THE CIVIL CODE OF THE PHILIPPINES (REPUBLIC ACT NO. 386, AS AMENDED) PRELIMINARY TITLE CHAPTER 1 Effect and Application of Laws PDF

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1 THE CIVIL CODE OF THE PHILIPPINES (REPUBLIC ACT NO. 386, AS AMENDED) PRELIMINARY TITLE CHAPTER 1 Effect and Application of Laws Art. 1. This Act shall be known as the “Civil Code of the Philip- pines.” (n) COMMENTS: § 1. The Civil Code of the Philippines [1.1] Code defined [1.2] History of Philipp...

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THE CIVIL CODE OF THE PHILIPPINES (REPUBLIC ACT NO. 386, AS AMENDED) PRELIMINARY TITLE CHAPTER 1 Effect and Application of Laws Art. 1. This Act shall be known as the “Civil Code of the Philippines.” (n)

COMMENTS: § 1. The Civil Code of the Philippines [1.1] [1.2] [1.3] [1.4] [1.5]

Code defined History of Philippine Civil Code Sources of Civil Code Physical or mechanical composition Effectivity of Civil Code

[1.1] Code Defined A “code” is a collection of laws of the same kind; a body of legal provisions referring to a particular branch of law. A “civil code,” therefore, is a collection of laws which regulate the private relations of the members of civil society, determining their respective rights and obligations, with reference to persons, things and civil acts.1 [1.2] History of Philippine Civil Code The first civil code in force in the Philippines was the “Civil Code of Spain of 1889” extended to this country by Royal Decree of July 31, 1

1 Tolentino, Civil Code, 1990 ed., p. 11. 1

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1889. It became effective on December 7, 1889. This was followed by Republic Act No. 386, which was approved by Congress on June 18, 1949. Not all our civil laws, however, are to be found in the Civil Code of the Philippines. Several civil laws are scattered in the various special laws promulgated by the legislature. [1.3] Sources of Civil Code The following are the sources of the present civil code: (1) the Spanish Civil Code of 1889; (2) the codes, laws, and judicial decisions, as well as the work of jurists of other countries; (3) doctrines laid down by the Supreme Court of the Philippines; (4) Filipino customs and traditions; (5) Philippine statutes; and (6) the Code Commission itself. [1.4] Physical or Mechanical Composition The Civil Code of the Philippines consists of 2,270 articles divided into four books. Book I deals with Persons; Book II with Property, Ownership and Its Modifications; Book III with the Different Modes of Acquiring Ownership; and Book IV with Obligations and Contracts. Take note, however, that The Family Code of the Philippines repeals Articles 52 to 304, 311 to 355, and 397 to 406 of Book I. Articles 305 to 310; 356 to 396; and 407 to 413 are not repealed. [1.5] Effectivity of Civil Code (R.A. No. 386) According to several cases decided by the Supreme Court, the date of effectivity of the Civil Code of the Philippines was August 30, 1950.2 However, this date was exactly one year after the Official Gazette publishing the Code was released for “circulation,” the said release having been made on August 30, 1949. This ruling with respect to the effective date seems to be contrary to the provisions of the Civil Code itself which states that “[t]his Code shall take effect one year after such publication,”3 not after circulation.

2 Lara vs. Del Rosario, 94 Phil. 778; Raymundo vs. Penas, 96 Phil. 311; Camporendo vs. Aznar, 102 Phil. 1055. 3 Art. 2, NCC prior to amendment by E.O. No. 200.

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Art. 2. Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette, or in a newspaper of general circulation in the Philippines, unless it is otherwise provided. (As amended by E.O. No. 200)

COMMENTS: § 2. Effectivity of Laws [2.1] [2.2] [2.3] [2.4] [2.5] [2.6] [2.7] [2.8] [2.9] [2.10] [2.11] [2.12]

In general Laws providing for its own effectivity Computation of 15-day period When law is silent Publication requirement Where to publish Publication in full Meaning of “newspaper of general circulation” Meaning of clause “unless it is otherwise provided” in Art. 2 Effective immediately upon approval Reduction or extension of 15-day period Meaning of term “laws” in Article 2

[2.1] In General A law may provide for its own effectivity. If the law is silent as to its own effectivity, then it shall take effect only after fifteen (15) days following its complete publication. [2.2] Laws Providing For Its Own Effectivity An example of a law that provides for its own effectivity is the “Family Code of the Philippines” (Executive Order No. 209). Article 257 of the Family Code provides that the Code shall take effect one (1) year after the completion of its publication in a newspaper of general circulation, as certified by the Executive Secretary, Office of the President. Its publication in the Manila Chronicle, a newspaper of general circulation, was completed on August 4, 1987. Thus, in Memorandum Circular No. 85 dated November 7, 1988, it was clarified that the Code took effect on August 3, 1988, and not on August 5, 1988. [2.3] Computation of the 15-Day Period The 15-day period may either be on the 15th day or on the 16th day depending on the language used by Congress in fixing the effectivity date of the statute.

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[2.3.1] 15th Day: If the law declares that it shall become effective “15 days after its publication,” it means that its effectivity is on the 15th day after such publication.4 For example: Sec. 28 of Republic Act No. 7659 (“An Act To Impose The Death Penalty On Certain Heinous Crimes”) provides: “Sec. 28. This Act shall take effect fifteen (15) days after its publication in two (2) national newspapers of general circulation. The publication shall not be later than seven (7) days after the approval hereof.” Thus, in People vs. Simon5 and in People vs. Godoy,6 the Supreme Court ruled that R.A. No. 7659 took effect on December 31, 1993, that is, fifteen days after its publication in the December 16, 1993 issues of the Manila Bulletin, Philippine Star, Malaya and Philippine Times Journal, and not on January 1, 1994 as is sometimes misinterpreted. [2.3.2] 16th Day: If the law declares that it shall be effective “after 15 days following its publication,” its effectivity is on the 16th day thereafter.7 For example: Sec. 8 of Republic Act No. 7691 (“An Act Expanding the Jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts, etc.”) provides: “Sec. 8. This Act shall take effect fifteen (15) days FOLLOWING its publication in the Official Gazette or in two (2) national newspapers of general circulation.” In Administrative Circular No. 09-94 issued by the Supreme Court on June 14, 1994, the Court declared that R.A. No. 7691 became effective on April 15, 1994, fifteen (15) days following its publication in the Malaya and in the Times Journal on March 30, 1994.

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Footnote No. 11 in People vs. Simon, 234 SCRA 555 (1994). 234 SCRA 555, 569 (1994). 6 250 SCRA 676, 732 (1995). 7 Footnote No. 11 in People vs. Simon, 234 SCRA 555 (1994). 5

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[2.4] When Law Is Silent When the law is silent as to its effectivity, then it shall take effect after fifteen (15) days following the completion of its publication.8 For example: In GSIS vs. Commission on Audit,9 a question as to the effectivity of Executive Order No. 79 arose. The law is silent as to its effectivity. In said case, the Court ruled: “The question that arises is when is the executive order effective? The President issued the executive order on December 2, 1986. It was published in the Official Gazette on December 22, 1986. Thus, E.O. No. 79 is effective fifteen (15) days following its publication in the Official Gazette, or on January 07, 1987. xxx” [2.5] Publication Requirement Obviously, when the law does not provide for its own effectivity then it must be published because the date of publication is material in determining the law’s effectivity. If the law, however, provides for its own effectivity, may it become effective even without publication? In previous decisions,10 the Supreme Court ruled that publication in the Official Gazette is necessary only in those cases where the legislation itself does not provide for its effectivity date –– for then the date of publication is material in determining the date of effectivity of the law, which is the 15th day following its publication –– but not when the law itself provides for the date when it goes into effect. Then came the celebrated case of Tañada vs. Tuvera,11 wherein the Supreme Court abandoned the doctrine in Askay and related cases. In the Tañada case, the Court ruled that Article 2 of the Civil Code does not preclude the requirement of publication in the Official Gazette even 8

Art. 2, NCC. 301 SCRA 731, 736 (1999). 10 Askay vs. Cosalan, 46 Phil. 179; Balbuna vs. Sec. of Education, L-14283, Nov. 29, 1960; Camacho vs. CIR, 80 Phil. 848; Mejia vs. Balolong, 81 Phil. 486; Republic of the Phil. vs. Encarnacion, 87 Phil. 843; Phil. Blooming Mills vs. Social Security System, 17 SCRA 1077. 11 136 SCRA 27 (1985). 9

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if the law itself provides for the date of its 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. Without such notice and publication, there would be no basis for the application of the maxim “ignorantia legis non excusat.” It would be the height of injustice, according to the Court, to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one. The contention that only laws which are silent as to their effectivity date need be published in the Official Gazette for their effectivity is manifestly untenable. The proviso “unless it is otherwise provided” in Article 2 of the Civil Code perforce refers only to a law that has been duly published pursuant to the basic constitutional requirements of due process.12 [2.6] Where to Publish In the motion for reconsideration in the Tañada case, a question arose as to where the publication must be made. Must the publication be effected only in the Official Gazzete? This question was answered by the Supreme Court in the resolution of the motion for reconsideration in the Tañada vs. Tuvera case.13 The court resolved the issue by saying that pursuant to the Civil Code and the Revised Administrative Code, publication must be effected in the Official Gazette and not in any other medium. Because of this ruling, E.O. No. 200 was passed by President Corazon Aquino on June 18, 1987, amending Section 2 of the Civil Code. Pursuant to this amendatory law, publication of laws may now either be in the Official Gazette or in a newspaper of general circulation in the Philippines. [2.7] Publication in Full Publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws.14

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Concurring Opinion of Justice Teehankee in Tañada vs. Tuvera, 136 SCRA 27. 146 SCRA 446, promulgated on December 29, 1986. 14 Tañada vs. Tuvera, 146 SCRA 446, 454. 13

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[2.8] Meaning of “Newspaper of General Circulation” To be a newspaper of general circulation, it is enough that it is published for the dissemination of local news and general information, that it has a bona fide subscription list of paying subscribers, and that it is published at regular intervals.15 The term “newspaper of general circulation” does not mean that it is a newspaper with the largest circulation. The fact that there are other newspapers having larger circulation is unimportant.16 [2.9] Meaning of Clause “Unless It Is Otherwise Provided” in Article 2 The clause “unless it is otherwise provided” refers to the date of effectivity and not to the requirement of publication itself, which cannot in any event be omitted. This clause does not mean that the legislature may make the law effective upon approval, or on any other date, without its previous publication. It is not correct to say that under the disputed clause publication may be dispensed with altogether. The reason is that such omission would offend the due process insofar as it would deny the public knowledge of the laws that are supposed to govern it. Surely, if the legislature could validly provide that a law shall become effective immediately upon its approval notwithstanding the lack of publication (or after an unreasonable short period after publication), it is not unlikely that persons not aware of it would be prejudiced as a result; and they would be so not because of a failure to comply with it but simply because they did not know of its existence.17 [2.10] Effective Immediately Upon Approval A statute which by its terms provides for its coming into effect immediately upon approval thereof, is properly interpreted as coming into effect immediately upon publication thereof in the Official Gazette as provided in Article 2 of the Civil Code. Such statute, in other words, should not be regarded as purporting literally to come into effect immediately upon its approval or enactment and without need of publica-

15

Fortune Motors (Phils.) Inc. vs. Metropolitan Bank and Trust Company, 265 SCRA 72. Basa vs. Mercado, 61 Phil. 632. 17 Tañada vs. Tuvera, 146 SCRA 446 (1986). 16

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tion. For so to interpret such statute would be to collide with the constitutional obstacle posed by the due process clause.18 [2.11] Reduction or Extension of 15-Day Period The legislative may, in its discretion, provide that the usual 15-day period shall be shortened or extended. For example, the Civil Code did not become effective after fifteen days from its publication in the Official Gazette but “one year” after its publication.19 [2.12] Meaning of Term “Laws” in Article 2 The term “laws” should refer to all laws and not only to those of general application, for strictly speaking, all laws relate to the people in general albeit there are some that do not apply to them directly. All statutes, including those of local application and private laws, shall be published as a condition for their effectivity.20 [2.12.1] PDs and EOs, Included: Covered by these rules are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers, whenever the same are validly delegated by the legislature or directly conferred by the Constitution.21 [2.12.2] Administrative Rules and Regulations: Administrative rules and regulations are required to be published if their purpose is to enforce or implement existing laws pursuant also to a valid delegation. But if the regulations are merely interpretative and those regulations which are merely internal, i.e., those that regulate only the administrative agency’s personnel and not the public, they are not required to be published. Neither is publication required of the so-called letters of instruction issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties.22

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Concurring Opinion of Justice Feliciano in Tañada vs. Tuvera, 146 SCRA 446, 458. Tañada vs. Tuvera, 146 SCRA 446. 20 Tañada vs. Tuvera, 146 SCRA 446, 453. 21 Id. 22 Id. 19

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[2.12.3] Monetary Board Circulars: Circulars issued by the Monetary Board are required to be published if they are meant not merely to interpret but to “fill in the details” of the Central Bank Act which that body is supposed to enforce.23 As a rule, circulars which prescribe a penalty for their violation should be published before becoming effective, this on the general principle and theory that before the public is bound by its contents, especially its penal provisions, a law, regulation, or circular must first be published, and the people officially and specifically informed of said contents and the penalties for violation thereof.24 However, circulars which are mere statements of a general policy as to how the law should be construed do not need publication in the Official Gazette for their effectivity.25 [2.12.4] Municipal Ordinances: Municipal ordinances are not covered by Article 2 of the Civil Code but by the Local Government Code. [2.12.5] Supreme Court Decisions: The term “laws” do not include decisions of the Supreme Court because lawyers in the active law practice must keep abreast of decisions, particularly where issues have been clarified, consistently reiterated and published in advanced reports and the SCRA.26 Art. 3. Ignorance of the law excuses no one from compliance therewith. (2)

COMMENTS: § 3. Conclusive Presumption of Knowledge of Laws [3.1] [3.2] [3.3] [3.4] [3.5] [3.6]

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Presumption of knowledge of laws Illustration of application of principle Presupposes publication Laws covered Ignorance of law vs. ignorance of fact Difficult questions of law

Id. People vs. Que Po Lay, 50 O.G. 4850. 25 Victorias Milling Co. vs. Social Security Commission, L-16704, March 17, 1962. 26 Roy vs. CA, G.R. No. 80718, Jan. 29, 1988. 24

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[3.1] Presumption of Knowledge of Laws The presumption of knowledge of laws under Article 3 of the Civil Code is conclusive. Everyone is conclusively presumed to know the law. Furthermore, actual notice is not required since constructive notice is sufficient. Article 3 is based on the constructive notice that the provisions of the law are ascertainable from the public and official repository where they are duly published. While the presumption is very far from reality, the same has been established because of the obligatory force of law. Evasion of the law would be facilitated, and the administration of justice defeated, if persons could successfully plead ignorance of the law to escape the legal consequences of their acts, or to excuse nonperformance of their legal duties. The rule is, therefore, dictated not only by expediency but also by necessity. [3.2] Illustration of Application of Principle In Marbella-Bobis vs. Bobis,27 where the accused is prosecuted for the crime of bigamy for not obtaining a judicial declaration of nullity of his first marriage before entering into another marriage, the Supreme Court declared: “Ignorance of the existence of Article 40 of the Family Code cannot even be successfully invoked as an excuse. The contracting of a marriage, knowing that the requirements of the law have not been complied with or that the marriage is in disregard of a legal impediment, is an act penalized by the Revised Penal Code. The legality of a marriage is a matter of law and every person is presumed to know the law.” [3.3] Presupposes Publication The conclusive presumption that every person knows the law presupposes that the law has been published if the presumption is to have any legal justification at all.28 Without such notice and publication, there would be no basis for the application of the maxim “ignorantia legis non excusat.” It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one.29 27

336 SCRA 747, 755 (2000). Tañada vs. Tuvera, 146 SCRA 446. 29 Tañada vs. Tuvera, 136 SCRA 27. 28

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[3.4] Laws Covered The laws referred to under Article 3 of the Civil Code are those of the Philippine laws.30 Article 3 applies to all kinds of domestic laws, whether civil or penal, substantive or remedial. However, the article is limited to mandatory and prohibitory laws.31 It does not include those which are merely permissive. Not Applicable to Foreign Laws: There is no conclu[3.4.1] sive presumption of knowledge of foreign laws. Even our courts cannot take judicial notice of them. They must be specially alleged and proved.32 Thus, ignorance of a foreign law will not be a mistake of ...