Civil Law Review I Rabuya lecture transcribed.pdf PDF

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Civil Law Review – 1st Meeting - January 15, 2017 1. If the law is silent as to its date of effectivity, when will that law take effect? ANSWER: If the law is silent as to its own effectivity, then it shall take effect only after fifteen (15) days following its complete publication. Page 3 2. Can Co...

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Civil Law Review – 1st Meeting - January 15, 2017 1. If the law is silent as to its date of effectivity, when will that law take effect? ANSWER: If the law is silent as to its own effectivity, then it shall take effect only after fifteen (15) days following its complete publication. Page 3 2. Can Congress do away with publication of a law? Can Congress provide a law to become effective even in the absence of publication? ANSWER: In Tanada vs Tuvera case, the Court ruled that Article 2 of the CC does not preclude the requirement of publication in the Official Gazette even if the law itself provides for the date of effectivity since the clear object of the law is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Page 5 3. May the publication of the law be made in the internet? ANSWER: Publication of laws may either be in the Official Gazette or in a newspaper of general circulation in the Philippines. Page 6 4. What if a certain law will be passed by Congress, RA 12779 and it will be passed this year, what if in that law it will be Information Technology Act of the Philippines 2017. What if that law will provide that it shall take effect 15 days after its publication in the Official Gazette. Will that be valid? Can Congress add another venue for publication other than Official Gazette or newspaper of general circulation? ANSWER: Yes. In EO 200 amending Art 2 of the NCC, that can be subjected to an amendment in Congress, expressly or impliedly. 5. If the law says that it shall take effect immediately upon its approval and the law was approved by Congress on March 1, passed by Congress on March 1, approved by the Pres on April 1, published completely in a newspaper of general circulation on May 1. When will that law become effective? ANSWER: May 1. A statute which its terms provides for its coming to effect immediately upon approval thereof, is properly interpreted as coming into effect immediately upon publication thereof in the Official Gazette as provided in the Art 2 of the CC. Page 7 6. What is the Doctrine of Presumed Identity Approach? ANSWER: Also known as the Doctrine of Processual Presumption. A foreign law must be properly pleaded and proved as a fact. Thus if the foreign law involved is not properly pleaded and proved, our courts will presume that the foreign law is the same as our local or domestic or internal law. Page 11 7. There is a foreigner, a Dutch national, married to a Filipina. They had a 2 year old child. The Dutch went back to his country and obtained absolute divorce and went back to the Philippines and married to another Filipina. Since the divorce, he has not been giving support to the child. When the child was already 10, the former Filipina spouse filed violation of RA 9262 for refusing to support the child since the child was 2 years old. Under his national law, the defense of the Dutch, after a divorce, a parent has no longer the obligation to support the child. The Dutch failed to prove the existence of that law in the criminal action. Is it a valid defense?

ANSWER? Yes. Ordinarily, it is the national law of the foreigner that will apply. Under Art. 15 of the CC, “Laws relating to family rights and duties, or to the status, condition and legal capacity or persons are binding upon citizens of the Philippines, even though living abroad. Page 36 Assuming that the foreigner will be able to prove the national law of the Dutch, if you were the Philippine Court, will you apply that law? ANSWER: No. The Philippine Court may refuse recognition of the foreign law if such law is contrary to public policy. Assuming that the foreigner was not able to prove the existence of the foreign law, how will you decide the case? ANSWER: I will convict the accused. Applying the Doctrine of Processual Presumption, if the foreign law involved is not properly pleaded and proved, our courts will presume that the foreign law is the same as our local or domestic or internal law. Under the Family Code, parents are required to support the child and failure to do that is a violation of RA 9262. If it is the mother who failed to give support, will she be liable for RA 9262? ANSWER: No. The law only punishes the father for violating the rights of women and their children. 8. In Art. 3 CC, what kind of law is contemplated? ANSWER: Substantive Law 9. Is there a conclusive presumption of knowledge of foreign laws? ANSWER: No. Even our courts cannot take judicial notice of them. They must be specifically alleged and proved. Page 11 10. If a foreign law will be necessary in resolving a case pending before a Philippine Court, will our court take cognizance of said foreign law? ANSWER: No. Even our courts cannot take judicial notice of them. They must be specifically alleged and proved otherwise the Doctrine of Processual Presumption applies. Page 11 11. What are the exceptions to the rule that laws shall be given prospective application only? ANSWER: a. If the law itself provides for retroactivity Exceptions: a. When the retroactivity of a penal statute will make it an ex post facto law b. When the retroactive effect of the statute will result in impairment of obligation of contracts. b. Penal laws favorable to the accused except if the accused is a habitual delinquent c. If the law is procedural d. When the law is curative e. When the law creates substantive rights Page 13 12. What is an ex post facto law?

ANSWER: It is one that would make a previous act criminal although it was not so at the time it was committed. It is penal in nature. To be an ex post facto law, the law must: 1) refer to criminal matters; 2) be retroactive in its application 3) prejudicial to the accused. Page 13-14 13. How are laws repealed? ANSWER: Laws are repealed in two ways: 1)express or 2) implied. An express repeal is that contained in a special provision of a subsequent law. Implied repeal takes place when the provisions of the subsequent law are incompatible with those of an earlier law and there is no express repeal. Page 20 14. When the laws says that this Act “All laws, presidential decrees and issuances which are inconsistent with this Act are hereby deemed repealed”, is that an express repeal? ANSWER: No. It fails to identify or designate the act or acts that are intended to be repealed. Page 20 15. What are the requisites of an implied repeal? ANSWER: a. The laws cover the same subject matter, and b. the latter is repugnant to the earlier. Page 21 16. Why is implied repeal not favored? ANSWER: Because of separation of powers, the fundament is that the Legislature should be presumed to have known the existing laws on the subject and not have enacted conflicting statutes. Implied repeals are not favored because they rest only on the presumption that because the old and the new laws are incompatible with each other, there is an intention to repeal the old. Page 21 17. What is the difference between repealed of a law and the declaration of unconstitutionality? ANSWER: Both are ways of rendering a law ineffective but the difference is that the former is a legislative act while the latter is a judicial act. 18. If the repealing law itself is repealed, what is the effect upon the law which it previously repealed? ANSWER: The effect of a repeal of the repealing law shall depend on whether the previous repeal was express or implied: Express Repeal: When a law which expressly repeals a prior law is itself repealed, the law first repealed shall not be thereby revived unless expressly so provided. Implied Repeal: When a law which impliedly repeals a prior law is itself repealed, the prior law is itself repealed, the prior law shall thereby be revived, unless the repealing law provides otherwise. Page 25-26 19. What is the effect of declaration of unconstitutionality? ANSWER: Our Court adopted the view that before an act is declared unconstitutional it is an “operative fact” which can be the source of rights and duties. Page 26 20. When the law speaks of a year, what does it mean?

ANSWER: CC (1950)- 365 days whether it be a regular year or a leap year while in the Administrative Code (1987), it composed of 12 calendar months. The SC declared that the provision of Sec. 31, Chapter VIII, Book I of the 1987 Administrative Code, being the more recent law, governs the computation of legal periods with respect to counting “a year”. 21. Is there a situation wherein the provision of the CC is applicable insofar as the meaning of a year is concerned? ANSWER? None. The Administrative Code impliedly repealed Art. 13 of the CC (CIR vs Primetown Property Group, Inc) insofar as the meaning of the year is concerned because both laws are concerned with the computation of legal periods (1st requisite of implied repeal) and the provisions are in conflict and irreconcilable (2nd requisite of implied repeal). Example: one year from January 15, 2017, exclude first day, start counting on the 16, (16,28,31,30,31,30,31,31,30,31,30,31) six 31s, four 30s, one 28, one 16 = 350 plus 15 days of January 2018 which is January 15th -if it is leap year, the 365th day is January 14, 2018 Under the CC, the actual number of days matter. 22. Under the Administrative Code, what is one year from January 15, 2017? ANSWER: January 15, 2018 If leap year, January 15, 2016, using the CC, one year will fall on January 14, 2017 but under the Administrative Code, one year is January 15, 2017, the number of days immaterial. 23. Is 12 calendar months the same with 12 months? ANSWER: No. The provision of the law under Sec.31, Chapter VIII, Book I of the 1987 Administrative Code speaks of twelve calendar months which differs on 12 months which is only 360 days (12x30). 24. When the law speaks of a month, what does it mean? ANSWER: It is understood to be 30 days unless it refers to a specific calendar month in which case it shall be computed according to the number of days the specific month contains. Page 13 R 25. When the law speaks of a day what does it mean? ANSWER? 24 hours Page 13 R 26. When the law speaks of a night, what does it mean? ANSWER: It means from sunset to sunrise. Page 13 R. It is important in Labor Law in terms of night differential; Criminal Law because it is an aggravating circumstance. 27. What is the principle of generality? ANSWER: Philippine penal laws and those of public security and safety are obligatory upon all who live or sojourn in Philippine territory. Page 13 R Principle of Territoriality (Art 4) and Prospectivity (Art 22) – under the RPC whereas the Principle of Generality is under the CC Art. 14

28. Smith Case – military serviceman charged with rape and Ivler case- charged with another crime. The contention of Ivler’s mother is that his son should also be treated as the same with Smith and be under the US Custody. Is that tenable? ANSWER: No. In the case of Smith, he was under the VFA while Ivler was in his individual capacity applying Art. 14 CC which states that “Penal laws shall be obligatory to all who lives or sojourn in Phil. Territory subject to the principles of international law and treaty obligations. 29. What are the exceptions to the principle of generality? ANSWER: a. Treaty Stipulations b. Laws of Preferential Application c. Principles of Public International Law Page 35 30. What are the matters covered by the application of the Nationality principle rule? ANSWER: Family rights and duties, status, condition, and legal capacity are governed by the personal law (Law of Domicile-if this country is following the domiciliary theory or the National Law-if this country is following the nationality theory of the person concerned Art. 15 Page 36 31. On the matter of validity of divorces, the SC tells the applicability of Art. 15, why are we following the nationality rule in determining the validity of a divorce? ANSWER: It talks about the status or condition of the person. In divorce, Philippine nationals are covered by the policy against absolute divorce as against public policy and morality whereas aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. Page 38 32. Can foreigners obtain a decree of divorce here in the Philippines? ANSWER: No because divorce is not recognized in our jurisdiction. A decree of divorce can only be obtained abroad. 33. Filipino citizens are married but living in a foreign country where a divorce decree is recognized as valid. One of them obtained a decree of divorce capacitating him to remarry. Is the decree of absolute divorce obtained by the citizen of the Philippines valid? ANSWER: No. The Nationality principle (Art.15) governs matters affecting the status or condition of a person. Philippine law does not provide for absolute divorce. A marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad, because of Art. 15 and 17 of the CC. Page 37 34. What if the one who secured a divorce is a foreigner married to another foreigner? One of them wants to remarry in the Philippines and applied for recognition of the judgment of divorce. Can our courts recognize the existence of such judgment providing for an absolute divorce obtained by the foreigner? ANSWER: Yes. Aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. Page 38 35. What is the principle of Lex Rei Sitae? ANSWER: Art. 16 CC provides that real and personal properties are subject to the law of the country in which they are situated. Page 42

36. An Australian is married to a Filipina. The two is interested in buying a house and lot in Paranaque. For the purpose of determining the legal capacity of the parties to acquire that house and lot, which law are we going to apply? ANSWER: Philippine law applies following the Lex Situs. Foreigners are prohibited from acquiring private lands except by way of hereditary succession (consanguinity or succession by operation of law which includes compulsory or intestate and not testamentary). On the matter of real property, it is not the nationality principle that will apply on the matter of legal capacity, it is the Lex Situs that will apply even on the matter of legal capacity by way of exception to Art. 15 CC. All issues affecting properties, even legal capacity or formalities are to be governed by Lex Situs and not by Lex Loci Celebrationis especially on lands. 37. What are the exceptions to the principle of Lex Situs even if the properties are involved? ANSWER: a. order of succession b. amount of successional rights c. intrinsic validity of testamentary provisions (Art. 16 of the CC) and d. capacity of the heir to succeed (Art.1039 of the CC) 38. What do you mean by order of succession? (An American living in Texas married to a Filipina. They have an illegitimate child -of Filipino nationality following the citizenship of the mother. The foreigner died. The brothers of the foreigner claim that the illegitimate child is not an heir of the father under the law of Texas. In resolving that issue of whether or not the child is an heir of the father even if the properties subject of succession are in the Philippines, what law do we apply?) ANSWER: Texas law will apply because the issue is order of succession. Order of Succession refers to who are the heirs under the law. 39. The father executed a will with an illegitimate child be he later recognized as his. When he executed his will, he gave all of his properties to his siblings, none was given to the illegitimate child and the properties are here in the Phil. The will is to be probated in the Phil. The illegitimate child opposed the probate alleging that the will is not valid because he was preterited. The siblings claimed no preterition because under Texas Law, there is no compulsory heir and an illegitimate child is not a legal heir. In resolving the issue of preterition, what law do we apply? ANSWER: Texas law will apply because the issue is whether one is a compulsory heir or not which is the primary question in resolving the issue of preterition which is a matter involving order of succession or amount of successional rights and also the intrinsic validity of testamentary disposition even though the property is located in the Philippines. 40. What is the Doctrine of Lex Loci Celebrationis? ANSWER: First Paragraph of Art. 17 CC provides that the forms and solemnities of contracts, wills and other public instruments are governed by the laws of the country in which they are executed. Page 46 41. If the issue is the extrinsic validity and intrinsic validity of a contract, what is the law applicable? ANSWER: Art. 17 1st Paragraph on Lex Loci Celebrationis. Intrinsic validity of a contract is governed by the proper law of the contract or “Lex Contractus”, which may either be the law of the place voluntarily agreed upon by the contracting parties (lex loci voluntatis)

or the law of the place intended by them expressly or impliedly (lex loci intentionis). Page 46 42. What is Damnum Absque Injuria? ANSWER: It refers to the damage resulting from the legitimate exercise of a person’s rights is a loss without injury for which the law gives no remedy. Page 48 43. How does it (DAI) differ from Abuse of Right? ANSWER: In both there is injury but in DAI, the injury is not actionable hence there is no ground for recovery of damages. In DAI, there is good faith while in AOR, there is bad faith. 44. What is Accion In Rem Verso? ANSWER: Art 22. of the CC tells that if a person acquires something at the expense of another without just cause or legal ground through an act or performance by another or any other mans has the obligation to return the same. It contemplates a delivery of plaintiff something to the defendant which the latter is not entitled without legal ground or causebut there is no mistake. Page 67 45. What is the difference of In Rem Verso with Solutio Indebiti? ANSWER: Solutio Indebiti is a concept that there was payment in mistake where someone gained. It can result to an action for recovery of what has been unduly delivered based on solution indebiti. In In Rem Verso, there is also an action for recovery of something that has been unduly delivered but without mistake. The SC held that the most important requisite of Accion In Rem Verso that will distinguish it from Solutio Indebiti, citing the cases of LBP vs Ong and UP vs Philab Industries Inc, the plaintiff must have no other legal remedy under contract, quasi-contract, delict or quasi-delict. If he has available course of action under either of those four, it is not an In Rem Verso. Solutio Indebiti is a form of a quasi-contract hence if one has available action under such quasi-contract, he cannot resort to an Accion In Rem Verso. Page 67-68 46. A made a promise of marriage to B but broke it. Can B sue for damages? ANSWER? No. It is not an actionable wrong citing the case of Villafuerte vs CA. Congress deliberately eliminated from of the New Civil Code that would have made it so. The reason is set forth in the Senate Committees on the Proposed Civil Code telling the legislative intent of Congress. Hence, the SC look into the Committee Draft. Under the Statute of Frauds Art 1403 (c), any agreement in consideration of marriage other than mutual promise to marry are one of the agreements unenforceable by action.

Civil Law Review – 2nd Meeting - January 22, 2017 1. Concept of Prejudicial Question? ANSWER: Prejudicial question is one which arises in a case, the resolution of which question is logical antecedent of the issue involved in the case. Page 98, PAFR, Rabuya 2. What are the elements of Prejudicial Question? ANSWER: a.) the previously instituted civil action involves an issue similarly or intimately related to the issue raised in the subsequent criminal action; and b) the resolution of such issue determined whether or not the criminal action may proceed. Page 98, PARF, Rabuya 3. In a prejudicial question, what is the issue that we consider as prejudicial? ANSWER: The issue in the civil action is the one prejudicial to the one prejudicial to the continuation of the criminal action, and not vice-versa. Page 98, PARF, Rabuya 4. If the criminal case was filed ahead of the civil case and there are two issues there which are intimately related with each othe...