I. INTRODUCTION 1 Tolentino, Civil Code, pp.

1-10 Law: (1) Abstract/general sense the science of moral rules, founded on the rational nature of man, which govern his free activity, for the realization of the individual and social ends, of a nature both demandable and reciprocal; mass of obligatory rules established for the purpose of governing the relations ofpersons in society (2) Specific/material sense a juridical proposition or an aggregate of juridical propositions, promulgated and published by the competent organs of the State in accdance with the Constitution; Roman: a rule of conduct, just, obligatory, promulgated by legitimate authority, and of common observance and benefit; Morato: just precept promulgated by the competent authority for the common good of a people or nation, constitutes an obligatory rule of conduct for all its members Foundations of law: product of social life and creation of human nature; regulates the relations of human beings os that harmony can be maintained in the social group, by placing restrictions on individual liberty in order to make co-existence possible; rests upon the concepts of ORDER, CO-EXISTENCE, and LIBERTY Characteristics of law: (1.) Rule of human conduct (2) Promulgated by competent authority (3) Obligatory (4) Of general observance Laws and morals: - Other forces of regulations, such as morals and religion - Only rules of law have a legal sanction and can be enforce by public authority - In the remote past, mans minds was in a childish state, and spiritual and moral concepts were indistinguishable from the juristic and the legal - JUS Roman, derived from justice; the art of being good and fair Purpose of law and morals: happiness, which cannot exist for man, except through a permanent and stable equilibrium between human personalities Colin and Capitant: Law and morals are two concentric circles; they are two intersecting circles with many principles in a common zone, and yet with some principles of one at variance with those of the other GENERAL DIVISIONS of LAW: Divine Law that which God himself is the legislator and who has promulgated the law Human law- that which is promulgated by man to regulate human actions (general/public law & individual/private law) Kinds of General/Public Law International Law relations between nations and states; bet. Human being in their collective concepts

Constitutional Law relations bet. Human beings as citizens of a state and the governing power Administrative Law that which governs relations between officials and employees of the government Criminal Law guarantees the coercive power of the law Religious Law that which governs the practice of religion

Kinds of Specific Law: Mandatory commands that something be done Prohibitory commands that something should NOT be done Permissive commands that what it permits should be tolerated or respected Savigny: classification is unscientific; more important classification is that of ABSOLUTE and SUPPLETORY Absolute an obligatory character Suppletory leaves the will of the individual free to act Codification of Laws laws multiply and need for compilation arises; systematic organization of the law into one or more codes Code collection of laws of the same kind; a body of legal provisions referring to a particular branch of the law Reasons for codification: Necessity of simplifying and arranging the juridical rules scattered in several laws and customs Necessity of unifying various legislations in the same country Necessity of introducing reforms occasioned by social changes Codification in modern times: Initiated by NAPOLEON when the French CC, known as Code Napoleon, was promulgated in 1804 Took three years to draft the FCC; first draft of German Code took 14 yrs; Swiss and Chile codes took 8 yrs; ARG code took 5 yrs; Philippine CC took seven months Best codes of the world took several revisions Codification in Spain Started by Alfonso X, the Wise, by promulgation in 1255 of the Fuero Real Second step by Alfonso XI, through the Ordenamiento de Alcala of 1384, Las Siete Partidas Followed by other Leyes and Recopilaciones 1st step towards codification of different branches of law: Constitution of 1812, provided a single CC shall govern in all the dominions of the Spanish monarchy Proyecto de Codigo Civil completed in 1851, but never approved Ley de Bases May 11, 1988 promulgated as basis of a new CC, took effect in ESP on 7/24/1889 Codification in the PH 1st step in 1940 when Pres. Quezon created a Code Committee to formulate a CC in the PH During JAP military occupation, Code Committee was retained as an office in the JAP sponsored govt

Records were destroyed in the battle for MNL in 1945 Through EO 48, Pres. Manuel Roxas created a new Code Commission, composed of five members, in view of the need for immediate revision of all existing substantive laws of the PH and of codifying them in conformity with the customs, traditions, and idiosyncrasies of the PH people and with modern trends in legislation and the progressive principles of law FOUR ORIG MEMBERS: Dr. Jorge BOCOBO, Judge Guillermo GUEVARA, Dr. Pedro YLAGAN, and Dean Francisco CAPISTRANO, and fifth member in Arturo TOLENTINO Work was begun on May 8, 1947 First draft was finished on October 22, 1947, revised and final draft completed on Dec 15, 1947, submitted to Congress on January, 1948, approved on June 18, 1949 as RA 386

Civil Law Used in four different concepts: Equivalent to the national law Used to distinguish that body of law composed of plebiscites, imperial constitutions, and others from the jus honorarium or pretorium Understood to mean the law applicable to the citizens of Rome, as distinguished from that applicable to foreigners or the jus gentium Used to designate the opinions of authorized jurisconsults That branch of law which has for its double purposes the ORGANIZATION of the FAMILY and the REGULATION of PROPERTY mass of precepts which determine and regulate the relations of assistance, authority, and obedience among the members of a family, and those which exist among members of a society for the protection of private interests SOURCES of PHILIPPINE CIVIL LAW The New Civil Code Some statutes, such as Copyright Law, Patent Law, Law of Waters, various labor laws from social legislation Spanish and American Law (as indirect or remote sources of our presemt civil law) Influences on SPANISH Civil Law Spanish civil law was influenced by several factors o Roman law o Germanic law o Canon law o Scientific evolutionary thought o Foreign legislation o Doctrines contained in jurisprudence Upon fall of Roman Empire, Spain was overrun by Goths, who established their capital in Barcelona in the year 416, with Ataulfo on the throne During period of Goth supremacy in ESP, caste system developed and Roman law was continued for the conquered people, collected in the CODE OF ALARIC or BREVIARIO de ANIANO CODE of EURIC and CODE of TOLOSA a different set of laws of a Germanic or Gothic character Canonical influence of Spanish civil law was due to the spread of Christianity and the constant intervention of the clergy in legislation

Anglo-American Common Law Many or our laws are of American origin; they can be construed and applied only with the aid of the common law from which they are derived When cases are not covered by the letter of any written law, theories and precedents of Anglo-American cases are not applied when they conflict with well-defined civil law theories based on existing Spanish written law, or a re inconsistent with local customs and institutions During American regime, SC of the PH felt itself bound by rulings of the SC of the US Civil and Commercial Law There is distinction bet. Civil and Commercial law in many countries, but movements towards unification have started e.g. Swiss federal code of obligations, Union of Socialist Soviet Republics, Franco-Italian project Munoz: complete unification is impossible, Vidari strongly opposes unification Disintegration of commercial law into definite, independent branches will be greatest obstacle to unification PARTIAL unification can surely be attained; present CC is a step towards that objective. It has repealed provisions on the code of commerce and unified the law on sales, partnership, agency, deposit, and guaranty II. EFFECT AND APPLICATION OF LAWS Art. 1-13, pp. 1-52 of Tolentino NCC 1-18 Article 1 This act shall be known as the Civil Code of the Philippines. Civil Code defined 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 Philippine Civil Code Civil code in force in the PH was the civil code of ESP of 1889, extended to the PH by Royal Decree of July 31, 1889 To take effect 20 days after publication in the official newspaper in the Islands Published in the Gaceta de Manila on Nov. 17, 1889, took effect on December 7, 1889 Independence of the PH opened the path to a more Filipinized civil law Sources of the Civil Code The Civil Code of 1889 Codes, laws, judicial decisions, as well as works of jurists of other countries Doctrines laid down by the SC of the PH Filipino customs and traditions Philippine statutes, such as the Marriage Law, Divorce Law, Code of Civil Procedure, and the ROC The Code Commission itself Reasons for Foreign Element Contact with Western culture for the last four centuries The element of American culture and the economic relations in the foreseeable future

Concepts of right and wrong are essentially the same throughout the civilized world

Incorporation of Customs - Mostly in family relations and succession - Usually in family law where distinctive features of a CC are largely found Arrangement of the Code - Four books o Book 1 Persons o Book 2 Property, Ownership, and its modifications o Book 3 Different mode of acquiring ownership o Book 4 ObliCon New Rights created Acts contrary to morals Civil Action after acquittal on reasonable doubt Civil Action for Obstruction of Civil Liberty Rights of natural children by legal fiction Wifes rights in case of maladministration of conjugal property by the husband Proof of illegitimate filiation Abatement of private nuisance Reformation of instruments Implied trusts Additional quasi-contracts Liabilities of municipalities for defective condition of streets Moral and nominal damages Subjects omitted Dowry, since it is NOT in accordance with PH customs Censos Use Habitation A. When law takes effect NCC 2 Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided. This Code shall take effect one year after such publication NCC became effective on Aug. 30, 1950 Provisions of the Code on the date when laws become effective apply ONLY when the particular statute does NOT provide its own date of effectivity; where the statute provides that it shall be effective upon approval, no publication is necessary before it becomes effective Revised Administrative Code (RAC) Secs 18-24 Exec. Order 200, Sec. 2 Pesigan v. Angeles Tanada v. Tuvera Farinas v. Executive Secretary MRCA v. Court of Appeals

National Electrification Administration v. Gonzaga Farinas v. House of Reps Fuentes v. Roca B. Ignorance of the Law NCC 3 - Ignorance of the law excuses no one from compliance therewith Presumption of knowledge of the law Everyone is exclusively presumed to know the law because of the obligatory force of law Compliance with it becomes unavoidable, and nobody can escape its effects by alleging, in good faith or in bad faith, that he does not know its provisions Reasons for article Evasion of law would be facilitated if persons could successfully plead ignorance of the law to escape legal consequences of their acts, or to excuse non-performance of their legal duties Actual ignorance of the law would afford immunity from punishment for cirmes and from liability for violations of personal and property rights of others Real reasons If laws will not be binding until they are actually known, social life will be impossible, because most laws cannot be enforced due to their being unknown to many Absurd to absolve those who do not know the law and increase oblifations of those who know it Almost impossible to prove the contrary, when a person claims ignorance of the law We carry norms of RIGHT and WRONG, and a SENSE of DUTY so that our reason indicates many times what we have to do; in more complicated juridical relations, there are LAWYERS who should be CONSULTED What laws covered There is no conclusive presumption of knowledge of foreign laws Ignorance of foreign law wull not be a mistake of law but a mistake of fact Article is limited to MANDATORY and PROHIBITORY laws, does not include those which are permissive Application of Rule Ignorance of the law does not favour or prejudice anyone nor justify the amendment or annulment of a contract No exception admitted In cases of flood, fire, war etc, the official newspaper does not reach some region, interruption of communication is clearly show, article should not be applied because it would be unjust Rule is based on public interest and is designed precisely to avoid abuse through allegation that the law has not come to the knowledge of a party Excuse of ignorance of law may be equitable admitted to show good faith, when new provisions substantially different from those formerly in force are involved Rule should not be applied with equal force to minors, who, due to their lack of intelligence, must be treated differently

Irrevocability of Acts If through MISTAKE or IGNORANCE, a person does an act which prejudices himself, and the injury cannot be remedied without impairing anothers rights, the mistake cannot be corrected to the prejudice of the latter Mistake of fact Ignorance may either be of law or fact Ignorance of FACT: excuses a party from legal consequence Ignorance of LAW: does not excuse a party from legal consequence Mistake of Lawyer No man is expected to know any branch of the law perfectly A lawyer cannot be disbarred for an honest mistake or error of law Kasilag v. Rodriguez Elegado v. CA C. Retroactivity of Laws NCC 4 Laws shall have no retroactive effect, unless the contrary is provided Concept of Retroactive Law Retroactive law one which intended to affect transactions which occurred, or rights which accrued, before it became operative, and which ascribes to them effects not inherent in their nature, in view of the law in force at the time of their occurrence CHANGES or INJURIOUSLY affect a PRESENT RIGHT by going behind it and giving efficacy to anterior circumstances to defeat it, which effect they did not have when the right accrued Creates a new OBLIGATION, imposes a new DUTY, attaches a new DISABILITY, in respect to transactions or considerations already past Reasons for Article Related to Art. 3 ignorance of the law excuses NO ONE To make a law binding even before it has taken effect may lead to arbitrary exercise of the legislative power If subsequent law repealing, or inconsistent with, a prior one would be applied to an act made in pursuance of or under the former law, the law itself would be inconsistent, injustice would be committed, and the people would never know what law to follow Application of Article All statues are to be construed as having only a prospective operation, unless purpose and intention of the legislature to give them a retrospective effect is expressly declared ir is necessarily implied from the language used Doubt must be resolved against the retrospective effect Exceptions: When the law expressly provides Remedial statues Curative statues Laws interpreting others Laws creating new rights

Unconstitutional Provisions: Ex post fact laws Retroactive effect will constitute an impairment of the obligation of contract Penal Statutes Penal laws shall have retroactive effect insofar as they favour the accused who is NOT a habitual criminal, even though final sentence has been rendered Remedial Statutes Those which refer to the method of enforcing rights or of obtaining redress of their invasion Procedure of court may be changed at any time ny law to become effective at once, so long as it does not affect or change vested rights May be made applicable to cases pending at the time of its enactment to insure better administration of justice, and its immediate enforcement is of public interest Period of extinctive prescription may be shortened even in relation to actions the right to which has already accrued Curative Statues Those which undertake to cure errors and irregularities, thereby validating judicial or administrative proceedings, acts of public officers, or private deeds and contracts which otherwise would not produce their intended consequences by reason of some statutory disability or the failure to comply with some technical requirement Cannot violate constitutional provisions, destroy vested rights of third persons, cannot affect judgments that have become final Interpreting statues Those intended to clarify doubts or interpret existing laws Laws creating new rights New law shall not have retroactive effect only governs rights arising from acts done under the rule of former law; if a right be declared for the first time by a new law it shall take effect from the time of such declaration, even though it has arisen from acts subject to the former laws, provided that it does not prejudice another acquired right of the same origin Expressly contained in the transitory provision of the CC NCC 2252-2269 Transitory Provisions RPC 22 FC 256 Code shall not have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the CC or other laws Frivaldo v COMELEC Aruego v CA Francisco v CA Pesca v Pesca Heirs of Eduardo Simon v Chan Llave v Republic D. Mandatory of Prohibitory Laws

NCC Art. 5 Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity. NCC Art. 17(3) Prohibitive laws concerning persons, their acts or property, and thos which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. Mandatory and directory laws Prime object is to ascertain the legislative intention Provisions which are mere matter of form, or which are not material, do not affect any substantial right, and do not relate to the essence of the thing to be done, so that compliance is a matter of convenience rather than substance, are considered to be DIRECTORY Statutory provisions which relate to matters of substance, affect substantial rights, and are the very essence of the thing required to be done are MANDATORY Violation of directory laws Acts contrary to directory, permissive, or suppletory laws are not nullified by this article Directory provisions are not intended by the legislature to be disregarded; courts must determine consequences of not obeying them Violation of mandatory laws Violation of a mandatory or prohibitory statute renders the act illegal and void When the law authorizes validity Law as juridical order in its totality Legislator has prohibited the performance of a particular act, and has even provided a penalty, w/o destroying its validity in case it is done in spite of the prohibition Nullity of the act may bring about harmful consequences which the law does not sanction Manresas three exceptions: o Where violation does not refer to an essential matter, the law considers that nullity may be more disadvantageous than validity e.g. marriage is solemnized without one or more formal requirements; marriage is valid but parties are criminally liable o The law may make the validity of the act depend upon the consent of the party directly interested in the nullity of such act e.g. marriages annullable by force or fraud validate by injured party freely cohabiting with the cohabiting with the party guilty of force or fraud after force has ceased or fraud discovered o Law may declare nullity of an act, but at the same time recognize its effects as legally existing e.g. annulment of a marriage, but children are legit E. Waiver of Rights NCC Art. 6 NCC Art. 2035

NCC Art. 6 Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. NCC Art. 2035 No compromise upon the following questions shall be validL 1. The civil status of persons 2. The validity of a marriage or a legal separation 3. Any ground for legal separation 4. Future support 5. The jurisdiction of courts 6. Future legitime Elements of right The SUBJECT, the OBJECT, the EFFICIENT CAUSE Subject Are Persons; rights exist only in favour of persons Two kinds: o Active entitled to demand the enforcement of the right o Passive duty-bound to suffer its enforcement; a determinate person in what are known as personal rights, and indeterminate in what are known as real rights Object Things and services Intended for the satisfaction of human wants, physical and spiritual Efficient cause Fact that gives rise to legal relation Spring from the will of man or independently of such will Contract arises from the will of man; fortuitous event is independent of such will Kinds of Rights Political referring to the participation of persons in the govt of the State Civil includes to all others Civil Rights Rights of personality/human rights all rights intended to protect the human personality in its existence, integrity, and development, in its physical, intellectual, and moral aspects Family rights includes rights of a person as a member of the family Patrimonial rights tend to the economic satisfaction of men, and are measurable pecuniarily o Real rights ownership, mortgage o Personal rights right to collect a debt o Rights of personality and family rights are inherent in man, regardless of property but may have pecuniary effects in some cases e.g. RIGHT TO INDEMNITY; not subject to waiver but patrimonial rights CAN BE WAIVED Renunciation or Waiver Waiver the relinquishment of a known right with both knowledge of its existence and an intention to relinquish it

Right, benefit, or advantage must exist at the time of waiver; there must be actual or constructive knowledge of such existence, there must be INTENTION to relinquish it Voluntary choice is the essence of waiver

Express or implied Implied waiver when from the acts or conduct of a party the intention to relinquish a right may be reasonably inferred o Waiver cannot be implied from doubtful acts o There must be clear, unequivocal, and decisive act of a party showing that purpose o May also be implied from a failure or neglect to assert the right at a proper time Reason for article Person can renounce aright established in favour of his benefit because he prejudices nobody thereby Renunciation must not prejudice the rights of other who have not intervened in such renunciation; much less can it impair public order or interest bec these are superior to the individual will Requirements of Waiver Must actually have the right Must have the capacity to make the renunciation Renunciation must be made in clear and equivocal manner; renunciation can be tacit, provided intent to renounce can clearly be established Renunciation of a particular right cannot be presumed from the renunciation of another Scope of Waiver Applicable to all rights and privileges to which a person is entitled, whether secured by contract, conferred by statue, or guaranteed by the Constitution, provided rights and privileges rest in the individual and are intended for his sole benefit Venue of actions, rights of accused to preliminary investigation, right to be assisted by counsel may be waived Obligations Obligations cannot be renounced, but person may exempt himself from an obligation which is inherent in a right upon the renunciation of such right Real Rights Valverde: renunciation of a personal right requires the consent of the debtor Renunciation of a real right is unilateral and depends upon exclusive will of the owner of the right Following effects flow from such renunciation: o Real right distinct from ownership e.g. usufruct, easement, or mortgage, right is merged in the owner of the property o Various holder of real right, such as in co-ownership, renunciation of his rights will proportionately increase the shares of others o Full ownership is renounced, thing becomes res nullius and may be acquired by occupation Prohibited Waiver

Rights cannot be waived if such waiver is contrary to public interest or public order, to morals or good customs, or to the rights of a third person Public interest violated by waiver of rights created by laws of general and mandatory character Rules of political or penal law are of public order

PEFTOK v NLRC Valderra v Macalde DM Consunji v CA Ferrer v Diaz F. Repeal of Laws NCC 7 Cf. 1987 Consti, Art. CVIII Sec. 3 FC 254 NCC 7 Laws are repealed only by subsequent ones, and their violation or nonobservance shall not be excused by disuse, or custom, or practice to the contrary. When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall gover. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitutions. FC 254 parts of the NCC and the Child and Youth Welfare Code are repealed Reason for article Laws can cease to have effect only through the will of the state Statute may lapse by its own terms Can be repealed by legislative, declared unconstitutional by judicial, Only state can abrogate its acts As long as law remains in statute books, legal force and effect subsists Lapse of Laws Law may expressly provide that it shall be effective only for a fixed period e.g. Rental Law Intent of law may indicate that its effectivity shall be for a limited period e.g. Emergency Powers Act Repeal of Laws Express/Declared Repeal contained in a special provision of a subsequent law Implied/Tacit Repeal takes place when provisions of subsequent law are incompatible or inconsistent with those of an earlier law Implied Repeal Conflict must be resolved in favour of later law Takes place w/o any special declaration in the subsequent law

Implied Repeals NOT FAVORED Rest only on the presumption that because the old and new laws are incompatible with each other, there is an intention to repeal the old There must be plain, unavoidable, and irreconcilable repugnancy bet the two Requisites Laws cover same subject matter Latter is repugnant to the earlier If there is no incompatibility and can stand together, one does NOT impliedly repeal the other Rule applied Ff cases: o Later statute provides penalty for a criminal act lower than that provided by former law for same act o New law provides absolute divorce while old law grants relative divorce General and Special Laws Special law must be taken as intended to constitute an exception to the general act or provision General legislative enactment impliedly repeals a special act is a question of legislative intention Effect of codification When intent to repeal an existing law can be clearly shown, the adoption of a new code may repeal a prior special law Effect of repeal of law Effect of a repealing act must generally be governed by rules of retroactivity of laws Repeal of a statue cannot affect or impair any vested right, act done, penalty accrued, or judgment already final before the repeal Repeal of a penal law during pendency of a criminal prosecution under it has effect of depriving court of jurisdiction to further proceed with the case, which must be dismissed Repeal of repealing law Law which expressly repeals a prior law is itself repealed, the law first repealed shall not be revived unless expressly provided If prior law was repealed not expressly but by implication, repeal of repealing law will revive prior law unless language of last law provides otherwise Determination of Constitutionality Judicial power cannot be used to declare a stature void simply bec it violates the spirit of our institutions, or impairs any of those rights which it is the object of a free government to protect, or bec the court considers the statute to be wrong and unjust Executive Orders and Regulations Regulations adopted under legislative authority by a particular dept must be in harmony with the provisions of the law and for the sole purpose of carrying into effects its general provisions Thornton v Thornton, Aug 16, 2004

G. Judicial Decisions NCC 8 Judicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the Philippines Decisions not source of law Jurisprudence cannot be considered as an independent source of law; it cannot create a law Law established by jurisprudence is judge-made law, which is juridically impossible in our government system due to SEPARATION OF POWERS Courts interpretation of a statute constitutes part of the law as of the date it was originally passed, since Courts construction merely establishes contemporaneous legislative intent that the interpreted law carried into effect Role of jurisprudence Judge can formulate and declare a law as applied concretely to the case before him Double function o To fill the deficiencies of legislation and provide a rule for the facts of a given case for which there is neither positive provision of law nor established custom o To adapt and adjust rigid and inflexible provisions of law, rendered inadequate by time and circumstance to the changing conditions of life and society so that the law may accomplish its social mission Doctrine of STARE DECISIS Enjoins adherence to judicial precedents Requires courts in the country to follow the rule established in a decision of the SC thereof Based on the principle that once a question of law has been examined and decided, it should be deemed settled and closed to further argument In light of changing conditions, the court may depart from it Does and should not apply when there is conflict between the law and the precedent Pesca v Pesca De Castro v JBC H. Duty to render judgment NCC 9 No judge or court shall decline to render judgment by reason of silence, obscurity, or insufficiency of laws RPC 5 People v Ritter Applicability of article Does not apply to criminal prosecutions, bec when there is no law punishing an act, the case must be dismissed Duty of Court to Decide Ignorance of the court or his lack of knowledge regarding the law applicable to a case submitted to him for a decision, the fact that the court does not know the rules applicable

to a certain matter and his not knowing where to find the law relative to the case are not reasons for dismissing the case without deciding the issues Obscurity or Deficiency of Law If law is vague or obscure, court should clarify it in the light of the rules of statutory construction If silent or insufficient, court should fill deficiency by resorting to customs or general principles of law Court should be given ample freedom to resolve cases not been provided for by legislator SPIRIT OF THE LAW may be found in PRECEDENTS which served as its basis as well as the HISTORY of its FORMULATION Unjust Laws Court cannot adopt a policy different from that of the law If law is clear, it must be applied (Dura lex sed lex) Judge cannot legally invade domain of legislative Suppletory to Law Custom of place shall be applied, and in the absence thereof, the general principle of law No express provision in the present code with respect to suppletory rules in case of deficiency in the law Suppletory rules should be considered existing CUSTOM and JURISPRUDENCE are ALWAYS considered as suppletory rules Includes opinions of jurisconsults and commentators Concept of Customs Custom the juridical rule which results from a constant and continued uniform practice by the members of a social community, with respect to a particular state of facts, and observed with a conviction that it is juridically obligatory Requisites of Custom 1. Plurality of acts or various resolutions of a juridical question raised repeatedly in life 2. Uniformity of identity of acts or various solutions to the juridical question 3. General practice by the great mass of the social group 4. Continued performance of these acts for a long period of time 5. General conviction that the practice corresponds to a juridical necessity or that it is obligatory 6. Practice must not contrary to law, morals, or public order Distinguished from Law Custom differs from law in its ORIGIN and FORM Origin custom comes from society while law comes from GOVERNMENTAL POWER of the STATE; former is SPONTANEOUS, latter is CONSCIOUS CREATION Form custom is tacit; law is express What Custom Applied Person who performs a juridical act not provided by law acts accdg to the custom of the place When place where court is located and domicile of parties are different, and each place has diff custom, it is presumed that they knew the custom of their domicile and not that of the courts location

General rule should be to apply the custom of the place for the performance of the consummation of the juridical act

Illustrations of Application Duty of the court to apply in such cases the interpretation given to contracts by the merchants themselves in actual practice Words and phrases in common use among merchants and found in a law should be given that meaning which is generally given and accepted in the community where the law applies and where the word or phrase is in common use General Principles of Law Valverde, Sanchez, and Roman: Universal juridical standards dictated by correct reason Manrasa: principles which serve as the basis for positive law in each country Clemente de Diego, de Buen, Perez, Gonzales, Aldeguer: limitation on application of general principles of law; they should not be in conflict with general or particular provisions of the law Decisions should not establish rules contrary to the essence and the fundamental purpose of the existing social order Equivalent to equity, natural law, the fundamental principles of juridical science Deficiencies in legal provisions may therefore be supplied by those general principles which have received universal sanction from the opinion of jurists and from human conscience Exact of what is just and equitable is always the strongest foundation of the interpretation of the law How applied Early decisions of Spanish SC, it was necessary to cite the law or the decision of the SC which attributes to such principles the character of a legal doctrine; a vicious circle as it is impossible to apply a general principle of law which has not yet been applied by the court I. Presumption and Applicability of Custom NCC 10-12 NCC 10 In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail. Applicability of article To be applied only in cases of doubt, and when all other rules of interpretation fail Equity in application of law There can be no justice if application of the law is not made with equity Equity may correct and modify the bare written law, sometimes limiting its excessive generality, and at times extending it to supply deficiencies Justinian: equity is justice sweetened with mercy

NCC 11 Customs which are contrary to law, public order, and public policy shall not be countenanced. Application of rule No man or set of men can create a custom for their benefit or convenience and give it a force paramount to that of an express law Courts will not recognize the force of a custom in opposition to positive law NCC 12 A custom must be proved as a fact, according to rules of evidence. Non-existence of custom When alleged custom or usage is not known to those, who, from business connections have the best means of knowing it, this ignorance is, in some sense, positive evidence of its non-existence Cf. 1987 Constitution, Art. XII, Sec. 5 Rules of Court Rule 129 (2), (3) Martinez v Van Buskirk Alonzo v Padua Barcellano v Barza J. Legal Periods NCC 13 When the law speaks of years, months, days or nights, it shall be understood that years are of three hundred sixty-five days; moths, of thirty days; days, of twenty-four hours; and nights, from sunset to sunrise. If months are designated by their name, they shall be computed by the number of days which they respectively have. In computing a period, the first day shall be excluded, and the last day included. Week A period of seven days beginning on Sunday and ending on Saturday Means a period of seven consecutive days w/o regard to the day which it begins Month Lunar month 28 days Calendar month month as designated in the calendar, without regard to the number of days it may contain Commercial transactions a period ending on the day in the succeeding month corresponding to the day in the preceding month from which the computation began, and if the last month has not so many days, then on the last day of that Code uses month strictly in a legal sense, 30 days Computation of time The day of the act, vent, or default after which the designated period of time begins to run is not to be included, unless it is a Sunday or a legal holiday, in which event the time shall run until the end of the next day which is neither a Sunday or a legal holiday

RoC: prescribed or allowed by the ROC, by order of a court, or by any applicable statute If contractual, the exception referring to Sundays and holidays does not apply, and the act must be done on the last day, even if the latter should be a Sunday or on a holiday

Date specified Rule is applicable only where a given period of time must be counted from a certain date in order to determine the date on which an act must be performed No necessity for such computation when the date is fixed; when the act is to take place at a specified future date Cf. Rules of Court (ROC) Rule 22 RAC Sec 31 Commr of Internal Revenue v Primetown K. Applicability of Penal Laws NCC 14 Penal laws and those of public security and safety shall be obligatory upon all who live and sojourn in Philippine territory, subject to the principles of public international law and to treaty stipulations Application of laws to aliens Aliens are bound to respect laws of a sovereign state, and cannot exact any mode of promulgation than that which is marked out for the information of citizens Enjoy civil rights guaranteed by the Constitution to all the inhabitants of the State; protected by the BILL OF RIGHTS in the same manner as citizens Enjoyment of civil rights is independent of citizenship Offenses by military personnel Jurisdiction of civil tribunals is not affected by the military or special character of the person brought before them for trial Even if offender is member of the US Army and subject to court-martial does NOT exempt him from punishment under the laws of the PH when he has violated them Treaties, however, must be taken into account Exemption under intl law Foreigners may be exempted from the operation of the laws in the ff cases 1. When offense is committed by a foreign sovereign while in PH territory 2. When offense is committed by diplomatic reps 3. When offense is committed in a public or armed vessel of a foreign country Offenses in Merchant Vessels Merchant vessel of foreign registry does NOT enjoy extraterritorial privileges of foreign public or war vessels Merchant vessels of one country which enter the port of another subjects itself to the laws of the latter so long as it remains within the territorial waters Offense committed on such vessel while it is in a PH port, constituting breach of public order and a violation of the policy established by legislature, is triable in PH courts

Exemption by treaty PH may agree to exempt from the operation of its penal laws certain nationals of the former Philippine US Military Bases Agreement of March 14, 1947 jurisdiction over the ff offenses: o Those committed in any base by any person, except when the offender and the offended party are both PH citizens or when the offense is against the security of the PH o Those committed outside the bases when the offender and the offended party are both members of the Armed Forces of the US o Those committed outside the bases by any member of the armed forces of the US against the security of the US o Rights granted by this treaty are no less than those conceded by the rules of intl law to a foreign army allowed to march through a friendly country or to be stationed in it, by permission of its government or sovereign Rayray v Chae Kyung Lee L. Binding Effect NCC 15 Lawsrelating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the PH, even though living abroad. cf. FC 26 par. 2 Theories on Personal Law Domiciliary the necessary connection between a State and an individual is found in the fact that the individual is domiciled in the State in question Nationality nationality or citizenship as the basis for determining the personal laws of an individual Nationality theory was established by Code Napoleon, which provided that French laws concerning personal status and capacity govern Frenchmen even when residing in foreign countries; owes its origin to the awareness of natl identity born in the French Revolution Application of article Purely personal relations, and the status and capacity for juristic acts All questions relating to marriage and divorce or legal separation, to conjugal partnership, to support between members of a family, and to marital authority, are governed exclusively by the law of the PH Capacity to contract If he is already of age at the time he enters into the contract, he cannot set such contract aside on the ground of minority, even if under the laws of the PH he is still a minor Renunciation of Allegiance Question of how a citizen may strip himself of the status as such citizen is governed by his natl law Foreign Adoption

Principle in Private Intl Law that status of adoption, created by the law of a state having jurisdiction over it, will be given the same effect in another state as is given by the latter to the status of adoption when created by its own law Principle is recognized in the PH, except when public policy or the interests of its inhabitants forbid its enforcement and demand the substitution of lex fori

Tenchavez v. Escano ATCI Overseas Corp v Echin NCC 16 Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary successions, both with respect to the orer of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated and by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. Law on property Property is subject to the laws of the country in which it is located Savigny: a voluntary submission to local laws implied in the holding of property within the country The place in space in which the thing is located must be regarded as the situs of the legal relationship which is the subject of the property right Real property Legal and actual situs of immovable are identical Every question affecting title to land must be governed by the law of the space where the land is situated Local sovereignty alone can adjudicate upon and determine the status of lands and immovable property within its border, including their title and its incidents and the mode in which they may be charged or conveyed Personal property Under Art. 10 of old civil code, personal property was subject to the laws of the nation of the owner New code has changed the rule: personal property is subject to the law of the place where it is located Personal property may be separated from its owner, who may be taxed on its account at the place where the property is located, although such place is not his domicile and he is not a citizen or resident of the State w/c imposed the tax LEX SITUS Modern business is largely conducted by corporations, which frequently do not conduct their principal operations in the place of their technical domicile Determinaton of Property Right of person to be respected in his possession of movable property, until it is shown that he is possessing illegally, must be governed by the law of the state in w/c property is found because it refers to a matter of public order

Law on Succession May be considered from POV of o The execution of wills o Distribution of property Formalities of execution of will are generally provided by the law of the place of execution Distribution of the estate is governed by the law of the nation of the deceased Distribution involves various questions o Order of succession in cases of intestacy o Intrinsic validity of testamentary provisions in case of testate succession o Extent or amount of property to which heir is entitled to inherit o Capacity of certain heirs to succeed o Questions of preterition, disinheritance, and collation Dean Capistrano: With regard to succession, there is only one will, express in testamentary and presumed in intestate succession. The oneness and universality of the inheritance cannot be divided or broken up merely because of the different countries where properties of the estate are situated. Applicability of Foreign Law Foreign law is consulted only in regard to the succession or the extent of the successional rights; second paragraph can be invoked only when the deceased was vested with a descendible interest in property within the jurisdiction of the PH Intrinsic validity of the provisions of the will of a foreigner who dies in the PH is to be determined by the laws of his own state or country, and not by those of the PH A condition in a will of a foreigner that his legatee respect his order that his property be distributed accdg to the laws of the PH instead of the laws of his country was held illegal and considered as NOT written Proof of foreign law When foreign law is involved, it must be alleged and proved Amos v Bellis Tayag v Benguet Consolidated NCC 17 - The forms and solemnities of contracts, will, and other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are executed before diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. Execution of contracts A power of attorney executed in Germany should be tested as to its formal validity by the laws of that country, and not by the provisions of this code

Performance and enforcement Matters connected with the performance of contracts are regulated by the law prevailing at the place of performance Remedies, such as the bringing of suit, admissibility of evidence, and the statute of limitations depend upon the law of the place where the action is brought Foreign judgments Litigation by mutual agreement cannot compel the courts to approve of their own actions or permit the personal relations of citizens of the PH to be affected by decrees of foreign courts in a manner which our govt believes to be contrary to public order and good morals Legislative policy cannot be defeated by a foreign judgment obtained by PH citizens it is a serious question whether any foreign divorce, relating to citizens of the PH islands will be recognized in this jurisdiction except it be for a cause, and under conditions for which the courts of the PH islands would grant a divorce Validity and effects of obligations Manresa and Valverde believe that the doctrine in that code, as stated in Fiore can be followed: o Law designated by the parties shall be applied; if there is no stipulation on the matter, and the parties are of the same nationality, their national law shall be applied o If this is not the case, the law of the place of perfection of the obligation shall govern its essence and nature, and law of place of performance shall govern its fulfilment o If these places are not specified and cannot be deduced from the nature and circumstances of the obligation, law of the domicile and passive subject shall apply Kazuhiro Hasegawa v Kitamura Raytheon v Rouzie NCC 18 In matter which are governed by the Code of Commerce and special laws, their deficiency shall be supplied by the provisions of this Code. Applications of Article Where there is no deficiency on the special law, the provisions of the Civil Code cannot be applied Civil Code provisions on the formality of sales cannot be applied to sales and transfers of large cattle which fall under a special law containing provisions on the matter, as special law prevails over general law Exceptions to article There are cases where special law or Code of Commerce is suppletory Tamano v Ortiz Zamoranos v People

III. PERSONS & PERSONALITY A. The concept of a person and personality NCC 37-39 NCC Art. 37 Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in every natural person and is lost only through death. Capacity to act, which is the power to do acts with legal effect is acquired and may be lost. Kinds of capacity Juridical Capacity o Synonymous to legal capacity and legal personality o Refer to the aptitude for the holding and enjoyment of rights Capacity to act o Refers to the aptitude for the exercise of rights o Often referred to as capacity o the ability, power, qualification, or competency or persons, natural or artificial, for the performance of civil acts depending on their state or condition as defined or fixed by law While juridical capacity is the fitness of man to be the Comparison Juridical capacity o just one o indivisible, irreducible, and essentially the same for all men o attaches to him by the mere fact of being a man Capacity to act o Conditional and variable o Acquired and may be lost o Mere existence of a man is not sufficient to confer capacity to act because this capacity requires both intelligence and will (not always present in all men, nor are they always of the same degree Juridical capacity can exist w/o capacity to act, capacity to act cannot exist w/o juridical capacity Capacity of Public Interest Capacity of incapacity depends upon the law A matter of public interest Both capacities are not rights, but qualities of persons Cannot be alienated or renounced NCC Art. 38 Minority, insanity, or imbecility, the state of being a deaf-mute, prodigality, and civil interdiction are mere restriction 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 relations, such as easements. Causes of incapacity Minority Insanity or imbecility

State of being deaf-mute Prodigality Civil interdiction Family relations, alienage, absence, insolvency, trusteeship

Minority Commences upon age 18 Person below 18 us a minor and has limited capacity to act Unemancipated minor CANNOT enter into contracts, but may b estopped from disavowing his contract if he has misled the other party as to his age Insanity or imbecility Includes various forms of mental disease, either inherited or acquired, in which there is a perversion of mentality, as when the person is suffering from illusions, hallucinations, or delusions, unnatural exaltation or depression, or insane ideas of persecution or power Insane person cannot make a valid will or testament Cannot validly give consent to contracts May not be insane, but only mentally deficient defect in quantity of mental development called amentia, divided into idiocy, imbecility, and feeble-mindedness Deaf-mutism Capable of entering contracts if shown to have sufficient mental capacity Can make a valid will so long as its contents have been communicated or made known to him in some practicable manner If does not know how to read or write, cannot give consent to contracts and cannot personally accept or repudiate an inheritance Civil Interdiction Accessory penalty imposed upon persons who are sentenced to principal penalty not lower than reclusion temporal Art. 34 of RPC: Civil interdiction shall deprive the offender during the time of his sentence of the rights of parental authority, or guardianship, either as to the person or property of any ward, of 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 Prodigality person whom by excessive drinking gambling, idleness or debauchery of any kind shall so spend, waste, or lessen his estate as to expose himself or his family to want or suffering Accused prodigal must show a morbid state of mind and disposition to spend, easte and lessen estate to such an extent as is likely to expose the family to want of support, or to deprive compulsory heirs of legitimes No specific provision which incapacitates him for any particular act May be placed under guardianship as an incompetent under the provisions of Rule 93, Sec 2 of ROC Moment he is under guardianship, capacity to act is restricted because he can only bind himself to a contract through his guardian Fact of being under guardianship that restricts the capacity to act of the spendthrift Rights of incapacitated persons

Old CC, Art 32: incapacitated persons are susceptible of rights; provision is omitted in the present article of the Code Omission is unfortunate and conducive to confusion as it may give rise to the inference that the Code intended to suppress the rights of incapacitated because it retained reference to their obligations but suppressed the reference to their rights

Obligations of Incapacitated Persons Obligations arise from law, contracts, quasi-contracts, crimes, quasi-delicts Article does NOT specify what obligations the incapacitated person may have but merely says certain oligations such as those which arise from his acts or from property relations, such as easements Incapacitated persons may have obligations arising from all sources, except contracts Obligations arising from law, such as those imposed by law on family relations Obligations referred to by the Code as arising from property relations, such as easements, are obligations arising from law, easements referred to are legal easements Incapacitated person cannot by contract create a voluntary easement on his property Obligation to pay taxes Are also civilly liable for crimes committed by them, even if they are exempted from criminal liability Liable for quasi-delicts Liable on quasi-contracts California code: law implies an obligation on the part of an incapacitated person to pay for necessaries furnished him and his family on his own credit, because the policy of the law to protect such persons against their own improvidence does not extend to depriving others of the reasonable value of necessaries furnished them o Medical services necessary to save the life of a child o Hospital necessaries for the insane o Legal services rendered an incompetent in proceeding looking roward restoration of capacity Reintegration of capacity In case of minority, disappears after attaining age of majority Some cases of incapacity which require a judicial decree of competence to terminate the incapacity: o Person who has been declared incompetent for any reason may petition the court to have his present competency judicially determined Petition shall be verified by oath Statement that that person is then competent Court shall fix a time for hearing the questions raised thereby Court shall cause reasonable notice thereof to be given to the guardian of the person so declared incompetent, and to the ward In the trial, guardian/relatives of the ward, and in the discretion of the court, any other person may contest the right to the relief demanded and witnesses may be called and examined by the parties or by the court on its own motion If person is not found to be incompetent, competency shall be adjudged and guardianship shall cease

NCC Art. 39 The ff. circumstances, among others, modify or limit capacity to act: age, insanity, imbecility, the state of being a deaf-mute, penalty, prodigality, family relations, alienage, absence, insolvency, and trusteeship. The consequences of these circumstances are governed in this Code, other codes, the Rules of Court, and in special laws. Capacity to act is not limited on acct 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. Guardianship of incompetents ROC Rule 93 Sec. 2 defines INCOMPETENT as: o persons suffering from the penalty of civil interdiction or who are hospitalized lepers, prodigals, deaf and dumb who are unable to read and write, those who are of unsound mind, even though they have lucid intervals, and persons not being of unsound mind, but by reason of age, disease, weak mind, and other similar causes, cannot, without outside aid, take care of themselves and manage their property, becoming thereby an easy prey for deceit, and exploitation Persons under civil interdiction, deaf-mutes who do not know how to read and write, and those of unsound mind, are of limited capacity Management and disposition of their property are placed in the hands of their guardians, under Court supervision If they have not been placed under guardianship, they have capacity to act, bec there are no specific provisions of law limiting their capacity for particular juridical acts; they can dispose of their property, they can make wills or testaments, they can enter into contracts, as long as they are not suffering from any other cause of incapacity Family Relations Ascendants, descendants, bros and sisses, collateral relatives w/in 4th civil degree cannot validly marry (INCEST) Husband and wife cannot donate to each other Alienage or Citizenship Citizenship may affect the right of persons in matters where the State may validly discriminate bet. Aliens and its citizens for reasons of public policy w/o doing violence to the equal protection of the laws Ff. rights are limited by the prev constitution to PH citizens: Right to acquire, explore, exploit, develop, utilize the agricultural timber, and mineral lands of the public domain, and all kinds of natural resources of the PH Right to acquire private agricultural lands including residential land Right or privilege to operate public utilities including market stalls Right to practice law or to practice medicine Right to engage in coastwise shipping Absence Person is absent when he disappears from his domicile and his whereabouts are unknown Cannot properly administer his properties; another person is appointed to administer them Continued absence may even give rise to the presumption of his death

 Absentee may be alive somewhere, and if not otherwise incapacitated, his acts in such other place are perfectly valid Can even alienate properties w/o the knowledge of those who administer them in his domicile, and alienation would be valid to confer title upon grantee Insolvency and Trusteeship When person has been adjudicated as insolvent, his capacity to dispose of his property becomes limited Cannot dispose of his property existing at the time of the commencement of the insolvency proceedings, and no property or credit can be made to him Physical Condition Physical incapacity to enter into the married state, i.e. impotency, is a ground for annulment Person who is blind, deaf, or dumb, cannot be a witness to the execution of a will Circumstances Not Affecting Capacity Political Opinion, religious belief as the circumstances not limiting capacity to act Race and nobility NO LONGER affect capacity Equality of Sexes Modern social tendency is to consider woman as being equal to man Woman is no longer restricted in her capacity to act simply because of her sex Political and civil rights of men and women are now the same Female had a lower age requirement for contracting marriage, bec she reaches puberty earlier than the male Not allowed to contract a subsequent marriage w/in 300 days following death of her husband, bec she may be preggers and will cause confusion as to paternity of the child Simple adultery may merit legal separation on the part of the husband Simple infidelity may result in the birth of children not begotten by the husbamd Classes of persons and their distinctions Elements of civil capacity Juridical capacity v. personality Juridical capacity v. personality to act B. Commencement and termination of personality 1. Natural Persons (a) Birth NCC 40-41 NCC 40 Birth determines personality; but the conceived child shall be considered born for all purposes that are favourable to it, provided it be born later with the conditions specified in the following article. Personality from birth Birth removal of foetus from mothers womb May take place either naturally or artificially by surgical means Before birth, foetus is not a person, but merely a part of the internal organs of the mother

 Because of expectancy that it may be born, law protects it and reserves its rights, making its legal existence, if it should be born alive, retroact to the moment of its conception Conceived Child Conceived child is considered born for all purposes favourable to it, if it is later born alive Personality has two characteristics: o It is essentially limited because it is only for purposes favourable to the child o It is provisional or conditional, because it depends upon the child being born alive later, such that if it is not born alive, its personality disappears as if it had never existed Period of conception Science has not determined the exact moment when conception begins Legally, period of conception is the first 120 days of the 300 days preceding the birth of the child Rights of conceived child Since conceived child is already considered as born for purposes favourable to it, it can acquire and enjoy rights while it is in the mothers womb It may be: o Given donations o Inherit by will or by intestacy Interests of conceived child, for purposes of which he is considered born, are not limited to right of inheritance or property rights, including the right to compensation for personal injuries wrongfully inflicted Unborn child is entitled even to support from his father, who may be compelled to give it if mother cannot Letter could be the basis of an action for the compulsory acknowledgment of the child by the defendant after its birth (De Jesus v Syquia) NCC. 41 For civil purposes, the foetus is considered born if it is alive at the time it is completely delivered from the mothers womb. However, if he foetus had intrauterine life of less than seven months, it is not deemed born if it dies within 24 hours after its complete delivery from the maternal womb. Separation from mother Total separation of foetus from mothers womb is produced by cutting of the umbilical cord, whether removal takes place naturally or by surgical operation Alive at birth All that the law requires is that the child be alive at the time of complete separation from the mothers womb Duration of extra-uterine life is immaterial For acquisition of juridical personality, it is enough that the child lives even for an instant Test of life There is no special sign of life, and in many cases expert medical evidence will be necessary

Must be shown that the child had an independent life; this must be its own extra-uterine life, and not a mere continuation of its intra-uterine life

Viability not required French law requires not only that child be alive but also VIABLE at birth Viability means that child is capable of living and this is determined by the extent of the development of its organs; if it is incapable of living because of too premature birth, or due to some imperfection of the organs, it is NOT viable If it is of such sufficient maturity of development as to enable it to live outside of the mothers womb, it is viable Requisite is dispensed with in PH law, as it conclusively presumes viability if foetus is alive when completely separated from the mothers womb Premature birth Child should live at least 24 hours after complete separation from the mothers womb, if it had an intra-uterine life of less than seven months If child does NOT live 24 hours completely separated from the mothers womb, it does NOT acquire juridical personality Child does not acquire juridical personality if the child is killed before the period lapses and it can be proved that it could have survived that period if it had not been prevented by the wilful act of another Child does not acquire juridical personality if the death should be through an accident Juridical personality is acquired even if the survival for 24 hours is caused only by medical or scientific means w/o w/c the child would have died before the lapse of that period Burden of proof The presumption is that child was alive, burden of proof is on party who alleges the contrary (Argentina Code, Art. 75) The party who claims a right based on the juridical existence of the child has the burden of proof that the child acquired juridical personality Damages for death of foetus If foetus dies before birth bec of some injury inflicted upon the mother, such foetus never becomes a person Argentina appellate court: mother can recover moral damages for the death of a foetus caused by a transportation accident 1987 Constitution, Art. II Sec. 12 PD 603 [Child and Youth Welfare Code], Art. 5 the civil personality of the child shall commence from the time of his conception, for all purposes favourable to him, subject to the requirements of Art.41 of the CC FC 164 children conceived or born during the marriage of the parents are legitimate; children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized/ratified such insemination in a written instrument executed and signed by them before the birth of the child; instrument shall be recorded in the civil registry together w/ birth certificate of the child RPC Arts. 256-259

Geluz v. CA Quimiging v Icao De Jesus v Syquia (b) Death NCC 42 Civil personality is extinguished by death. The effect of death upon the rights and obligations of the deceased is determined by law, by contract, and by will. Natural death Refers to natural or physical death, because this is the ONLY kind of death recognized by present legislation Law does not recognize so-called civil death, known to legislation in the past, by virtue of which a man who was alive was considered dead for all purposes because of a conviction for crime or of the taking of a religious profession Effect on rights Upon the death of a person, the subject of legal relations disappears Rights and obligations are completely extinguishes, some transmitted to his successors Extent of transmission or extinguishment depends upon the law, the contract, or thw will involved Estate continues personality After a persons death, his personality is deemed to continue in his estate Billings v State: As the estate of a decedent is in law regarded as a person, a forgery committed after the death of the man whose name purports to be signed to the forged instrument may be prosecuted as with the intent to defraud the estate Estate of mass of property, rights, and assets left by the decedent, instead of the heirs directly, become vested and charged with his rights and obligations which survive after his demise Rights and obligations which survive after death have to be exercised and fulfilled only by the estate of the deceased Corpse not a person Corpse can no longer be considered as a person; cannot be the subject of rights because juridical capacity is extinguished by death When the deceased is removed by death from the human community and is thus bereft of all interest in it, it is absurd to give him any participation in law as a subject of rights The corpse becomes a thing in the juridical sense Limjoco v Intestate Estate of Pio Fragante Dumlao v Quality Plastics Eugenio v Velez Marcos v Manglapus NCC 43 If there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other shall prove the same; in the absence of proof, it is presumed that they died at the same time and there shall be no transmission of rights from one to other.

Application of article Question of survivorship involves persons who are called to succeed each other It cannot apply to other cases which do not involve succession If the insured in a life insurance policy and his beneficiary both died, article would be inapplicable as the insured and the beneficiary are NOT called to succeed each other w/ respect to the proceeds of the insurance When persons involved would succeed each other, this article applies, whether death be actual or merely presumed from absence or other circumstances Presumption in Rules of Court Rule 123, Sec. 69, Par. (ii) provides that When two or more persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is presumed from the probabilities resulting from the strength and age of the sexes, accdg to the ff rules: If both were 15 > , the older is presumed to have survived If both were > 60, the younger is presumed to have survived If one is 15 > and the other > 60, the former is presumed to have survived If both be > 15 and < 60, and the sexes be different, the males is presumed to have survived; if sexes be the same, then the older If one be 15 > or > 60, and the other between those ages, the latter is presumed to have survived Criticism of theories CC establishes a presumption of simultaneous death, RoC establishes a presumption of priority of death occurring in calamities Presumptions established in RoC have been criticized as absurd, arbitrary and without any real basis The presumption of simultaneous death has also been criticized as contrary to normal reality, because even in calamities, the victims of the same calamity do not all die at the same time Are Rules of Court repealed? Code Commission intended to repeal the presumptions on survivorship in the RoC, because presumptions therein laid down are sometimes absurd There is NO express repeal CC provisions applies only to deaths of persons who are called upon to succeed each other, RoC can still apply to those who do NOT succeed each other; RoC can still apply to those who do not succeed each other A general statute, such as the CC, does NOT generally repeal by implication an existing special provision RoC presumptions already existed side by side with Art. 33 of the old CC The codifiers had at their disposal the texts of foreign codes which provide for the presumption of simultaneous death even in cases of calamities; they could have carried out their intention to repeal the ROC by modifying the present article so as to include cases of death in calamities Failure to do so gives rise to the legal inference that, whatever their intention may have been, such intention was never carried out, but was frustrated by their own oversight ROC Rule 131 Sec. 3 (jj)-(jj)

Joaquin v. Navarro 2. Juridical Persons NCC 44-47 NCC 44 The following are juridical persons: 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 accdg to 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 share-holder, partner, or member Concept of juridical persons Juridical person is an abstract being, formed for the realization of collective purposes, to which the law has granted capacity for rights and obligations Not every assoc of persons for a given purpose would be a juridical person; the State must recognize in it a separate personality, distinct from and independent of those of the individuals composing or managing it Must be recognized as having its own rights and obligations which are NOT the rights and obligations of its component members Property is not merged with that of its members Members may change, but juridical person remains subsisting without alteration Personality is manifested only in the realm of patrimonial relations Has no personal and family rights Kinds of juridical persons The State and its political subdivisions, such as provinces, cities, and municipalities Juridical persons for public interest or purpose Juridical persons for private interest or purpose Corporations as Persosn Corporation an artificial being created by operation of law, having the right of succession and the powers, attributes, and properties expressly authorized by law or incident to its existence Persons in the Consti includes corporations; all the guaranties and safeguards of the Consti for the protection of the property of individuals may, therefore, be invoked for the protection of the property of corpos Roman Catholic Church is a juridical person, as well as confradias and capellanias, if they were organized under the laws of the Spanish regime and have by-laws approved by the govt existing at the time of their foundation; if they were not so organized, they cannot be considered as juridical persons and cannot register properties in their own names When existence begins Private corp may be constituted by 5 or more persons, not exceeding 15, a majority of whom are resident of the PH, by filing with the SEC articles of incorporation Articles must state name of the corpo, purpose for which it is formed, duration of existence (cant exceed 50 years), names and addresses of directors, and th capital stock and number of shares into which it is divided

20% of capital stock must have been subscribed, and 25% of subscription must have already been paid Upon filing of articles, SEC shall issue to incorporators a certificate of incorporation, and corpo shall exist as a juridical person

Classes of Corporations Public those formed or organized for the govt of a portion of the State Private those formed for some private purpose, benefit, aim, end, as distinguished from public corpos which have for their purpose the general good and welfate o Stock Corpos corporations which have a capital stock divided into shares and are authorized to distribute to the holders of such shares dividends or allotments of the surplus profits on the basis of shares held o Non-stock Corpos all other private corpos Even if State is shareholder in a private corpo, it does not impart to the company any of the sovereignty of the State, e.g. National Coal Company Legal Fiction disregarded Corporation as a legal entity, until sufficient reason for the contrary view appears Partnerships as Persons By contract of PARTNERSHIP, two or more persons bind themselves to contribute money, property, or industry to a common fund, w/ intention of dividing profits among themselves Partnership may be constituted in any form; even oral agreement would be valid to create a partnership Once validly constituted, partnership acquires a juridical personality separate and distinct from that of each of the parners Associations w/o personality Juridical personality is NOT a necessary or indispensable attribute for the operation of every association or organization Associations without juridical personality are expressly regulated NCC 45 Juridical persons mentioned in Nos. 1 and 2 of the preceding article are governed by the laws creating or recognizing them. Private corporations are regulated by laws of general application on the subject. Partnerships and associations for private interest or purpose are governed by the provisions of this Code concerning partnerships. What governs juridical persons State is governed by Consti; provinces and municipalities by the LGC and the RAC, and chartered cities by their respective charters Corpos created by special charters are governed by such charters; those created under general law are governed by the Corpo Law Private partnerships and associations shall be governed by the provision of this Code on partnerships Under art. 37 of the old code, it was provided that the capacity of associations was to be determined by their articles of association

NCC 46 Juridical persons may acquire and possess property of all kinds, as well as incur obligations and bring civil or criminal actions, in conformity with the laws and regulations of their organization. Capacity of juridical persons CANNOT exercise rights which presuppose physical existence, such as family rights, making of wills It can have o Nationality o Domicile o Name o Right to reputation o Capacity for relations which do not require ties of blood e.g. guardianship o Can own and possess a property o Dispose of such property o Enter into contracts o Inherit by will o Incur obligations o Liable for acts of its managers and employees for contractual as well as extracontractual fault of negligence Extinguishment of capacity Juridical capacity of artificial persons is EXTINGUISHED upon the termination of is existence in accordance with the law governing it or with its articles of association or incorporation Of corporations A corpo may be dissolved and thus cease to exist in the ff ways: 1. By an Act of Legislature repealing or withdrawing its charter, provided such power to withdraw or repeal has been reserved 2. By the expiration of the time limited for the continuance of its corporate existence, which cannot exceed 50 years 3. By the happening of some contingency prescribed in its charter or by statute 4. By the failure of loss of the members, in case of nonstock corpos; but acquisition of all the stock by a single stockholder does not dissolve a stock corpo 5. By voluntary surrender of its charter by the stockholders, accepted or authorized by the State (found in Corpo Law and Rule 104 ROC) 6. By judgment of dissolution or forfeiture of charter in a judicial proceeding in the nature of quo warranto, instituted by the State, for non-user, mis-user breach of conditions or other grounds of forfeiture 7. The failure of the corpo to organize and commence business w/in two years from the date of its incorporation, as provided in the Corpo Law Insolvency of a corpo is not a ground for dissolution, nor is the assignment of all its property to pay its debts, or for any purpose Of partnerships: Article 1830 of Corpo Law; tl;dr NCC 47 Upon dissolution of corporations, institutions and other entities for public interest or purpose mentioned in No. 2 of Art. 44, their property and other assets shall be disposed of in pursuance of law or the charter creating them. If

nothing has been specified on this point, the property and other assets shall be applied to similar purposes for the benefit of the region, province, city or municipality which during the existence of the institution derived the principal benefits from the same. Batas Pambansa Blg 68 Corpo Code of the PH NCC 1767-1768 NCC 1767 by contract of partnership two or more persons bind themselves to contribute money, property, or industry to a common fund, w/ intention of dividing profits amont themselves; two or more persons may also form a partnership for the exercise of a profession NCC 1768 partnership has a juridical personality separate and distinct from that of each of the partners, even in case of failure to comply with requirements of Art. 1772 (1) Barlin v Ramirez C. Restrictions on Civil Capacity 1. Presumption of Capacity, Art 37 NCC Catalan v Basa 2. Restrictions on capacity to act NCC 38-39, cf NCC 1327 NCC 1327 The following cannot give consent to a contract: Unemancipated inors Insane or demented persons, and deaf-mutes who do not know how to write (a) Minority 1. Age of majority, RA 6089 2. AM No. 03-02-05-SC Rules on Guardianship 3. Suffrage, Sec. 1 Art V 1987 Constitution 4. Marriage, FC 5; 45 5. Contracts NCC 1327 NCC 1390 following contracts are voidable or annullable, even though there may have been no damage to contracting parties: 1. Those where one of the parties is incapable of giving consent to a contract 2. Those where the consent is vitiated by mistake, violence, intimidation, undue influence, or fraud. These contracts are binding, unless they are annulled by a proper action in court. They are susceptible of ratification. NCC 1397 action for annulment of contracts may be instituted by all who are thereby obliged principally or subsidiarily. However ,persons who are capable cannot allege the incapacity of those with whom they contacted; nor can those who exerted intimidation, violence, or undue

influence, or employed fraud, or caused mistake base their action upon these flaws of the contract NCC 1399 when defect of the contract consists in the incapacity of one of the parties, the incapacitated person is not obliged to make any restitution except insofar as he has been benefited by the thing or price received by him NCC 1489 all persons who are authorized in this code to obligate themselves, may enter into a contract of sale, saving the modifications contained in the ff. articles; where necessaries are sold and delivered to a minor or other person w/o capacity to act, he must pay a reasonable price therefor NCC 1426 when a minor bet. 18 and 21 yrs of age who has entered into a contract w/o the consent of the parent or guardian, after the annulment of the contract voluntarily returns the whole thing or price received, notwithstanding the fact that he has not benefited thereby, has no right to demand the thing or price thus returned NCC 1427 when a minor bet. 18 and 21 yrs of age, who has entered into a contract w/o the consent of the parent of guardian, voluntarily pays a sum of money or delivers a fungible thing in fulfilment of the obligation, there shall be no right to recover the same from the oblige who has spent or consumed it in good fait. Mercado v Espiritu Bambalan v Maramba Suan Chian v Alcantara Braganza v Villa-Abrille 6. Criminal Liability RPC 12 (2) (3) RPC 13 (2); PD 603 Secs. 189-204 Atizado v People Rule 3, Section 5, 1997 Rules on Civil Procedure (b) insanity 1. Marriage, FC 45 2. Contracts, NCC 1327 (1), 1328 3. Criminal Liability RPC 12(1) Rule 101, Rules of Court US v Vaquilar People v Rafanan Standard Oil v Arenas Hernandez v Santos Rivero v CA People v Bugalao ( c ) Deaf-mutism (d) Prodigality (e) Civil Interdiction

(f) Family Relations FC 150 Family relations include those: Bet husband and wife Bet parents and children Among other ascendants and descendants Among brothers and sisters, whether full or half-blood FC151 No suit between members of the same family shall 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. Rule is not applicable to cases which may not be the subject of compromise under the CC. NCC 1490 Husband and wife cannot sell property to each other except: When a separation or property was agreed upon in the marriage settlements; or When there has been a judicial separation of property under Art. 191 NCC 2035 No compromise upon the ff. questions shall be valid: The civil status of persons; The validity of a marriage or a legal separation; Any ground for legal separation; Future support The jurisdiction of courts Future legitime Cf. NCC 963-967 tl;dr (g) Alienage, cf. Art. IV, Secs. 1-5, 1987 C0nstitution Cordora v. COMELEC, February 19, 2009 (h) Absence, NCC 381 396, FC 411 tl;dr Olaguer v Purugganan (i) Insolvency and Trusteeship, NCC 1381 The following contracts are rescissible 1. Those which are entered into by guardians whenever the wards whom they represent suffer lesion by more than of the value of the things which are the object thereof 2. Those agreed upon in representation of absentees, if the latter suffer the lesion stated in the preceding number 3. Those undertaken in fraud of creditors when the latter cannot in any other manner collect the claims due them 4. Those which refer to things under litigation if they have been entered into by the defendant without the knowledge and approval of the litigants or of competent judicial authority 5. All other contracts specially declared by law to be subject to rescission NCC 1491 tl;dr

NCC 2336 Villanueva v CA Umale v ASB Realty (j) Gender, Art. II, Sec. 14, 1987 Constitution, cf. NCC 403 tl;dr Rule 3, Sec. 4, 1997 Rules of Civil Procedure tl;dr D. Domicile and residence of persons 1. Juridical Persons, NCC 51 When the law creating or recognizing them, or any other provision does not fix the domicile of juridical persons, the same shall be understood to be the place where their legal representation is established or where they exercise their principal functions 2. Natural Persons NCC 50 For the exercise of civil rights and the fulfilment of civil obligations, the domicile of natural persons is the place of their habitual residence. Concept of domicile Domicile place of a persons habitual residence; place where he has his true, fixed, permanent home and principal establishment, and to which place he has, whenever he is absent, the intention of returning, and from which he has not present intention of moving Two principal elements: o Fact of residing or physical presence in a fixed place o Intention of remaining there permanently (animus manendi) Civil purposes, not for political purposes In the Civil Code Residence relation is one of fact Domicile legal or juridical, independent of the necessity of physical presence Law assumes that for the exercise or enforcement of certain rights, that a person is in a particular place, whether or not he is actually there, that place is his domicile Residence is a material fact, referring to physical presence of a person in a place Person can have two or more residences; is acquired by living in a place Domicile can exist without actually living in the place Once residence has been established in one place, there can be an intention to stay there permanently In election law Residence for election purposes is used synonymously with domicile Two things are required to establish residence: o Act of residing o Intention to do so permanently Rules of Court Residence = Domicile Domicile of married women

Married womans domicile is that of her husbands unless there was legal separation Where the husband is guilty of conduct which furnishes a lawful ground for the wife to leave him, she is authorized to live elsewhere and acquire a separate domicile

Domicile of minors and wards Domicile of persons under parental authority is that of persons exercising such authority Domicile of Diplomats Domicile of diplomats residing abroad by reason of their office is that which they had last in PH territory Mere assignment of a person to a post in the foreign service does not constitute an abandonment of his domicile in the PH Change of domicile Constitutional right to change his domicile Right cannot be limited by contract or last will or testament Requisites of change: 1. Capacity to choose a new domicile 2. Actual presence in new residence chosen 3. Intention to remain there permanently Stuff that dont effect a change in domicile 1. No manifest intent to materially and really abandon legal domicile 2. Temporary absence 3. Obtaining a residence certificate in another place 4. Temporary stay in another place 5. Merely constructing a new house 6. Enlisting in the military To effect the abandonment of ones domicile: Deliberate and provable choice of a new domicile Actual residence in the place chose Declared or provable intent that it should be ones fixed and permanent plce of abode, ones home FC 68 husband and wife are obliged to live together FC69 - husband and wife shall fix the family domicile; court may exempt one spouse from living w/ the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. Such exemption shall not apply if the same is not compatible with the solidarity of the family. cf. NCC 110 Cf. FC 55, 101, 149, 152, 101 Romualdez-Marcos v COMELEC

IV. INTRODUCTION TO THE FAMILY CODE Tolentino, Persons and Family Relations in the Civil Code Effectivity EO 209 was issued on 7/6/87 by Cory Aquino Took effect on 8/3/88, one year after publication in a newspaper of general circulation Reasons for FC Four decades have passed since adoption of CC experience under the Code as well as pervasive changes and developments have necessitated revision of its provisions on marriage and family relations to bring them closer to Filipino customs, values, and ideals and reflect contemporary trends and traditions Need to implement policies embodied in the Consti that strengthen marriage and the family as basic social institutios Need for Code doubtful Subject of FC is not technical, nor does it require expertise beyond the capacity of legislators, and should have been left to the lawmaking body Reflects contemporary trends and conditions as well as the customs practised by majority of the Filipinos all over the land, as seen by their representatives A. Effect and Retroactivity E.O. 29, as amended by E.O. 227, R.A. 6809, R.A. 7610 FC 256, cf. FC 36 in rel. to 39, FC 105, FC 162, FC 257 FC 256 This code shall have retroactive insofar as it does not prejudice or impair vested or acquired rights in accdance with the CC or other laws. FC 36 Marriage contracted by any party who, at the time of 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. FC 39 Action or defense for the declaration for absolute nullity of a marriage shall not prescribe. FC 105 in case future spouses agree in marriage settlements that regime of conjugal partnership of gains shall govern their property relations during marriage, provision of Chapter 4 shall be of supplementary application; also applies to conjugal partnerships of gains already est bet spouses before effectivitiy of Code, w/o prejudice to vested rights already acquired in accordance with CC or other laws FC 257 code takes effect one year after publication Lupo Atienza v Judge Brilliantes, Bernabe v Alejo Fuentes v Roca B. Repeal/Amendment FC 254,255

V. MARRIAGE & PERSONAL RELATIONSHIP BETWEEN SPOUSES A. The concept of marriage FC 1 cf. NCC 52, FC 149 FC 1 Marriage is a special contract of permanent union between a man and a woman entered into accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage w/in the limits provided by this Code Definitions of marriage The procedure by which a man and a woman become husband and wife that act by which a man and a woman unite for life, with the intent to discharge towards society and one another those duties which result from the relation of husband and wife Produces a change of status (civil) STATUS involving duties and responsibilities no longer matter for private regulations the civil status of one man and one woman, legally united for life, with rights and duties which, for the establishment of families and the multiplication of the species, are, from time to time may thereafter be, assigned by law to matrimony Purposes of marriage 1. Reproduction 2. Education of offspring 3. Mutual help Constitution of a complete and perfect community between two individuals of different sexes; remote purpose is preservation of human race. Marriage a social institution Contract only in form, but in essence an institution of public order founded on custom and morality Foundation of the family and the origin of domestic relations of the utmost importance to civilization and social progress Characteristics 1. Civil in character bec it is established by the State independently of its religious aspect 2. Institution of public order or policy, governed by rules established by law which cannot be made inoperative by rules established by law which cannot be made inoperative by the stipulation of parties 3. Institution of natural character, bec one of its objects is the satisfaction of the intimate sentiments and needs of human beings for the organic perpetuation of man Differentiated from Ordinary Contracts Ordinary contracts may be entered into by any number of persons, whether of the same or different sex; marriage can be entered into only by one mand and one woman In ordinary contracts, agreements of parties have force of law between them while in marriage, law fixes duties and right of parties Ordinary contracts can be terminated by mutual agreement; marriage canot be so terminated, neither can it be terminated even though one of the parties subsequently becomes in capable of performing his part

Breach of ordinary contracts gives rise to an action for damages, breach of obligations of husband or a wife does not give rise to such action; law provides penal and civil sanctions

Damages for Breach SC in De Jesus v Syquia: the action for breach of promise to marry has NO STANDING in the civil law, apart from the right to recover money or property advanced by plaintiff upon the faith of such promise No legal provision if breach of marriage occurs If action for damages is based on tort or quasi-delict, or on Arts. 19, 21, 22 of the present code, there would be sufficient legal basis or right of action for damages Effect of Seduction Cases prior to civil code: promise of marriage based on carnal relations is founded upon unlawful consideration, no action can be maintained by woman against man for a breach thereof o If carnal intercourse bet parties is a crime, it is common to both parties, and article 1305 of the old code bars a recovery o If it is not a crime, act is immoral, and fault lies w/ both parties Abuse of Right Even if there has been no seduction, under Art 19 of CC, damages may, under certain circumstances, be recovered against a party who repudiates contract to marry, but basis of action cannot be the mere breach of contract itself, but some act constituting an abuse of right French jurisprudence: prospective bride or groom who capriciously breaks an engagement without reason, and thereby causes moral and material injury to the other party, is liable for the damages caused, especially if the break occurs just before the wedding and a long engagement Unjust enrichment Art 22 of the CC Gifts to person to whom the donor is engaged to be married are considered legally as conditional, and upon breach of engagement by the done, may be recovered by the donor Oral agreement Rule 123, Sec 21 agreement made upon consideration of marriage, other than a mutual promise to marry, cannot be proved except by writing or some note or memorandum thereof, subscribed by the party sought to be charged Art 1403 agreement made in consideration of marriage, other than mutual promise to marry, shall be unenforceable by action, unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party sought to be charged Art. II Sec 12, 1987 Constitution Art. XV Sec. 2, 1987 Constitution Estrada v Escritor B. Nature of marriage in Philippine Law FC 1 cf. Rule 131 Sec. 3 (aa), 1989 Rules on Evidence

NCC 20 every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same Muslim Code, (PD. 1083), Sec. 14 Goitia v Campos-Rueda Sermonia v Republic Perido v Perido Silverio v Republic People v De La Cruz De Santis v Intestate Estate Jalandoni C. Agreements prior to marriage 1. Stipulations in marriage FC 1 cf. NCC 221 Panganiban v Borromeo In re Santiago Espinosa v Atty Omana 2. Breach of promise to marry NCC 19 give everyone his due, and observe honesty and good faith Promise to marry Promise to marry has no obligatory force; therefore, as a rule, its breach cannot give rise to liability for damages Principle of freedom of consent in marriage entitles either party to withdraw from his or her promise, but exercise of right to withdraw must be unjustified and abusive NCC 20 every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same NCC 21 person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage Illicit sexual relations If carnal intercourse bet the parties constitutes a crime, then the crime is common to both, and art 1035 of the old Code bars a recovery If act is not a crime, it is immoral, and because both parties are at fault, neither can recover from the other NCC 2176 obligation to pay for damage done from damages caused by fault or negligence (quasi-delict) NCC 1043 2 MC 22 any person who has entered into a contract to marry but subsequently refuses without reasonable ground to marry the other party who is willing to perform the same shall pay the latter the expenses incurred for the preparation of marriage and such damages as may be granted by court Hermosisima v CA Wassmer v Velez Tanjanco v CA Baksh v CA Abanag v Mabute

D. Requisites for a valid marriage 1 Tolentino 222-269 FC 2 No marriage shall be valid, unless these essential requisites are present: (1) Legal capacity of the contracting parties who must be male and female (2) Consent freely given in the presence of the solemnizing officer Legal Capacity of Parties Minimum age provided by law NO existing impediment between them e.g. existing relationship or subsisting prior marriage Mutual Consent The law will not specifically enforce the agreement by decreeing that the unwilling party marry the other It is within the power of either party to consent to actual marriage Consent must be real, not vitiated by mistake, duress, or fraud Must be conscious or intelligence, not affected by insanity, intoxication, drugs, hypnotism Marriage in Jest Marriage made with no intention of entering into actual marriage status, with a clear understanding that the parties are not to be bound, and ceremony is not followed by any conduct indicating a purpose to enter into such relation, us held subject to annulment No marriage, even if solemnizing officer believed that the parties were serious Lack of real intent may be proved by circumstances and statements of the parties Effect of mistake Mistake as to nature and legal consequences of the ceremony as to the IDENTITY of one of the parties, renders the marriage VOID for lack of consent Marriage is not invalidated by mistake as to rank, fortune, character of health, of one of the parties Difference in Sex of Parties Contracting parties be of different sexes FC 3 The formal requisites of marriage are: 1. Authority of the solemnizing officer 2. A valid marriage license except in cases provided for in Chap. 2 of this title 3. Marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other husband and wife in the presence of not less than two witnesses of legal age Formal Requisites essential Total absence of formal requirements renders marriage void ab initio Designation as formal requirements is a mere matter of convenient classification and not of their legal nature Without them, no valid marriage can exist

Authority to solemnize marriage Enumerated in Art. 7 Marriages are rendered void from the beginning all marriages solemnized by one who had no authority to do so, whether the parties or one of the m believed in good faith that he had authority to solemnize the marriage Marriage license Marriage preceded by issuance of such license cannot render valid or even add an iota of validity to the marriage Law does not impose upon solemnizing persons the duty investigating whether license was issued by local civil registrar of the domicile of eiher party Sufficient to know that license was issued by a competent official; it may be presumed from the issuance of said license that said official has complied with his duty of ascertaining whether the party who desires to get married resides habitually in his municipality Marriage under license is not invalidated by the fact that license was wrongfully obtained Ceremony of marriage No ceremony, no marriage Parties are required to appear before the solemnizing officer and declare, in the presence of at least two witnesses of legal age, that they take each other as husband and wife Requirement prevents common law marriages, which are present agreements bet man and woman with capacity to enter into such relationship to take each other as husband and wife, followed by cohabitation FC 4 The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (a). A defect in any of the essential requisites shall render the marriage voidable as provided in Art. 45. An irregularity in the formal requisites SHALL NOT affect validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally, and administratively liable. Essential requisites Absence or want of essential requisites mentioned in Art 2 makes marriage void from beginning If party < 18 and has not consented to a real marriage, supposed marriage is nonexistent or void from the beginning Where a party gives consent to be husband or wife, but not knowingly and voluntarily or freely, is misled, there is merely a defect in the essential requisite of consent. Consent is present but vitiated or defective and marriage is NOT void ab initio but is only annullable or voidable Formal requisites Absence of formal requisite mentioned in Art 3 has the same effect of absenve of essential requisite for marriage Exception: solemnizing officer; even if he has no authority, and parties or one of them believed in good faith he had such authority, marriage is valid

Mere defect or irregularity in any formal requirement has no effect on the marriage itself, which will remain valid if essential requisites are present Party responsible for defect or irregularity may be prosecuted for any crime he may have committed or be punished administratively for breach of duties Examples of mere defect/irregularity in formal requisites: o Marriage license is issued by local civil registrar w/o requiring the presentation of documentary proofs of the parties required by law o Marriage license is issued before expiration of the period required by law for the posting of notice of application of license, or if notice is not posted in the place required by law o If marriage is solemnized in place not provided by law

FC 5 A ny male of female of the age of 18 years of upwards not under any of the impediments mentioned in Art. 37 and Art. 38 may contract marriage. Age of Consent 18 years of age If people can already bear children, they should be allowed to marry Additional requirements of parental consent when a party to the marriage is below 21 years old Sociological Reason Higher age of legal capacity to marry is a legal means if checking population explosion in this country PH has high annual population growth among countries of the world Capacity of widow to remarry Old CC: The fact that 300 days have not expired after the death of her husband was considered an impediment to a widows remarriage, unless a child was born in the meantime FC has impliedly recognized validity of subsequent marriage within 300 days after the death of the husband, by providing rules on legitimacy of children born to her after the remarriage FC 6 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 witness 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. In case of a marriage in articulo mortis, when the party at the point of death is unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage to write the name of said party, which fact shall be attested by the solemnizing officer. Form of ceremony immaterial Form is of little consequenve May be civil, military, religious, simple, or pompous

Important that both parties appear personally and declare before the solemnizing officer or minister, in the presence of two witnesses of legal age, that they take each other as husband and wife It is enough that words employed evidence mutual consent Consent may be inferred from ceremony performed, act of parties, and habit or repute

Marriage by Proxy There are jurisdictions which recognize the validity of marriage by proxy Marriage by proxy us NOT legally possible in this jurisdiction, bec parties are required to declare that they take each other as husband and wife, in the present of the solemnizing officer and two wirnesses Failure to sign or issue certificate Signing formal contract/certificate is not essential to the validity of the marriage, so long as consent of parties to take each other as H and W has been given in the presence of the solemnizing officer and at least two witnesses of legal age FC 7 Marriage may be solemnized by 1. Any incumbent member of the judiciary within the courts jurisdiction 2. Any priest, rabbi 3. Any ship captain or airplane chief only in cases mentioned in Art. 31 4. Any military commander of a unit to which a chaplain is assigned, in the absence of the latter, during a military operation, likewise only in the cases mentioned in Article 32 5. Any consul-general, consul, or vice-consul in the case provided in Art. 10 FC 8 Marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church, chapel or temple, in the office of the consul-general, consul or vice-consul, as the case may be, and not elsewhere except in cases of marriages contracted on the point of death or in remote places in accordance with Art 29 of this Code, or where both of the parties request the solemnizing officer in writing in w/c case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect. FC 9 Any marriage license shall be issued by the local registrar of the city or municipality where either contracting party habitually resides, except in marriages where no license is required in accordance with Chapter 2o of this title. Application in another place Fact that application for marriage license was filed in a place different from the habitual residence of either contracting party does not by itself invalidate the marriage Defect or irregularity will not invalidate the marriage FC 10 Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or vice-consul of the RP. The issuance of marriage license and duties of the local civil registrar and of the solemnizing officers with regard to the celebration of marriage shall be performed by said consular official. Marriages of Filipinos abroad Marriage license is required by Philippine Consuls-general, consuls, or vice-consuls

Contracting parties need not be permanent residents or immigrants in the foreign country where they are married Philippine laws are applicable

FC 11 & 12 tl;dr FC 11 When a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the local civil registrar which shall specify the following: 1. Full name of contracting party 2. Place of birth 3. Age and date of birth 4. Civil status 5. If previously married, how, when, and where the previous marriage was dissolved or annulled 6. Present residence and citizenship 7. Degree of relationship of contracting parties 8. Full name, residence, and citizenship of the father 9. Full name, residence, and citizenship of the mother 10. Full name, residence, and citizenship of the guardian or person having charge, in case the contracting party has neither father nor mother and is under 21 y/o The applicants, their parents or guardians shall not be required to exhibit their residence certificates in any formality in connection with the securing of the marriage license. FC 12 tl;dr. Local civil registrar shall require presentation of the original birth certs or, in default thereof, baptismal certs of the contracting parties or copies of such docs duly attested by the person having custody of the originals. If either of contracting parties is unable to produce his birth or baptismal cert, or it is shown by an affidavit of such party or of any other person that such birth cert has not yet been received though the same has been required of the person having custody thereof at least 15 days prior to the date of application, such party may furnish in lieu thereof his current residence cert or instrument drawn up and sworn to before the local civil registrar concerned or any public official authorized to administer oaths. Birth cert not required if parents of the contracting parties appear personally before the local civil registrar concerned and swear to the correctness of the lawful age of said parties, or when the local civil registrar shall, by looking at applicants, be convinced that either or both of them have the required age. Mariategui v CA Anonuevo et al Intestate Estate of Rodolfo Jalandoni 1. Kinds of requisites and effects of non-compliance FC 2-3 FC 2 No marriage shall be valid, unless these requisites are present: Legal capacity of the contracting parties who must be a male and a female Consent freely given in the presence of the solemnizing officer FC 3 The formal requisites of marriage are: Authority of the solemnizing officer

A valid marriage license except in the cases provided for in Chap 2 of this title A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing 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. FC 4 Absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35(2)(good faith on the authority of the solemnizing officer). A defect in any of the essential requisites shall render the marriage voidable as provided in Article 45 ([a] without parental consent; [b] either party was of unsound mind; [c] consent was obtained by fraud]; [d] consent of either party was obtained by force, intimidation, or undue influence; [e] either party was physically incapable of consummating the marriage; [f] that either party was afflicted with a sexually transmissible disease found to be serious and appears to be incurable) FC 5 Any male or female of the age of 18 or upwards not under any of the impediments mentioned in Arts. 37 & 38 may contract marriage. FC 45 cf NCC 53 RPC 350 RPC 351 De Mijares v Villaluz 2. Essential Requisites (a) Legal capacity (i) Gender, FC 2 (1) legal capacity to contract a marriage; cf FC 148 only properties acquired by both parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In absence of proof to contrary, their contributions and corresponding shares are presumed to be equal. If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who had acted in bad faith is not validly married to another, his or her share shall be forfeited in the manner provided in the last paragraph of the preceding article Silverio v Republic (ii) Age FC f; FC 35(1); RA 6809 cf. FC 21 NCC 54 & 80(1) RPC 344 Cf. DOJ Opinion 145 S. 1991 (iii) Absence of impediment, FC 5 FC 35 Void ab initio marriages 1. Contracted by any party below 18 years even with consent of parents/guardians 2. Solemnized by any person not legally authorized to perform marriages 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

3. Solemnized without a license, except when a man and woman have lived together as husband and wife for at least five years w/o any legal impediment to marry each other 4. Bigamous/polygamous marriages 5. Contracted through mistake of one contracting party as to the identity of the other 6. Subsequent marriages void under Art 53 Garcia v Recio Te v Choa Nollora v People Catalan v Lee 3. Parental Consent FC (14) In case either or both of the contracting parties, not having been emancipated by a previous marriage, are between 18 and 21, they shall, in addition to the requirements of the preceding articles, exhibit to their local civil registrar, the consent to their marriage of their father, mother, surviving parent or guardian, or persons having legal charge of them, in the order mentioned. Consent shall be manifested in WRITING, who personally appears before the proper local civil registrar, or in the form of an affidavit made in the presence of two witnesses. FC 45(1) A marriage may be annulled when the party in whose behalf it is sought to have the marriage annulled was 18 years of age but below 31, and marriage was solemnized w/o consent of parents, guardian, or person having substitute parental authority over the party, in that order, unless after attaining the age of 21, such party freely cohabited with the other and both lived together as husband and wife. 4. Consent freely given by both spouses (a) Mistake as to identity FC 35(5) NCC 86(1) (b) Effect of insanity, FC 45(2) A marriage may be annulled when either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife. (c ) Effect of fraud, FC 45(3) 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. FC 46 Any of the ff circumstances shall constitute fraud referred to in No. 3 of the preceding article: 1. Non-disclosure of a previous conviction by final judgment 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 preggers by a man other than her husband 3. Concealment of STD, regardless of nature 4. Concealment of drug addiction, alcoholism, homosexuality, or lesbianism

NCC 1338-1344 Anaya v Palaroan (d) Effect of force, intimidation and undue influence Villanueva v CA (e ) Effect of physical incapacity/impotence FC 45(5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable Jimenez v Canizares Alcazar v Alcazar (f) Effect of affliction w/ STD FC 45(6) That either party was afflicted with a sexually-transmitted disease found to be serious and appears to be incurable 46(3) Any of the ff circumstances shall constitute fraud: (3) Concealment of an STD 5. Formal Requisites (a) Marriage License Republic v CA Sevilla v Cardenas Sy v CA Alcantara v Alcantara De Castro v De Castro 1. Where to apply, FC 9-10 Marriage license is ISSUED by LOCAL CIVIL REGITRAR of the city/municipality Marriage may be solemnized by a consul-general, consul, or vice-consul of the RP Official may issue marriage license. 2. Requirements for issuance a. Application, Fc 11 b. Proof of Capacity FC 12 birth certificates, naptismal certificates, affidavit that such certificate is lost, current residence certificate sworn to before the local civil registrar, with nearest of kin as preferred witnesses; NOT NEEDED if parents of contracting parties appear personally before the local civil registrar and swear to the correctness of the lawful age of said parties, or when local civil registrar be convinced that both of them have the required age FC 13 in case on party was previously married, applicant shall be required to furnish the judicial decree of annulment or declaration of nullity of previous marriage; in case cert cannot

be secured, party shall make an affidavit setting forth this circumstance and his or her actual civil status and the name and date of death of the deceased spouse FC 14 if, not having been emancipated by a previous marriage, they shall exhibit to local civil registrar the consent to their marriage of their fatheretc FC 21 when either or both of the contracting parties are citizens of a foreign country, it shall be necessary for them before a marriage license can be obtained, to submit a certificate of legal capacity to contract marriage, issued by diplomatic or consular officials cf. NCC 83 cf. DOJ Opinion 50 DOJ Opinion 146 c. Parental advice d. Marriage counselling e. Publication f. Investigation of impediments g. Payment of fees h. Family planning certificate 3. Place where valid 4. Period of validity 4. Duties of the Civil Registrar Alcantara v Alcantara 6. Marriages exempt from license requirement FC 27 point of death FC 28 no means of transportation to enable such party to appear personally before local civil registrar FC 29 affidavit shall be executed before local civil registrar or any other legally authorized to administer oaths that marriage was performed in articulo mortis FC 30 original affidavit + legible copy of marriage contract shall be sent by solemnizing officer to the local civil registrar w/in 30 days FC 31 marriage in articulo mortis bet passengers and crew members may also be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call FC 32 military commander of a unit, who is a commissioned officer, shall likewishe have authority to solemnize marriages in articulo mortis bet person within the zone of military operation, whether members of armed forces or civilians FC 33 marraiges among Muslims or among members of ethnic cultural communities may be performed validly w/o necessity of a marriage license, provided they are solemnized in accordance with their customs, rites, or practises FC 34 those who have lived together for five years as husband and wife, without any legal impediments to marry; needs an affidavit ef. NCC 76, PD 1083 Ninal v Badayog De Castro v De Castro Republic v Dayot

(b) Authority of the solemnizing officer 1. Who are authorized FC 7 Marriage may be solemnized by 1. Incumbent member of the judiciary within the courts jurisdiction 2. Priest, rabbi, imam, minister of any church religious sect duly authorized by his church or religious sect and registered with the civil registrar general, acting within the limits of the written authority granted him by his church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing officers church or religious sect 3. Any ship captain or airplane chief only in cases mentioned in Art. 31 4. Military commander of a unit to which chaplain is assigned, in the absence of the latter, during a military operation, likewise only in cases mentioned in Art 32 5. Consul-general, consul, or vice-consul in cases provided by Art. 10 FC 10 Consul general, consul, or vice consul Issuance of marriage license and duties of local civil registrar and solemnizing officer with regard to celebration of marriage shall be performed by said consular official. FC 31 Marriage in articulo mortis bet passengers of crew members may also be solemnized by a ship captain or by an airplane pilot nit only while ship is at sea or plane Is in flight, but also during stopovers at ports of call NCC 56, 74, 76 RA 7160 (1991 LGC) Secs. 444(b)(1)(xviii), 445 (b)(1)(xviii) Aranes v Occiano Navarro v Domagtoy 2. How authorized FCC 7(2) cf. NCC 92-96 Villar v Paraiso 3. Effect of absence of authority FC 4; FC 35 RPC 532 Cf. Tenchavez v Escano 4. Duties of the solemnizing officer FC 23 Duties of solemnizing officer To furnish either of the contracting parties the original of the marriage certificate To send the duplicate and triplicate copies of the certificate not later than 15 days after the marriage to the local civil registrar of the place where marriage was solemnized Shall receive proper receipts issued by local civil registrar

FC24 Duties of local civil registrar To prepare documents required by this Title To administer oaths to all interested parties w/o any charge in both cases 5. Effect of irregularity, FC 4 (c) Marriage Ceremony

Shall retain in his file the quadruplicate copy of marriage cert, the original of marriage license, and affidavit of the contracting party re: solemnization of marriage in a place other than those mentioned in Art 8

1. Form of ceremony, FC 3(3); FC 6 cf. FC 33, FC 8 FC 3(3) Marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of no less than two witnesses. FC 6 No prescribed form of religious rite for solemnization of the marriage is required. Necessary to appear personal before solemnizing officer and declare in the presence of not less than two witnesses of legal age that they take each other as husband and wife FC 8 Marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church, chapel or temple, in the office of the consul-general, etc Martinez v Tan 2. Place for ceremony, FC 8; FC 28-29; FC 32-33 3. Issuance of marriage certificate; FC 6; FC 22 Madridejo v De Leon People v Borromeo E. Law governing validity of marriages abroad 1 Tolentino 260-263 - READ 1. General rule in contracts (a) As to form, NCC 17 (1) and (2) (b) As to substantive requirements, NCC 15 & NCC 17 (3) 2. Special rule in marriage (a) lex loci celebrationis, FC 26; FC 21, FC 10 Yao Kee v Sy-Gonzales Republic v Orbecido III

(b) Exceptions FC 26 All marriages solemnized outside the PH, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country. in relation to FC 35(1), 35(4), 35(5) and (6), 36, 37 & 38 Cf. NCC 71 DOJ Opinion No. 11 S. 1990 (Jan. 17, 1990) F. Common-law marriages/live-in relationships FC 147m When a man and woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal and the property acquired by both of them through their work and industry shall be governed by the rules on co-ownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the formers efforts consisted in the care and maintenance of the family and of the household. Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation. When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favour of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. cf. RPC 350 FC 148 (adulterous) In cases of cohabitation not falling under the preceding Article, only the properties acquitted by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. IN the absence of the proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit. If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who had acted in bad faith is not validly married to another, his or her share shall be forfeited in the manner provided in the last paragraph in the preceding article. Rule on forfeiture shall likewise apply even if both parties are in bad faith.

Rule 131 Sec. 3 (aa) (cc), 1989 Rules on Evidence cf. NCC 220 FC 26 par. 1 NCC Book II, Title III Lesaca v Lesaca Yaptinchay v Torres Eugenio v Velez Estrada v Escritor G. Void Marriages 1 Tolentino 270-310 General Rule, FC 4 Absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Art 35(2). A defect in any of the essential requisites shall render the marriage voidable as provided in Article 45. An irregularity in the formal requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally, and administratively liable. 1. Kinds of void marriages (a) Absence of requisites Cf. VII (D) of Outline FC 35 cf. FC 234 emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at 18 years (amended by RA 6809) RA 6809 Alcantara v Alcantara So v Valera De Castro v De Castro Reoublic v Dayot (b) Bigamous and polygamous marriages FC 35(4) FC 39 action or defense for the declaration of absolute nullity of a marriage shall not prescribe FC 40 absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void FC41 marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provision of Art 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the

declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. FC 44 If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favour of the other are revoked by operation of law. RPC 344, 349 Apiag v Cantero Mercado v Tan Bobis v Bobis Ty v CA Morigo v Morigo Tenebro v CA, concurring of Vitug, dissent of Carpio Teves v Republic Nollora v People Catalan v Lee (c) Subsequent marriage, upon reappearance of absent spouse FC 41 in rel. to FC 42 Subsequent marriage referred to in prev article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the prev marriage or declaring it void ab initio. Sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. FC 43 The termination of the subsequent marriage referred to in the preceding Article shall produce the ff effects: 1. Children shall be considered legitimate, and custody and support in case of dispute shall be decided by court in the proper proceeding 2. Absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favour of the common children, or if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse 3. Donations by reason of marriage shall remain valid, except that if the done contracted the marriage in bad faith, such donations made to said done are revoked by operation of law 4. The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable 5. The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. FC 44 If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favour of the other are revoked by operation of law.

NCC 390-391 Jones v Hortiguela Republic v Nolasco Bienvenido v CA SSS v Jarque vda. De Bailon Procedure Republic v Bermudez-Lorino Republic v Tango (d) Bad faith of both spouses (e) Psychological incapacity under FC 36 FC 36 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 FC 39 FC 68-73 RA 5833 Santos v CA Chi Ming Tsoi v CA Republic v Olaviano Molina Hernandez v CA Marcos v Marcos Republic v Dagdag RP v Quintero-Hamano Antonio v Reyes Republic v Tanyag-San Jose Almelor v RTC Las Pinas Te v Te Azcueta v RP Halili v Halili Najera v Najera Camacho-Reyes v Reyes Agraviador v Agraviador Ochoso v Bona Republic v Galang Kalaw v Fernandez Campos v Campos A.M. No. MTJ-10-1761 (f) Incestuous marriages FC 37 Marriages between the following are incestuous and void from the beginning, whether the relationship between parties be legitimate or illegitimate: Between ascendants and descendants of any degree

 Between brothers and sisters, whether full or half blood cf. NCC 963-967 (g) Marriages against public policy FC 38, compare FC 38(6) with NCC 80(6) RPC 246 NCC 80(7), 82 NCC 963-967 (h) Non-compliance under FC 53,52 Sec. 21, 22 and 24, A.M. No. 02-11-10 SC, March 4, 2003 2. Who can invoke nullity, FC 36, FC 39, FC 40 Sec. 2, A.M. No. 02-11-10 SC. March 4, 2003 Ninal v Badayog Catalan v CA Enrico v Heirs of Sps. Medinacelli Carlos v Sandoval Ablaza v Republic 3. When to file action for declaration of nullity FC 39; FC 26(2) in rel to FC 255 FC 42 FC 236 4. Procedure in actions for declaration of nullity a. Requisite for valid marriage, see VII(#)(10)(b) b. Safeguards against collusion, FC 48 Malcampo Sin v Sin Ancheta v Ancheta Salmingo v Rubica c. No confession of judgment d. AM No 02-11-10-SC March 4, 2003 Jocson v Robles Tolentino v Villanueva Salcedo Ortanez v CA Pesca v Pesca Carlos v Sandoval e. No Motion to Dismiss Aurelio v Aurelio 5. Effects of pendency of action for declaration of nullity Art. 49, 198, 50, 213

6. Effects of res judicata Mallion v Alcantara 7. Effects of final judgment declaring nulliy (a) In general, FC 50-53, 198, but see FC 147-148 Licaros v Licaros (b) On remarriage, FC 40 Wiegel v Sempio-Diy Terre v Terre Domingo v CA Carino v Carino Bobis v Bobis Mercado v Tan Ty v CA Morigo v Morigo Abunado v People Jarillo v People Antone v Beronilla (c) On rights and obligations between the former spouses (d) On the property regime of the marriage FC 147-148 Valdes v QC RTC Buenaventura v CA Dino v Dino Yu v Reyes-Carpio (e) On legitimes of the common children FC 50-53, FC 51 in rel to NCC 886, 888 FC 176 NCC 908, 1061 Sc. 21, A.M. No. 02-11-10-SC Mar. 4, 2003 Buenaventura v CA Dino v Dino (f) On the status and custody of children FC Art. 54, Art. 176 (g) On use of surnames

Yasin v Honorable Judge of Sharia District Court BAR Matter Np. 1625 Remo v DFA (h) On hereditary rights, FC 43 (i) Effect of death Castro v Castro Heirs of Go v Servacio