolute. It is subject to the limita-
tion that the said stipulations, clauses, terms and conditions "are
not contrary to law, morals, good customs, public order, or public
policy."
B. Article 1311, New Civil Code
Article 1311. Contracts take effect only between the
parties, their assigns and heirs, except in case where
the rights and obligations arising from the contract are
not transmissible by their nature, or by stipulation or by
provision of law. The heir is not liable beyond the value
of the property he received from the decedent.
If a contract should contain some stipulation in
favor of third person, he may demand its fttlfillment
provided he communicated his acceptance to the obligor
before its revocation. A mere incidental benefit or interest
ofa person is not sufficient. The contracting parties must
have clearly and deliberately conferred a favor 11,pon a
third person. (1257a)
GENERAL RULE: Contracts take effect only between the
parties and their either heirs.
EXCEPTION: Except in case where the rights and obligations
arising from contract are not transmissible by their nature or by its
stipulation or by provision of law.
C. The freedom of contract is both a constitutional and
statutory right.
To uphold the right, the courts should move with the necessary
caution and prudence in holding contract void. (People vs. Pomar, 26
Phil. 440; Ferrazini vs. Gsell, 34 Phil. 697)
D. Obligations arising from contracts
"Article 1159. Obligations arising from contracts
have the force of law between the contracting parties
and should be complied in good faith."
CHAPTER XIV 183
POLITICAL LAW AND THE CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
POINTS TO REMEMBER:
A. PARTIESHAVENOVESTEDRIGHTIN PARTICU-
LAR REMEDIES OR MODES OF PROCEDURE.
REASON:
Particular remedies and modes of procedure is an exercise of
the police power of the state. Besides, it is within the power of the
legislature to enact laws which will provide particular remedies for
modes of procedure if they are in its judgment necessary under the
circumstances.
EXAMPLE:
Passage of a law providing for the suspension or postponement
in the payment of obligation. The moratorium, however, should not
be an unreasonable length of time, otherwise, it is an infringement
of the provision against the infringement of contract.
FREE ACCESS TO COURTS AND QUASI-JUDICIAL
BODIES AND ADEQUATE LEGAL ASSISTANCE
SECTION 11 IS A COLLECTIVE PRIMARY RESPONSIBILITY OF
ALL LAWYERS, JUDGES, PROSECUTORS, LEGISLATORS
AND EXECUTIVES IN THE GOVERNMENT INCLUDING ALL ITS
EMPLOYEES
This is one guarantee in the Bill of Rights which should better
be implemented and complied with by everyone having to do in the
administration of justice, by every employee in the judicial and qua-
si-judicial agencies of our government, and by all lawyers who are
handling cases, either as counsel for the plaintiff or for the defense.
At the time when the costs of living have become so expensive,
it has become so difficult for the poor to afford even the basic
necessities oflife. Food, shelter, clothing and education, for instance,
are no longer sufficiently enjoyed by many people both in the city
·and in the countryside. With more reason therefore that a greater
number of people find it more difficult to sustain costs of medicines,
hospitalization and doctor's fees, as well as costs of a court suit and
attorney's fees.
The burden of prosecuting or defending a cause of action,
whether in a civil, criminal labor or administrative proceedings,
 184 INTRODUCTION TO LAW
have discouraged many citizens to go into litigation. Some who have
tried to litigate have been disappointed either because the same has
become tedious, prolonged and expensive, or because they have not
obtained justice.
'l'o compound these problems, some officers and employees of
government are not serving poor litigants with vigilance, courtesy,
efficiency and dedication. All these add to the pain and burden of
those who are precisely suffering from poverty.
This is a collective primary responsibility of all lawyers, judges,
prosecutors, legislators, and executives in government including all
its employees. They should do everything possible to make their
good influence felt by those in the lower echelons of government,
particularly those employed in the judiciary. They should be
reminded of the following:
''
''A HUNGRY MAN KNOWS NO LAW EXCEPT
THE LAW OF SURVIVAL. A PERSON WHO IS
OPPRESSED AND A VICTIM OF INJUSTICE
FORGETS THE LAW. HE TAKES THE LAW IN HIS
HANDS. AN OPPRESSED HUNGRY MAN SUFFERS
MORE. HE IS LIABLE TO RUN AMOCK. HE LOST
HIS LAST HOPE."
WHO IS AN INDIGENT PARTY?
An indigent party is one who is authorized by the court to
prosecute his action and defense as an indigent upon an ex parte
application and hearing showing that he has no money or property
sufficient and available for food, shelter and basic necessities for
himself and his family. (Sec. 21, Rule 3, 1997 Rules ofCivil Procedure)
INDIGENT DISTINGUISHED FROM A PAUPER
A pauper is a person so poor that he must be supported at
public's expense. (Philippine Legal Encyclopedia, by Jose Agaton R.
Sibal)
'l'he Supreme Court, however, gave a broader meaning to this
word, as applied to statutes or provisions on the right to sue. An
applicant for leave to sue in forma pauperis need not to be a pauper,
the fact that he is able-bodied and may earn the necessary money
is no answer to his statement that he has no sufficient means to
prosecute the action or to secure the costs. (Ibid.)
CHAP'fERXIV 185
POLITICAL LAW AND THE CONS'l'I'l'U'I'ION
OF THE REPUBLIC OF THE PHILIPPINES
RIGHT TO REMAIN SILENT AND TO
HAVE COMPETENT AND INDEPENDENT COUNSEL
EXPLANATION OF EACH RIGHT
A. RIGHT TO REMAIN SILENT
A person under investigation has the right to refuse to answer
any question. More than this, his silence may not be used against
him. (People vs. Alegre and Gordoncillo, 94 SCRA 118, Nov. 7, 1979)
B. RIGHT TO COUNSEL
The right of a person under investigation is to have "competent
and independent counsel preferably of his own choice."
The purpose of the right to counsel during custodial
investigation is to preclude the slightest coercion as would lead the
accused to admit something else. (People vs. Eranoria, 209 SCRA
557, June 8, 1992; People vs. Remollo, 227 SCRA 375, Oct. 22, 1993)
C. RIGHT TO BE INFORMED OF ONE'S RIGHT
It is not enough that a police officer will just repeat to the
person under investigation the provisions of the Constitution. He
must also explain the effects in practical terms. (People vs. Rojas,
147 SCRA 169 [1987))
The police investigator should explain a meaningful information
rather than just a ceremonial and perfunctory recitation of an
abstract constitutional principle. (Ibid.)
RIGHT TO BAIL
SIMPLICATION OF SECTION 13
GENERAL RULE:
Before conviction, all persons shall be bailable by sufficient
sureties.
Before conviction, all persons shall be released on recognizance
as may be provided by law.
EXCEPTION:
The said rule shall not apply to those charged with offenses
punishable by reclusion perpetua when evidence of guilt is strong.
186 INTRODUCTION TO LAW CHAPTER XIV 187
POLITICAL LAW AND THE CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
RATIONALE OF THE RIGHT TO BAIL DUE PROCESS IN CRIMINAL PROCEEDINGS
An accused is presumed innocent until his guilt is proven
beyond reasonable doubt by final judgment. The right to bail gives SIMPLIFICATION
the accused not only an opportunity to obtain provisional liberty but Section 14, paragraph 1, speaks of due process in criminal
also the chance to prepare for trial while continuing his usual work cases or proceedings. Section 14, paragraph 2, specifies the rights of
or employment. The bail posted by the accused for his provisional the accused in all criminal prosecutions namely:
liberty is, in effect, an insurance that the accused will attend the
1. The accused shall be presumed innocent until the contrary
court proceedings, particularly when his presence is required.
is proved.
In short, the purpose of the bail is to relieve the accused from 2. The accused shall enjoy the right to be heard by himself
imprisonment until his conviction, and at the time his appearance
and counsel.
at the trial is secured. (Almeda vs. Villaluz, 66 SCRA 38 [1975])
3. To be informed of the nature and cause of accusation
BAIL REFINED against him.

Bail is the security given for the release of a person in custody
of the law, furnished by him or a bondsman, conditioned upon
his appearance before any court as required under the conditions
hereinafter specified. (Sec. 1, Rule 114, ROC)
Bail may be given in the form of corporate surety, property
bond, cash or deposit or recognizance. (Ibid.)
KINDS OF BAIL
A. BAIL BOND - An obligation given by the accused
with one or more sureties, with the condition to be void upon the
performance by the accused of such acts as he may legally be
required to perform. (Villasemor vs. Abana, 21 SCRA 312)
It may be given in the form of:
1. Corporate Surety (Sec. 10, Rule 114, ROC)
2. Property Bond (Sec. 11, Rule 114, ROC)
3. Cash Deposit (Sec. 14, Rule 114, ROC)
4. Recognizance (Sec. 15, Rule 114, ROC)
B. RECOGNIZANCE - It is a bond or similar obligation
made and recorded before a court by which a person binds himself
to perform some act or fulfill some condition at a specified time.
(Philippine Legal Encyclopedia, p. 837, by Jose Agaton R. Sibal)
4. To have speedy, impartial, and public trial.
5. To meet the witnesses face to face.
6. To have compulsory process.
7. To secure the attendance of witnesses and the production
of evidence in his behalf.
However, after arraignment, trial may proceed notwithstanding
the absence of the accused. PROVIDED (1) that he has been duly
notified and (2) that his failure to appear is unjustifiable.
HABEAS CORPUS
WHAT IS A WRIT OF HABEAS CORPUS?
It is a writ or order directed to the person detaining another
and commanding him to produce the body of the prisoner at a certain
time and place, with the day and the cause of his detention, to do,
submit to, and receive whatsoever the court or j udge awarding the
writ shall consider in that behalf.
It is a special proceeding, the applicability of which is defined
by Section 1, Rule 102 of the Revised Rules of Court in the following
manner:
"Section 1. To what habeas corpus extends - Ex-
cept as otherwise expressly provided by law, the writ of
habeas corpus shall extend to all cases of illegal confine-
ment or detention by which any person is deprived of
 I
I

CHAP'fERXIV 189
188 INTRODUCTION TO LAW
POLITICAL LAW AND THE CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES

his liberty, or by which the rightful custody of any per-
son is withheld from the person entitled thereto."
APPLICABILITY OF THE WRIT OF HABEAS CORPUS
The above-quoted provision of the Rules of Court states that a
writ of habeas corpus may be availed of in "all cases of illegal cases of
illegal confinement or detention by which any person is deprived of
his liberty, or by which the rightful custody of any person is withheld
from the person entitled thereto."
SPEEDY DISPOSITION OF CASES BEFORE
ALL JUDICIAL QUASI-JUDICIAL
OR ADMINISTRATIVE BODIES
'' IS THERE A DIFFERENCE BETWEEN THE RIGHT TO SPEEDY
TRIAL, AS GUARANTEED IN SECTION 14(2), ARTICLE Ill,
AND SPEEDY DISPOSITION OF CASES, AS GUARANTEED IN
SECTION 16?
There is difference. The right to speedy trial particularly refers
to criminal prosecutions which are at the trial stage, while the right
to speedy disposition of cases applies to all cases before judicial,
quasi-judicial or administrative bodies.
More specifically, here are the differences:
SIMILARITY
Both rights are beyond quantification, as they cannot be mea-
sured in terms of days, months or even years. Both rights are given
a relative .concept consistent with reasonable delays considering the
circumstances in each case. (Martin vs. Ver, 123 SCRA 745)
RIGHT AGAINST SELF-INCRIMINATION
RATIONALE OF SECTION 17
The right against self-incrimination is a mandatory and sub-
stantive right established on broad grounds of public policy and hu-
manity. Policy because it would place the witness against the stron-
gest temptation to commit perjury, of humanity because it would be
to extort a confession of truth by a kind of duress every specie and
degree of which the law abhors. (Chavez vs. Court of Appeals, 24
SCRA663)
In fact, Article III, Section 12(1) guarantees that "any person
under investigation for the commission of an offense shall have the
right to be informed of his right TO REMAIN SILENT."
No torture, force, violence, threat, intimidation, or any other
means which vitiate the free will shall be used against him (Sec.
12[2], Art. III, 1987 Constitution) and "any confession or admission
obtained in violation of this or Section 17 hereof shall be inadmissible
in evidence against him."(Sec. 12[3], Art. III, 1987 Constitution)

SPEEDY TRIAL SPEEDY DISPOSITION PURPOSE OF THE PRIVILEGE

OF CASES
1. The right to speedy trial 1. The right to speedy disposi-
is what is provided under tion of cases is provided under
Art. III, Sec. 14(2), of the Art. IV, Sec. 16, of the 1973
1935 Constitution.
Constitution, and now found
likewise in Art. III, Sec. 16, of
the 1987 Constitution.
2. The right to speedy trial 2. It covers all phases of the pro-
pertains only to criminal ceedings, whether judicial,
prosecutions which are at quasi-judicial or administra-
the trial stage. tive. This right is therefore
broader than speedy trial and
applies to civil, criminal, and
administrative cases.
The basic purposes of the rights against self-incrimination are
as follows:
1. For humanization reasons, to prevent a witness or
accused from being coerced, whether physically, morally,
and/or psychologically into incriminating himself, and
2. To protect the witness or accused from committing perjury,
because the first law of nature is self-incrimination.
(Galman vs. Pamaran, 138 SCRA 294)
APPLICABILITY OF SAID RIGHT
The right is available not only in criminal prosecutions but
also in other proceedings, whether they are civil, administrative or
legislative investigations. (Ibid.) In fact, said right may be claimed
190 IN'I'RODUC'rION 'l'O LAW
not only by a person accused of an offense but also by any witness
who is asked an incriminating question.
FREEDOM OF POLITICAL BELIEF AND
FREEDOM AGAINST INVOLUNTARY SERVITUDE
WHAT IS INVOLUNTARY SERVITUDE?
It is a condition where one is forced to work for another against
his 'tvill, whether he is paid or not.
WHEN IS INVOLUNTARY SERVITUDE PERMISSIBLE?
It is permissible when the following condition exists:
1. If it is a punishment for a crime whereof the party shall
have been duly convicted. (Sec. 18[2})
2. If it is so required to defend the State. (Sec. 4, Art. II)
3. If it so needed under the principle of posse comitatus.
(U.S. vs. Pompaya, 31Phil.245)
RIGHTS AGAINST EXCESSIVE FINES,
DEGRADING OR INHUMAN PUNISHMENT
WHEN IS FINE CONSIDERED EXCESSIVE?
A fine is considered excessive where it is clearly shown that the
nature of the violation compared with the fine is disproportionate, or
if it exceeds the utmost limit of the punishment which the vindication
of the law demands. (U.S vs. Valera, 26 Phil. 598)
Punishment is cruel if it is flagrantly and plainly oppressive,
wholly disproportionate to the nature of the offense as to shock the
moral sense of the community (People vs. Etista, 93 Phil. 647), or
when it involves torture or lingering death. (People vs. Puda, 133
SCRA 1)
RIGHT AGAINST IMPRISONMENT FOR DEBT
OR NON-PAYMENT OF A POLL TAX
WHAT IS POLL TAX?
It is a tax of fixed amount upon all persons or upon persons
of certain class, resident within a specific territory, without regard
to their property or the occupation on which they may be engaged.
(Villanueva vs. City of lloilo, 26 SCRA 578)
CHAPTER XIV 191
POLITICAL LAW AND THE CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
DOUBLE JEOPARDY
MEANING OF DOUBLE JEOPARDY
When an accused is either acquitted, or convicted, or the
case against him is dismissed or otherwise t erminated without
his express consent, by a court of competent jurisdiction, upon a
complaint on information or when formal charge sufficient in form
and substance to sustain a conviction and after the accused has
pleaded to the charge, THE CONVICTION OR ACQUITTAL OF
THE ACCUSED OR THE DISMISSAL OF THE CASE SHALL
BE A BAR TO ANOTHER PROSECUTION FOR THE SAME
OFFENSE.
After the said conviction, acquittal or dismissal, and the said
elements being present, double jeopardy can be invoked to defeat a
second prosecution for the same offense. (Sec. 21, Art. III, in relation
to Rule 117, Sec. 7, ROC)
WHAT ARE THE REQUISITES TO CONSTITUTE DOUBLE
JEOPARDY?
In order that an accused may not be subjected to another trial
and punishment for the same offense, the following requisites must
be complied with, to wit:
1. There must be valid complaint or information;
2. Said complaint or information must be filed in a court of
competent juris diction;
3. 'fhe accused has pleaded guilty to the charge; and
4. The accused has been acquitted or the case dismissed
or terminated without his express consent. (People vs.
Vergara, 41 SCAD 13, 221 SCRA 560; People vs. Navallo,
234 SCRA 175)
RIGHT AGAINST EX POST FACTO LAW
AND BILL OF ATTAINDER
MEANING OF EX POST FACTO LAW
In Latin, ex post facto law means "from something done
afterwards." It is any law which makes an innocent act a crime after
the act was committed.

192 INTRODUCTION TO LAW
The Supreme Court made a comprehensive meaning of an ex
post facto law. Thus, it is one which -
1. Makes criminal an act before the passage of the law and
which was innocent when done, and punishes such an act;
2. Aggravates a crime, or makes it greater than it was, when
committed;
3. Changes the punishment and inflicts a greater punishment
than the law annexed to the crime when committed;
4. Alters the legal rules of evidence, and authorizes
conviction upon less or different testimony than the law
required at the time of the commission of the offense;
5. Assuming to regulate civil rights and remedies only,
in effect imposes penalty or deprivation of a right for
something which when done was lawful; and
6. Deprives a person accused of a crime of some lawful pro-
tection to which he has become entitled, such as the pro-
tection of a former conviction or acquittal, or a proclama-
tion of amnesty. (Philippine Legal Encyclopedia by Jose
Agaton R. Sibal, p. 311, citing In re Kay Villegas Kami,
Inc., 35 SCRA 429)
CHARACTERISTICS OF AN EX POST FACTO LAW
The characteristics of an ex post facto law are the following:
1. That it relates to criminal matters;
2. That it is retroactive in its operation;
3. That it alters the situation for the accused party to his
disadvantage (Cooley's Const. Law, 8th ed., 542); and
4. Its enforcement is prejudicial to the accused.
SCOPE AND APPLICABILITY OF THE PROHIBITION AGAINST EX
POST FACTO LAW
The prohibition applies only to:
1. Criminal legislation which affect the substantial right
of the accused (Tolentino vs. Angeles, 99 Phil. 309, 318;
Santos vs. Secretary of' Public Works and Communication,
L-16949, March 18, 1967);
CHAPTER XIV 193
POLITICAL LAW AND THE CONSTI'fU'rION
OF THE REPUBLIC OF THE PHILIPPINES
2. Criminal procedural law prejudicial to the accused.
WHAT IS A BILL OF ATTAINDER?
It is a legislative act which inflicts punishment without judicial
trial. (Cunning vs. Missouri, 4 Wall. 227, 323; 18 L. ed., 356-363;
People vs. Carlos, 78 Phil. 535, June 30, 1947; People vs. Terrer, 48
SCRA 382 and 397, Dec. 27, 1972)
CHARACTERISTICS OF BILL OF ATTAINDER AND BILL OF PAINS
AND PENALTIES
1. They are convictions and sentences pronounced by the
legislative department, instead of the judicial department;
2. The sentence pronounced and punishment inflicted are
determined by no previous law or fixed rule; and
3. The investigation into the guilt of the accused, if any such
were made, was not necessary or generally conducted in
his presence or that of his counsel, and no recognized rule
of evidence governed the inquiry. (Ex. Parte Garland, 4
Wall. 388, 18 L. ed. 366)
THE FUNDAMENTAL AND INHERENT
POWERS OF THE STATE
WHAT ARE THE FUNDAMENTAL AND INHERENT POWERS OF
THE STATE?
They are the following: (1) police power; (2) power of eminent
domain; and (3) power of taxation.
EXPLANATION OF EACH POWER
A. POLICE POWER
It is the sovereign power to promote and protect the general
welfare. It is the "most pervasive and the least limitable of the
three powers of the State (Ynot vs. Intermediate Court of Appeals,
148 SCRA 659), the most essential, consistent and illimitable which
en.ables the State to prohibit all hurtful things to the comfort, safety,
and welfare of society."
It is also referred to as the law of overwhelming necessity.
194 INTRODUCTION TO LAW CHAPl'ER XIV 195
POLITICAL LAW AND THE CONSTITUTION
01" THE REPUBLIC OF THE PHILIPPINES

B. POWER OF EMINENT DOMAIN In Eminent Domain and Taxation - There is full and just
compensation or the property taken.
It is an inherent power of the State that enables it to forcibly
acquire pr ivate property, which is intended for public use, upon the In Taxation - There is corresponding protection and public
payment of j ust compensation to the owner. improvement for the taxes paid.
C. POWER OF TAXATION AS TO THE NATURE OF PROPERTY
It is the inherent power of the State to raise revenues to defray In Police Power - police power involves destruction and
the expenses of government or for any public purpose. This can be
confiscation of property which are noxious.
done through the imposition of the burdens or imposition on persons,
properties, services, or occupations or transactions. In Eminent Domain and Taxation - 'fhe property is taken
for public use.
SIMILARITIES OF THE THREE INHERENT POWERS OF THE STATE
AS TO HOW THE POWER IS EXERCISED
CODE: I - I - I - E - L
Police Power and Taxation - They are inherently exercis-
I - Interference (They are the three methods by which the able only by the government.
State interferes with private rights.)
Eminent Domain - It may be exercised by private entities
,I
I - Inherent (They are inherent in the State and they may I'
be exercised by the State without the need of express upon valid delegation.
constitutional grant.)
AS TO WHAT IS REGULATED
I - Indispensable and indestructible (They are not only
necessary but also indispensable and indestructible as the In Policy Power - It regulates liberty and property.
State itself) In Eminent Domain and Taxation - They are addressed to
E- Equivalent compensation (They presuppose equivalent private rights only.
compensation.)
L - Legislative in character (They are exercised primarily by BRIEF DISCUSSION OF IMPEACHMENT
the legislature.)
Q - What is impeachment?
THE THREE POWERS DIFFER IN THE FOLLOWING A - It is a method of national inquest into the conduct of public
men. It is also referred to as an extraordinary process of
Code: N - P - E - R removal exercised by the legislature over a selected member of
N - Nature (As to nature of compensation) officials.
P - Property (As to nature ofproperty) Q - Who are the impeachable officials under the 1987 Cons-
E - Exercise of power (As to how the power is exercised) titution?
R - Regulated (As to what is regulated) A - 1. President
2. Vice-President
AS TO NATURE OF COMPENSATION
3. Members of Supreme Court
In Police Power - The compensation of the person subjected
to police power is the intangible altruistic feeling that he has 4. Members of Constitutional Commissions. (Sec. 2, Art. II,
contributed to the general welfare. 1987 Constitution)
 196 INTRODUCTION TO LAW
Q - What are the grounds for impeachment?
A - The grounds for impeachment are:
1. Culpable violation of the Constitution
2. Treason;
3. Graft and Corruption; and
4. Other high crimes, or betrayal of public trust
Q - What is culpable violation of the Constitution?
A - It is defined as wrongful, intentional or willful disregard of the
fundamental law. The act must be deliberate and motivated
by bad faith to constitute a ground for impeachment. Hence,
a mere mistake in the proper construction of the Constitution
cannot be considered a valid ground for impeachment.
I' Q - What is treason?
A - It is a crime committed by any person who, owing allegiance
to the government of the Philippines, levies war against it or
adheres to its enemies, giving them aid and comfort. (Art. 114,
RPG)
Q - What is bribery?
A - It is a crime committed by any public officer who shall agree
to perform an act, whether or not constituting a crime, or
refrain from doing an act which he is officia1ly required to do
in connection with the performance of his official duties, in
consideration of any offer, promise, gift or present received by
him personally or through the mediation of another, or who
shall accept gifts offered to him by reason of his office. (Arts.
210·211, ibid.)
Q - What are other high crimes?
A - They are to those offenses which "like treason and bribery, are
of so serious and enormous a nature as to affect the very life or
the orderly workings of the government."
According to Justice Isagani Cruz, rape and murder,
a lthough as serious as treason and bribery, may be probably
excluded from the definition.
Q - What are the acts that constitute graft and corruption?
A - They are enumerated in the Anti-Gran and Corrupt Practices
Act, which was in force at the time of the adoption of the
CHAPTER XIV 197
POLITICAJ" LAW AND THE CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Constitution. Section 3, Republic Act No. 3019, as amended,
provides as follows:
a) An act of persuading, inducing, or influencing another
public officer or tolerates such acts which are tantamount
to the violation of the rules and regulations of a competent
authority or on those susceptible to the latter's official
duties.
b) Directly or indirectly requests or accepts gifts or any
other form which benefits himself or another person in
connection with any transaction or contract between the
Government and the other party within which he may
legally intervene.
c) Directly or indirectly requesting or receiving any gift,
present or other pecuniary or material benefit, for himself
or for another, from any person for whom the public officer,
in any manner or capacity, has secured or obtained, or
will secure or obtain, any government permit or license,
in consideration for the help given or to be given, without
prejudice to Section Thirteen of this Act.
d) Accepting or having any member of his family accept
employment in a private enterprise which has pending
official business with him during the pendency thereof or
within one year after its termination.
e) Causing any undue injury to any party, including the
government, or giving any private party any unwarranted
benefit, advantage or preference in the discharge of his
official, administrative or judicial functions through
manifest partiality, evident bad faith or gross inexcusable
negligence. These provisions shall apply to officers and
employees of offices or government corporations charged
with the grant of licenses or permits or other concessions.
f) Neglecting or refusing, after due demand or request,
without sufficient justification, to act within a reasonable
time on any matter pending before him or for the purpose
of obtaining, directly or indirectly, from any person
interested in the matter some pecuniary or material
benefit or advantage, or for the purpose of favoring his
own interest of giving undue advantage in favor of or
discriminating against any other interested party.
 INTRODUCTION TO LAW
198
g) Entering, on behalf of the government, into any contract
or transaction manifestly and grossly disadvantageous to
the same, whether or not the public officer profited or will
profit thereby.
h) Directly or indirectly having a financial or pecuniary in-
terest in any business, contract or transaction in connec-
tion with which he intervenes or takes part in his official
capacity, or in which he is prohibited by the Constitution
or by any law from having any interest.
i) Directly or indirectly becoming interested, for personal
gain, or having a material interest in any transaction
or act requiring the approval of a board, panel or group
of which he is a member, and which exercises discretion
in such approval, even if he votes against the same or
does not participate in the action of the board, committee,
panel or group.
Interest for personal gain shall be presumed against
those public officers responsible for the approval of
manifestly unlawful, inequitable, or irregular transactions
or acts by the board, panel or group to which they belong.
j) Knowingly approving or granting any license, permit,
privilege or benefit in favor of any person not qualified for
or not legally entitled to such license, permit, privilege,
or advantage, or of mere representative or dummy of one
who is not so qualified or entitled.
k) Divulging valuable information of a confidential charac-
ter, acquired by reason of his office or by him on account
of his official position to unauthorized persons, or releas-
ing such information in advance of its authorized release
date.
"The person giving the gift, present, share, percentage or
benefit referred to in subparagraph (b) and (c); or urging
the divulging or untimely release of the confidential
information referred to in subparagraph (k) of this section
shall, together with the offending officer, be punished
under Section 9 of this Act and shall be permanently
or temporarily disqualified, in the discretion of the
Court, from transacting business in any form with the
government.
CHAPTERXN 199
POLITICAL LAW AND THE CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Q - What is betrayal of public trust?
A - It is a new ground added by the Constitutional Commission
presumably to cover other all offenses unbecoming a public
functionary but not punishable by the criminal statutes.
EXAMPLE:
Inexcusable negligence of duty, tyrannical abuse of authority,
breach of official duty by malfeasance or, misfeasance, cronyism,
favoritism, obstruction of justice.
Q - What is the procedure of impeachment?
A - Section 3, Article XI of the 1987 Constitution provides for the
procedure of impeachment. These are the following rules:
1. The House of Representative shall have the exclusive
power to initiate all cases of impeachment by a vote of 113
of its members.
2. The Senate has the sole power to try and decide all cases
of impeachment case and "no person shall be convicted
without the concurrence of two-thirds of all members of
the Senate."
Q - Who can file a complainant for impeachment?
A - Section 3(2), Article XI, states that "a verified complainant for
impeachment may be filed by (a) any Member of the House
of Representatives or (b) by any citizen upon a resolution of
endorsement by any Member thereof."
Procedure:
l. Said resolution of endorsement shall be included in
the Order of business within ten (10) session days, and
referred to the proper Committee within three (3) session
days thereafter.
2. The Committee, after the hearing, and by majority vote
of all its Members, shall submit its report to the House
within sixty (60) session days from such referral, together
with the corresponding resolution.
3. The resolution shall be calendared for consideration
by the House within ten (10) session days from receipt
thereof.
200 INTRODUCTION TO LAW
Q - Can an impeachm.e nt proceeding be initiated against
the same official more than once within a period of one
year?
A - No. Section 3(5) provides that "No impeachment proceedings
shall be initiated against the same official more than once
within a period of one year." This is intended to prevent
impeachment from being instrument of mere harassment.
Q - Who has the sole power to try and decide all cases of
impeachment?
A - Section 3(6), Article XI of the 1987 Constitution provides as
follows:
"The Senate shall have the sole power to try and decide
all cases of impeachment. When sitting for that purpose, the
Senators shall be on oath or affirmation. When the president
of the Philippines is on trial, the Chief Justice of the Supreme
Court shall preside, but shall not vote. No person shall be
convicted without the concurrence of two-thirds of all the
members of the Senate."
Q - What is the nature of the impeachment proceedings?
A - Justice Isagani Cruz said: "Impeachment proceedings
are in a sense of judicial and penal in character. Hence,
the Constitutional rights of the accused as guaranteed in
Article III, such as the right to due process and against self-
incrimination, are available in these proceedings. The Rules
of Court, while not strictly applicable as the Congress is not a
court of justice, are nonetheless observed in the conduct of the
trial. As in ordinary criminal actions, proof beyond reasonable
doubt is necessary for conviction."
On the basis of the ongoing impeachment trial, I am
more inclined to submit that while impeachment proceeding
is in a sense judicial in character, it is not necessarily penal in
character for it is clear that in case of conviction of President
Estrada, he shall be punished only by:
1. Removal from office; and
2. Disqualification to hold any office under the Republic of
the Philippines. (Sec. 3[7], Art. XI, 1987 Constitution)
CHAPTER XIV 201
POLITICAL LAW AND THE CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
The said penalty is more of a penalty in an administrative
proceeding than in a criminal proceeding.
Section 3(7), Article XI provides in full:
"Judgment in cases of impeachment shall not extend
further than removal from office and disqualification to hold
any office under the Republic of the Philippines, but the
party convicted shall nevertheless be liable and subject to
prosecution, trial and punishment according to law."
The fact that the last sentence of Section 7, provides for a
situation where a party convicted "shall be nevertheless liable
and subject to prosecution trial and punishment according to
the law" does not make impeachment a criminal proceeding
because it is cJear that it is only in case of his conviction that
President Estrada shall he liable and subject to prosecution,
trial and punishment. It is only from there when the President
will be subject to a criminal proceeding."
Q - What rules apply in an impeachment proceeding?
A - The rules of the present Senate. The Rules of Court shall
supplement the Rules of the Senate whenever it is practicable.
Q - What is needed in order to convict the person subject of
impeachment?
A - Section 3(6) "x xx No person shall be convicted without the
concurrence of two-thirds of all the members of the Senate."
Q - What is the effect of a judgment in case of impeachment?
A - Section 3(7), Article XI, specifies the following effects:
a. Removal from office;
b. Disqualification to hold any office under the Republic of
the Philippines;
In addition, the party convicted shall nevertheless be
c.
liable and subject to prosecution, trial and punishment
according to law.
Q - Can President Estrada be prosecuted in case he is
acquitted?
A - No because the last sentence of Section 3(7), Article XI, states
th~t it is only in case of his conviction that he shall be liable
202 lNTRODUCTION TO LAW
to prosecution, trial and punishment according to law. This
means that if he is acquitted, he cannot be liable and subject to
prosecution, trial, and punishment.
Q - In case President Estrada case was convicted in the im-
peachment proceeding and thereafter criminally pros-
ecuted for the offense which warranted his conviction
on impeachment, can he plead the defense of double
jeopardy?
A- No. As already stated, the penalty which the Senate may impose
shall be limited to removal from office and disqualification to
hold any office under the Republic of the Philippines. This
penalty is beyond the reach of the President's power ofexecutive
clemency, but does not place the officer beyond liability to
criminal prosecution. When criminally prosecuted therefore for
the offense which warranted his conviction on impeachment,
the officer cannot plead the defense of double jeopardy.
Q - If President Estrada resigned before the rendition
of judgment by the impeachment court, does his
resignation place him beyond reach of impeachment for
offenses committed during his tenure?
A - No. Reason: While it is true that he is already resigned and
can no longer be removed from his office, there is still a penalty
which can be imposed even after his resignation and that is
the penalty of "disqualification to hold any office under the
Republic of the Philippines."
Q - During the process of the impeachment trial, can the
President, subject of impeachment, be suspended
pendent lite?
A - This has no precedent in our jurisdiction. It is my opinion that
the penalty of preventive suspension pendente lite may be
imposed for the following reasons:
1. As aforementioned, the impeachment trial is judicial
and administrative in character precisely because of the
penalty provided in Section 3(7), Article XI;
2. The purpose of suspension pendente lite is precisely to
prevent the officer sought to be suspended from possibly
using influence against any and all officials of the
CHAPTER XIV 203
POLITICAL LAW AND THE CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPJNES
government and thereby help him influence the outcome
of the proceeding. It is for this reason that suspension
pendente lite may be justified.
In the U.S., this was raised during the deliberation of
the Constitutional Convention of 1887 (when a proposal was
submitted to provide for such preventive suspension). This was
rejected for being considered an unnecessary molestation.
As we see it now, it cannot be considered an "unnecessary
molestation." It is a considered necessity to protect the interest
of the greater number of Filipino people considering the gravity
of the charges and the offenses committed.
Q - Is the judgment of Congress in an impeachment
proceeding subject to judicial review?
A - As a rule, it is not subject to judicial review precisely because
of the Constitutional provision that the Senate has the "sole
power to try, and decide all cases of impeachment."
However, the courts may annul the proceedings if there
is a showing of a grave abuse of discretion committed by the
Congress or non-compliance of the procedural requirements of
the Constitution.
EXAMPLE:
1. When the charges are instituted without a verified
complaint; or by less than one-third (1./3) of all the
members of the House of Representatives; or where the
judgment of conviction is supported by less than a two-
thirds (2/3) vote in the Senate.
Q - Can the subject of conviction in the impeachment be
subject to the pardoning power of the President?
A - It is not subject to the pardoning power of the president.
However, if the convicted official is prosecuted later on in an
ordinary criminal action and later on found guilty, the decision
may be the subject of pardon by the president.
Q - Section 3(6), Article XI, states that no person shall be
convicted without the concurrence of two-thirds of all
the members of the Senate. Does this refer to two-thirds
of twenty-four or two-thirds of twenty-two?
204 INTRODUCTION TO LAW CHAPTERXN 205
POLITICAL LAW AND THE CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES

A- The Constitution merely states "two-thirds of all Members of As a matter of fact, on the basis of the submission, I
the Senate without any specification as to whether it is two- may even submit that Senator Barbers who is not actually
thirds of the regular membership of twenty-four or two-thirds participating in the impeachment trial may not be able to be
of the present members of the Senate." included because he is outside the coercive jurisdiction of the
smaller number of members.
Thjs will be a test case in the Supreme Court.
However, the old case of Avelino vs. Cuenco gives us a
guide on what constitutes a quorum in the Senate.
In the said case of Avelino vs. Cuenco, then Senate
President Avelino rnotu proprio adjourned a session of the
Senate leaving twelve (12) other Senators in the session hall.
The twelve (12) Members continued the meeting and replaced
Senate Avelino with Senator Cuenco as Acting President.
Senator Avelino contended that the senators who remained did
not constitute a majority, or a quorum of the twenty-four-man
Senate.
The Supreme Court ruled that twelve (12) Senators were
sufficient to constitute a quorum thereby using the principle
of majority of twenty-three (23) and not twenty-four (24)
Senators.
The reason given by the Supreme Court is that one Senator
was then outside of the Philippines being in the U.S. and for
this reason, he is therefore, outside the coercive jurisdiction of
the smaller number of the Senators who could adjourn from
day to day and compel the attendance of absent members in
such manner and under such penalties as the Senate might
provide.
There is more reason that this doctrine wil1 be held
applicable because Justice Marcelo Fernan is not only outside
of Philippine territory. He already died and therefore he cannot
in any way be capable of voting in the first place.
In the case of Gloria Macapagal-Arroyo, she was already
elected Vice-President of the Republic of the Philippines and
for this reason she is no longer capable to participate in the
impeachment proceeding as a Senator and therefore no longer
capable to vote.
The actual reality is that the present membership of the
Senate at that time is only twenty-two (22) and therefore the
Constitutional requirement of concurrence of two-thirds (2/3)
should be two-thirds (2/3) of twenty-two.

Chapter XV
CRIMINAL LAW
HISTORICAL BACKGROUND
Our Revised Penal Code was based on the Spanish Penal Code
of1870. It is based on the classical school of thought, as distinguished
from the positivist school of thought.
CLASSICAL SCHOOL OF THOUGHT - This school of
thought assumes that men have free will: that they know what is
right and what is wrong; and as rational beings, they are guided by
the thought that a crime carries with it a corresponding penalty.
POSITIVIST SCHOOL OF THOUGHT - This school of
thought views a criminal merely as a sick man who needs reformation
and cure instead of punishment.
CRIMINAL LAW
It is that branch of public law which defines crimes, treats of
their nature and provides for their punishment.
BASIC PRINCIPLES OF CRIMINAL LAW
1. There is no crime when there is no law punishing it. In
other words, any and all offenses must be defined by law.
2. As a rule, penal laws are prospective in effect.
3. Penal laws and those of public security and safety shall be
obligatory upon all who live or sojourn in Philippine territory subject
to the principles of international law and to treaty stipulations.
4. As a rule, our Revised Penal Code shall be enforced not
only within the Philippine Archipelago, including its atmosphere,
its interior waters and maritime zone, but also outside of its
jurisdiction, against those who:
206
CHAPTER XV 207
CRIMINAL LAW
(a) Should commit an offense while on a Philippine ship
or airship;
(b) Should forge or counterfeit any coin or currency note
ofthe Philippine Islands, or obligations and securities
issued by the Government of the Philippine Islands;
(c) Should be liable for acts connected with the intro-
duction into these islands of the obligations and
securities mentioned in the preceding number;
{d) While being public officers or employees, should
commit an offense in the exercise of their functions;
or
(e) Should commit any of the crimes against national
security and the law of the nations, defined in Title
One of Book Two of this Code.
EXCEPTION:
Except as provided in treaties and laws of preferential
application.
WHO INCURS CRIMINAL LIABILITY?
Art. 4. Criminal Liability. - Criminal liability shall be
incun-ed:
1. By any person committing a felony (delicto) although the
wrongful act done be different from that which he intend-
ed;
2. By any person performing an act which would be an offense
against persons or property, were it not for the inherent
impossibility of its accomplishment or on account of the
employment of inadequate or ineffectual means.
STAGES IN THE COMMISSION OF FELONIES
ATTEMPTED - There is an attempt when the offender
commences the commission of a felony directly by overt acts, and
does not perform all the acts of execution which should produce
the felony by reason of some cause or accident other than his own
spontaneous desistance. (Art. 6, third par., RPC)
'I
 I

208 INTRODUCTION TO LAW CHAPTER XV 209

I
CRIMINAL LAW
11

FRUSTRATED - It is frustrated when the offender performs 5. Defendant must rely on the strength of his evidence - In
all the acts of execution which would produce the felony as a proving self'..defense, the defendant must rely on the strength
consequence, but which, nevertheless, do not produce it by reason of of his own evidence not on the weakness of the prosecution;
causes independent of the will of the perpetrator. (Art. 6, 2nd par., for even if it were weak, it could not be disbelieved after the
RPCJ accused had admitted the killing.
CONSUMMATED - It is consummated when all the elements 6. Detailed distinction between justifying and exempting cir-
necessary for its execution and accomplishment are present. (Art. 6, cumstances:
2nd par., RPC)
Justifying Circumstances:
NOTES: (a) The act is voluntary but there is no malice because the
actor acted in good faith, being compelled by some lawful
1. Circumstances that modify or affect criminal liability -
motive.
The circumstances modifying or affecting criminal liability are
the following: (b) If the actor succeeds in proving the justifying circum-
(a) Justifying Circumstances (Art. 11, PRC) stances he/she invokes, he is relieved from both criminal
and civil liability.
(b) Exempting Circumstances (Art. 12, PRC)
Exempting Circumstances:
(c) Mitigating Circumstances (Art. 13, PRC)
(a) There is likewise no malice because the act is not
(d) Aggravating Circumstances (Art. 14, PRC) voluntary, or the actor has no intelligence, or the act
(e) Alternative Circumstances (Art. 15, PRC) complained of was accidentally done or the omission was
avoidable.
2. 8_ix (6) Justifying Circumstances - The six (6) justifying
circumstances are as follows: (b) If the actor succeeds in proving the exempting circum-
stances he/she invokes, he/she is relieved from criminal
(a) Self-defense liability but not from civil liability under Art. 101 of the
(b) Defense ofrelatives Revised Penal Code.
(c) Avoidance of greater evil or injury However, there is no civil liability attached to the exempting
circumstances mentioned in paragraphs 4 and 7 of Article 12 of the
(d) Fulfillment of duty or exercise of a right Revised Penal Code.
(e) Obedience to a lawful order
NOTE:
3. Important distinction to remember - If there is a
circumstance justifying the act of the accused, he is exempt from "Article 101 of the Revised Penal Code provides as
both civil and criminal liability. An exempting circumstance follows - The exemption from criminal liability established
frees the accused only from criminal liability but not from civil in subdivisions 4 of Article 11 of this Code does not include
liability. exemption from civil liability, which shall be enforced subject
to the following rules:
4. Burden of proof - If A killed B and he admitted this with
a qualification that he was merely compelled to do it in the First: In case of subdivisions 1, 2 and 3 of Article 12 with
course of defending himself, he has the burden to prove the respect to the civil liability for acts committed by an imbecile or
element of self-defense. insane person, and by a person under nine (9) years of age, or
by one over nine (9) but under fifteen (15) years of age, who has

210 INTRODUCTION TO LAW
acted without discernment, shall devolve upon those having
such person under their legal authority or control, unless it
appears that there was no fault or negligence on their part.
Second: In cases falling within subdivision 4 of Article
11, the persons for whose benefit the harm has been prevented
shall be civilly liable in proportion to the benefit which they
may have received.
The courts shall determine, in their sound discretion, the
proportionate amount for which each one shall be liable.
When the respective shares cannot be equitably deter-
mined, even approximately, or when the liability is also at-
tached to the Government, or to the majority of the inhabitants
of the town, and in all events, whenever the damage has been
caused with the consent of the authorities or their agents, in-
demnification shall be made in the manner prescribed by spe-
cial laws or regulations.
Third: In cases failing within subdivisions 5 and 6 of
Article 12, the persons using violence or causing the fear shall
be primarily liable and secondarily, or if there be no such
persons, those doing the act shall be liable, saving always to
the latter that part of their property exempt from execution.
7. Mitigating Circumstances - 'l'hese are any of the circum-
stances mentioned in Article 13 of the Revised Penal Code
which, if proven, reduces the penalty. General or specific miti-
gating circumstances may reduce the penalty to the minimum
period or it may be lowered by one degree as provided in Ar-
ticles 62 and 64 depending on the presence of generic or spe-
cific aggravating circumstances which offset them. Special or
privileged mitigating circumstances may reduce the penalty by
one or more degrees as provided in Articles 67 and 69 of the
Revised Penal Code (i.e., minority and incomplete justification
and exemption).
8. Aggravating Circumstances-They are circumstances
which, if proven, increase the penalty because they indicate
the unusual criminality or perversity and dangerousness of the
offender.
9. Kinds of aggravating circumstances:
A. GENERIC OR ORDINARY - The effect of generic
aggravating circumstances is inherent in the crime, not
i
CHAPTER XV 211
CRIMINAL LAW 1.I
I
necessarily qualifying (i.e., Trespass in robbery with
force).
B. QUALIFYING - The effect of a qualifying aggravating
circumstances is not only to give the crime its proper
and exclusive name but also to place the author thereof
in such a situation as to deserve no other penalty than
that specially prescribed for said crime (i.e., treachery).
The presence of this qualifying aggravating circumstance
makes the killing a murder, instead of homicide.
10. What should be alleged and proven - A generic aggravating
circumstance may be proven during the trial even if it is not
alleged in the information and even if there is an objection being
raised by the defense. However, a qualifying circumstance
must be alleged in the information because it is an integral
part of the offense. If the same is not alleged in the information
but proven in the trial, it cannot be used in changing the legal
character of the offense charged and convicting the accused of
a higher offense. In such a case, it can only be treated as a
generic offense. In such case, it can only be treated as a generic
aggravating circumstance.
11. Alternative Circu,mstances - Alternative circumstances are
those which must be taken into consideration as aggravating or
mitigating according to the nature and effects of the crime and
the other conditions attending its commission. They are: (1)
relationship; (2) intoxication; and (3) the degree of instruction
and education of the offender.
EXAMPLE: If A is accidentally drunk at the time he shot
B, his drunkenness is considered as a mitigating circumstance.
But if A's drunkenness is intentional or habitual, this is
considered as an aggravating circumstance.
WHAT IS HABITUAL INTOXICATION?
A habitual drunkard is one given to intoxication by
excessive use of intoxicating drinks. Habit should be actual
and confirmed. It is unnecessary that it be a matter of daily
occurrence. It lessens individual resistance to evil thought and
undermines will power, making its victim a potential evil-doer.
WHAT IS ILLITERACY?
Illiteracy means lack of instruction and low intelligence.
Mere illiteracy is not s ufficient to constitute the mitigating
 I:!
212 INTRODUCTION TO LAW CHAPI'ERXV 213
CRIMINAL LAW 1)

circumstance of lack of instruction. There must also be lack of 2. Principal by inducement

intelligence.
3. Principal by cooperation
EXAMPLE: If A is unschooled and cannot sign his name,
this does n.ot necessarily mean that A is entitled to a mitigating WHO ARE ACCOMPLICES?
circumstance of lack of instruction if it is proven that he is
exceptionally intelligent and mentally alert to the extent that Art. 18. Accomplices are those persons, who, not being included
he realizes the full consequences of his acts. On the other hand, in AJ·t. 17, cooperate in the execution of the offense by previous or
if A is able to sign his name but he is so densely ignorant and simultaneous acts.
oflow intelligence that he does not realize the full consequence
of his criminal act, he may still be entitled to the benefit of a WHO ARE ACCESSORIES?
mitigating circumstance.
Art. 19. Accessories are those who, having knowledge of the
12. Who are Criminally Liable? - Article 16 of the Revised commission of the crime, and without having participated therein,
Penal Code answers this question. It provides as follows: either as principals or accomplices, take part subsequent to its
commission in any of the following manners:
Art. 16. The following are criminally liable for grave and
less grave felonies: 1. By profiting themselves or assisting the offender to profit
by the effects of the crime.
(a) Principals;
(b) Accomplices; and 2. By concealing or destroying the body of the crime, or the
effects or instruments thereof, in order to prevent its
(c) Accessories. discovery.
The following are criminally liable for light felonies: 3. By harboring, concealing, or assisting in the escape of the
(a) Principals; and principal of the crime, provided the accessory acts with
abuse of his public functions or whenever the author of
(b) Accomplices.
the crime is guilty of treason, parricide, murder, or an
13. Who are considered principals, accomplices and acces- attempt to take the life of the Chief Executive, or is known
sories? - They are those defined in Articles 17, 18 and 19 of to be habitually guilty of some other crime.
the Revised Penal Code.
POINTS TO REMEMBER:
WHO ARE PRINCIPALS?
1. Nulla Poena Sine Lege - There is no crime when there is
Art. 17. 'rhe following are considered principals: no law punishing it.
1. Those who take a direct part in the execution of the act; 2. A person, to be guilty of a crime, must commit that crime
himself or he must, in some manner, participate in its
2. Those who directly force or induce others to commit it;
and commission or in the fruits thereof.
3. Only natural persons are criminally liable. Judicial
3. Those who cooperate in the commission of the offense
persons are not criminally liable but the President or
by another act without which it would not have been
accomplished. other officers of the corporation may be criminally liable
in those instances when they have knowingly permitted
CODE: or committed crimes such as estafa and falsification.
1. Principal by direct participa tion 4. There are no accessories in light felonies.
214 INTRODUCTION TO LAW CHAPTER XV 215
CRIMINAL LAW

ARTICLES 11, 12, 13, 14, AND 15 ARE HEREIN QUOTED IN FULL:
Art. 11 - Justifying Circumstances
Art. 12 - Exempting Circumstances
Art. 13 - Mitigating Circumstances
Art. 14 - Aggravating Circumstances
Art. 15 - Alternative Circumstances
CODE:
J Justifying
E Exempting
M - Mitigating
A Aggravating
A Alternative
Art. 11. JustifYing circumstances. - The following do not
incur any criminal liability:
1. Anyone who acts in defense of his persons or rights
provided that the following circumstances concur:
First: Unlawful aggression;
Second: Reasonable necessity of the means employed to
prevent or repel it; and
Third: Lack of sufficient provocation on the part of the
person defending himself.
2. Anyone who acts in defense of the person or rights of his
spouse, ascendants, descendants, or legitimate, natural, or adopted
brothers or sisters or of his relatives by affinity in the same degrees,
and those by consanguinity within the fourth civil degree, provided
that the first and second requisites prescribed in the next preceding
circumstance are present, and the further requisite, in case the
provocation was given by the person attacked, that the one making
defense had no part therein.
3. Anyone who acts in defense of the person or rights of a
stranger, provided that the first and second requisites mentioned in
the first circumstance of this article are present and that the person
defending be not included by revenge, resentment, or other evil
motive.
4. Any person who, in order to avoid an evil or injury, does
an act which causes damage to another, provided that the following
requisites are present:
First: That the evil sought to be avoided actually exist;
Second: That the injury feared be greater than that done
to avoid it; and
Third: That there be no other practical and less harmful
means of preventing it.
5. Any person who acts in the fulfillment of a duty or in the
lawful exercise of a right or office.
6. Any person who acts in obedience to an order issued by a
superior for some lawful purpose.
Art. 12. Circumstances which exempt from criminal
liability. - The following are exempt from criminally liability:
1. An imbecile or an insane person, unless the latter has
acted during a lucid interval.
When the imbecile or an insane has committed an act which the
law defines as a felony (delicto), the court shall order his confinement
in one of the hospitals or asylums established for persons thus
af-flicted, which he shall not be permitted to leave without first
obtaining the permission of the same court.
2. A person under nine (9) years of age. (raised to 15 years
old, 1st paragraph of Sec. 6 of R.A. 9344)
3. A person over nine (9) years of age and under fifteen (15),
unless she has acted with discernment, in which case, such minor
shall be proceeded against in accordance with the provisions of
Article 80 of this Code.
When such minor is adjudged to be criminally irresponsible,
the court, in conformity with the provisions of this and the preceding
paragraph, shall commit him to the care and custody of his family
who shall be charged with his surveillance and education; otherwise,
he shall be committed to the care of some institution or person
mentioned in said Article 80. (as amended by the second paragraph
of Sec. 6, R.A. 9344)
4. Any person who, while performing a lawful act with due
care, causes an injury by mere accident without fault or intention of
causing it.
216 INTRODUCTION TO LAW
5. Any person who acts under the compulsion of an irresist-
ible force.
6. Any person who acts under the impulse of an uncontrolled
fear of an equal or greater injury.
7. Any person who fails to perform an act required by law,
when prevented by some lawful or insuperable cause.
Art. 13. Mitigating Circumstances. - The following are
mitigating circumstances:
1. Those mentioned in the preceding chapter, when all the
requisites necessary to justify the act or to exempt from criminal
liability in the respective cases are not attendant.
2. That the offender is under eighteen (18) years of age or
over seventy years. In the case of the minor, he shall be proceeded
against in accordance with the provisions of Article 80. (Note: Art.
80 refers to suspension of sentence of minor delinquents.) (Repealed
by Title VIII, Chapter Ill of'P.D. 603, as amended by P.D. 1179 and
P.D.1210)
3. That the offender had no intention to commit so grave a
wrong as that committed.
4. That sufficient provocation or threat on the part of the
offended party immediately preceded the act.
5. That the act was committed in the immediate vindication
of a grave offense, to the one committing the felony ( delicto), his
spouse, ascendants, descendants, legitimate, natural, or adopted
brothers or sisters, or relatives within the same degrees.
6. That of having acted upon an impulse so powerful as
naturally to have produced passion or obfoscation.
7. That the offender had voluntarily surrendered himself
to a person in authority or his agents, or that he had voluntarily
confessed his guilt before the court prior to the presentation of the
evidence for the prosecution.
8. That the offender is deaf and dumb, blind, or otherwise
suffering some physical defect which thus restricts his means of
action, defense or communication with his fellow beings.
9. Such illness ofthe offender as would diminish the exercise
of the will-power of the offender without however depriving him of
consciousness of his acts.
CHAPTER XV 217
CRIMINAL LAW
10. And, finally, any other circumstance of a similar nature
and analogous to those abovementioned.
Art. 14. Aggravating Circumstances. - The following are
aggravating circumstances:
1. That advantage be taken by the offender of his public
position.
2. That the crime be committed in contempt of or with insult
to the public authorities.
3. That the act be committed with insult or disregard of the
respect due to the offended party on account of his rank, age, or sex,
or that it be committed in the dwelling of the offended party, if the
latter has not given provocation.
4. That the act be committed with abuse of confidence or
obvious ungratefulness.
5. That the crime be committed in the palace of the Chief
Executive, or in his presence, or where pubJic authorities are
engaged in the discharge of their duties, or in place dedicated to
religious worship.
6. That the crime be committed in the nighttime, or in an
uninhabited place, or by a band, whenever such circumstances may
facilitate the commission of the offense.
Whenever more than three armed malefactors shall have acted
together in the commission of an offense, it shall be deemed to have
been committed by a band.
7. That the crime be committed on the occasion of a
conflagration, shipwreck, earthquake, epidemic or other calamity or
misfortune.
8. That the crime be committed with the aid of armed men
or persons who insure or afford impunity.
9. That the accused is a recidivist.
A Recidivist is one who, at the time of his trial for one crime,
shall have been prnviously convicted by a final judgment of another
crime embraced in the same title of this Code.
10. That the offender has been previously punished for an
offense to which the law attaches au equal or greater penalty or for
two (2) or more crimes to which it attaches a lighter penalty.
218 INTRODUCTION '1'0 LAW
11. That the crime be committed in consideration of a price,
reward or promise.
12. That the crime be committed by means of inundation,
fire, poison, explosion, stranding of a vessel or intentional damage
thereto, deraibnent of a locomotive, or by the use of any other artifice
involving great waste and ruin.
13. That the act be committed with evident premeditation.
14. That craft, fraud, or disguise be employed.
15. That advantage be taken of superior strength, or means
be employed to weaken the defense.
16. That the act be committed with treachery (alevosia).
There is treachery when the offender commits any of the
crimes against the person, employing means, methods, or forms in
the execution thereof which tend directly and specifically to insure
its execution, without risk to himself arising from the defense which
the offended party might make.
17. That means be employed or circumstances brought about
which add ignominy to the natural effects of the act.
18. That the crime be committed after an unlawful entry.
There is an unlawful entry when an entrance is effected by a
way not intended for the purpose.
19. That as a means to the commission of a crime a wall, roof,
floor, door, or window be broken.
20. That the crime be committed with the aid of persons under
fifteen (15) years of age or by means of motor vehicles, motorized
watercraft, airships, or other similar means.
21. 'rhat the wrong done in the commission of the crime be
deliberately augmented by causing other wrong not necessary for its
commission. (As amended by R.A. No. 5438, Sept. 9, 1968)
ALTERNATIVE CIRCUMSTANCES
Art. 15. Their concept. - Alternative circumstances are
those which must be taken into consideration as aggravating or
mitigating according to the nature and effects of the crime and the
other conditions attending its commission. They are the relationship,
CHAPTER XV 219
CRIMINAL LAW
intoxication and the degree of instruction and education of the
offender.
The alternative circumstance of relationship shall be taken
into consideration when the offended party is the spouse, ascendant,
descendant, legitimate, natural or adopted brother or sister, or
relative by affinity in the same degrees of the offender.
The intoxication of the offender shal1 be taken into consider-
ation as a mitigating circumstance when the offender has commit-
ted a felony in a state of intoxication, if the same is not habitual or
subsequent to the plan to commit said felony; but when the intoxica-
tion is habitual or intentional, it shall be considered as an aggravat-
ing circumstance.
MODIFICATION OF THE PENALTY FOR THE VIOLATION OF B.P.
BLG. 22
Sec.1. Checks without sufficient funds. -Any person who
makes or draws and issue any check to apply on account or for value,
knowing at the time of issue that he does not have sufficient funds
in or credit with the drawee bank for the payment of such check is
subsequently dishonored for the same reason had not the drawee,
without any valid reason, ordered the bank to stop payment, shall
be punished by imprisonment of not less than thirty (30) days but
not more than one (1) year, or by a fine of not less than but not more
than double the amount of the check which fine shall in no case
exceed Two Hundred Thousand Pesos (P200,000.00), or both such
fine and imprisonment at the discretion of the court. (B.P. Big. 22,
1st par., RTC)
In Eduardo Vaca vs. Court of Appeals (G.R. No. 181714, Nov.
16, 1998, 100 SCAD 763, 298, SCRA 656, 664), the Supreme Court
through Mr. Justice Vicente V. Mendoza, modified the sentence
imposed for violation of B.P. Blg. 22 by deleting the penalty of
imprisonment and imposing only the penalty of fine in an amount
double the amount of the check.
Likewise, the case of Rosa Lim vs. People of the Philippines
(G.R. No. 180088, Sept. 18, 2000), the Supreme Court en bane, also
deleted the penalty of imprisonment and sentenced the drawer of
the bounced check to the maximum of the fine allowed by B.P. Blg.
22, i.e., P200,000.00, and concluded that such would best serve the
ends of criminal justice.
 CHAPl'ER XVI 221
REMEDIAL LAW

DIFFERENT KINDS OF SPECIAL CIVIL ACTION, SPECIAL PRO-

CEEDINGS AND PROVISIONAL REMEDIES

Chapter XVI PROVISIONAL REMEDIES

1. Attachment
REMEDIAL LAW 2. Preliminary Injunction
3. Receivership
Remedial Law, as the term itself suggests, provides for the
4. Replevin (delivery of personal property)
remedies and the procedures to be observed by .way of enforcing
rights and obligations. While substantive law creates rights, 5. Alimony pendente lite (support pending litigation)
remedial law provides for the procedure of enforcing said rights.
That makes Remedial law more complicated to both law students SPECIAL CIVIL ACTION
and to law practitioners. For law students, study of remedial law 1. Interpleader
becomes more difficult because experience proves that procedural
law can only be more appreciated and understood when a lawyer is 2. Declaratory relief and similar remedies
involved in the actual application of the legal remedies. 3. Certiorari, prohibition, mandamus
Briefly, the New Rules of Court are divided into different parts, 4. Quo warranto
to wit: 5. Eminent domain
1. Civil Procedure 6. Foreclosure of mortgage
2. Provisional Remedies 7. Partition
3. Special Civil Actions 8. Forcible entry
4. Special Proceedings 9. Contempt
5. Criminal Procedure
6. Evidence SPECIAL PROCEEDINGS
7. Rules concerning admission to the practice oflaw 1. Settlement of estate of deceased persons
2. Escheat
DISCUSSION OF EACH: 3. Guardianship and custody of children
Civil Procedure 4. Trustees
It treats of the enforcement and protection of rights in civil 5. Adoption
cases. There are two (2) kinds of civil action: 6. Rescission and revocation of adoption
(a) Ordinary Civil Action - Example: collection case, 7. Hospitalization of insane persons
abatement of nuisance, breach of contract.
8. Habeas c01pus
(b) Special Civil Action - Example: Quo warranto, certio- 9. Change of name
rari, mandamus, prohibition, declaratory relief, partition,
foreclosure of mortgage, interpleader, eminent domain. 10. Voluntary dissolution of corporation
11. Judicial approval of voluntary recognition of minor
220 natural (or spurious children)
222 INTRODUCTION TO LAW CHAPTER XVI 223
REMEDIAL LAW

12. Constitution of family home who is not a party to the litigation. The latter is, in effect,
ordered to pay the new creditors, not the old creditors.
13. Declaration of absence and death
14. Cancellation or correction of entries in the civil registry (c) Final Attachment - An attachment given by the court
to enforce or satisfy a final and executory judgment.
REMEDIES IN CIVIL CASES
PRELIMINARY INJUNCTION
A person civilly aggrieved may:
It is an order granted at any stage of an action prior to the
1. File an action, either an ordinary civil action or a special finality of a judgment requiring a person to refrain from a particular
civil action; or act or requiring the performance of a particular act.
2. File a special proceeding.
GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION
They are the remedies which may be availed of by the petitioner
which are temporary in character because they are subject to 1. That the plaintiff is entitled to the relief demanded, and
some modifications that may be ordered when judgment is finally the whole or part of such relief consists in restraining the
rendered. commission or continuance of the acts complained of, or
in the performance of an act or acts either for a limited
The provisional remedies mentioned in the Rules of Court are period or perpetually.
the following:
2. That the commission or continuance of some acts com-
1. Attachment plained of during the litigation or non-performance
2. Preliminary injunction thereof would probably work injustice to the plaintiff.
3. Receivership 3. That the defendant is doing, threatening, or is about
4. Replevin to do, or is procuring or suffering to be done some act
5. Alimony pendente lite probably in violation of the plaintiffs rights respecting the
subject of the action, and tending to render the judgment
ineffectual. (Sec. 3, Rule 58)
EXPLANATION OF EACH
ATI'ACHMENT RECEIVERSHIP
It is the provisional remedy which is ancillary to a principal It is provisional remedy whereby the court appoints a receiver
action whereby a plaintiff or any proper party may, at the to hold the real or personal property in litigation during its pendency
commencement of the action or at any time thereafter, have the with power to possess, take hold of, control and to dispose of the
property of the adverse party attached or taken into legal custody as same as may be a llowed by the court in proper cases.
security for the satisfaction of the judgment that may be recovered.
There are three (3) kinds of attachment, namely: WHEN TO APPOINT A RECEIVER

(a) Preliminary Attachment - An attachment which is
given at the beginning of an action or during its pendency
or before the finality of the judgment.
(b) Garnishment - An attachment allowing the plaintiff to
reach credits, whether money or property, belonging to
01· owned by the debtor or owing to him from someone
1. When a corporation has been dissolved, or insolvent, or
in imminent danger of insolvency, or has forfeited its
corporate rights.
2. When the party applying for the appointment of a receiver
has an interest in the property involved which may be
lost, removed, or materially injured.
224 INTRODUCTION TO LAW CHAPTER XVI 225
REMEDIAL LAW

3. When in a case offoreclosure of a mortgage: (a) the property
is in danger of being wasted or materially injured and its
value is probably insufficient to discharge the mortgage
debt; (b) there was a stipulation for receivership in the
mortgage contract.
4. When there is already a judgment BUT: (a) the property
has to be preserved during the appeal; (b) the judgment
could not be executed; or (c) the judgment obligor refuses
to apply his property in satisfaction of the judgment or
otherwise to make the judgment effective.
5. In all other cases when receivership would be convenient
and feasible. (Sec. 1, Rule 59)
RE PLEVIN
It is a provisional remedy whereby the plaintiff petitions the
court to compel in the meantime the delivery to him of such personal
proper action, or at any time afterwards but prior to final judgment,
may file an application for alimony pendente lite stating the grounds
for the claim and the financial conditions of both parties and shall
be accomplished by affidavits, depositions, or other authentic
documents in support thereof.
SPECIAL CIVIL ACTION
It is an action whereby one party sues another to enforce
or protect a right or to prevent the commission of a wrong by the
following special rules of procedure.
The special civil actions are the following:
1. lnterpleader;
2. Declaratory relief;
3. Certiorari, prohibition, mandamus; 11

property mentioned in his complaint. The plaintiff may ask for this 4. Quo warranto;
remedy at the commencement of the action, or at any time before
the answer. 5. Eminent domain;
6. Foreclosure of mortgage;
Requirements:
7. Partition of real estate;
1. The plaintiff must show by his own affidavit or that of
some other person who personally knows the fact: 8. Forcible entry and unlawful detainer; and
(a) That the plaintiff is the owner of the property 9. Contempt
claimed particularly describing it, or is entitled to
the possession thereof; EXPLANATION OF EACH
(b) That the property is WRONGFULLY DETAINED
by the defendant (the cause of detention must be INTERPLEADER
alleged according to the petitioner's best knowledge, It is a special civil action whereby a person who has property in
information and belief); his possession or an obligation to render, either on whole or in part,
(c) That it has: (a) not been taken for a tax assessment or but who claims no interest in the subject matter or whose interest
fine pursuant to law; or (b) not seized under execution in whole or in part is not disputed by others, goes to court and asks
or attachment of the property of the plaintiff, or if so that conflicting claimants to the property or obligation be required to
seized, that it is EXEMPI' from such seizure; and litigate their conflicting claims in order to determine who is entitled
(iii) the actual value of the property. (Sec. 2, Rule 60) to the same.

ALIMONY PENDENTE LITE DECLARATORY RELIEF

This is also known as support pending litigation. It is a pro- It is a special civil action instituted by any person interested
visional remedy whereby the plaintiff, at the commencement of the under a deed, will, contract, or other written instrument, or whose
226 INTRODUCTION TO LAW
right are affected by statute, executive order or regulation, or
ordinance before breach or violation thereof in order to determine
any question of construction or validity arising under the instrument
or statute and for a declaration of his right or duties thereunder.
CERTIORARI
It is a special civil action directed against any tribunal, board or
officer exercising judicial functions claimingthat said tribunal, board
or officer has acted without jurisdiction, in excess of jurisdiction or
with grave abuse of discretion and there is no appeal, nor any plain,
speedy, and adequate remedy in the ordinary course of law. All
these must be alleged by the plaintiff in a verified petition filed in
the proper court and praying that judgment be rendered annulling
or modifying the proceedings, as the law requires.
PROHIBITION
It is a special civil action directed against any tribunal,
corporation, board or person whether exercisingjudicial or ministerial
functions claiming that said tribunal, corporation, board or persons
acted without jurisdiction or with grave abuse of discretion and
there is no appeal, nor any plain, speedy, and adequate remedy in
the ordinary course of law. All these must be alleged by the plaintiff
through a verified petition filed in the proper court and praying that
judgment be rendered commanding the defendant to desist from
further proceedings in the action or matter specified therein.
MANDAMUS
It is a special civil action directed against any tribunal,
corporation, board or person claiming that said tribunal, corporation,
board or person has unlawfully neglected the performance of an act
which the law specifically enjoins as a duty resulting from an office,
trust or station or has excluded another from the use and enjoyment
of the right or office to which such other is entitled and there is no
other plain, speedy, and adequate remedy in the ordinary course
of law. All these must be alleged by the plaintiff through a verified
petition filed in the proper court and praying that judgment be
rendered commanding the defendant immediately, or at some other
specified time, to do the act required to be done to protect the life of
the petitioner and to pay the damages sustained by the petitioner by
reason of the wrongful acts of the defendants.
CHAPTER XVI 227
REMEDIAL LAW
QUO WARRANTO
It is a special civil action whereby a person claiming to be
entitled to a public office or position files an action against a usurper
challenging the authority of the latter in holding said public office
or position.
KINDS OF QUO WARRANTO
(a) Quo Warranto may be brought in the name of the Re-
public of the Philippines. Here, the right of the defendant
to the office is passed upon by the court.
(b) Quo warranto proceeding may be brought in the name
of a private person. Here, the plaintiff must prove his own
right. If he cannot prove his own right, the right of the
defendant will not be passed upon by the court.
(c) Quo warranto may involve a defendant which is a
private person.
(d) Quo warranto proceeding may be brought in the name
of a corporation.
(e) Quo warranto proceeding may involve an appointive
public office. Here, the issue is the legality of the appoint-
ment and therefore, whoever was legally appointed will
be entitled to occupy the office.
(D Quo warranto proceeding may involve an elective office.
Here, the issue is the qualification or eligibility of the
candidate.
EMINENT DOMAIN
It is the right of the State or any duly authorized entity to take
private property for public use or purpose provided just compensation
is given and due process is observed.
FORECLOSURE OR MORTGAGE
It is the process by which the mortgagee-creditor is allowed to
have the mortgaged property foreclosed and sold in order that the
indebtedness may be paid out of the proceeds of said sale.
228 INTRODUCTION TO LAW CHAPTER XVI 229
REMEDIAL LAW

KINDS OF FORECLOSURE The special proceedings are as follows :

1. Judicial Foreclosure - This is a special civil action (1) Settlement of estate of deceased persons
referred to in Rule 68 of the Revised Rules of Court. As (2) Petition for probate of will and issuance of letters
the term itself implies, this requires a court litigation. testamentary
2. ExtraJudicial Foreclosure - This is a process of (3) Petition for letters of administration
foreclosure provided in Act No. 3135 as amended by Act (4) Petition for escheat
No. 4118. As the term itself implies, this process does not
require court litigation. (5) Petition for guardianship
(6) Petition for appointment of trustees
PARTITION OF REAL ESTATE
(7) Petition for adoption of minors
It is a process of dividing or assigning property owned in (8) Petition for hospitalization of insane persons
common among the various co-owners thereof in proportion to their
respective interest in the property. Partition may be done judicially (9) Petition for habeas corpus
or extrajudicially. (10) Petition for change of name
(11) Petition for voluntary dissolution of corporation
FORCIBLE ENTRY
(12) Judicial approval of voluntary recognition of minor
It is a special civil action whereby the plaintiff prays for the natural children
recovery of material or physical possession of real property because
he was deprived of his possession thereof by force, intimidation, (13) Petition for judicial constitution of family home
strategy, threat, or stealth. This action must be brought within one (14) Petition for appointment of administrator and/or trustee
(1) year from the unlawful deprivation. If not brought within one (1) for the estate of absentee
year, the possession of the property may still be recovered through (15) Petition for correction of entries in the civil registry
an accion publiciana, not through an action of forcible entry.

UNLAWFUL DETAINER
EXPLANATION OF EACH:

It is a special civil action filed by a plaintiff and who prays SETTLEMENT OF ESTATE OF DECEASED PERSON
to recover the possession of real property from a person unlawfully An estate can be summarily settled in two (2) ways:
withholding possession of the same.
(1) Extrajudicial settlement of estate by agreement of the
CONTEMPT heirs; and
(2) Summary settlement of estate whose gross value is
It is a misbehavior committed in the presence of or so near
Pl0,000.00 or less.
a judge or court as to obstruct or interrupt the proceeding before
the judge or court, in which case, it is called direct contempt, or it
may be any other improper conduct tending to degrade or interfere E~TRAJUDICIAL ARRANGEMENT OF THE HEIRS
with the administration of justice, in which case, it is caUed indirect There are several requisites, to wit:
contempt.
(1) The decedent left no will;
SPECIAL PROCEEDINGS (2) The decedent left no debts (this is presumed if no creditor
It is a civil remedy taken to establish the status or right of files a petition within two [2] years after the death of the
party or to establish a particular fact. deceased) (Last sentence of Sec. 1, Rule 47);
230 INTRODUCTION TO LAW
(3) A public instrument should be filed with the Register of
Deeds;
(4) All the heirs must be of age, or if they are minors,
they should be represented by their judicial or legal
representatives duly authorized for the purpose;
(5) All the said heirs must agree. If the heirs disagree, the
heirs may do so through an ordinary action of partition
(Sec. 1, Rule 74);
(6) The parties to an extrajudicial settlement of estate must
file a bond with the Register of Deeds in an amount
equivalent to the value of personal property involved
as certified to under oath by the parties concerned and
conditioned upon the payment of any just claim filed with
the Register of Deeds (Sec. 1, Rule 74);
(7) The fact of extrajudicial settlement on administration
shall be published in a newspaper of general circulation.
However, no extrajudicial settlement shall be binding
upon any person who has not participated or had no
notice thereof.
SUMMARY SETTLEMENT OF ESTATE WHOSE GROSS VALUE IS
P10,000 OR LESS
(1) There can only be summary settlement of estate if the
gross value of the same is Pl0,000.00 or less. If this
requirement is complied with, the heirs may apply to the
competent court, after the regular publication, to proceed
with the summary partition and after paying all the
known obligations, to partition all the property among
the heirs, without appointing an administrator.
(a) Competent Court: Refers to the Court of First
Instance having jurisdiction of the estate. (CFI is
now referred to as RTC).
(b) Publication: The notice about the said summary
settlement shall be published once a week for three
(3) consecutive weeks in a newspaper of general
publication on the province where the property is
situated.
CHAPTER XVI 231
REMEDIAL LAW
(c) Hearing: The hearing shall be held not less than
one (1) month or more than three (3) months from
the date oflast publication of notice.
(2) . There can only be summary settlement regardless of
whether the deceased person died with or without a will,
provided that the gross value of his estate does not exceed
Pl0,000.00 or less.
PETITION FOR PROBATE OF WILL AND ISSUANCE OF LETTERS
TESTAMENTARY
Probate is the process of proving before a competent court
that the will of a deceased person was duly executed and that
said decedent possessed testamentary capacity at the time of the
execution of the will and when all these are proved, the will of the
decedent shall be submitted for approval of the said court.
BASIC POINTS TO REMEMBER
(1) No will shall pass either real or personal property unless
it is provided and allowed in accordance with the Rules of
Court. (Art. 838, 1st par., NCC)
(2) There is no prescriptive period for institution of probate
proceedings because the same is established not primarily
for the interest of the heirs but principally to protect the
expressed wishes of the testator.
(3) The probate of a will is conclusive as to its due execution
and as to the testamentary capacity of the testator but
not as to the validity of any provisions made in the will.
Hence, after a will has been probated by a competent
court, the law will not admit evidence to overthrow the
legal presumption that is genuine.
PETITION FOR LETTERS OF ADMINISTRATION
Who may petition for the allowance of the will?
Section 1, Rule 76 of the New Rules of the Court, enumerates
the persons who may file a petition for the allowance of a will and
they are as follows:
(a) Executor;
(b) Devisee or legatee in a will;
232 INTRODUCTION TO LAW CHAPTER XVI 233
REMEDIAL LAW

(c) Any other person interested in the estate; or PETITION FOR GUARDIANSHIP
(d) The testator himself may, during his lifetime, petition for Guardianship is the relationship existing between the guardian
the allowance of his will. (Sec. 1, 2nd par., Rule 47) and the ward or it might refer to the duty or authority of a guardian
in relation to his ward.
When can the above persons petition for the allowance
of the will? Who may petition for appointment of a guardian for a
They may, at any time, after the death of the testator petition resident of the Republic of the Philippines?
to the court having jurisdiction to have the will allowed whether the Section 1, Rule 93 of the New Rules of Court enumerates those
same be in his possession or not, is lost, or destroyed. who may petition for the appointment of a guardian and they are as
follows:
DEFINITION OF TERMS
(1) Any relative, friend or other person on behalf of a resident
EXECUTOR - The person appointed by the testator in his minor or incompetent who has no parent or lawful
will. guardian;
ADMINISTRATOR - The person appointed by the court in (2) The minor himself is fourteen (14) years of age or over;
case there is no will.
(3) An officer of the Federal Administration of the United
ADMINISTRATOR WITH A WILL ANNEXED - The per- States in the Philippines in favor of a ward thereof; and
son appointed by the court because although there is a will, said
person's will does not appoint any executor, or if one is appointed, (4) The Director of Health, in favor of an insane person who
said person is either incapacitated or not willing to serve. should be hospitalized, or in favor of an isolated leper.
(Sec. I, Rule 93)
PERSONS DISQUALIFIED OR INCOMPETENT TO SERVE AS
PETITION FOR APPOINTMENT OF TRUSTEE
EXECUTOR OR. AS AN ADMINISTRATOR
DEFINITION OF TERMS
1. Minors;
TRUSTEE - is a person appointed by the court to carry out
2. Non-residents of the Philippines;
the effect of the provisions of the will as if he had been appointed by
3. Those who are unfit to execute the duties of the trust the testator and in its technical sense, the trustee is a person who
because of: holds the trust for the benefit of another.
(a) drunkenness; TRUSTOR - is a person who establishes a trust.
(b) improvidence; BENEFICIARY - is a person for whose benefit the trust has
(c) want of understanding; been created.
(d) want of integrity; and
DUTIES OF A TRUSTEE
(e) conviction of an offense involving moral turpitude.
(Sec. I, Rule 78) (1) To return to the court a true inventory of all real and
personal property or estate that comes to his possession
PETITION FOR ESCHEAT or knowledge;

Escheat is a special proceeding whereby the real and personal (2) To faithfully discharge his trust;
property of a person who dies without a will or any legal heir becomes (3) To render upon oath a true account of the property in his
the property of the State upon his death. hands; and
234 INTRODUCTION TO LAW
(4) To settle his accounts in court and to pay over and deliver
all the estate remaining in his hands.
PETITION FOR ADOPTION OF MINORS
Adoption is a judicial act which creates a relationship between
two (2) persons similar to that which results from legitimate
paternity and filiations. In adoption, a person who has no child of
his own has the opportunity to have one by creating the relation of
paternity and filiations through legal process.
BASIC POINTS TO REMEMBER
1. Every person of age, who is in full possession of his civil
rights may adopt. (Art. 334, NCC)
2. Any person, even if of age, may be adopted provided the
adopter is 16 years older. (Art. 337, NCC)
The following cannot adopt:
(1) Those who have legitimate, legitimated, acknowl-
edged natural children by legal fiction;
(2) The guardian, with respect to the ward, before the
final approval of his accounts;
(3) A married person, without the consent of the other
spouse;
(4) Non-resident alien;
(5) Resident aliens with whose government the Republic
of the Philippines has broken diplomatic relations;
or
(6) Any person who has been convicted of a crime in-
volving moral turpitude, when the penalty imposed
was six (6) months imprisonment or more.
PETITION FOR HOSPITALIZATION OF INSANE PERSONS
Hearing and Judgment - The court shall make an order
of commitment upon satisfactory proof in open court on the date
fixed in the order, that the commitment applied for is for the public
welfare or for the welfare of the insane person, and that his relatives
are unable for any reason to take proper custody and care of him.
The court shall order his commitment to such hospital or other place
CHAPTER XVI 235
REMEDIAL LAW
for the insane as may be recommended by the Director of Health.
The court shall make proper provisions for the custody or property
or money belonging to the insane until a guardian be properly
appointed_. (Sec. 3, Rule 101, Rules of Court)
PETITION FOR HABEAS CORPUS
This is a writ directed to a person detaining another and
commanding him to produce the body of the prisoner at a certain
time and place and to state the cause of his capture and detention.
Habeas corpus is a remedy to relieve persons from unlawful restraint.
BASIC POINTS TO REMEMBER
It is not a writ itself but only its privilege that may be
suspended. For as long as a petition for habeas corpus is filed, and
the court finds that it is in proper form, it will issue the writ as a
matter of course.
If issued, what will be the order of the Court?
The Court will order the production of the person allegedly
detained and will require the respondent to justify the detention.
POWER TO SUSPEND THE PRIVILEGE OF THE WRIT OF HABEAS
CORPUS
1973 CONSTITUTION
Article VII, Sec. 9 provides as follows:
"Sec. 9. - The President shall be Commander-in-Chief of
all Armed Forces of the Philippines and, whenever it becomes
necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion, insurrection or rebellion.
In case of invasion, insurrection, or rebellion, or imminent
danger thereof, when the public safety requires it, he may
suspend the privilege of the writ of habeas corpus, or place the
Philippines or any part thereof under martial law."
1987 CONSTITUTION
Article VII, Sec. 18 provides as follows:
"Sec. 18. - The President shall be the Commander-in-
Chief of all Armed Forces of the Philippines and, whenever
236 INTRODUCTION TO LAW
it becomes necessary, he may call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion. In
case of invasion or rebellion, when the public safety requires it,
he may, for a period not exceeding sixty (60) days, suspend the
privilege of the writ of habeas corpus or place the Philippines
or any part thereof under martial law."
1. The Supreme Court rulings on the issue of whether the
courts can inquire on the presidential suspension of the privilege of
the writ of' habeas corpus are as follows:
The first two (2) leading cases on this point are the cases of
Barcelon vs. Baker (5 Phil. 87) and Montenegro vs. Castaiieda
(91 Phil. 882). In both cases, the Supreme Court decided that the
President's decision to suspend the privilege of the writ of habeas
corpus is "final and conclusive upon the courts and all other persons."
The Barcelon Rule was enunciated in this jurisdiction in 1905
whereas the Montenegro Rule, which reiterated the Barcelon Rule,
was enunciated in 1952. This ruling continued to prevail until 1971
until our Supreme Court came out with another ruling in the case of
Lansang vs. Garcia, 42 SCRA 448.
In the case of Lansang vs. Garcia, the Supreme Court ruled
that courts are allowed to inquire whether or not a presidential
suspension of the privilege of the writ of habeas corpus is arbitrary
in order to determine its constitutional sufficiency.
The Lansang Doctrine, however, was abandoned on account of
the decision rendered by the Supreme Court on cases docketed as
G.R. No. 61388 entitled, "In the Matter of' Dr. Aurora Parong, et al.,
Josefina Garcia-Padilla, petitioner vs. Minister Juan Ponce Enrile,
Gen. Favian Ver, Gen. Fidel V. Ramos, and Lt. Col. Miguel Coronel,
respondents decided on April 20, 1983, and G.R. No. 61016 entitled,
"In the Matter of Petition for Habeas Corpus of Horacio R. Morales,
Jr., petitioner vs. Minister Juan Ponce Enrile, Gen. Fabian C. Ver,
Col. Galileo Kintanar, respondents, promulgated on April 26, 1983,
or six (6) days after the Padilla decision was promulgated.
In the Padilla case, nine (9) justices voted to abandon the
doctrine in the Lansang case and these justices are as follows: Justice
Pacifico de Castro, Efren Plana, Juvenal Guerrero, Felix Makasiar,
Venecio Escolin, Conrado Velasquez, Vicente Abad Santos, Hugo
Gutierrez, Jr., and Lorenzo Relova. Two (2) justices voted to retain
CHAPTERXVT 237
REMEDIAL LAW
the doctrine in the Lansang case and they are Chief Justice Enrique
Fernando and Justice Claudio Teehankee.
The majority decision reverted to the Barcelon and Montenegro
Rule as abovementioned.
In the Morales case, the justices who previously voted in the
Padilla case in favor of abandoning the doctrine in the Lansang
case maintained their position. Three (3) justices voted to retain the
Lansang Doctrine and they are Chief Justice Enrique Fernando and
Justices Claudio Teehankee and Hermogenes Concepcion.
2. Now, under Section 18, Article VII ofthe 1987 Constitution,
the military powers of the President are more defined and specific.
The original authority of the Commander-in-Chief, as provided in
the 1973 Constitution, is changed as follows:
(1) He may call out the armed forces to prevent or suppress
lawless violence, invasion or rebellion only.
(2) The grounds for the suspension of the privilege of the writ
of habeas corpus and the proclamation of martial law are
now limited only to invasion or rebellion.
(3) The duration of such suspension or proclamation shall
not exceed sixty (60) days, following which it shall be
automatically lifted.
(4) Within forty-eight (48) hours after such suspension or
proclamation, the President shall personally or in writing
report his action to Congress.
(5) The Congress may then, by a majority vote of all its
members voting jointly, revoke his action. The revocation
may not be set aside by the President.
(6) By the same vote and in the same manner, the Congress
may, upon the initiatives of the President, extend his
suspension or proclamation for a period to be determined
by the Congress if the invasion or rebellion shall continue
and the public safety requires the extension.
(7) The action of the President and Congress shall be subject
to review by the Supreme Court which shall have the
authority to determine the sufficiency of the factual basis
of such action.
This matter is no longer considered a political
question and may be raised in an appropriate proceeding
238 INTRODUCTION TO LAW
by any citizen. Moreover, the Supreme Court must decide
the challenge within thirty (30) days from the time it is
filed.
(8) Martial law does not automatically suspend the privilege
of the writ of habeas corpus or the operation of the
Constitution. The civil courts and the legislative bodies
shall remain open. Military courts and agencies are not
conferred jurisdiction over civilians where the civil courts
are functioning.
(9) The suspension of the privilege of the writ of the habeas
corpus shall apply only to persons facing charges of
rebellion or offenses inherent in or directly connected
with invasion.
(10) Any person arrested for such offense must be judicially
charged therewith within three (3) days. Otherwise, he
shall be released.
3. A brief background of Supreme Court rulings on the issue
of whether there is right to bail during the suspension of the privilege
of the said writ are as follows:
Garcia Padilla vs. Enrile
G.R. No. 61388
'fhe right to bail cannot be invoked during the suspension
of the privilege of habeas corpus. Associate Justice Pacifico P. De
Castro who wrote the Padilla decision for the court reasoned out in
this vein:
"Realistically, a person engaged in the rebellion does not,
upon being arrested or captured, ceases to be cis committed to
the cause of the movement. Through a grand conspiracy as is of
the essence of how rebellion is committed involving a great mass
ofconfederates bound together by a common goal, he remains in
ct state of continued participation in the criminal act or design.
His heart still beats with the same emotion for the success of the
movement of which he continues to be an ardent adherent and
ally.
It is simple logic then to hold that there should be no legal
compulsion for a captured rebel to be charged in court, only to
be released on bail, while he is, realistically and legally, still
CHAPTER XVI 239
REMEDIAL LAW
as much engaged in carrying on actively to attain their goal of
overthrowing the established regime.
It is, likewise, all too well-known that when the rebel forces
capture government troopers or kidnap private individuals, they
do not accord to ·them any of the rights now being demanded
by the herein petitioners, particularly to be set at liberty upon
the filing of bail. As a matter of common knowledge, captives
of the rebels or insurgents are not only given the right to be
released, but also denied trial of any kind. In some instances,
they may even be liquidated unceremoniously. What is then
sought by the suspension of the privilege of the writ of habeas
corpus, is, among others, to put the government forces on equal
fighting terms with the rebels, by authorizing the detention of
their own rebel or dissident captives as the rebellion goes on.
In this way, the advantage of the rebellion forces have over
those of the government, as when they resort to guerilla tactics
with sophisticated weapons, is, at least minimized, thereby
enhancing the latter's chances of beating their enemy. It would,
therefore, seem to be ignoring realities in the name of misplaced
magnanimity and compassion, and for the sake of humanity, to
grant the demand for respect of rights supposedly guaranteed
by the Constitution by those who themselves seek to destroy that
very same instrument, trampling over it already as they are still
waging war against the government. This stark actuality gives
added force and substance to the rationale of the suspension of
the privilege of the writ of habeas corpus in case of invasion,
insurrection, rebellion, or imminent danger thereof, when
public safety requires it."
4. In a book I have written, entitled, ''What is our right and
what is our power as a people," I expressed my dissent to the above-
mentioned ruling in this manner.
On the issue of bail, the two (2) reasons given by Associate
Justice Pacifico P . de Castro and which are quoted above, are not, in
my honest opinion, sufficient justifications to deny the right to bail
for the following reasons:
First: In G.R. No. 61388 entitled "In the matter of the Petition
for the Issuance of the Writ of Habeas Corpus for Dra. Aurora
Parong, et al., Josefina Garcia-Padilla, petitioner vs. Minister Juan
Ponce Enrile, Gen. Fabian C. Ver," Gen. Fidel V. Ramos, and Lt.
Col. Miguel Coronel, respondents, records show that Dra. Aurora
240 INTRODUCTION TO LAW
Parong is charged with the crime of illegal possession of firearms.
This is clearly a bailable offense. The same thing is true with
respect to the other detainees. No amount of legal nicety nor the
issuance of a Presidential Commitment Order can prevail over a
clear constitutional guarantee expressed in Section 18, Article IV of
the New Constitution which reads:
xxx
"Sec. 18 - All persons except those charged with capital
offenses when evidence ofguilt is strong, shall, before conviction,
be bailable by sufficient sureties. Excessive bail shall not be
required. (Underlining Supplied)
Since it is dear that the said detainee is charged with a bailable
offence and since it is dear from the abovequoted constitutional
provision that she is qualified to be bailable, there should be no
reason nor any barrier to deny the petition for bail.
Second: While the President has the power to suspend the
privilege of habeas corpus under and by virtue of exceptions in
Section 15, Article IV of the New Constitution, it is, on the other
hand, the power of the courts to grant bail to qualified persons not
falling under the exceptions mentioned in Section 18, Article IV. I
see the justification to the statement that "the duty of the judiciary
to protect individual rights must yield to the power of the executive
to protect the state xx x." Ten (10) or one hundred (100) detention
prisoners, or even more, even granting that they are rebels, cannot
overwhelm the vast powers of the government. It will not make a
serious difference if they are granted the right to bail. Besides, why
should the judiciary yield a power and a duty which is appropriately
its own? Moreover, it is not the particular right of the individual
that is protected or being protected. Rather, it is the doctrine of
separation of powers itself and the system of checks and balances as
well as the very constitution itself which guarantees all of these that
the judiciary protects. If, in the exercise of this duty, an individual or
group of individuals are directly or indirectly benefited, it is because
they are part and parcel of the state and of the government which
they have chosen. After all, the government may come and go at
any time but the people who compose the state remains. They are
actually the ones who work to no end just so that the nation and the
state can survive.
Third: In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and shall enjoy
CH.APTER XVI 241
REMEDIAL LAW
the right to be heard by himself and counsel, to be informed of
the nature cause of the accusation against him, to have a speedy,
impartial and public trial, to meet the witnesses face to face, and
to have compulsory process to secure the attendance of witnesses
and the production of evidence in his behalf.xx x (Sec. 19, Art. IV,
.1987 Constitution) If one's right to bail is denied, the abovequoted
constitutional right will be defeated and rendered useless. The
detainee, for as long as he is detained, cannot effectively prepare his
case and his defense. Added to this is the fact that during the entire
period of time of his detention and until the case is finally decided,
he is, in the eyes of the law, still presumed innocent. The contrary
has yet to be proven and yet during the interregnum between the
inquiry and the final judgment, he has already lost the battle. Even
before the trial starts, he is already in a very disadvantageous
position. While the government, with all the powers and facilities
in its command, is thoroughly preparing its case and its evidence,
the detainee suffers the physical and mental burden of being kept
inside the prison cell. Even granting for the sake of argument that
he is given a chance to confer with his counsel, the disadvantage in
any respect, stilJ works against the detainee. This is very evident
and clear, and any contradiction of reality will only make the truth
very obvious.
PETITION FOR CHANGE OF NAME
A person desiring to change his name can file his petition
with the local civil registry office of the city or municipality registry
where the record being sought to be corrected or changed is kept.
(R.A. No. 9048)
CONTENTS OF PETITION FOR CHANGE OF NAME
1. The petition for change of name shall be in the form of
an affidavit, subscribed and sworn to before any person
authorized to administer oaths. The petition for change
of ffrst name or nickname may be allowed in any of the
following cases:
(a) The petitioner finds the first name or nickname to
be ridiculous, tainted with dishonor or extremely
difficult to write or pronounce;
(b) The new first name or nickname has been habitually
and continuously used by the petitioner and he
242 INTRODUCTION TO LAW
has been publicly known by that first names or
nicknames in the community; or
(c) The change will avoid confusion.
PETITION FOR VOLUNTARY DISSOLUTION OF CORPORATION
A petition for voluntary dissolution of corporation shall be filed
in the CFI of the province where the principal office of the corporation
is situated. (Sec. 1, Rule 104) (CF! is now referred to as RTC)
Requirements:
1. It must be signed by a majority of its Board of Directors,
or other officers managing its affairs;
2. It must be verified by the President or Secretary or one of
directors;
3. It must set forth all claims and demands against the said
corporation; and
4. A statement that its dissolution was resolved:
(a) By the majority of the members (if non-stock);
(b) Or by the affirmative vote of the stockholders holding
and representing two-thirds (213) of all the shares of
stock issued or subscribed (if a stock corporation) at
a meeting of its members or stockholders called for
that purpose. (Sec. 1, Rule 104)
JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF MINOR
NATURAL CHILDREN
VENUE:
When judicial approval of a voluntary recognition of a minor
natural child is required, such child or his parents shall obtain the
same by filing a petition to that effect with the Court of First Instance
of the province in which the child resides. In the City of Manila, the
petition shall be filed on the Juvenile and Domestic Relations Court.
(Sec. 1, Rule 105, ROCJ
CONTENTS OF PETITION
The petition for judicial approval of a voluntary recognition of a
minor natural child shall contain the following allegations:
(1) The jurisdictional facts;
CHAPTER XVI 243
REMEDIAL LAW
(2) The names and residences of the parents who acknowledge
the child, or of either of them, and their compulsory heirs,
and the person or persons with whom the child lives; and
(3) - The fact that the recognition made by the parent and
parents took place in a statement or writing being
attached to the petition. (Sec. 2, Rule 105, ROCJ
WHO MAY RECOGNIZE A NATURAL CHILD?
A natural child may be recognized by the father and mother
jointly, or by only of one of them. (Art. 276, NCC)
WAYS OF VOLUNTARY RECOGNITION
Recognition shall be made in the record of birth, a will, a
statement before court of record, or in any authentic writing. (Art.
278,NCCJ
NOTE:
1. A child who is of age cannot be recognized without his
consent. When the recognition of a minor does not take place in a
record of birth or in a will, judicial approval shall be necessary. A
minor can in any case, impugn the recognition within four (4) years
following the attainment of his majority. (Art. 281, NCC)
2. A recognized natural child has the right: (1) To bear the
surname of the parent recognizing him; (2) To receive support from
such parent, in conformity with Article 291; (3) To receive in a proper
case, the hereditary portion which is determined in this Code. (Art.
282,NCCJ
3. In any of the following cases, the father is obliged to
recognize the child as his natural child:
(a) In cases of rape, abduction or seduction, when the
period of the offense coincides more or less with that
of the conception;
(b) When the child is in continuous possession of status
of a child of the aileged father by the direct acts of
the latter or of his family;
(c) When the child is conceived during the time when
the mother cohabited with the supposed father; or
244 INTRODUCTION TO LAW
(d) When the child has in his favor any evidence or proof
that the defendant is his father. (Art. 283, NCC)
4. Kinds of recognition
(1) Recognition may either refer to recognition of: (a) a
natural child, or (b) recognition of a spurious child.
(a) NATURAL CHILD - It is a child born outside
of wedlock of parents who, at the time of
conception of the former, were not disqualified
by any impediment to marry each other.
(b) SPURIOUS CHILD - It is an illegitimate
child other than natural.
(2) Recognition may also be categorized as follows:
(a) Voluntary recognition of a natural child or
voluntary recognition of a spurious child;
(b) Compulsory recognition of a natural child. In
this case, a formal declaration of filiation is
made by the court.
(3) Recognition by operation oflaw (i.e., natural children
by legal fiction such as those mentioned in Article 89
of the New Civil Code).
(4) Automatic recognition as provided for under Article
271 of the New Civil Code.
"Art. 271 - Only natural children who have
been recognized by the parents before or after the cel-
ebration of the marriage, or have been declared natu-
ral children by final judgment, may be considered
legitimated by subsequent marriage.
If a natural child is recognized or judicially
declared as natural, such recognition or declaration
shall extend to his or her brothers or sisters of full
blood; provided, that the consent of the latter shall be
implied if they do not impugn the recognition within
four (4) years from the time of such recognition, or in
case they are minors, within four (4) years following
the attainment of majority."
CHAPTER XVI 245
REMEDIAL LAW
WHO MAY PETITION DECLARATION OF ABSENCE?
After the lapse of two (2) years from his disapperance and
without any news about the absentee or since the receipt of the
last news, or of five (5) years in case the absentee has left a person
in charge of the administration of his property, the declaration of
his absence and appointment of a trustee or administrator may be
applied for by any of the following:
(a) The spouse present;
(b) The heirs instituted in a will, who may present an
authentic copy of the same;
(c) The relatives who would succeed by the law of intestacy;
and
(d) Those who have over the property of the absentee some
rights subordinated to the condition of his death. (Sec. 2,
Rule 107, ROC)
CODE:
2 years - Should lapse before declaration of absence can be
made. This period applies to an absentee who has no administrator.
5 years - Should lapse before declaration of absence can be
made. This period applies if the absentee has an administrator.
CONTENTS OF PETITION
The petition for the appointment of a representative, or for
declaration of absence and the appointment of a trustee or an
administrator, must show the following:
1. The jurisdictional facts;
2. The names, ages, and residences of the heirs instituted
in a will, copy of which shall be presented, and of the
relatives who would succeed by the law of intestacy;
3. The names and residences of creditors and others, who
may have any adverse interest over the property of the
absentee; and
4. The probable value, location and character of the property
belonging to the absentee.
246 INTRODUCTION 'l'O LAW CHAPI'ER XVT 247
REMEDIAL LAW

CANCELLATION OF ENTRIES IN THE CIVIL REGISTRY
ENTRIES SUBJECT TO CANCELLATION OR CORRECTION
Upon good and valid grounds, the following entries in the civil
registry may be cancelled or corrected:
(a) Births;
(b) Marriages;
(c) Deaths;
(d) Legal separation;
(e) Judgments of annulments of marriage;
(f) Judgments declaring marriages void from the beginning;
(g) Legitimations;
(h) Adoptions;
(i) Acknowledgements of natural children;
(j) Naturalization;
(k) Election, loss or recovery of citizenship;
(1) Civil interdiction;
(m) Judicial determination of filiation;
(n) Voluntary emancipation of a minor; and
(o) Changes of name.
WHO MAY FILE A PETITION FOR CANCELLATION OR CORREC-
TION OF ENTRIES IN THE CIVIL REGISTRY?
Any person interested in any act, event, order or decree
concerning the civil status of persons which has been recorded in
the civil registry, may file a verified petition for the cancellation
or correction of any entry related thereto, with the Court of First
Instance of the province where the corresponding civil registry is
located. (CF! is now referred to as RTC)
NOTE:
WHAT CHANGES ARE AUTHORIZED?
1. Changes that are authorized are those changes which are
merely clerical in nature. Those which affect civil status,
nationality or citizenship are not authorized. All these
and other substantial changes should be threshed out in
a proper action.
2. Notice and Publication - Upon the filing of the petition,
the court shall, by an order, fix the time and place for the
hearing of the same, and cause reasonable notice thereof
to be given to the person named in the petition. The court
· shall also cause the order to be published once a week
for three (3) consecutive weeks in a newspaper of general
circulation in the province. (Sec. 4, Rule 108, ROC)
CRIMINAL PROCEDURE
DEFINITION
Criminal procedure is a part of remedial law which provides for
the apprehension, prosecution, conviction or acquittal, as the case
may be, of a person who is accused of having committed a crime.
CRIMINAL JURISDICTION
Criminal jurisdiction is the authority to hear and try a
particular offense and impose the punishment for it.
ELEMENTS OF JURISDICTION IN CRIMINAL ACTIONS
The elements of jurisdiction of a trial court over the subject
matter in a criminal case are:
(a) The nature of the offense and/or penalty attached thereto;
(b) The fact that the offense has been committed within the
territorial jurisdiction of the court.
Non-concurrence of either of these two (2) elements, may be
challenged by an accused at any stage of the proceedings in the court
below or on appeal. In the absence of any of the said elements, a
judgment of conviction is null and void. (U.S. vs. Jayme, 24 Phil. 90,
93.)
REQUISITES FOR VALID EXERCISE OF CRIMINAL JURISDICTION
Before a court can validly exercise its power to hear and try a
case, the following requisites must be present:
(a) There must be jurisdiction over the s ubject matter;
(b) There must be jurisdiction over the territory where the
offense was committed; and
248 INTRODUCTION TO LAW CHAPTER XVI 249
REMEDIAL LAW

(c) There must be jurisdiction over the person of the accused. HOW IS A CRIMINAL ACTION COMMENCED?
Jurisdiction over the territory means that an accused can be It is commenced either by complaint or information in the name
tried only in the place where he committed the crime or where any of the People of the Philippines against all persons who appear to be
of the essential ingredients of the crime took place. responsible thereof.
Jurisdiction over the person of the accused may be obtained by
voluntary appearance or surrender of the accused or by arrest. WHAT ARE THE CRIMES THAT SHALL BE PROSECUTED ONLY
UPON THE COMPLAINT OF THE OFFENDED SPOUSE?
DISTINCTION
The crimes of adultery and concubinage shall not be prosecuted,
except upon a complaint filed by the offended spouse.
COMPLAINT INFORMATION
(a) A sworn statement charg- (a) A written statement of WHEN THE OFFENDED PARTY PROSECUTES A CRIMINAL
ing a person with an of- accusation charging a PROSECUTION FOR ADULTERY AND CONCUBINAGE, WHO
fense, subscribed by the pe1·son with an offense SHOULD BE IMPLEADED?
offended party, any peace subscribed by the Fiscal The offended party cannot institute criminal prosecution for
officer and other employee and filed with the Court. said crimes without including both guilty parties, if they are both
of the government or gov-
alive, nor, in any case, if the offended party has consented to the
ernmental institution in-
offense or pardoned the offenders.
charge of the enforcement
or execution of the law.
WHAT ARE THE CRIMES THAT SHALL BE PROSECUTED ONLY
(b) Filed either court or in the (b) Filed directly with the
UPON THE COMPLAINT OF THE OFFENDED PARTY, OR HER
Fiscal's Office. Court. PARENTS, GRANDPARENTS, OR GUARDIAN?
The offense of seduction, abduction, or acts of lasciviousness
WHO MUST PROSECUTE THE CRIMINAL ACTION? shall not be prosecuted expect upon a complaint filed by the offended
party or her parents, grandparents, or guardian, nor, in any case,
AS A RULE: A criminal action either commenced by complaint if the offender has been expressly pardoned by the above-named
or by information shall be prosecuted under the discretion and
persons, as the case may be.
control of the Fiscal.
EXCEPTION: However, when there is no Fiscal available in IN CASE OF DEATH OR INCAPACITY OF THE OFFENDED PARTY,
the Municipal Trial Court, the following persons may prosecute the AND THE LATER HAS NO PARENTS, GRANDPARENTS, OR
case: GUARDIAN, WHO SHALL INSTITUTE THE CRIMINAL ACTION IN
(a) The offended party; HER BEHALF?
(b) Any peace officer; and The State. (Sec. 5, 3rd par., RRCP)
(c) Public officer charged with the enforcement of the law
violated. IN CASE THE OFFENDED PARTY IS A MINOR, CAN SHE INSTITUTE
THE PROSECUTION OF THE ABOVE OFFENSES?
Such authority shall cease in the following manner:
(a) Upon intervention of the Fiscal; or Yes, unless she is incompetent or incapable of doing so upon
grounds other than her minority.
(b) Upon elevation of the case to the Regional Trial Court.
250 INTRODUCTlON TO LAW
IN CASE THE OFFENDED PARTY WHO IS A MINOR FAILS TO FILE
A COMPLAINT, WHO CAN FILE THE SAME?
Her parents, grandparents, or guardian may file the same.
WHAT SHOULD A COMPLAINT OR INFORMATION STATE?
"Sec. 8. Designation of the offense. - The complaint or
information shall state the designation of the offense given by
the statute, aver the acts or omissions constituting the offense
and SPECIFY ITS QUALIFYING AND AGGRAVATING CIR-
CUMTANCES. If there is no designation of the offense, reference
shall be made to the section or subsection of the statute punishing it.
Sec. 9. Cause of accusation. - The acts or omissions
complained of as constituting the offense and the aggravating
circumstances must be stated in ordinary and concise language and
not necessarily in the language used in the statute but in terms
sufficient to enable a person of common understanding to know
what offense is being charged as well as ITS QUALIFYING AND
AGGRAVATING CIRCUMSTANCES and for the court to pronounce
judgment."
IF THERE IS AN ERROR IN THE NAME OR IDENTITY OF THE
ACCUSED, HOW SHOULD IT BE RAISED?
Ifin the course of the proceeding, the true name ofihe accused
is disclosed by him, appears in the other manner to the court, the
true name of the accused shall be inserted in the complaint or
information and record.
WHAT IS THE OTHER WAY OF IDENTIFYING THE NAME OF THE
OFFENDED PARTY?
He must be described under a fictitious name.
(a) In case of offenses against property, if the name of the
offended party is unknown, the propert-y, subject matter
of the offense, must be described with such particularity
as to properly identify the particular offense charged.
(b) If in the course of the trial, the true name of the person
against whom or against whose property the offense was
committed is disclosed or ascertained, the court must
cause the true name to be inserted in the complaint or
information, or record.
CHAP'fER XVI 251
REMEDIAL LAW
{c) Ifthe offended party is a corporation or any other juridical
person, it is sufficient to state the name ofsuch corporation
or juridical person, or any name or designation by which
it has been or is known, or by which it may be identified,
without necessity of averring that it is a corporation, or
that it is organized in accordance with the law.
IS IT NECESSARY TO STATE THE EXACT TIME WHEN THE
ALLEGED OFFENSE WAS COMMITTED?
No. (Sec. 11, Rule 110, RRCPJ
EXCEPTION: Except when time is a material ingredient
of the offense. In such case, the act may be alleged to have been
committed at any time or near to the actual date at which the offense
was committed or the information or complaint will permit.
DUPLICITY OF THE OFFENSE
A complaint or information must charge but one offense.
EXCEPTION: Except in cases in which existing laws prescribe
a single punishment for various offenses.
WHERE SHALL A CRIMINAL ACTION BE INSTITUTED AND TRIED?
1. Subject to existing laws, in all criminal prosecutions, the
action shall be instituted and tried in the court of the municipality
or territory wherein the offense was committed or any one of the
essential ingredients thereof took place.
2. Where an offense is committed on a railroad train, in an
aircraft, or in any other public or private vehicle while in the course
of its trip, the criminal action may be instituted and tried in the
cow·ts of any municipality or territory where such train, aircraft
or other vehicle passed during such trip, including the place of
departure and arrival.
3. Where an offense is committed on board a vessel in the
course of its voyage, the criminal action may be instituted and tried
in the proper court of the first port of entry or of any municipality
or territory through which the vessel passed during such voyage
subject to the generally accepted principles of international law.
4. Other crimes committed outside the Philippines but
punishable therein under Article 2 of the Revised Penal Code shall
be cognizable by the proper court in which the charge is first filed.
252 INTRODUCTION TO LAW CHAPTER XVI 253
REMEDIAL LAW

RULE 111
When the offended party FILED BY THE ACCUSED IN
seeks to enforce civil liability THE CRIMINAL CASE. BUT
1985 2000 as amended against the accused by way of ANY CAUSE OR AC1'ION
"Sec. 1. Institution of cri- "Sec. 1. Institution of cri- moral, nominal, temperate or WHICH COULD HAVE BEEN
minal and civil actions." minal and civil actions.'' exemplary damages, the filing THE SUBJECT THREOF MAY
fees for such civil action as pro- BE LITIGATED IN A SEPA-
When a criminal action is When a criminal action is
vided in these Rules shall con- RATE CIVIL ACTION.
instituted, the civil action for instituted, the civil action for
stitute a first lien on the judg-
the recovery of civil liability isthe recovery of civil liability (A) THE CRIMINAL AC-
ment except in an award for
impliedly instituted with the ARISING FROM OFFENSE TION FOR VIOLATION OF
actual damages.
criminal action, unless the of- CHARGED shall be deemed BATAS PAMBANSA BLG. 22
fended party waives the civil instituted with the criminal ac- In cases where in the SHALL BE DEEMED TO IN-
action, reserves his right to in- tion unless the offended party amount of damages, other than CLUDE THE CORRESPOND-
stitute it separately, or insti- waives the civil action, reserves actual, is alleged in the com- ING CIVIL ACTION, NO RES-
tutes the civil action prior to the
the right to institute it sepa- plaint or information, the cor- ERVATION TO FILE SUCH
criminal action. rately or institutes the civil ac- responding filing fees shall be CIVIL ACTION SEPARATELY
tion prior to the criminal action. paid by the offended party upon SHALL BE ALLOWED.
Such civil action includes
the filing thereof in court for
recovery of indemnity under the Such civil action includes UPON FILING OF THE
Revised Penal Code, and dam- recovery of indemnity under the trial.
AFORESAID JOINT CRIMI-
ages under Articles 32, 33, 34 Revised Penal Code, and dam- "Sec. 2. Institution of NAL AND CIVIL ACTIONS,
and 2176 of the Civil Code of the ages under Articles 32, 33, 34 separate civil action." THE OFFENDED PARTY
Philippines arising from the act and 2176 of the Civil Code of the SHALL PAY IN FULL THE
or omission of the accused. Except in the cases pro-
Philippines arising from the act FILING FEES BASED ON THE
vided for in Section 3 hereof,
A waiver of any of the civil or omission of the accused. AMOUNT OF THE CHECK IN-
after the criminal action has
actions extinguishes the others. VOLVED, WHICH SHALL BE
The reservation of the right been commenced, the civil ac-
The institution of, or the reser- CONSIDERED AS THE AC-
to institute the separate civil tion which has been reserved
vation of the right to file, any TUAL DAMAGES CLAIMED.
actions shall be made before the cannot be instituted until final
of said civil actions separately WHERE THE COMPLAINT
prosecution starts to present judgment has been rendered in
waive the others. OR INFORMATION ALSO
its evidence and under circum- the criminal action.
SEEKS TO RECOVER LIQUI-
The reservation of the right stances affording the offended (a) Whenever the offended DATED MORAL, NOMINAL,
to institute the separate civil party a reasonable opportunity party shall have instituted the TEMPERATE OR EXEM-
actions shall be made before the to make such reservation. civil action as provided for in PLARY DAMAGES, THE OF-
prosecution starts to present EXCEPT AS OTHER- the first paragraph of Section FENDED PAR1'Y SHALL PAY
the evidence and under circum- WISE PROVIDED IN THESE 1 hereof before the filing of the ADDITIONAL FILING FEES
stances affording the offended RULES, NO FILING FEES criminal action and the crimi- BASED ON THE AMOUNTS
party a reasonable opportunity SHALL BE REQUIRED FOR nal action is subsequently com- ALLEGED THEREIN, IF THE
to make such reservation. ACTUAL DAMAGES. menced, the pending civil action AMOUNTS SUBSEQUENTLY
In no case may the offended shall be suspended, in whatever AWARDED BY THE COURT,
NO COUNTERCLAIM,
party recover damages twice for CROSSCLAIM, OR THIRD stage before final judgment in THE FILING FEES BASED
the same act or omission of the PARTY COMPLAINT MAY BE the criminal action has been ON THE AMOUNT AWARD-
accused. rendered. However, if no final ED SHALL CONSTITUTE A

254 INTRODUCTION TO LAW
judgment has been rendered by FIRST LIEN ON THE JUDG-
the trial court in the civil action, MENT. WHERE THE CIVIL
the same may be consolidated ACTION HAS BEEN FILED
with the criminal action upon SEPARATELY AND TRIAL
application with the court trying THEREOF HAS NOT YET
the criminal action. If the appli- COMMENCED, IT MAY BE
cation is granted, the evidence CONSOLIDATED WITH THE
presented and admitted in the CRIMINAL ACTION. UPON
civil action shall be deemed au- APPLICATION WITH THE
tomatically reproduced in the COURT TRYING THE LA'ITER
criminal action, without preju- CASE IF THE APPLICATION
dice to the admission of addi- IS GRANTED THE TRIAL
tional evidence that any party OF BOTH ACTIONS SHALL
may wish to present. In case of PROCEED IN ACCORDANCE
consolidation, both the criminal WITH SECTION 2 OF THIS
and ci vii actions shall be tried RULE GOVERNING CONSOL-
and decided jointly. IDATION OF THE CIVIL AND
CRIMINAL ACTIONS.
(b) Extinction of the penal
action does not carry with it ex- "Sec. 2. Institution of
tinction of the civil, unless the separate civil action."
extinction proceeds from a dec-
Except in cases provided
laration in a final judgment that
for in Section 3 hereof, after the
the fact from which the civil
criminal action has been com-
might arise did not exist.
menced, the civil action which
has been reserved cannot be in-
stituted initial judgment on the
merits has been entered in the
criminal action.
(a) Whenever the offended
party shall have instituted the
civil action as provided for in
the first paragraph of Section
1 hereof before the filing of the
criminal and the criminal action
is subsequently commenced, the
pending civil action shall be
suspended, in whatever stage
before judgment on the merits
has been entered. However, if
no judgment on the merits has
I~
I
11
CHAPTER XVI 255
REMEDIAL LAW
been entered by the trial court
in the civil action, the same may
be consolidated with the crimi-
nal action upon application with
the court trying the criminal ac-
tion upon. If the application is
granted, the evidence presented
and admitted in the civil action
shall be deemed automatically
reproduced in the criminal ac-
tion, without prejudice to the
admission of additional evi-
dence that any party may wish
to present. In case of consolida-
tion, both the criminal and the
civil actions shall be tried and
decided jointly.
(b) Extinction of the penal
action does not carry with it ex-
tinction of the civil, unless the
extinction proceeds from a dec-
laration in a final judgment that
the fact from which the civil
might arise did not exist.
CHANGES AT A GLANCE
1985 2000 as amended
1. Under the 1985 Rule, the 1. Under the present rule, only
action for recovery of civil the civil liability arising
liability arising from crime from the offense charged
including the civil liability is deemed instituted with
under Articles 32, 33, 34 the criminal action unless
and 2176 of the Civil Code the offended party waives
of the Philippines arising the civil action, reserves
from the same act or omis- his right to institute it
sion are deemed impliedly separately, or institutes
instituted with the criminal the civil action prior to the
action unless the offended criminal action.
256 INTRODUCTION TO LAW CHAPTER XVI 257
REMEDIAL LAW

DISTINCTIONS
party waives the civil ac-
tion, reserves his right to
COMPLAINT
institute it separately, or
institutes the civil action 1. · A sworn statement charging a person with an offense,
prior to the criminal action. subscribed by the offended party, any peace officer and
2. Under the former rule, a 2. A waiver of any of these other employee of the government or governmental
waiver of any of these three three (3) civil actions extin- institution in-charge of the enforcement or execution of
(3) civil actions extinguishes guishes the others is no lon- the law violated.
the others. The institution ger provided in the present 2. Filed either in court or in the Fiscal's Office.
of, or the reservation of, the rule.
right to file any said civil INFORMATION
actions separately waives
the others. 1. A written accusation charging a person with an offense
subscribed by the Fiscal and filed with the courts.
3. The former rule does not 3. The present rule also incor-
include Batas Pambansa porated Circular 57-97 on 2. Filed directly with the court.
Blg. 22. the filing of action for vio-
lation of Batas Pambansa WHO MUST PROSECUTE CRIMINAL ACTIONS?
Blg. 22 mandating the in-
clusion of the correspond- 1. Criminal actions commenced by complaint or by
ing civil action for which information.
the filing fee shall be paid They shall be prosecuted under the direction and
based on the amount of the control of the Fiscal.
check involved.
2. Adultery and concubinage
They shall not be prosecuted except upon a complaint
WHO ARE AUTHORIZED TO CONDUCT A PRELIMINARY INVESTI- filed by the offended spouse. The Fiscal cannot prosecute
GATION? those crimes on his own initiative. The offended party
The following may conduct a preliminary investigation, to wit: must implead both the guilty parties, if they are both
alive.
(a) Provincial or City Fiscal and their Assistants;
3. Seduction, abduction, rape, acts of lasciviousness
(b) Judges of the Municipal Trial Courts and Municipal Trial
Courts; They s hall not be prosecuted except upon a com-
plaint filed by the offended party, or her parents, or her
(c) National and Regional State Prosecutors; and grandparents, or guardian nor in any case if the offender
(d) Other officers as may be authorized by the law. has been expressly pardoned by the abovenamed persons,
as the case may be.
Their authority to conduct preliminary investigation shall
include all crimes cognizable by the proper court in their respective EVIDENCE
territorial jurisdiction. (Sec. 2, Rule 112)
It is the means sanctioned in the Rules of ascertaining in
judicial proceeding the truth respecting a matter of fact.

258 INTRODUCTION TO LAW
KINDS OF EVIDENCE
1. Documentary evidence - Such as documents, papers
or any written letter or communication.
2. Testimonial evidence - Oral or written testimony or
statement of a witness.
3. Real evidence - That which may be exhibited to or
viewed by the Court such as the knife or gun used to kill
Mr.A.
4. Circumstantial evidence It proves a fact from
circumstances surrounding a particular incident or
situation.
5. Corroborative evidence - Additional evidence of the
same kind tending to prove the same fact.
6. Cumulative evidence - Additional evidence of a
different kind tending to prove a fact.
7. Prima facie evidence - Evidence sufficient to prove an
issue unless rebutted by other evidence.
8. Expert evidence - That given by a person who has a
specialized knowledge of a particular field in connection
with which his testimony is requested.
WHAT IS THE BEST EVIDENCE RULE?
Under the best evidence rule, the contents of the document
being offered in evidence cannot be proved unless the original is
produced or its absence accounted for. The reason for the rule is to
prevent uncertainty, ambiguity, and fraud.
Rule 130, Section 2 of the New Rules of Court provides as
follows:
"Sec. 2. Original writing must be produced; excep-
tions. - There can be no evidence of' a writing the contents of
which is the subject of inquiry, other than the original writing
itself, except in the following cases:
(a) When the original has been lost, destroyed or cannot
be produced in court;
(b) When the original is in the possession of the party
against whom the evidence is offered, and the latter
fails to produce it afier reasonable notice;
q
CHAPTER XVI
I
259
REMEDIAL LAW
I
(c) When the original is a record or other document in
the custody of' a public officer;
(d) When the original has been recorded in an existing
record a certified copy of which is made evidence by
law;
(e) When the original consists of numerous accounts or
other documents which cannot be examined in court
without great loss of time and the fact sought to be
established from them is only the general result ofthe
whole."
COPIES OF AN ORIGINAL ARE REGARDED AS ORIGINALS
When an entry is repeated in the regular course of business,
one being copied from another at or near the time of the transaction,
all the entries are equally regarded as originals.
WHAT IS THE PAROL EVIDENCE RULE?
Rule 130, Section 7 of the New Rules of Court defines the parol
evidence as follows:
"Sec. 7. Evidence of written agreement. - When
terms of an agreement have been reduced to writing, it is to be
considered as containing all such terms, and, therefore, there
can be, between the parties and their successors-in-interest, no
evidence of the terms ofthe agreement other than the contents of
the writing, except in the following cases:
{a) Where a mistake or imperfection of the writing, or its
failure to express the true intent and agreement of
the parties, or the validity of the agreement is put in
issue by the pleadings;
(b) Where there is an intrinsic ambiguity in the writing.
The term agreement includes will."
WHAT IS HEARSAY EVIDENCE?
Hearsay evidence is that which a witness says he merely heard
from another. It is an evidence that the witness heard something
from another but it is not an evidence that what was heard was true.
As a rule, hearsay evidence is not admissible as evidence.
260 INTRODUCTION TO LAW

EXCEPTIONS TO THE HEARSAY RULE

1. Dying declarations;
2. Statements of a deceased person against his pecuniary or
moral interest;
3. Statements about pedigree, family reputation or tradition
about pedigree;
4. Statement about matters of public or general interest, or
common reputation;
5. Statements as part of the res gestae;
6. Entries in the course of business, or in the performance of
duty;
7. Official written statements;
8. Commercial lists and similar lists;
9. Learned treatises; and
10. Testimony at a former trial. (Secs. 31 to 41, Rule 140)
RULES CONCERNING ADMISSION TO THE PRACTICE OF LAW
Section 5(5), Article X of the New Constitution provides as
follows:
"Sec. 5. The Supreme Court shall have the following
powers:
xxx
(5) Promulgate rules concerning pleading, practice, and
procedure in all courts, the admission to the practice oflaw, and
the integration of the Bar, which, however, may be repealed,
altered, or supplemented by the National Assembly. Such rules
shall provide a simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for all courts of
the same grade, and shall not diminish, increase, or modify
substantive rig hts.xx x"
Chapter XVII
LABOR LAW AND SOCIAL LEGISLATION
LABOR LAWS DEFINED
Labor laws are those laws that govern the rights and obligations
of employers and employees, providing as well for the rules by which
such rights and obligations may be enforced.
SOCIAL LEGISLATION DEFINED
Social legislation refers to those laws that are designed to uplift
the condition of workers or employees as members of the community
and as human beings with recognized dignity. They are designed to
secure the future of the worker as well as his family because of what
happens to the worker arising from the hazards, incidents or effects
of employment.
Examples: Social Security Act, the Medicare Act and provisions
on compensations for injuries sustained by workers or employees in
the course of or arising from employment.
DISTINCTION BETWEEN LABORS LAWS
AND SOCIAL LEGISLATION
1. LABOR LAWS
(a) They affect the work of the employee.
(b) Generally covers employment for profit or gain.
(c) They directly affect matters of actual employment like
wages and hours of la bor.
(d) They are design ed to meet the daily needs of an employee
for sustenance.

261

INTRODUCTION TO LAW
262
SOCIAL LEGISLATION
(a) They affect the life of the employee.
(b) They cover employment for gain or even non-profit enter-
prises.
(c) They govern the effect of employment like payment
of compensation for injuries sustained while at work,
medical services available to an employee who gets sick.
(d) They involved long-range plans, benefits or aspects.
2. GENERAL PROVISIONS OF THE LABOR CODE OF
THE PHILIPPINES
(A) Declaration of Basic Policy
The State shall afford protection to labor, promote full employ-
ment, ensure equal work opportunities regardless of sex, race or
creed, and regulate the relations between workers and employees.
The state shall assure the rights of workers to self-organization, col-
lective bargaining, security of tenure and just and human conditions
of work. (Art. 3, New Labor Code)
(B) Construction in Favor of Labor
All doubts in the implementation and interpretation of the
provisions of this code, including its implementing rules and
regulations, shall be resolved in favor of labor. (Art. 4, New Labor
Code)
3. EMANCIPATION OF TENENTS
(A) Law Enacted
Republic Act No. 665 7, otherwise known as the "Comprehensive
Agrarian Reform Law of 1988."
(B) Policy of the State
The policy of the State is to pursue a Comprehensive Agrarian
Reform Program (CARP). The welfare of the landless farmers and
farmworkers will receive the highest consideration to promote social
justice to move the nation toward sound rural development and
industrialization and the establishment of owner cultivatorship of
economic size farms as the basis of Philippine agriculture. (Sec. 2,
1st par., R.A. No. 6657)
I('
CHAPTER XVII 263
LABOR LAW AND SOCIAL LEGISLATION
I·
(C) Principles Declared Under Republic Act No. 6657
1. Equitable distribution and ownership ofland (Sec. 2, 2nd
par., R.A. No. 6657);
2. Just distribution of all agricultural lands, subject to
priorities and retention limits, taking into account
ecological, developmental, and equity considerations, and
subject to the payment of just compensation (Sec. 2, 3rd
par., RA. No. 6657)
3. Application of the principles of agrarian reform, or
sterwardship, whenever applicable m accordance with
law (Sec. 2, 5th par., RA. No. 6657);
4. Formation and maintenance of economic-size family
farms to be constituted by individual beneficiaries and
small landowners (Sec. 2, 7th par., R.A. No. 6657)
5. Protection of the rights of subsistent fisherman, specially
oflocal communities, to the preferential use of commercial
marine and fishing resources, both inland and offshores
(Sec. 2, 8th par., R.A. No. 6657);
6. The State shall be guided by the principles that land
has a social function and land ownership has a social
responsibility. Owners ofagricultural land have obligation
to cultivate directly or through labor administration, the
lands they own and thereby make the land productive.
(Sec. 2, 9th par., R.A. No. 6657)
(D) Coverage of CARP
It shall cover, regardless oftenurial arrangement and commod-
ity produced, all public and private agricultural lands, as provided
in Proclamation No. 131 and Executive Order No. 229, including
other lands of the public domain suitable for agriculture.
(E) Priorities
The Department Agrarian Reform (DAR) in coordination with
the Presidential Agrarian Reform Council (PARC) shall plan and
program the acquisition and distribution of all agricultural lands
through a period of ten (10) years from the effectivity of R.A. No.
6657. (Sec. 7, R.A. No. 6657)
264 INTRODUCTION TO LAW CHAPTER XVII 265
LABOR LAW AND SOCIAL LEGISLATION

(F) Distribution Limit with the provisions of Articles 289 and 290 of the Labor
Code.
No qualified beneficiary may own more than three (3) hectares
of agricultural land. (Sec. 23, R.A. No. 6657) In addition, the alien worker shall be subject to deportation
after service of his sentence. (Art. 42, LC)
4. REGULATION OF RECRUITMENT AND PLACEMENT
ACTIVITIES 6. CONDITIONS OF EMPLOYMENT
(a) Pursuant to national development objectives and in order (A) Hours of Work
to harness and maximize the use of private sector resources
Article 83. Normal Hours of Work. - The normal hours of
initiative in the development and implementation of a
comprehensive employment program, the private employ- work of any employee shall not exceed eight (8) hours a day.
ment sector shall participate in the recruitment and Article 84. Hours Worked. - Hours worked shall include (a)
placement of workers, locally and overseas, under such all time during which an employee is required to be on duty or to
guidelines, rules and regulations as may be issued by the be at a prescribed work place, and (b) all the time during which an
Secretary of Labor. (Art. 25, LC) employee is suffered or permitted to work.
(b) Travel agencies and sales agencies ofairline companies are Rest period of short duration during working hours shall be
prohibited from engaging in the business of recruitment counted as hours worked.
and placement of workers for overseas employment
whether for profit or not. (Art. 26, LC) Said provisions shall apply to all employees in all establishments
and underta king whether for profit or not.
(c) Only Filipino citizens or corporations, partnership
or entities at least seventy-five percent (75%) of the EXCEPTIONS
authorized and voting capital stock of which is owned
and controlled by Filipino citizens shall be permitted to Said provisions do not apply to:
participate in the recruitment and placement of workers, 1. Government employees
locally or overseas. (Art. 27, LC)
2. Managerial employees
5. EMPLOYMENT OR NON-RESIDENT ALIENS 3. Field personnel
(A) Non-resident Aliens Need Employment Permit 4. Members of the family of the employer who are dependent
on him for support
Any alien seeking admission to the Philippines for employment
purposes and any domestic or foreign employer who desires to 5. Domestic helpers
engage an alien for employment in the Philippines shall obtain an 6. Persons in the personnel service of another
employment permit from the Department of Labor. (Art. 40, LC) 7. Worker who are paid by the results as determined by
the Secretary of Labor and Employment in appropriate
(B) Prohibition against Transfer of Employment
regulations. (Art. 82, LC)
1. After the issuance of an employment permit, the alien
shall not transfer to another job or change his employer (B) Weekly Rest Period
without prior approval of the Secretary of Labor. It shall be the duty of every employer, whether operating for
2. Any non-resident alien who shall take up employment in profit or not, to provide each of his employees a rest period of not less
violation of the provision of this Title and its implementing than twenty-four consecutive hours after every six (6) consecutive
rules and regulations shall be punished in accordance normal work days. (Art. 91, LC)
266 INTRODUCTION TO LAW CHAPTER XVII 267
LABOR LAW AND SOCIAL LEGISLATION

Why is there no definite rest day that is fixed by the Labor Code? 2. The employer may require an employee to work on any
holiday but such employee shall be paid a compensation
Before the enactment of the Labor Code, the Blue Sunday Law
equivalent to twice his regular rate.
prohibited commercial, industrial, and agricultural establishments
from opening on Sundays to give employees a weekly rest. This 3 . .. As used in this article, "holiday" includes New Year's
was however, assailed by religious minorities as unconditional and Day, Maundy Thursday, Good Friday, the ninth of April,
discriminatory because they worship and rest on other days than the first of May, the twelve of June, the fourth of July,
Sunday. For this reason, no definite rest day was fixed by the Labor twenty-sixth of August, the thirtieth of November, the
Code. twenty-fifth and thirtieth of December, and the day des-
ignated by law for holding general election. (Art. 94, LC)
Can an employer require work on a rest day?
A) Regular holidays
Yes, but only in the following cases, as specified by Article 92
New Year's Day January 1
of the Labor Code, thus:
Maundy Thursday Movable date
(a) In case of actual or impending emergencies caused
by serious accident, fire, flood, typhoon, earthquake, Good Friday Movable date
epidemic or other disaster or calamity to prevent loss of
Araw ng Kagitingan
life and property or imminent danger to the public safety; (Bataan and Corregidor Day) April 9
(b) In case of urgent work to be performed on the machinery, Labor Day May 1
equipment or installation, to avoid serious loss which the
employer would otherwise sutler; Independence June 12
(c) In the event of abnormal pressure of work due to special National Heroes Day Last Sunday of August
circumstances, where the employer cannot ordinarily be Bonifacio Day November 30
expected to resort to other measures;
Christmas Day December 1
(d) To prevent loss or damage to perishable goods;
Rizal Day December 30
(e) Where the nature of work requires continuous operations
and stoppage of work may result in irreparable injury or B) Nationwide special days
loss to the employer; and All Saint Day November 1
(f) Under other circumstances analogous or similar to the Last Day of the Year December 31
foregoing as determined by the Secretary of Labor and
Employment. RIGHT TO SERVICE INCENTIVE LEAVE

(C) Holidays, Service Incentive Leaves and Service
Charges
RIGHT TO HOLIDAY PAY
1. Every worker shall be paid his regular daily wage during
regular holidays, except in retail and service establish-
ments regularly employing less than ten (10) workers.
(a) Every employee who has rendered at least one year of
service shall be entitled to a yearly service incentive leave
of five (5) days with pay.
(b) This provision shall not apply to those who are already
enjoying the benefit herein provided, those enjoying
vacation leave with pay of at least five (5) days and those
employed in establishments regularly than ten (10)
employees or in establishments exempted from granting
268 INTRODUCTION TO LAW
this benefit by the Secretary of Labor after considering
the viability or financial condition of such establishment.
(c) The grant of benefit in excess of that provided herein
shall not be made a subject of arbitration or any court or
administrative action. (Art. 95, LC)
RIGHT TO SERVICE CHARGES
All services charge collected by hotels, restaurants and
similar establishment shall be distributed at the rate of eighty-
five percent (85%) for all covered employees and fifteen percent
(15%) for management. The share of the employees shall be equally
distributed among them. In case the service charge is abolished, the
share of the covered employees shall be considered integrated in
their wages. (Art. 95, LC)
(D) Wages
(d.l) Minimum Wage Rate
HISTORICAL BACKGROUND
Under Republic Act No. 602, otherwise known as the Minimum
Wage Law which took effect on April 6, 1951, the minimum wage
was P4.00 for non-agricultural and P2.50 for agricultural workers.
This was increased by P2.00 under Republic Act No. 4180 and
by another P2.00 under Republic Act No. 6129, which took effect on
June 17, 1970.
The maximum wage was increased through presidential
decrees and letter of instructions during the Martial Law regime,
such as Presidential Decree Nos. 928, 1398, 1614, 1634, 1678 and
1713, and Wage Nos. 1, 2, 4 and 6, and Letter of Instructions No.
174.
Now, the minimum wage rates are fixed in Republic Act No.
6727, known as the Wage Rationalization Law.
Under this law, Regional Tripartite Wage and Productivity
Boards were constituted. These boards fix, if necessary, a feasible
minimum wage, apart from the National Capital Region in Manila
and in about two Autonomous Regions.
Under Wage Order No. NCR-03, the pertinent portion of the
wage order states as follows:
CHAPTER XVII 269
LABOR LAW AND SOCIAL LEGISLATION
"All private sector workers and employees in the National
Capital Region receiving one hundred fifty-four pesos (P154.00) per
day payable as follows:
AMOUNT OF INCREASE DATE OF EFFECTIVITY
Pl 7.00 Fifteen days after
publication of wage order
Pl0.00 April 1, 1994
The following are exempted from this provision upon proper
application, thus:
1. Exporting firms, including indirect exporters with existing
forward contracts with their foreign buyers, principals at
the time of effectivity of this wage order may be exempt
during the lifetime of the said contract but not to exceed
twelve (12) months from the effectivity of this order.
2. Retail/service establishments regularly employing not
more than ten (10) workers.
3. Distressed firms as defined in the NPWC Revised Guide-
lines on Exemption.
(d.2) Forms of Payments
No employer shall pay the wages of an employee by means of
promissory notes, vouchers, coupon, tickets, chits or any object other
than legal tender, even when expressly requested by the employee.
Payment of wages by check or money order shall be allowed
when such manner of payment is customary on the date of effectivity
of this Code, or is necessary because of special circumstances as
specified in appropriate regulations to be issued by the Secretary
of Labor or as stipulated in a collective bargaining agreement. (Art.
102,LC)
(d.3) Time of Payment
Wages shall be paid at least once every two (2) weeks or twice
a month at intervals not exceeding sixteen (16) days. If on account
of force majeure or circumstances beyond the employer's control,
payment of wages on or within the time herein provided cannot be
made, the employer shall pay the wages immediately after such
270 INTRODUCTION TO LAW
force majeure or circumstances have ceased. No employer shall
make payment with less frequency than once a month.
The payment of wages of employees engaged to perform a
task which cannot be completed in two (2) weeks shall be subject
to the following conditions, in the absence of a collective bargaining
agreement or arbitration award
1. That payments are made at intervals not exceeding
sixteen (16) days, in proportion to the amount of work
completed; and
2. That final settlement is made upon completion of the
work. (Art. 103, LC)
(d.4) Place of Payment
Payment of wages shall be made at or near the place of
undertaking, except as otherwise provided by such regulations as
the Secretary of Labor may prescribe under conditions to ensure
greater protection of wages. (Art. 104, LC)
(d.5) Prohibitions Regarding Wages
No employer shall limit or otherwise interfere with the freedom
of any employee to dispose of his wages. He shall not in any manner
force, compel, or oblige his employees to purchase merchandise,
commodities, or other property from the employer or from any
other person, or otherwise make use of any store or services of such
employer or any other person.
No employer, in his own behalf or in behalf of any person, shall
make any deduction from the wages of his employees, except:
(a) In case where the worker is ins ured with his consent by
the employer, and the deduction is to recompense the
employer for the amount paid by him as premium on the
insurance;
(b) For union dues, in cases where the right of the worker
or his union to check-off has been recognized by the
employer or authorized in writing by the individual
worker concerned; and
(c) In cases where the employer is authorized by law or
regulations issued by the Secretary of Labor. (Arts. 112
and 113, LC)
CHAPTER XVII 271
LABOR LAW AND SOCIAL LEGISLATION
(d.6) Wage Studies and Determination
The Wage Commission in the Department of Labor shall
conduct a continuing study of wage rates in the various agricultural
and non-agricultural industries aJl over the country. The results of
such study shall be periodically disseminated to the government,
labor and management sectors for their information and guidance.
If after such study, the Commission is of the opinion that a
substantial number of employees in a given industry are receiving
wages which, although complying with the minim.urn provided by
law, are less than sufficient to maintain in health, efficiency and
general well-being, taking into account, among others, the peculiar
circumstances of the industry and its geographical location, the
Com.mission shall, with the approval of the Secretary of Labor,
proceed to determine whether a wage recommendation shall be
issued. (Art. 120, LC)
(E) Employment of Minors
Minimum employable age - (a) No child below fifteen
(15) years of age shall be em.ployed, except when he works directly
under the sole responsibility of his parents or guardian, and his
employment does not in any way interfere with his schooling.
(b) Any person between fifteen (15) and eighteen (18) years
of age may be employed for such number of hours and such periods
of the days as determined by the Secretary of Labor in appropriate
regulations.
(c) The foregoing provisions shall in. no case allow the em-
ployment of a person below eighteen (18) years of age in an under-
taking which is hazardous or deleterious in nature as determined by
the Secretary of Labor.
Prohibition against child discrimination - No employer
shall discriminate against any person in respect to terms and
conditions of employment on account of his age. (Arts. 137 and 138,
LC, as renumbered by RA 10151)
7. NLRC (NATIONAL LABOR RELATIONS COMMISSION)
Jurisdiction of Labor Arbiters and the Commission - (a)
The Labor Arbiters shall have the original and exclusive jurisdiction
to hear and decide within thirty (30) working days after submission
of the case by the parties for decision, the following cases involving
272 INTRODUCTION TO LAW
all workers whether agricultural or non-agricultural (Art. 223, LC
as renumbered by RA 10151):
1. Unfair labor practices cases;
2. Those that workers may file involving wages, hours of
work and other terms and conditions of employment;
3. All money claims of workers, including those based on
non-payment or underpayment of wages, overtime com-
pensation, separation pay and other benefits provided by
law or appropriate agreement, except claims for employ-
ees compensation, social security, medicare and mater-
nity benefits;
4. Case involving household services; and
5. Cases arising from any violation of Article 270 of this
Code, including questions involving the legality of strikes
and lockouts.
(b) Technical rules not binding. - In proceeding before
the Commission or any of the Labor Arbiters, the rules of evidence
prevailing in courts of law or equity shall not be controlling and it
is the spirit and intention of this Code that the Commission and its
members and the Labor Arbiters shall use every and all reasonable
means to ascertain the facts in each case speedily and objectively
and without regard to technicalities of law or procedure, all in the
interest of due process. In any proceeding before the Commission of
any Labor Arbiters, the parties may be represented by legal counsel
but it shall be the duty of the Chairman, any Commissioner or any
Labor Arbiter to exercise complete control of the proceedings at all
stages. (Art. 227, LC as renumbered by RA 10151)
(c) Appeal from decision of NLRC. - Decisions, awards,
or orders of the Labor Arbiters or compulsory arbitrators are final
and executory unless appealed to the Commission by any or both of
the parties within ten (10) days from receipt of such awards, orders,
or decisions. Such appeal may be entertained only on any of the
following grounds (Art. 229, LC as renumbered by RA 10151):
(i) If there is prima facie evidence of abuse of discretion
on the part of the Labor Arbiter or compulsory arbitrator;
(ii) If the decision, order, or award was secured through
fraud or coercion, including graft and corruption;
(iii) If made purely on questions of law; and
CHAPTERXVTI 273
LABOR LAW AND SOCIAL LEGISLATION
(iv) If serious errors in the findings of the facts are raised
which would cause grave or irreparable damage or injury to
the appellant.
To.discourage frivolous or dilatory appeals, the Commission or
the Labor Arbiter shall impose reasonable penalty, including fines
or censures, upon the erring parties.
In all cases, the appellant shall furnish a copy of the
memorandum of appeal to the other party who shall file an answer
not later than ten (10) days from receipt thereof.
The Commission shall decide all cases within twenty (20)
working days from receipt of the answer of the appellee.
The decision of the Commission is appealable to the Secretary
of Labor on any of the following.
(a) If there is a prima f'acie evidence of abuse of discretion;
(b) If made purely on questions oflaw; and
(c) If there is a showing that the national security or social
and economic stability is threatened.
The decision of the Commission shall be immediately executory,
even pending appeal, unless stayed by an order of the Secretary of
Labor for special reasons. The decision of the Secretary of Labor
shall be immediately executory; Provided, That the President of
the Philippines may assume jurisdiction over any cases which he
considers national interest cases.
The Philippine Constabulary and other law enforcement agen-
cies may be deputized by the Secretary of Labor in the enforcement
of orders, decisions or awards. (As amended by P.D. No. 1367; refer
to P.D. No. 1391)
8. UNFAIR LABOR PRACTICES
CONCEPT OF UNFAIR LABOR PRACTICE AND
PROCEDURE FOR PROSECUTION THEREOF
Unfair labor practices violate the constitutional right of workers
and employees to self-organization, and inimical to the legitimate
interests of both labor and management, including their right to
bargain collectively. They disrupt industrial peace and hinder the
promotion of healthy and stable labor-management relations.
274 INTRODUCTION TO LAW
Consequently, unfair labor practices are not only violations of
the civil rights of both labor and management but are also criminal
offenses against the State which shall be subject to prosecution and
punishment as herein provided.
Subject to the exercise by the President (Prime Minister), or
by the Minister of Labor, of the powers vested in them by Articles
264 and 265 of this Code, the civil aspects of all cases involving
unfair labor practices, which may include claims for damages and
other affirmative relief, shall be under the jurisdiction of the labor
arbiters. They shall resolve such cases within thirty (30) working
days from the time they are submitted for decision.
Recovery of civil liability in the administrative proceedings
shall bar recovery under the Civil Code.
No criminal prosecution under this Title may be instituted
without a final judgment, finding that an unfair labor practice was
committed, having been first obtained in the preceding paragraph.
During the pendency of such administrative proceeding, the running
of the period of prescription of the criminal offense herein penalized
shall be considered interrupted: Provided, however, That the final
judgment in the administrative proceedings shall not be binding in
the criminal case nor be considered as evidence of guilt but merely
as proof of compliance of the requirements therein set forth. (As
amended by B.P. Elg. 70) (Art. 253, LC as renumbered by RA 10151)
UNFAIR LABOR PRACTICES OF EMPLOYERS
It shall be unlawful for an employer to commit any of the
following unfair labor practices. (Art. 254, LC as renumbered by RA
.10151):
(a) To interfere with, restrain, or coerce employees in the
exercise of their right to self-organization;
(b) To require as a condition for employment that a person
or an employee shall not join a labor organization or shall withdraw
from one to which he belongs;
(c) To contract out services or functions being performed by
union members when such will interfere with, restrain, or coerce
employees in the exercise of their right to self-organization;
(d) To initiate, dominate, assist or otherwise interfere with
the information of administration of any labor organization, includ-
CHAPTER XVII 275
LABOR LAW AND SOCIAL LEGISLATION
ing the giving of financial or other support to it or its organizers or
officers;
{e) To discriminate in regard to hire or tenure of employment
or any term of employment in order to encourage or discourage
membership in any labor organization. Nothing in this Code or in
any other law shall prevent the parties from requiring membership
in a recognized collective bargaining agent as a condition for
employment, except of those employees who are already members of
another union at the time of the signing of the collective bargaining
agreement. Employees belonging to an appropriate collective
bargaining unit who are not members of the recognized collective
bargaining agent may be assessed a reasonable fee equivalent to
the dues and other fees paid by members of the recognized collective
bargaining agent, if such non-union members accept the benefits
under the collective bargaining agreement. Provided, That the
individual authorization required under Article [247), paragraph
(0) of this Code shall not apply to non-members of the recognized
collective bargaining agent;
(f) To dismiss, discharge, or otherwise prejudice or dis-
criminate against an employee for having given or being about to
give testimony under this Code;
(g) To violate the duty to bargain collectively as prescribed by
this Code;
(h) To pay negotiation or attorney's fees to the union or its
officers or agents as part of the settlement of any issue in collective
bargaining or any other dispute; or
(i) To violate a collective bargaining agreement.
The provisions of the preceding paragraph notwithstanding,
only the officers and agents of corporations, associations or
partnership who have actually participated in, authorized or ratified
unfair labor practices shall be held criminally liable. (As amended
by B.P. Elg. 130; as renumbered by RA 10151)
UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS
It shail be unlawful for a labor organization, its officers, agents
or representatives to commit any of the following unfair labor
practices:
(a) To restrain or coerce employees in the exercise of their
right to self-organi.zation: Provided, That the labor organization
276 INTRODUCTION 'l'O LAW
shall have the right to prescribe its own rules with respect to the
acquisition or retention or membership;
(b) To cause or attempt to cause an employer to discriminate
against an employee with respect to whom membership in such
organization has been denied or terminated on any ground other
than the usual terms and conditions under which membership
continuation is made available to another member;
(c) To violate the duty, or refuse to bargain collectively
with the employers, provided that it is the representative of the
employees;
(d) To cause or attempt to cause an employer to pay or deliver
or agree to pay or deliver any money or other things of value, and the
nature of an exaction, for services which are not performed or not to
be performed, including the demand for a fee for union negotiation;
(e) 11 0 ask for or accept negotiation or attorney's fee from
employers as part of the settlement of any issue in collective
bargaining or any other dispute; or
(f) To violate a collective bargaining agreement.
The provisions of the preceding paragraph notwithstanding,
only the officers, members of the governing boards, representatives
or agents or members of labor associations or organizations who
have actually participated in, authorized or ratified unfair labor
practices shall be held criminally liable. (As amended by B.P. Blg.
130) (Art. 255, LC as renumbered by RA 10151)
9. STRIKES AND LOCKOUTS
Strikes, picketing, and lockouts - (a) It is the policy of
the State to encourage free trade unionism and free collective
bargaining. (Art. 269, LC as renumbered by RA 10151)
(b) Workers shall have the right to engage in concerted
activities for purposes of collective bargaining or for their mutual
benefit and protection. The right of legitimate labor organizations
to strike and picket and of employers to lockout, consistent with
the national interest, shall continue to be recognized and respected.
However, no labor union may strike and no employer may declare a
lockout on grounds involving inter-union and intra-union disputes.
(c) In cases of bargaining deadlocks, the duly certified or
recognized bargaining agent may file a notice of strike or the em-
ployer may file a notice of lockout with the Department at least 30
CHAPTER XVII 277
LABOR LAW AND SOCIAL LEGISLATION
days before the intended date thereof. In cases of unfair labor prac-
tice, the period of notice shall be 15 days and in the absence of a
duly certified or recognized bargaining agent, the notice of strike
may be filed by any legitimate labor organization in behalf of its
members. However, in case of dismissal from employment of union
officers duly elected in accordance with the union constitution and
by-laws, which may constitute union busting where the existence
of the union is threatened, 15-day cooling-off period shall not apply
and the union may take action immediately.
(d) The notice must be in accordance with such implementing
rules and regulations as the Secretary of Labor and Employment
may promulgate.
(e) During the cooling-off period, it shall be the duty of the
Secretary to exert all efforts at mediation and conciliation to effect
a voluntary settlement. Should the dispute remain unsettled until
the lapse of the requisite number of days from the mandatory filing
of notice, the labor union may strike or the employer may declare a
lockout.
(f) A decision to declare a strike must be approved by a
majority of the total union membership in the bargaining unit
concerned, obtained by secret ballot meetings or referenda called for
that purpose. A decision to declare a lock.out must be approved by
a majority of the board of directors of the corporation or association
or of the partners in a partnership, obtained by secret ballot in a
meeting called for that purpose. The decision shall be valid for the
duration of the dispute based on substantially the same grounds
considered with the strike or lockout vote that was taken. The
Department may, at its own initiative or upon the request of any
affected party, supervise the conduct of the secret balloting. In
every case, the union or the employer shall furnish the Department
the results of the voting at least seven (7) days before the intended
strike or lockout, subject to the cooling-off period herein provided.
(g) When in his opinion, there exists a labor dispute causing
or likely to cause a strike or lockout in an industry indispensable
to the national interest, the Secretary of Labor and Employment
may assume jurisdiction over the dispute and decide it or certify
the same to the Commission for compulsory arbitration. Such
assumption or certification shall have the effect of automatically
enjoining an impending strike or lockout as specified in the
assumption or certification order. If one has already taken place at
the time of assumption or certification, all striking or locked out

278 IN'l'RODUC'l'I N '1'0 LAW
employees shall immediately return to work and the employer shall
immediately resume operations and readmit all workers under the
same terms and conditions prevailing before the strike or lockout.
The Secretary of Labor and Employment or the Commission may
seek the assistance oflaw enforcement agencies to ensure compliance
with this provision as well as with such orders as he may issue to
enforce the same.
In line with the national concern for a nd the highest respect
accorded to the right of patients to life and health, strikes and
lockouts in hospitals, clinics and similar medical institutions s hall,
to every extent possible, be avoided, and all serious efforts, not only
by labor and management but government as well, be exhausted to
substantially minimize, if not prevent, their adverse effects on such
life and health, through the exercise, however, legitimate, by labor
of its right to strike and by management to lockout. In labor disputes
adversely affecting the continued operation of such hospitals, clinics
or medical institutions, it shall be the duty of the striking union or
locking-out employer to provide and maintain an effective skeletal
workforce of medical and other health personnel, whose movement
and services shall be unhampered and unrestricted, as are necessary
to ensure the proper and adequate protection of the life and health of
its patients, most especially emergency case, for the duration of the
strike or lockout. In such case, t herefore, the Secretary of Labor and
Employment is mandated to immediately assume, within twenty-
four (24) hours from knowledge of the occurrence of such a strike or
lockout, jurisdiction over the same or certify it to the Commission
for compulsory arbitration. For this, purpose, the contending parties
are strictly enjoined to comply with such orders, prohibitions and/or
injunctions as are issued by the Secretary of Labor and Employment
or the Commission, under pain of immediate disciplinary action,
including dismissal or loss of employment status, or payment by the
locking-out employer of backwages, damages or other affirmative
relief, even criminal prosecution against either or both of them.
The foregoing notwithstanding, the President of the Philippines
shall not be precluded from determining the industries that, in
his opinion, are indispensable to the national interest, and from
intervening at any time assuming jurisdiction over any such labor
dispute in order to settle or terminate the same.
(h) Before or at any State of the compulsory arbitration
process, the parties may opt to submit their dispute to voluntary
arbitration.
CHAPTERXVU 279
LABOR LAW AND SOCIAL LEGISLATION
(i) The Secretary of Labor and Employment, the Com-
mission or the voluntary arbitrator shall decide to resolve the dispute
within thirty (30) calendar days from the date of the assumption of
jurisdiction or the certification or submission of the dispute, as the
case may be. The decision of the president, the Secretary of Labor
and Employment, the Commission or the voluntary arbitrator shall
be final and executory ten (10) calendar days after receipt thereof by
the parties.
Prohibited activities - (a) No labor organization or employer
shall declare a strike or lockout without first having bargained
collectively in accordance with Title VII of this Book or without first
having filed the notice required in the preceding Article or without
the necessary strike or lockout vote first having been obtained and
reported to the Department. (Art. 270, LC as renumbered by RA
10151)
No strike or lockout shall be declared after assumption of
jurisdiction by the President or the Secretary or after certi~cat~on
or submission of the dispute to compulsory or voluntary arbitration
or during the pendency of cases involving the same grounds for the
strike or lockout.
Any worker whose employment has been terminated as a
consequence of an unlawful lockout shall be entitled to reinstatement
with full backwages. Any union officer who knowingly participates
in an illegal strike and any worker or union officer who knowingly
participates in the Commission of illegal acts during a ~trike may
be declared to have lost his employment status; Provided, That
mere participation of a worker in a lawful strike shall not consti~ute
sufficient ground for termination of his employment, even if a
replacement has been hired by the employer during such lawful
strike.
(b) No person shall obstruct, impede, or interfere with
by force, violence, coercion, threats or intimidation any p~aceful
picketing by employees during any labor cont~oversy o~ ~n the
exercise of the right of self-organization or collective bargammg, or
shall aid or abet such obstruction or interference.
(c) No employer shall use or employ any strike-breaker, nor
shall any person be employed as a strike-breaker.
(d) No public official or employee, including officers and per-
sonnel of the New Armed Forces of the Philippines of the Integrated
280 INTRODUCTION TO LAW
National Police, or armed person, shall bring in, introduce or escort
in any manner any individual who seeks to replace strikers in
entering or leaving the premises of a strike area, or work in place
of the strikers. 'l'he Police Force shall keep out of the picket lines
unless actual violence or other criminal acts occur therein: Provided,
That nothing herein shall be interpreted to prevent any public officer
from taking any measure necessary to maintain peace and order,
protect life and property, and/or enforce the law and legal order.
(e) No person engaged in picketing shall commit any act of
violence, coercion or intimidation, or obstruct the free ingress to or
egress from the employer's premises for lawful purposes, or obstruct
thoroughfares.
10. TERMINATION OF EMPLOYMENT
In regular cases of regular employment, the employer shall
not terminate the services of an employee except for a just cause
or when authorized by this Title. An employee who is unjustly
dismissed from work shall be entitled to reinstatement without loss
of seniority rights and other privileges and to his full backwages,
inclusive of allowances, and to his other benefits or their monetary
equivalent computed from the time his compensation was withheld
from him up to the time of his actual reinstatement. (As amended by
Sec. 34, ibid.) (Art. 285, LC as renumbered by RA 10151)
REGULAR AND CASUAL EMPLOYMENT
Thi8 provision of written agreement to the contrary not-
withstanding and regardless of the oral agreement of the parties, an
employment shall be deemed to be regular where the employee has
been engaged to perform activities which are usually necessary or
desirable in the usual business or trade of the employer, except where
the employment has been fixed for a specific project or undertaking,
the completion or termination of which has been determined at
the time of the engagement of the employee or where the work or
services to he performed is seasonal in nature and the employment
is for the duration of the season.
An employment shall be deemed casual if it is not covered
by the preceding paragraph: Provided, That any employee who
has rendered at least one year of service, whether such service is
continuous or broken, shall be considered a regular employee with
respect to the activity in which he is employed and his employment
CHAPTER XVII 281
LABOR LAW AND SOCIAL LEGISLATION
shall continue while such actually exists. (Art. 280, Philippine Labor
Relation Law)
PROBATIONARY EMPLOYMENT
Probationary employment shall not exceed six (6) months from
the date the employee started working, unless it is covered by an
apprenticeship agreement stipulating a longer period. The services
of any employee who has been engaged on a probationary basis may
be terminated for a just cause or when he fails to qualify as a regular
employee in accordance with reasonable standards made known by
the employer to the employee at the time of his engagement. An
employee who is allowed to work after probationary period shall be
considered a regular employee. (Art. 287, LC as renumbered by RA
10151)
TERMINATION BY EMPLOYER
An employer may terminate an employee for any of the follow-
ing causes:
(a) Serious misconduct or willful disobedience by the
employee of the lawful orders of his employer or representative in
connection with his work;
(b) Gross and habitual neglect by the employee of his duties;
(c) Fraud or willful breach by the employee of the trust
reposed in him by his employer or duly authorized representative;
(d) Commission of a crime or offense by the employee against
the person of his employer or any immediate member of his family
of his duly authorized representative; and
(e) Other causes analogous to the foregoing. (Art. 288, LC as
renumbered by RA 10151)
CLOSURE OF ESTABLISHMENT AND REDUCTION OF PERSONNEL
The employer may also terminate the employment of any
employee due to the installation oflabor-saving devices, redundancy,
retrenchment to prevent losses or the closing or cessation of
operation of the establishment or undertaking unle8s the closing
is for the purpose of circumventing the provisions of this Title, by
serving a written notice on the workers and the Department of
Labor and Employment at least one (1) month before the intended
282 INTRODUCTION TO LAW
date thereof. In case of termination due to the installation of labor-
serving devices or redundancy, the worker affected thereby shall be
entitled to a separation pay equivalent of at least his one (1) month
pay or at least one (1) month pay every year of service, whichever is
higher. In case ofretrenchment to prevent losses in cases of closures
or cessation of operation of establishment or undertaking not due
to serious business losses or financial reverses, the separation pay
shall be equivalent to one (1) month pay or at least one-half (1/2)
month pay for every year of service, whichever is higher. A fraction
of at least six (6) months shall be considered one (1) whole year. (Art.
289, LC as renumbered by RA 10151)
DISEASE AS GROUND FOR TERMINATION
An employer may terminate the services of an employee
who has been found to be suffering from any disease and whose
continuous employment is prohibited by law or is prejudicial to his
health as well as the health of his co-employees: Provided, That he
is paid separation pay equivalent to at least one (1) month salary or
to one-half(l/2) month salary for every year of service, whichever is
greater, a fraction of at least six (6) months being considered as one
(1) whole year. (Art. 290, LC as renumbered by RA 10151)
TERMINATION BY EMPLOYEE
(a) An employee may terminate without just cause the
employer-employee relationship by serving a written notice on the
employer at least one (1) month in advance. The employer upon
whom no such notice was served may hold the employee liable for
damages.
(b) An employee may put an end to the relationship without
serving any notice on the employer for any of the following just
causes:
1. Serious insult by the employer or his representative
on the honor and person of the employee;
2. Inhuman and unbearable treatment accorded the
employee by the employer or his r epresentative.
3. Commission of a crime or offense by the employer or
his representative against the per son of the employee or any of
the immediate members of his family; and
CHAPTER XVII 283
LABOR LAW AND SOCIAL LEGISLATION
4. Other causes analogous to any of the foregoing. (Art.
285, Philippine Labor Relations Law)
11. RETIREMENT FROM THE SERVICE
Any employee may be retired upon reaching the retirement
age established in the collective bargaining agreement or other
applicable employment contract.
In case of retirement, the employee shall be entitled to receive
such retirement benefits as he may be earned under existing laws
and any collective bargaining or other agreement. (Art. 293, LC as
renumbered by RA 10151)
12. THIRTEENTH MONTH PAY
The thirteenth month pay shall not be less than one-twelfth
(1/12) of the total basic salary earned by an employee within a year.
It is not to be considered as part of the regular wage for purposes
of computing overtime and premium compensation, SSS, Medicare
and company retirement plans, unless expressly stipulated to be
a part pursuant to a collective bargaining agreement between the
employer and the worker or by existing practice or policy by the
employer.
For the purpose of computing the same, the "basic salary"
shall include all remuneration or earnings paid by his employer for
services rendered but does not include allowances and monetary
benefits which are not considered or integrated as part of the basic
salary, such as cash equivalent of unused vacation and sick leave
credits, overtime, premium, night differential and holiday pay and
cost-of-living allowances. However, the salary related benefit should
be included as part of the basic salary in the computation of the
13th-month pay if by individual or collective agreement, company
practices or policy, the same are treated as part of the basic salary.
(a) NATURE OF THIRTEENTH MONTH PAY
The Court has held that for covered employers, the payment
of a 13th month pay is a mandatory statutory obligation, whereas,
Christmas or mid-year bonuses are contractual obligations, such that
if there exists no agreement between the employer and the workers,
or practice or policy of the employer granting the Christmas or mid-
year bonus, the same will not accrue. The grant of 14th-month pay
284 INTRODUCTION TO LAW
is not likewise a statutory obligation but purely a management
prerogative and only the 13th-month pay is mandated by law
to be paid. It is now a basic labor standard benefit and cannot be
substituted by the grant by the employer of food and electricity to his
employees. (Framalis Farm vs. Minister of Labor and Employment,
177 SCRA89)
(b) EMPLOYERS EXEMPTED FROM COVERAGE
The following employers are not covered by the Presidential
Decree No. 851:
(b.1) The Government and any of its political subdivisions,
including government-owned and controlled corporations,
except those corporations operating essentially as private
subsidiaries of the Government;
(b.2) Employer of household helpers and persons in the personal
service of another in relation to such workers;
(b.3) Employer already paying their employees 13th-month
pay or more in the calendar year or its equivalent at the
time of this issuance; and
(b.4) Employers of those who are paid on purely commission,
boundary, or task basis, and those who are paid fixed
amount for performing specific work, irrespective of the
time consumed in the performance thereof, except when
the workers are paid on piece-rate basis in which case the
employer shall be covered by this issuance insofar as such
workers are concerned.
The term "its equivalent" as used in paragraph (c) shall include
Christmas bonus, mid-year bonus, cash bonuses and other payment
amounting to not less than 1112 of the basic salary but shall not
include cash and stock dividends, costs-of-living allowances and all
the other allowances regularly enjoyed by the employee, as well as
non-monetary benefits. Where an employer pays less than 1/12th of
the employees basic salary, the employers shall pay the difference.
As used herein, workers paid on piece-rate shall refer to those
who are paid a standard amount for every piece-rate or unit of work
performed that is more or less regularly replicated, without regard
to the time spent in producing the same. (Sec. 3, Rules Implementing
P.D. No. 851; Rules Implementing P.D. No. 851)
CHAPTER XVII 285
LABOR LAW AND SOCIAL LEGISLATION
IMPORTANT SOCIAL LEGISLATIONS
(1) SOCIAL SECURITY LAW
BACKGROUND
The Social Security Law was approved on June 18, 1957, and
implemented on September 1, 1957.
Membership in the Social Security System does not emanate
from a bilaterial or consensual agreement where the rights and
obligations of the parties are defined, but from a legal imposition to
provide social security to working men.
As conceived, and as it is now being implemented, the employees
are mandated during their productive years to part with a portion
of their earnings which, together with the contributions required of
their employers, are accumulated and held in reserve by the system
to answer for the payment of benefits when they become due.
SCOPE OF THE SYSTEM
(a) SEC. 9. Compulsory Coverage - (a) Coverage in
the SSS shall be compulsory upon all employees not over sixty
(60) years of age and their employers; Provided, That any benefit
already earned by employees under private benefits plan existing
at the time of the approval of this Act shall not be discontinued,
reduced or otherwise impaired; Provided, further, That private
plans which are existing and in force at the time of the compulsory
coverage shall be integrated with the plan of the SSS in such a way
where the employer's contribution to his private plan is more than
that required of him in this Act he shall pay to the SSS only the
contribution required of him and he shall continue his contributions
to such private plan less his contribution to the SSS so that the
employer's total contribution to his private benefit plan and to the
SSS shall be the same as his contribution to his private plan before
the compulsory coverage; Provided, further, That any changes
adjustments, modifications, eliminations or improvements in the
benefits to be available under the remaining private plan, which
may be necessary to adopt by reason of the reduced contributions
thereto as a result of the integration, shall be subject to agreements
between the employer and employees concerned; Provided, further,
That the private benefit plan which the employer shall continue
for his employees shall remain under the employer's management
and control unless there is an existing agreement to the contrary:

286 INTRODUCTION TO LAW
Provided, finally, That nothing in this Act shall be construed as a
limitation of the right of employers and employees to agree on and
adopt benefits which are over and above those provided under this
Act. (As amended by Sec. 5, RA. No. 1792; and Sec. 5, R.A. No. 2658
and Sec. 2, RA. No. 4587; Sec. 9[a], R.A. No. 1161 as amended)
(b) Filipino recruited in the Philippines by foreign-based
employers for employment abroad may be covered by the SSS on a
voluntary basis. (As amended by Sec. 2, P.D. No. 177, S-1973 and
Sec. 6, P.D. No. 735-S-1975; Sec. 9[b], R.A. No. 1161, as amended)
In determining coverage of an employer operating different
businesses, it is immaterial as to which business the employee is
assigned or working. It is the employer and not the business that is
subject to Social Security compulsory coverage.
SEC. 9-A. Compulsory Coverage of the Self-employed. -
Coverage in the SSS shall also be compulsory upon all self-employed
persons earning Pl,800 or more per annum; Provided, That the
effectivity of coverage of certain group of self-employed shall be
determined by the Commission under such rules and regulations it
may prescribe; Provided, further, That the effectivity of the coverage
of the following self-employed persons shall be in accordance with
Section lO(b) hereof:
All self-employed professionals licensed by the Professional
Regulations Commission or those licensed to practice law.
1. Partners and single proprietors of businesses.
2. Actors and actresses, directors, scriptwriters and news
correspondents who do not fall within the definitions of
the term "employee" in Section 8(d) of this Act.
3. Professionals athletes, coaches, trainers licensed by the
Games and Amusements Boards as well as jockeys and
trainers licensed by the Philippine Racing Commission.
Unless otherwise specified herein, all provisions of the SSS
Law applicable to covered employees shall also applicable to the
covered self-employed persons. (As amended by Sec. 3, P.D. No.
1636, S-1979)
SSS BENEFITS
1. Dependenfs Pensions -The dependent's pension
shall be equivalent to 10 percent of the monthly pension for each
CHAPTER XVII 287
LABOR LAW AND SOCIAL LEGISLATION
dependent child but not exceeding five, beginning with the youngest
and without substitution. (As amended by Sec. 4, P .D. No. 1202,
S-1977; Sec. 12-A, as amended by Sec. 4, P.D. No. 1202, S-1977)
2: · Retirement Benefits -
(a) A covered employee who had paid at least 120 monthly
contributions prior to the semester of his retirement, and;
(2.a.l) Who has reached the age of 60 years and is not
receiving monthly compensation of at least P300 or;
(2.a.2) Who has reached the age of 65 years, shall be
entitled for as long as he lives to the monthly pension, Provided,
That his dependents born before his retirement of a marriage
subsisting when he was 57 years old shall be entitled to the
dependent's pension. (As amended by Sec. 4, P.D. No. 1202,
S-1977; Sec. 12-B, as amended by Sec. 4, P.D. No. 1202, S-1977)
(b) A covered member who is 60 years old at retirement and
does not qualify for pension benefits under paragraph (a) above,
shall be entitled to lump sum benefit equal to the total contributions
paid by him and on his behalf; Provided, That he is separated from
employment and is not continuing payment of contributions to the
SSS on his own. (Sec 12-B[b], as amended by Sec. 4, P.D. No. 1202,
S-1977)
(c) The monthly pensions shall be reduced upon the re-
employment of a retired employee who is less than 65 years old by
an amount equivalent to one-half (1/2) his earnings over P300. He
shall again be subject to Sec. 18 and his employer to Sec. 19 of this
Act. (As amended by Sec. 7, R.A. No. 1972; Sec 7, R.A. No. 2658;
Sec. 8, P.D. No. 735; Sec. 4, P.D. No.1202 and Sec. 7, P.D. No. 1636,
S-1979; Sec. 12-B[c], as amended by Sec. 4, P.D. No. 1202, S -1977)
(d) Upon the death of the retired employee pensioner, his
primary beneficiaries as of the date of his retirement shall be
entitled to 100 percent of the monthly pension and his dependents
to the dependent's pension; Provided, That if he has no primary
beneficiaries and he dies within 60 months from the start of his
monthly pension, his secondary beneficiaries shall be entitled to
a lump sum benefit equivalent to the bigger of: (1) 20 times the
monthly pension, and the total monthly pension paid by the SSS
288 INTRODUCTION TO LAW CHAPTERXVTI 289
LAUOR LAW AND SOCIAL LEGISLATION

excluding the dependents' pension, or (2) the difference of 60 times and considered a new member. (As amended by Sec. 6, P.D. No. 1202,
the monthly pension and the total monthly pension paid by SSS S-1977; Sec. 13-A, as amended by Sec. 6, P.D. No. 1202, S-1977)
excluding the dependent's pension. (As amended by Sec. 7, P.D. No.
5. Permanent Partial Disability - If the disability
1636, S-1979 and E.O. No. 102, signed on December 24, 1986; SSS
is permanent partial and such disability occurs after 36 monthly
Res. Nos. 525, 527 and 604 dated Aug. 3, 1990, Aug. 7, 1990 and
contributions have been paid prior to the semester of disability, the
Sept. 11, 1990, respectively; Sec. 12-B[d], as amended by Sec. 4, P.D.
benefit shall be the monthly pension for permanent total disability
No. 1202, S-1977)
payable not longer than the period designated in the following
3. Death Benefits - Upon the covered employee's death, schedule:
his primary beneficiaries shall be entitled to the monthly pension
and his dependents' pension to the dependent's pension; Provided, COMPLETE AND PERMANENT NUMBER OF MONTHS
That he has paid at least 36 monthly contributions prior to the LOSS OF USE OF
semester of death; Provided, further, That if the foregoing condition
One thumb 10
is not satisfied, his primary beneficiaries shall be entitled to a lump
sum benefit equivalent to 35 times the monthly pension; Provided, One index finger 8
further, That if he has no primary beneficiaries, his secondary One middle finger 6
beneficiaries shall be entitled to a lump sum benefit equivalent to 20
times the monthly pension: Provided, however, That the minimum One ring finger 5
death benefit shall not be less than the total contribution paid by him One little finger 3
and his employer on his behalf nor less than Pl,000.00: Provided, One big toe 6
finally, That the beneficiaries of the covered employee who dies
without having paid at least three monthly contributions shall be One hand 39
entitled to the minimum benefit. (As amended by Sec. 5, P.D. No. One arm 50
1202, S-1977 and Sec. 8, P.D. No. 1636, S-1979; Sec. 13, SSS Law,
One foot 31
as amended by Sec. 5, P.D. No. 1202, S -1977 and Sec, 8, P.D. No.
1636, S-1979) One leg 46
4. Permanent Disability Benefits - (a) Upon the covered One ear 10
employee's permanent total disability, if such disability occurs Both ears 20
after he had paid at least 36 monthly contributions prior to the
semester disability, he shall be entitled to the monthly pension Hearing of ear 10
and his dependents to the dependent's pension; Provided, That if Hearing of both ears 50
the disability occurs before he has paid 36 monthly contributions
Sight of one eye 25
prior to the semester disability, he shall be entitled to a lump sum
benefit equivalent to 35 times the monthly pension; Provided,
(2) GSIS (GOVERNMENT SERVICE INSURANCE
further, That the minimum disability benefit shall not be less than SYSTEM)
the total contributions paid by him and his employer on his behalf
nor less than Pl,000: Provided, further, That a covered employee BACKGROUD
who becomes permanently totally disabled without having paid at
least three monthly contributions shall be entitled to the minimum The government Service Insurance System (GSIS) was
benefit; Provided, finally, That a member who (1) received a lump created and established to promote the efficiency and welfare of the
sum benefit and (2) is re-employed not earlier than one year from the employees of the government and to pension system under Act Nos.
day of his disability shall again be subject to compulsory coverage 1638, 3055 and 1313.
290 INTRODUCTION TO LAW CHAPTER XVII 291
LABOR LAW AND SOCIAL LEGISLATION

The first comprehensive law on retirement and pension benefits (d) Funeral Benefits (Sec. 19);
was Commonwealth Act No. 186of1936.
(e) Sickness Benefits (Sec. 20); and
COVERAGE (f) Life Insurance Benefit in the form of Compulsory
The following are compulsorily covered by the GSIS: Insurance Optional Insurance if desired. (Secs. 21
and 22)
(a) All permanent employees below sixty (60) years of age,
shall upon employment in the government service, be compulsory BASIC MONTHLY PENSION
members of the System including non-permanent employees who
are already covered by R.A. No. 4968 of the time of effectivity of P.D. Old age pension shall be paid to a member who:
No. 1146;
1. has at least fifteen years of service;
(b) All non-permanent employees of the national government 2. is at least sixty (60) years of age; and
agencies and local governments (appointed for a period of at least
two (2] months), shall eventually be compulsorily covered, either 3. is separated from the service. (Sec. 11, Revised Government
simultaneously, in phases or by groups, upon approval of the Service Insurance Act)
President of the Philippines and subject to the availability offunds;
DISABILITY
and
1. Permanent total disability (PTD)
(c) All non-permanent employees of government-owned or
controlled corporation shall be compulsorily covered upon approval 2. Permanent partial disability (PPD)
by the System of the request for membership of their respective
3. Permanent total disability ('rTD)
governing Boards. (Sec. 3, Revised Government Service Insurance
Act) .
(3) COMPREHENSIVE AGRARIAN REFORM LAW
Employee not covered under P.D. No. 1146: Government
employees who have separate retirement schemes under special Sec. 4. Scope. -The Comprehensive Agrarian Reform Law of
laws, like Republic Act No. 910 as amended, which provides for 1988 shall cover, regardless of tenurial arrangement and commodity
retirement for justices, judges and other members of the judiciary produced, all public and private agricultural lands, as provided in
and Republic Act No. 340 for members of the Armed Forces of the Proclamation No. 131 and Execution Order No. 229, including other
lands of the public domain for agriculture.
Philippines are covered by their respective retirement laws and not
by P.D. No. 1146. Their life insurance coverage, however, is governed More specifically, the following lands are covered by the Com-
by C.A. No. 186, as amended. prehensive Agrarian Reform Program:
(a) All alienable and disposable lands of the public domain
BENEFITS devoted to or suitable for agriculture. No reclassification of forest
Qualified members and pensioners of the System are entitled or mineral lands to agricultural lands shall be undertaken after the
to the following benefits: approval of this Act until Congress, taking into account ecological,
developmental and equity considerations, shall have determined by
1. Retirement benefits - law the specific limits of the public domain;
(a) Retirement Benefits for old ages (Secs. 11 and 12); (b) All lands of the public domain in excess of the specific
(b) Permanent Disability Benefits (Secs. 14 and 15); limits as determined by Congress in the preceding paragraphs;
(c) Survivorship Benefits for Death of Member or Pen- {c) All other lands owned by the government devoted to or
sioner (Secs. 16, 17 and 18); suitable for agriculture; and
 292 lN'J'RODUC'I'ION TO LAW
(d) All private lands devoted to or suitable for agriculture
regardless of the agricultural products raised or that can be raised
thereon.
Sec. 5. Schedule of Implementation. - The distribution of
all lands covered by this Act shall be implemented immediately and
completed within ten (10) years from the effectivity thereof.
Sec. 6. Retention Limits. - Except as otherwise provided
in this Act, no person may own or retain, directly or indirectly, any
public or private agricultural land, the size of which shall vary
according to factors governing a viable family-size farm, such as
commodity produced, terrain, infrastructure, and soil fertility as
determined by the Presidential Agrarian Reform Council (PARC)
created h ereunder, but in no case shall retention by the landowner
exceed five (5) hectares. Three (3) hectares may be awarded to each
child of the landowner, subject to the following qualifications: (1)
that he is at least fifteen (15) years of age; and (2) that he is actually
tilling the land or directly managing the farm; Provided, That
landowners whose lands have been covered by Presidential Decree
No. 27 shall be allowed to keep the area originally retained by them
thereunder; Provided, further, That original homestead grantees or
their direct compulsory heirs who still own the original homestead
at the time of approval of this Act shall retain the same areas as long
as they continue to cultivate said homestead.
The right to choose the area to be retained, which shall be
compact or contiguous, shall pertain to the landowner; Provided,
however, That in case the area selected for retention by the
landowner is tenanted, the tenant shall have the option to choose
whether to remain therein or to be beneficiary in the same or
another agricultural land with similar or comparable features. In
case the tenant chooses to remain in the retained area, he shall be
considered a leaseholder and shall lose his right to be a beneficiary
under this Act. In this case, the tenant chooses to be a beneficiary
in another agricultural land, he loses his right as a leaseholder to
the land retained by the landowner. The tenant must exercise this
option within a period of one (1) year from the time the landowner
manifests his choice of the area for retention.
In all cases, the security of tenure to the farmers or farmworkers
on the land prior to the approval of this Act shall be respected.
Upon the effectivity of this Act, any sale, disposition, lease,
management contract or transfer of possession of private lands
CHAPTERXVH 293
LABOR LAW AND SOCIAL LEGl LA'l'I N'
executed by the original landowner in violation of the Act shall be
null and void; Provided, however, That those executed prior to this
Act shall be valid only when registered with the Register of Deeds
within a period of three (3) months after the e:ffectivity of this Act.
Thereafter, all Registers of Deeds shall inform the Department
of Agrarian Reform (DAR) within thirty (30) days of transaction
involving agricultural lands in excess of five (5) hectares.
Sec. 7. Priorities. - The Department of Agrarian Reform
(DAR), in coordination with the Presidential Agrarian Reform
Council (PARC), shall plan and program the acquisition and
distribution of all agricultural lands through a period of ten (10)
years from the effectivity of this Act. Lands shall be acquired and
distributed as follows:
Phase One: Rice and corn lands under Presidential Decree
No. 27; all idle or abandoned lands; all private lands voluntarily
offered by the owners of agrarian reform; all lands foreclosed
by government financial institutions; all lands acquired by the
Presidential Commission on Good Government (PCGG); and all
other lands owned by the government devoted to or suitable for
agriculture, which shall be acquired and distributed immediately
upon the effectivity of this Act, with the implementation to be
completed within a period of not more than four (4)years.
Phase Two: All alienable and disposable public agricultural
lands; all arable public agricultural lands under agro-forest, pastu:e
and agricultural leases already cultivated and planted to crops m
accordance with Section 6, Article XIII of the Constitution; all public
agricultural lands which are to be opened for new development and
resettlement; and all private agricultural lands in excess of fifty (50)
hectares; insofar as the excess hectares is concerned, to implement
principally the rights of farmers and regular farmworkers, who are
landless, to own directly or collectively the lands they till, which
shall be distributed immediately upon the effectivity of the Act, with
the implementation to be completed within a period of not more than
four (4) years.
Phase Three: All other private agricultural lands commencing
with large landholdings and proceeding to medium and small
landholdings under the following schedule:
(a) Landholdings above twenty-four (24) hectares up to fifty
(50) hectares, to begin on the fourth (4th) year from the effectivity of
this Act and to be completed within three (3) years; and
294 INTRODUCTION TO LAW

(b) Landholdings from the retention limit up to twenty-four

(24) hectares, to begin on the sixth (6th) year from the effectivity
of this Act and to be completed within four (4) years; to implement
principally the right of farmers and regular farmworkers who are
landless, to own directly or collectively the lands they till.
The schedule of acquisition and redistribution of all agricultural
lands covered by this program shall be made in accordance with
the above order of the priority, which shall be provided in the
implementing rules to be prepared by the Presidential Agrarian
Reform Council (PARC), taking into consideration the following: the
need to distribute lands to the tillers at the earliest practicable time;
the need to enhance agricultural productivity; and the availability of
funds and resources to implement and support the program.
In any case, the PARC, upon recommendation by the Provincial
Agrarian Reform Coordinating Committee (PARCCOM), may
declare certain provinces or regions as priority land reform areas, in
which case the acquisition and distribution of private agricultural
lands therein may be implemented ahead of the above schedules.
In effecting the transfer within the guidelines, priority must be
given to lands that are tenanted.
The PARC shall establish guidelines to implement the above
priorities and distribution scheme, including the determination
of who are qualified beneficiaries; Provided, That an owner-tiller
may be a beneficiary of the land he does not own but is actually
cultivating to the extent of the difference between the area of the
land he owns and the award ceiling of three (3) hectares.

ARE LANDS LEASED/HELD OR POSSESSED BY MULTINATIONAL

CORPORATIONS OR ASSOCIATIONS COVERED?
Yes, they shall be programmed for acquisition and distribution
immediately upon the effectivity of R.A. No. 6657, with the
implementation to be completed within three (3) years. (Sec. 8, R .A.
No. 6657)