Generally, statutes may be classified as MANDATORY or DIRECTORY. Importance: What effect should be given to the mandate of the statute.

Statutes which commands either positively that something be done, or performed in a particular way, or negatively not to be done.

 A statue which is permissive or discretionary in nature and merely outlines the act to be done in such a way that no injury can result from ignoring it.

 There is no universal rule by which directory provisions in a statute may in all circumstances be distinguished from those which are mandatory. Neither there is an absolute test for determining whether a statutory direction is considered to be mandatory or directory. The final arbiter is the legislative intent.

 Whether a statute is mandatory or directory depends on whether the thing directed to be done is of the essence of the thing required, or is a mere matter of form, and what is a matter of essence can often be determined only by judicial construction.

QUESTIONS Does the statute prescribe a result in addition to, or apart from, what it requires? Will third parties suffer as a consequence of what the person charged by the statute to do within a prescribed limit fails to do? Does the law give a person no alternative choice? Is what the statute prescribes a matter of substance not form? Will there be more injury to the public by a disregard of what the law provides?

MANDATORY DIRECTORY YES YES NO NO

YES YES YES

NO NO NO

 The use of words of command such as shall, must, ought or should, or prohibition such as cannot, shall not, or ought not are generally regarded as MANDATORY. The use of permissive words such as may or words importing permissiveness are generally DIRECTORY.

Director of Lands vs Court of Appeals G. R. No. 102858 July 28 1997 Issue: W/N newspaper publication of the notice of Initial Hearing in an original land registration case mandatory or directory. Held: It is mandatory. The word shall denotes an imperative and thus indicates the mandatory character of a statute. The law used the term shall in prescribing the work to be done by the Commissioner of Land Registration upon the latters receipt of the court order setting the time for Initial Hearing. While concededly such literal mandate is not an absolute rule in statutory construction, as its import ultimately depends upon its context in the entire provision, we hold that in the present case the term must be understood in its normal mandatory meaning.

Must/ Ought to

Compulsory

Shall

Imperative/ mandatory

Command

 The presumption is that the word shall in a statute is used in an imperative (mandatory) and not in a directory sense.

 Art. 9 of the Civil Code No judge or Court shall decline to render judgment by reason of the silence, obscurity or insufficiency of laws Art. 11 of the Civil Code A custom must be proven as a fact, according to the rules of evidence

COMPLAINT FOR PARTITION VS.

RTC: Ordered the respondents to vacate the property. CA: Dismissed the case for failing to file the appellate court docket fee

Rule 41 of the 1997 Rules of Civil Procedure Section 4. Appellate court docket and other lawful fees. Within the period for taking an appeal, the appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from, the full amount of the appellate court docket and other lawful fees.

Opportunity/ possibility

Confer discretion

May

Directory

Permissive

 Art. 5 of the Revised Penal Code Duty of the court in connection with acts which should be repressed but which are not covered by the law, and in cases of excessive penalties. Whenever a court has knowledge of any act which it may deem proper to repress and which is not punishable by law

Upon appeal the court issued an order:

counsels for both parties are given 30 days from the receipt of this order to file their memoranda in order for this case to be submitted for decision by the court .

Private respondents filed an ejectment suit against the petitioner.

Respondent judge issued an order dismissing the case for failure to prosecute petitioners appeal

ISSUE: WOR mere failure of an Appellant to submit the memorandum required would empower the CFI to dismiss the appeal on the ground of failure to prosecute.
Section 45 of R.A. No. 296: Courts of First Instance shall decide such appealed cases on the basis of the evidence and records transmitted from the city or municipal courts: Provided, That the parties may submit memoranda and/or brief with oral argument if so requested ...

Shall to be construed as May and vice versa Factors to consider: (LEGISLATIVE INTENT) a. consideration of the entire provision b. nature c. object d.consequences that will follow from construing it one way or another.

ISSUE: WOR failure of a LGVHA to file by-laws within the period prescribed under Sec. 46 of the corporation code resulted to their automatic dissolution.

Sec. 46. Adoption of by-laws. Every corporation formed under this Code, must within one (1) month after receipt of official notice of the issuance of its certificate of incorporation by the Securities and Exchange Commission, adopt a code of by-laws for its government not inconsistent with this Code.

- Negative statute is one expressed in negative words

or in the form of an affirmative proposition followed by the word only

The use by the legislature of negative, prohibitory or exclusive terms of words in statute is indicative of the legislative intent to make it mandatory.

A statute or provision which contains words of positive prohibition such as shall not, cannot or ought not or which is couched in negative terms importing that the act shall not be done otherwise that designated is mandatory.

 Art. 11 of the Family Code Customs which are contrary to law, public order and public policy shall not be countenanced. Art. 8 of the Revised Penal Code Conspiracy and proposal to commit a felony are only punishable in the cases which the law specifically provides a penalty therefore.