PRELIMINARY TITLE Effect and Application of Laws CHAPTER 1 EFFECT AND APPLICATION OF LAWS

Article 1. This Act shall be known as the "Civil Code of the Philippines." (n) Article 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. (1a) Article 3. Ignorance of the law excuses no one from compliance therewith. (2) Q. Can publication requirement be dispensed with on the basis of the clause unless otherwise it is provided under Article 2 of the New Civil Code? NO. The clause unless otherwise it is provided pertains to the fifteen day period and not to the requirement of publication. Publication is an indispensable requirement, the absence of which will not render the law effective (see Tanada v Tuvera, 146 SCRA 446). Every person is presumed to know the law. Can this presumption be overcome by evidence that the person has in fact no knowledge of the existence of a law? NO. The presumption is conclusive (See Tanada v. Tuvera, supra).

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Article 4. Laws shall have no retroactive effect, unless the contrary is provided. (3) Q. A. Q. A. What is retrospective legislation? These are legislations with retroactive effect. What are the instances when a law may be given retroactive effect?

PRELIMINARY TITLE Effect and Application of Laws (a)When the law expressly provides for retroactivity; (b)when the law is curative or remedial; (c) when the law is procedural; (d)when it is penal in character and is favorable to the accused. Q. A. What are the instances when the law cannot be given retroactivity?

(a)When it impairs obligation of contracts; (b)it affects vested rights; (c) when it will affect pending proceedings ( See Espiritu v. Cipriano, 55 SCRA 533). What is a curative or remedial legislation? It is a type of retrospective legislation that reach back on past events to correct errors or irregularities and to render valid and effective attempted acts which would otherwise be ineffective for the purpose the parties intended (DBP v. CA, 96 SCRA 342).

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Article 5. Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity. Q. A. When can a violation of mandatory or prohibitory laws be valid? It is when the law itself authorizes their validity that acts in violation of these laws are valid and enforceable (Article 5, new Civil Code).

Article 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. Q. A. When can a waiver be considered as an effective waiver? A waiver is effective when it is a knowing and intelligent waiver. This means that the person knows that a rights exists, knowledge of the facts basic to the exercise of the right waived with an awareness of its consequences (See Consunji v. CA, G.R. No. 137873, April 20, 2001).

Article 7. Laws are repealed only by subsequent ones, and

PRELIMINARY TITLE Effect and Application of Laws their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary. When the courts declared a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. Q. A.

What is the general rule and exception when it comes to partial unconstitutionality of a statute? As a general rule, where a part of a law is declared unconstitutional, other parts not declared as such will still be upheld. However, when the other provisions are so mutually dependent and connected with the unconstitutional provision as to warrant a belief that the legislature intended them to be whole, those other provisions must fall (See Lidasan v. COMELEC, 21 SCRA 496).

Article 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines. (n) Article 9. No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws. (6) Article 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. (n) Article 11. Customs which are contrary to law, public order or public policy shall not be countenanced. (n) Article 12. A custom must be proved as a fact, according to the rules of evidence. Q. A. Can courts take judicial notice of customs? NO. A custom must be proved as a fact according to the rules of evidence (Article 12, New Civil Code).

PRELIMINARY TITLE Effect and Application of Laws Article 13. When the laws speak of years, months, days or nights, it shall be understood that years are of three hundred sixty-five days each; months, of thirty days; days, of twentyfour 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. (7a) Q. X filed his final income tax return on April 15, 1998. X, however, discovered that he made excessive payment. Hence, he filed a claim for refund before the Commissioner for Internal Revenue (CIR) on December 15, 1999. It was denied. On April 14, 2000, he filed an action for refund before the Court of Tax Appeals (CTA). However, it was dismissed on the ground that under the law, claim for refund must be filed within 2 years from the date of payment. According to CTA, two years constitute 730 days pursuant to Article 13 of the New Civil Code. Hence, prescription had set in on April 14, 2000 which is the 731st day since the year 2000 is a leap year. Is the CTA correct? NO. Article 13 of the New Civil Code was impliedly repealed by the 1987 Administrative Code. Under the latter, year shall be understood as 12 calendar months. It is a period running from the beginning of a certain numbered day up to, but not including, the corresponding numbered day of the next month. Two years means twenty four months regardless of the number of days of the month. Hence, two years from April 15, 1998 is April 14, 2000 ( See CIR v. Primetown Properties, G. R. 162155, August 28, 2007).

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Article 14. Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in the Philippine territory, subject to the principles of public international law and to treaty stipulations. (8a) Q. Are diplomatic agents immune from the jurisdiction of Philippine criminal laws? A. Yes, by virtue of the 1961 Vienna Convention on Diplomatic Relations.

Art. 15. Laws relating to family rights and duties, or to the

PRELIMINARY TITLE Effect and Application of Laws

status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. (9a) Q. A. What is the nationality rule? The nationality rule states that regardless of where a citizen of the Philippines might be, he or she will be governed by Philippine laws with respect to his or her family rights and duties, or to his or her status, condition and legal capacity. If a married Filipino obtains a decree of divorce from abroad, may he validly remarry in accordance with Philippine law? No. In the eyes of Philippine law, he is still married as divorce is not allowed (See Tenchavez v. Escano, 15 SCRA 355).

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Art. 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary succession, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated 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. (10a) Q. A. Q. A. What is the general rule with respect to the law that governs real and personal property? The law of the country where it is situated. What is the exception to the abovementioned rule? With respect to the order of succession and the amount of successional rights, whether in intestate or testamentary succession, they shall be regulated by the national law of the deceased. What law will apply if a foreigner executed a will in the Philippines but, who, at the time of his death, was both a national of the

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PRELIMINARY TITLE Effect and Application of Laws United States and also domiciled in the United States? A. United States law (Bellis v. Bellis, 20 SCRA 258).

Article 17. The forms and solemnities of contracts, wills, 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 the 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. (11a) Q. A. Q. A. Q. A. What law will govern the forms and solemnities of public instruments, wills and contracts? The law of the country where they are executed. What law will govern if public instruments are executed before Philippine diplomatic officers in a foreign country? Philippine law. Is a Filipina wife who obtained a divorce abroad and remarried an American liable for adultery? Yes. 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 (See Tenchavez v. Escano 15 SCRA 355).

Article 18. In matters which are governed by the Code of Commerce and special laws, their deficiency shall be supplied by the provisions of this Code. (16a)

PRELIMINARY TITLE Effect and Application of Laws Q.

When shall the Civil Code govern matters covered by the Code of Commerce and special laws?

A. Only when there is a deficiency in the Code of Commerce and special laws. Article 19. Every person must, in the exercise of his rights and in the