PERSONS & FAMILY RELATIONS

PART I: EFFECT AND APPLICATION OF LAWS

ARTICLE 2: EFFECTIVITY OF LAWS TANADA vs TUVERA Facts: Petitioners are demanding for true publication of thePresidential Decrees for their effectivity. The government, as respondent, argued that publication is not necessary since the decree themselves declare that they were to be effective immediately upon approval and that this is covered by the exemption in Article 2 of the Civil Code which states that "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." Issue: Whether or not publication in the Official Gazette is required for presidential issuances for them to be valid and binding. Held: The Court hereby orders respondents to publish in the Official Gazette all unpublished presidential issuances which are of general application, and unless so published, they shall have no binding force and effect. Covered by this rule would be the presidential decrees and executive orders promulgated by the President in the exercise of his legislative power, administrative rules and regulations if their purpose is to enforce or implement an existing law, charter of a city, and circulars of the Monetary Board if they are meant to "fill in the details" of the Central Bank Act. Ratio: Section 1 of Commonwealth Act 638 provides as follows: Section 1. There shall be published in the Official Gazette [1] all important legisiative acts and resolutions of a public nature of the, Congress of the Philippines; [2] all executive and administrative orders and proclamations, except such as have no general applicability; [3] decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of sufficient importance to be so published; [4] such documents or classes of documents as may be required so to be published by law; and [5] such documents or classes of documents as the President of the Philippines shall determine from time to time to have general applicability and legal effect, or which he may authorize so to be published. ...

The clear object of the above-quoted provision is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application of the maxim "ignorantia legis non excusat." It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one.

DE ROY vs. CA Facts: In the case of Luis Bernal, Sr. et.al. vs. Felisa De Roy et. al., the Court of Appeals affirmed the decision of the Regional Trial Court finding the petitioner, De Roy, guilty of gross negligence and awarding damage to the respondent, Bernal. The firewall of the burned out building owned by the petitioner collapsed and destroyed the tailoring shop occupied by the respondent, and killed Marissa Bernal, a daughter. De Roy contends that she warned Bernal to vacate the shop and that Bernal had the "last chance to act" after having been given the warning. De Roy filed a motion to extend the time for filing of the motion for reconsideration on the decision of the Court of Appeals, but was denied. The motion for reconsideration, which was submitted past deadline, was likewise denied. Petitioners claim that the rule set in the case of Habaluyas, stating that the fifteen day period for filing a motion for reconsideration cannot be extended, should not apply since that case was not published in the Official Gazette. Issue: Whether or not the period for filing a motion for reconsideration may be extended. Held: The court affirmed the decision of the Court of Appeals as it correctly applied the rule established in the Habaluyas Case. Ratio: The rule in Habaluyas case states that, beginning one month after the promulgation of this Resolution, the rule shall be strictly enforced that no motion for extension of time to file a motion for reconsideration may be filed with the Metropolitan or Municipal Trial Courts, the Regional Trial Courts, and the Intermediate Appellate Court. Such a motion may be filed only in cases pending with the Supreme Court as the court of last resort, which may in its sound discretion either grant or deny the extension requested. EXECUTIVE ORDER NO. 200 June 18, 1987 PROVIDING FOR THE PUBLICATION OF LAWS EITHER IN THE OFFICIAL GAZETTE OR IN A NEWSPAPER OF GENERAL CIRCULATION IN THE PHILIPPINES AS A

REQUIREMENT FOR THEIR EFFECTIVITY WHEREAS, Article 2 of the Civil Code partly provides that "laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided . . .;" WHEREAS, the requirement that for laws to be effective only a publication thereof in the Official Gazette will suffice has entailed some problems, a point recognized by the Supreme Court in Taada. et al. vs. Tuvera, et al. (G.R. No. 63915, December 29, 1986) when it observed that "[t]here is much to be said of the view that the publication need not be made in the Official Gazette, considering its erratic release and limited readership"; WHEREAS, it was likewise observed that "[u]ndoubtedly, newspapers of general circulation could better perform the function of communicating the laws to the people as such periodicals are more easily available, have a wider readership, and come out regularly"; and WHEREAS, in view of the foregoing premises Article 2 of the Civil Code should accordingly be amended so the laws to be effective must be published either in the Official Gazette or in a newspaper of general circulation in the country; NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby order Sec. 1. Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided. Sec. 2. Article 2 of Republic Act No. 386, otherwise known as the "Civil Code of the Philippines," and all other laws inconsistent with this Executive Order are hereby repealed or modified accordingly. Sec. 3. This Executive Order shall take effect immediately after its publication in the Official Gazette. Done in the City of Manila, this 18th day of June, in the year of Our Lord, nineteen hundred and eighty-seven. ARTICLE 7: REPEAL OF LAWS LOCAL GOVERNMENT CODE SEC. 444. The Chief Executive: Powers, Duties, Functions and Compensation. - (a) The municipal mayor, as the chief executive of the municipal government, shall exercise such powers

and perform such duties and functions as provided by this Code and other laws. (b) For efficient, effective and economical governance the purpose of which is the general welfare of the municipality and its inhabitants pursuant to Section 16 of this Code, the municipal mayor shall: (1) Exercise general supervision and control over all programs, projects, services, and activities of the municipal government, and in this connection, shall: (i) Determine the guidelines of municipal policies and be responsible to the sangguniang bayan for the program of government; (ii) Direct the formulation of the municipal development plan, with the assistance of the municipal development council, and upon approval thereof by the sangguniang bayan, implement the same; (iii) At the opening of the regular session of the sangguniang bayan for every calendar year and, as may be deemed necessary, present the program of government and propose policies and projects for the consideration of the sangguniang bayan as the general welfare of the inhabitants and the needs of the municipal government may require; (iv) Initiate and propose legislative measures to the sangguniang bayan and, from time to time as the situation may require, provide such information and data needed or requested by said sanggunian in the performance of its legislative functions; Appoint all officials and employees whose salaries and wages are wholly or mainly paid out of municipal funds and whose appointments are not otherwise provided for in this Code, as well as those he may be authorized by law to appoint; (vi) Upon authorization by the sangguniang bayan, represent the municipality in all its business transactions and sign on its behalf all bonds, contracts, and obligations, and such other documents made pursuant to law or ordinance; (vii) Carry out such emergency measures as may be necessary during and in the aftermath of man-made and natural disasters and calamities; (viii) Determine, according to law or ordinance, the time, manner and place of payment of salaries or wages of the officials and employees of the municipality; (ix) Allocate and assign office space to municipal and other officials and employees who, by law or ordinance, are entitled to such space in the municipal hall and other buildings owned or leased by the municipal government; (x) Ensure that all executive officials and employees of the municipality faithfully discharge their duties and functions as provided by law and this Code, and cause to be

instituted administrative or judicial proceedings against any official or employee of the municipality who may have committed an offense in the performance of his official duties; (xi) Examine the books, records and other documents of all offices, officials, agents or employees of the municipality and in aid of his executive powers and authority, require all national officials and employees stationed in or assigned to the municipality to make available to him such books, records, and other documents in their custody, except those classified by law as confidential; (xii) Furnish copies of executive ordersissued by him to the provincial governor within seventy-two (72) hours after their issuance: Provided, That municipalities of Metropolitan Manila Area and that of any metropolitan political subdivision shall furnish copies of said executive orders to the metropolitan authority council chairman and to the Office of the President; (xiii) Visit component barangays of the municipality at least once every six (6) months to deepen his understanding of problems and conditions therein, listen and give appropriate counsel to local officials and inhabitants, inform the component barangay officials and inhabitants of general laws and ordinances which especially concern them, and otherwise conduct visits and inspections to the end that the governance of the municipality will improve the quality of life of the inhabitants; (xiv) Act on leave applications ofofficials and employees appointed by him and the commutation of the monetary value of leave credits according to law; (xv) Authorize official trips outside of the municipality of municipal officials and employees for a period not exceeding thirty (30) days; (xvi) Call upon any national official or employee stationed in or assigned to the municipality to advise him on matters affecting the municipality and to make recommendations thereon, or to coordinate in the formulation and implementation of plans, programs and projects, and when appropriate, initiate an administrative or judicial action against a national government official or employee who may have committed an offense in the performance of his official duties while stationed in or assigned to the local government unit concerned; (xvii) Subject to availability of funds, authorize payment of medical care, necessary transportation, subsistence, hospital or medical fees of municipal officials and employees who are injured while in the performance of their official duties and functions; (xviii) Solemnize marriages, any provision of law to the contrary notwithstanding; (xix) Conduct a palarong bayan, in coordination with the Department of Education,

Culture and Sports, as an annual activity which shall feature traditional sports and disciplines included in national and international games; and (xx) Submit to the provincial governor the following reports: an annual report containing a summary of all matters pertaining to the management, administration and development of the municipality and all information and data relativeto its political, social and economic conditions; and supplemental reports when unexpected events and situations arise at any time during the year, particularly when man-made or natural disasters or calamities affect the general welfare of the municipality, province, region or country. Mayors of municipalities of the Metropolitan Manila Area and other metropolitan political subdivisions shall submit said reports to their respective metropolitan council chairmen and to the Office of the President; (2) Enforce all laws and ordinances relative to the governance of the municipality and the exercise of its corporate powers provided for under Section 22 of this Code, implement all approved policies, programs, projects, services and activities of the municipality and, in addition to the foregoing, shall: Ensure that the acts of the municipality's component barangays and of its officials and employees are within the scope of their prescribed powers,functions, duties and responsibilities; (ii) Call conventions, conferences, seminars or meetings of any elective and appointive officials of the municipality, including provincial officials and national officials and employees stationed in or assigned to the municipality at such time and place and on such subject as he may deem important for the promotion of the general welfare of the local government unit and its inhabitants; (iii) Issue such executive orders as are necessary for the proper enforcement and execution of laws and ordinances; (iv) Be entitled to carry the necessary firearm within his territorial jurisdiction; (v) Act as the deputized representative of the National Police Commission, formulate the peace and order plan of the municipality and upon its approval, implement the same and exercise general and operational control and supervision over the local police forces in the municipality in accordance with R.A. No. 6975; (vi) Call upon the appropriate law enforcement agencies to suppress disorder, riot, lawless violence, rebellion or sedition or to apprehend violators of the law when public interest so requires and the municipal police forces are inadequate to cope with the situation or the violators; (3) Initiate and maximize the generation of resources and revenues, and apply the same to the implementation of development plans, program objectives and priorities as provided for under Section 18 of this Code,particularly those resources and revenues

programmed for agro-industrial development and country-wide growth and progress, and relative thereto, shall: (i) Require each head of an office or department to prepare and submit an estimate of appropriations for the ensuing calendar year, in accordance with the budget preparation process under Title Five, Book II of this Code; (ii) Prepare and submit to the sanggunian for approval the executive and supplemental budgets of the municipality for the ensuing calendar year in the manner provided for under Title Five, Book II of this Code; (iii) Ensure that all taxes and other revenues of the municipality are collected, and that municipal funds are applied in accordance with law or ordinance tothe payment of expenses and settlement of obligations of the municipality; (iv) Issue licenses and permits and suspend or revoke the same for any violation of the conditions upon which said licenses or permits had been issued, pursuant to law or ordinance; (v) Issue permits, without need of approval therefor from any national agency, for the holding of activities for any charitable or welfare purpose, excluding prohibited games of chance or shows contrary to law, public policy and public morals; (vi) Require owners of illegally constructed houses, buildings or other structures to obtain the necessary permit, subject to such fines and penalties as may be imposed by law or ordinance, or to make necessary changes in the construction of the same when said construction violates any law or ordinance, or to order the demolition or removal of said house, building or structure within the period prescribed by law or ordinance; (vii) Adopt adequate measures to safeguard and conserve land, mineral, marine, forest, and other resources of the municipality; provide efficient and effective property and supply management in the municipality; and protect the funds, credits, rights and other properties of the municipality; and (viii) Institute or cause to be instituted administrative or judicial proceedings for violation of ordinances in the collection of taxes, fees or charges, and for the recovery of funds and property; and cause the municipality to be defended against all suits to ensure that its interests, resources and rights shall be adequately protected; (4) Ensure the delivery of basic services and the provision of adequate facilities as provided for under Section 17 of this Code and, in addition thereto, shall: (i) Ensure that the construction and repair of roads and highways funded by the national government shall be, as far as practicable, carried out in a spatially contiguous manner

and in coordination with the construction and repair of the roads and bridges of the municipality and the province; and (ii) Coordinate the implementation of technical services rendered by national and provincial offices, including public works and infrastructure programs in the municipality; and (5) Exercise such other powers and perform such other duties and functions as may be prescribed by law or ordinance. (c) During his incumbency, the municipal mayor shall hold office in the municipal hall. (d) The municipal mayor shall receive a minimum monthly compensation corresponding to Salary Grade twenty-seven (27) as prescribed under R.A. No. 6758 and the implementing guidelines issued pursuant thereto.

NAVARRO vs. DOMAGTOY Facts: This is an administrative case against Respondent Judge Domagtoy for gross misconduct and inefficiency in relation to two acts performed by him. The first act pertains to the wedding between Tagadan and Borga, which he solemnized despite the fact where the groom is merely separated from his wife. Respondent's contention is that he only relied upon the affidavit of the municipal trial judge of Samar, confirming the fact that the groom and his wife have not seen each other for almost seven years. The second act is his performance of a marriage in his residence which is beyond his court's jurisdiction. According to him, this falls under the exemption in as stipulated in Art. 8 of the Family Code that allows for a different place if both parties request the solemnizing officer in writing. Issue: Whether or not the Judge Domagtoy committed gross misconduct and inefficiency in performing those acts. Held: Yes, he is suspended for six months and given a stern warning that a repetition of the same or similar acts will be dealt with more severely. Ratio: 1) The first act resulted in a bigamous marriage since the first marriage is still valid. A summary proceeding for the declaration of Tagadan's first wife's death is required before he can remarry, mere affidavit is not sufficient. 2)The marriage is beyond the jurisdiction of the judge. A marriage can be held outside a

judge's chambers or courtroom only in the following circumstances: a) at the point of death, b) in remote places in accordance with Article 29, or c) upon request of both parties in writing in a sworn statement to this effect. The first two circumstances clearly do not apply. The third circumstance cannot also be used as a justification since the written request was made only by one party. BESO vs. DAGUMAN Facts: This is an administrative complaint against Judge Daguman filed by petitioner Zenaida Beso on the grounds that the respondent solemnized the marriage of Zenaida Beso to Bernardito Ymam, outside his jurisdiction and that he failed to retain a copy and register their marriage contract with the office of the Local Civil Registrar. In his comment, respondent averred that he performed the marriage due to the pressing circumstances where respondent was physically indisposed and unable to report to his station, and the complainant Beso with Ymam went to his residence and requested for the urgent celebration of their marriage. The urgency is due to the fact that complainant had to leave the same day to be able to fly from Manila to abroad, that it would be expensive to go to another town and get married, that if they failed to get married, the complainant will be out of the country for a long time and their marriage license would expire and necessitate another publication of notice, that delay of their wedding would complicate her employment abroad and that other dates and venue were considered impracticable by the couple. In addition, it is of the respondent's view that Beso, being and overseas foreign worker, deserved more that ordinary official attention under present Government policy, and this is the reason why he applied liberality and solemnized the marriage at his residence. On the issue of the marriage certificates, respondent claim that he left the copies at his desk but may have been taken by Ymam. Issue: Whether or not the respondent judge committed nonfeasance in office by performing the marriage outside his jurisdiction and failing to retain and forward copies of the marriage certificate to the office of the Local Civil Registrar. Held: The court adopts the findings of the Office of the Court Administrator that the judge committed nonfeasance in office and that he will be fines Five Thousand Pesos with a warning that the commission of the same or future acts will be dealt with more severely. Ratio: 1) As per Article 7 of the Civil Code the marriage should be solemnized within the court's jurisdiction and in Art. 8, it should be in the chambers of the judge or in open court. Exceptions to this based on Art. 8 are a) at the point of death, b) in remote places in accordance with Article 29, or c) upon request of both parties in writing in a sworn

statement to this effect. None of these circumstances is present. Furthermore, marriage is an important and inviolable social institution which must be protected, applying liberality as in this case goes against this as it allows hasty, ill-advised and ill-timed marital unions. 2) The respondent was negligent in performing his duty under Article 23 of the Family Code which states that: "It shall be the duty of the person solemnizing the marriage to furnish either of the contracting parties the original of the marriage certificate referred to in Article 6 and to send the duplicate and triplicate copies of the certificates not later than fifteen days after the marriage, to the local civil registrar of the place where the marriage was solemnized. xxx" ARTICLE 9: DUTY OF JUDGES CHU JAN vs. BERNAS Facts: A cockpit fight was held between the cocks of the plaintiff and the defendant. Each of them had put up a wager amounting to PhP 160, and the referee declared the defendant's cock as the winner. The plaintiff brought a case to the justice if the peace court in the pueblo for his rooster to be declared the winner. The peace court's decision was that the bout was a draw. The defendant brought the case to the Court of First Instance. The plaintiff appealed and prayed for the court to render judgment and order the defendant to comply with the rules and regulations governing cockfights and to pay the stipulated wager, to return the other like amount and to assess the costs of both instances against the defendant. The Court of First Instance dismissed the appeal with no finding as to costs. The grounds for dismissal pronounced by the lower court in the judgment appeal red from were that the court has always dismissed cases of this nature, that he is not familiar with the rules governing cockfights and the duties of referees thereof, that he does not know where to find the law on that subject and that he knows no law whatever that governs the rights of the parties concerning cockfights. Issue: Whether or not the grounds for dismissal of the lower court are valid. Held: No, judgement is reversed and the record of the proceedings shall be remanded to the court where they came from. Ratio: Ignorance of the special law applicable to a case does not justify the court terminating the proceeding by dismissing it without a decision. Paragraph 2 of Article 6 of the Civil Code, provides that the customs of the place shall be observed and in the absence thereof, the general principles of the law.

PEOPLE vs. VENERACION Facts: In a criminal case, the accused were charged and convicted of the crime of rape with homicide. The sentence imposed by the judge was reclusion perpetua. The sentence is being appealed as the law requires that the crime of rape with homicide be punishable by death. Issue: Whether or not the judge is allowed any discretion in imposing either the penalty of Reclusion Perpetua or Death. Held: The penalty to be imposed should be Death as provided by Section 11 of RA No. 7659. Ratio: As long as that penalty remains in the statute books, and as long as our criminal law provides for its imposition in certain cases, it is the duty of judicial officers to respect and apply the law regardless of their private opinions. It is a well settled rule that the courts are not concerned with the wisdom, efficacy or morality of laws. That question falls exclusively within the province of the Legislature which enacts them and the Chief Executive who approves or vetoes them. The only function of the judiciary is to interpret the laws and, if not in disharmony with the Constitution, to apply them. ARTICLE 10: DOUBTFUL STATUTES PEOPLE vs. PURISIMA Facts: Twenty-six petitions have been filed by the People of the Philippines against three Courts of First Instance which dismissed several cases involving the violation of Presidential Decree No. 9 as the complaints lacked one essential element of the crime. This PD penalizes illegal possession of deadly weapon including any bladed, pointed or blunt weapons. Issue: Whether or not the Informations filed by the People are sufficient to constitute the offense of "illegal possession of deadly weapon". Held: No, the Informations are incomplete as they did not indicate the second element where the act of carrying the weapon was either in furtherance of; or to abet, or in connection

with subversion, rebellion, insurrection, lawless violence, criminality, chaos or public disorder. Ratio: When a law is ambiguous, the court is to construe and interpret the true meaning of the measure, guided by the basic principle that penal statutes are to be construed and applied liberally in favor of the accused and strictly against the state. The primary rule is to search for and determine the intent and spirit of the law. This can be found among others in the preamble or "whereas" clauses which enumerate the facts or events which justify the promulgation of the decree and the stiff sanctions stated therein. ARTICLE 11-12: CUSTOMS MARTINEZ vs. VAN BUSKIRK Facts: On the 11th day of September, 1908, the plaintiff, Carmen Ong de Martinez, was riding in a carromata on Calle Real, district of Ermita, city of Manila, P.I., along the left-hand side of the street as she was going, when a delivery wagon belonging to the defendant used for the purpose of transportation of fodder by the defendant, and to which was attached a pair of horses, came along the street in the opposite direction to that the in which said plaintiff was proceeding, and that thereupon the driver of the said plaintiff's carromata, observing that the delivery wagon of the defendant was coming at great speed, crowded close to the sidewalk on the left-hand side of the street and stopped, in order to give defendant's delivery wagon an opportunity to pass by, but that instead of passing by the defendant's wagon and horses ran into the carromata occupied by said plaintiff with her child and overturned it, severely wounding said plaintiff by making a serious cut upon her head, and also injuring the carromata itself and the harness upon the horse which was drawing it. Those facts were not disputed. However, but the defendant presented evidence to the effect that the cochero, who was driving his delivery wagon at the time the accident occurred, was a good servant and was considered a safe and reliable cochero; that the delivery wagon had sent to deliver some forage at Paco Livery Stable on Calle Herran, and that for the purpose of delivery thereof the cochero driving the team as defendant's employee tied the driving lines of the horses to the front end of the delivery wagon and then went back inside of the wagon for the purpose of unloading the forage to be delivered; that while unloading the forage and in the act of carrying some of it out, another vehicle drove by, the driver of which cracked a whip and made some other noises, which frightened the horses attached to the delivery wagon and they ran away, and the driver was thrown from the inside of the wagon out through the rear upon the ground and was unable to stop the horses; that the horses then ran up and on which street they came into collision with the carromata in which the plaintiff, Carmen Ong de Martinez, was riding.

Issue: Whether or not the defendant is guilty of negligence causing the damages to the plaintiff. Held: The cochero of the defendant was not negligent in leaving the horses in the manner described by the evidence. Ratio: It appears from the undisputed evidence that the horses which caused the damage were gentle and tractable; that the cochero was experienced and capable; that he had driven one of the horses several years and the other five or six months; that he had been in the habit, during all that time, of leaving them in the condition in which they were left on the day of the accident; that they had never run away up to that time and there had been, therefore, no accident due to such practice; that to leave the horses and assist in unloading the merchandise in the manner described on the day of the accident was the custom of all cochero who delivered merchandise of the character of that which was being delivered by the cochero of the defendant on the day in question, which custom was sanctioned by their employers.The act of defendant's driver in leaving the horses in the manner proved was not unreasonable or imprudent. Acts the performance of which has not proved destructive or injurious and which have, therefore, been acquiesced in by society for so long a time that they have ripened into custom, can not be held to be themselves unreasonable or imprudent. Indeed the very reason why they have been permitted by society is that they beneficial rather than prejudicial. Accidents sometimes happen and injuries result from the most ordinary acts of life. But such are not their natural or customary results. It is a matter of common knowledge as well as proof that it is the universal practice of merchants to deliver merchandise of the kind of that being delivered at the time of the injury, in the manner in which that was then being delivered; and that it is the universal practice to leave the horses in the manner in which they were left at the time of the accident. This is the custom in all cities. It has not been productive of accidents or injuries. The public, finding itself unprejudiced by such practice, has acquiesced for years without objection. YAO KEE vs. SY-GONZALES Facts: Sy Kiat, a Chinese national, died in 1977, in Caloocan City, leaving behind real and personal properties here in the Philippines. His acknowledged national children with Asuncion Gillego filed a petition for the grant of letters of administration. The petition ws opposed by Yao Kee and her children, alleging that she is the lawful wife, having the

marriage obtained in China. Issue: Whether or not the marriage between Sy Kiat and Yao Kee should be recognized as valid in the Philippines. Held: The validity of the marriage in accordance with Chinese law or custom was not proven. Ratio: Custom is defined as "a rule of conduct formed by repetition of acts, uniformly observed (practiced) as a social rule, legally binding and obligatory" [In the Matter of the Petition for Authority to Continue Use of the Firm Name "Ozaeta, Romulo, de Leon, Mabanta and Reyes", July 30, 1979, SCRA 3, 12 citing JBL Reyes & RC Puno, Outline of Phil. Civil Law, Fourth Ed., Vol. 1, p. 7.] The law requires that "a custom must be proved as a fact, according to the rules of evidence" [Article 12, Civil Code.] On this score the Court had occasion to state that "a local custom as a source of right can not be considered by a court of justice unless such custom is properly established by competent evidence like any other fact" [Patriarca v. Orate, 7 Phil. 390, 395 (1907).] The same evidence, if not one of a higher degree, should be required of a foreign custom. The law on foreign marriages is provided by Article 71 of the Civil Code which states that: Art. 71. All marriages performed outside the Philippines in accordance with the laws in force in the country where they were performed and valid there as such, shall also be valid in this country, except bigamous, Polygamous, or incestuous marriages, as determined by Philippine law. (Emphasis supplied.) *** Construing this provision of law the Court has held that to establish a valid foreign marriage two things must be proven, namely: (1) the existence of the foreign law as a question of fact; and (2) the alleged foreign marriage by convincing evidence [Adong v. Cheong Seng Gee, 43 Phil. 43, 49 (1922).] In proving a foreign law the procedure is provided in the Rules of Court. With respect to an unwritten foreign law, Rule 130 section 45 states that: SEC. 45. Unwritten law.The oral testimony of witnesses, skilled therein, is admissible as evidence of the unwritten law of a foreign country, as are also printed and published books of reports of decisions of the courts of the foreign country, if proved to be commonly admitted in such courts. Proof of a written foreign law, on the other hand, is provided for under Rule 132 section 25, thus:

SEC. 25. Proof of public or official record.An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept and authenticated by the seal of his office. The Court has interpreted section 25 to include competent evidence like the testimony of a witness to prove the existence of a written foreign law [Collector of Internal Revenue v. Fisher 110 Phil. 686, 700-701 (1961) citing Willamette Iron and Steel Works v. Muzzal, 61 Phil. 471 (1935).] In the case at bar petitioners did not present any competent evidence relative to the law and custom of China on marriage. The testimonies of Yao and Gan Ching cannot be considered as proof of China's law or custom on marriage not only because they areself-serving evidence, but more importantly, there is no showing that they are competent to testify on the subject matter. For failure to prove the foreign law or custom, and consequently, the validity of the marriage in accordance with said law or custom, the marriage between Yao Kee and Sy Kiat cannot be recognized in this jurisdiction. ARTICLE 13: COMPUTATION OF PERIOD & TIME GARCIA vs. RECIO Facts: Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, a decree of divorce, purportedly dissolving the marriage, was issued by an Australian family court. On June 26, 1992, respondent became an Australian citizen he married the petitioner, Grace Garcia.Starting October 22, 1995, petitioner and respondent lived separately without prior judicial dissolution of their marriage. While the two were still in Australia, their conjugal assets were divided on May 16, 1996, in accordance with their Statutory Declarations secured in Australia. On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage in the court a quo, on the ground of bigamy -respondent allegedly had a prior subsisting marriage at the time he married her on January 12, 1994. She claimed that she learned of respondents marriage to Editha Samson only in November, 1997. In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his prior marriage and its subsequent dissolution. He contended that his first marriage to an Australian citizen had been validly dissolved by a divorce decree

obtained in Australia in 1989; thus, he was legally capacitated to marry petitioner in 1994. Issue: Whether the divorce between the respondent and edith a Samson was proven allowing him to be legally capacitated to marry the petitioner. Held: The validity of the Australian divorce still needs to be proven by adducing evidence. The case is remanded to the court a quo for the purpose of receiving evidence which conclusively show respondents legal capacity to marry petitioner; and failing in that, of declaring the parties marriage void on the ground of bigamy. Ratio: At the outset, we lay the following basic legal principles as the take-off points for our discussion. Philippine law does not provide for absolute divorce; hence, our courts cannot grant it. A marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad, because of Articles 15 and 17 of the Civil Code. In mixed marriages involving a Filipino and a foreigner, Article 26[25] of the Family Code allows the former to contract a subsequent marriage in case the divorce is validly obtained abroad by the alien spouse capacitating him or her to remarry. A divorce obtained abroad by a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent with their respective national laws. A comparison between marriage and divorce, as far as pleading and proof are concerned, can be made. Van Dorn v. Romillo Jr. decrees that aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. Therefore, before a foreign divorce decree can be recognized by our courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. Presentation solely of the divorce decree is insufficient. The divorce decree, being a foreign document was inadmissible to court as evidence primarily because it was not authenticated by the consul/ embassy of the country where it will be used. Under Sections 24 and 25 of Rule 132, a writing or document may be proven as a public or official record of a foreign country by either: (1) an official publication or (2) a copy thereof attested by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be: (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office. It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign

laws. Like any other facts, they must be alleged and proved. Australian marital laws are not among those matters that judges are supposed to know by reason of their judicial function. The power of judicial notice must be exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative.

ARTICLE 15: NATIONALITY RULE VAN DORN vs. ROMILLO, JR. Facts: Alice Reyes Van Dorn, the petitioner, is a citizen of the Philippines while private respondent, Richard Upton, is a citizen of the United States. They were married in Hongkong in 1972, after the marriage, they established their residence in the Philippines and had two children. In 1982, they obtained a divorce in Nevada, USA and the petitioner remarried Theodore Van Dorn. In 1983, private respondent filed suit against the petitioner stating that the petitioner's business in Ermita, Manila, is conjugal property and asked that the petitioner be ordered to render an accounting of that business, and that private respondent be declared with right to manage the conjugal property. Petitioner moved to dismiss the case on the ground that the cause of action is barred by previous judgment in the divorce proceedings before the Nevada Court wherein respondent had acknowledged that they have no community property. The Regional Trial Court denied the Motion to Dismiss filed by petitioner on the ground that the property is in the Philippines where the Divorce decree has no bearing. The denial is now the subject of this Certiorari proceeding. Issue: Whether or not the foreign divorce between the petitioner and private respondent in Nevada is binding in the Philippines where petitioner is a Filipino citizen. Held: The divorce is valid and binding on the private respondent as his national law allows it. Ratio: There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State of the Union. What he is contending in this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to local law and public policy. As stated by the Federal Supreme Court of the U.S. (in Atherton VS Atherton, 45 L. Ed. 794, 799): The marriage tie, when thus severed as to one party, ceases to bind either. A husband without a wife or a wife without a husband is unknown to the law. Thus, pursuant to his national law, private respondent is no longer the husband of

petitioner. He would have no standing to sue in the case below as petitioner's husband entitled to exercise control over conjugal assets. As he is bound by the Decision of his own country's Court, which validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal property. To maintain that under our national laws petitioner has to be considered married to the respondent and still subject to a wifes obligations cannot be just. She should not be discriminated against in her own country if the ends of justice are to be served.

BARRETO vs. GONZALES Facts: Plaintiff & defendant are citizens and residents of the Philippines. They were married & lived together from January 1919 until Spring of 1926. After which they voluntary separated & have not lived together as man & wife, they had 4 minor children together. After negotiations, both parties mutually agreed to allow Manuela Barreto (plaintiff) for her & her childrens support of P500 (five hundred pesos) monthly which to be increased in cases of necessity & illness, and that the title of certain properties be put in her name. Shortly thereafter, the defendant went to Reno, Nevada & secured in that jurisdiction an absolute divorce on the ground of desertion dated November 28, 1927. On the same date, he went through the forms of marriage with another Filipino citizen as well & had three children. When Gonzales left the Philippines, he reduced the amount he had agreed to pay monthly for the support of Manuela Barreto & her children & has not made the payments fixed in the Reno divorce as alimony. Gonzales came back to the Philippines in August 1928 and shortly after, Barreto brought an action at the CFI-Manila requesting to confirm & ratify the decree of divorce issued by the courts of Nevada & invoked sec 9 of Act 2710. Such is requested to be enforced, and deliver to the Guardian ad litem the equivalent of what would have been due to their children as their legal portion from respective estates had their parents died intestate on November 28, 1927, they also prayed that the marriage existing between Barreto & Gonzales be declared dissolved & Gonzales be ordered to pay Barreto P500 per month, counsel fees of P5000 & all the expenses incurred in educating the three minor sons. The guardians of the children also filed as intervenors in the case. After the hearing, the CFI-Manila granted the judgement in favor of the plaintiff & intervenors, but reduced the attorneys fees to P3000 instead & also granted the costs of the action against the defendant, Hence, this appeal by Gonzales saying that the lower court erred in their decision. Issue: Whether or not the divorce decree obtained in Nevada is valid and would require the dissolution of the community property as per Section 9 of Act No. 2710. Held:

The judgment of the Court of First Instance of the City of Manila must therefore be reversed and defendant absolved from the demands made against him in this action. This, however, without prejudice to any right of maintenance that plaintiff and the intervenors may have against defendant. No special pronouncement as to costs. Ratio: The entire conduct of the parties from the time of their separation until the case was submitted to this court, in which they all prayed that the Reno divorce be ratified and confirmed, clearly indicates a purpose to circumvent the laws of the Philippine Islands regarding divorce and to secure for themselves a change of status for reasons and under conditions not authorized by our law. At all times the matrimonial domicile of this couple has been within the Philippine Islands and the residence acquired in the State of Nevada by the husband of the purpose of securing a divorce was not a bona fide residence and did not confer jurisdiction upon the Court of that State to dissolve the bonds if matrimony in which he had entered in 1919. While the decisions of this court heretofore in refusing to recognize the validity of foreign divorce has usually been expressed in the negative and have been based upon lack of matrimonial domicile or fraud or collusion, we have not overlooked the provisions of the Civil Code now in force in these Islands. Article 9 thereof reads as follows: The laws relating to family rights and duties, or to the status, condition and legal capacity or persons, are binding upon Spaniards even though they reside in a foreign country. And article 11, the last part of which reads: . . . the prohibitive laws concerning persons, their acts and their property, and those intended to promote public order and good morals, shall nor be rendered without effect by any foreign laws or judgments or by anything done or any agreements entered into a foreign country. It is therefore a serious question whether any foreign divorce relating to citizens of the Philippine Islands, will be recognized in this jurisdiction, except it be for a cause, and under conditions for which the courts of Philippine Islands would grant a divorce. The lower court in granting relief as prayed for frankly stated that the securing of the divorce, the contracting of another marriage and the bringing into the world of innocent children brings about such a condition that the court must grant relief. The hardships of the existing divorce laws of the Philippine Islands are well known to the members of the Legislature. It is of no moment in this litigation what he personal views of the writer on the subject of divorce may be. It is the duty of the courts to enforce the laws of divorce as written by the Legislature if they are constitutional. Courts have no right to say that such laws are too strict or too liberal. Litigants by mutual agreement can not compel the courts to approve of their own actions or permit the personal relations of the citizens of these Islands to be affected by decrees of foreign courts in a manner which our Government believes is contrary to public order and good morals. Holding the above views it becomes unnecessary to discuss the serious constitutional question presented by appellant in his first assignment of error. INSULAR GOVT. vs. FRANK

Facts: George Frank, the defendant, entered into an agreement with the Insular Government of the Philippine Islands for a contract where he will provide tyne service as a stenographer for at period of two years. The contract was made in April 1903 in the city of Chicago, in the State of Illinois, United States. Under the contract, the plaintiff was to advance the expenses incurred in traveling from Chicago to Manila and one-half salary during said period of travel. Th contract contained a provision that in case of a violation of its terms on the part of the defendant, he should become liable to the plaintiff for the amount spent by the government during his travel and including the one-half salary. In February 1904, the defendant left the service of the plaintiff and refused to make further compliance with the terms of the contract. The plaintiff filed an action in the Court of First Instance in Manila, to cover those expenses as stipulated in the contract. The defendant argued that contract was not valid as he was a minor, under the Philippine Laws and that the Laws No. 80 and No. 224 which constitute part of the contract have been repealed by Acts. No. 643 and No. 1040. Issue: Whether or not the contract is valid. Held: The contract is valid and was not affected by the amendments to Laws No. 80 and 224. The defendant is also considered an adult and is capacitated to enter into the contract based on the US law which is applied as the contract was made in the US. Ratio: It may be said that the mere fact that the legislative department of the Government of the Philippine Islands had amended said Acts No. 80 and No. 224 by Acts No. 643 and No. 1040 did not have the effect of changing the terms of the contract made between the Plaintiff and the Defendant. The legislative department of the Government is expressly prohibited by section 5 of the Act of Congress of 1902 from altering or changing the terms of a contract. The right which the Defendant had acquired by virtue of Acts No. 80 and No. 224 had not been changed in any respect by the fact that said laws had been amended. These acts, constituting the terms of the contract, still constituted a part of said contract and were enforceable in favor of the Defendant. The Defendant alleged in his special defense that he was a minor and therefore the contract could not be enforced against him. The record discloses that, at the time the contract was entered into in the State of Illinois, he was an adult under the laws of that State and had full authority to contract. The Plaintiff [the Defendant] claims that, by reason of the fact that, under that laws of the Philippine Islands at the time the contract was made, made persons in said Islands did not reach their majority until they had attained the age of 23 years, he was not liable under said contract, contending that the laws of the Philippine Islands governed. It is not disputed upon the contrary the fact is

admitted that at the time and place of the making of the contract in question the Defendant had full capacity to make the same. No rule is better settled in law than that matters bearing upon the execution, interpretation and validity of a contract are determined by the law of the place where the contract is made. (Scudder vs. Union National Bank, 91 U. S., 406.) Matters connected with its performance are regulated by the law prevailing at the place of performance. Matters respecting a remedy, such as the bringing of suit, admissibility of evidence, and statutes of limitations, depend upon the law of the place where the suit is brought. (Idem.) The Defendants claim that he was an adult when he left Chicago but was a minor when he arrived at Manila; that he was an adult a the time he made the contract but was a minor at the time the Plaintiff attempted to enforce the contract, more than a year later, is not tenable.

YANEZ DE BARNUEVO vs. FUSTER Facts: On the 7th of February, 1875, Gabriel Fuster and Constanza Yaez were joined in a Catholic or canonical marriage in the city of Malaga, Spain. In February of 1892, Gabriel Fuster came to the Philippine Islands, settled, and acquired real and personal property. Toward the middle of 1896, Constanza Yaez came to Manila, where her husband was residing, and here lived with him in conjugal relations until the month of April, 1899. On the 4th day of that month and year they made an agreement, in a public document, by which they resolved to separate and live apart, both consenting to such separation, and by virtue thereof the husband authorized the wife to move to Spain, there to reside in such place as the said lady pleases. In the same document, the husband undertook to send his wife the sum of 300 pesetas monthly for her support, payable in Madrid, Spain, from the month of June of the said year 1899. The husband complied with this obligation until August, 1899, after which time he ceased to make further payments. In the beginning of March, 1909, the wife returned to the Philippines, but the husband had absented himself therefrom in the early days of February of the same year. On the 11th of March, 1909, the wife commenced divorce proceedings against her husband, alleging as cause of action the adultery committed by him in or about the year 1899 with a certain woman that she named in the complaint and with whom he had lived and cohabited and by whom he had had two children. She prayed that she be granted a decree of divorce; that the court order the separation of the properties of the plaintiff and the defendant, to date from the date of the said decree; that the conjugal society be therefore liquidated, and after the amount of the conjugal property had been determined, that one-half thereof be adjudicated to her; furthermore, as to the amount of pension owing for her support but not paid to her, that the defendant be ordered to pay her the sum of 36,000 Spanish pesetas, that is, 7,220 Spanish dollars, which, reduced to Philippine currency at the rate of exchange on the date of the complaint, amounted to

P12,959.90. In deciding the case, the Court of First Instance of the city of Manila held itself to have jurisdiction, decreed the suspension of life in common between the plaintiff and defendant, ordered the latter to pay the former P5,010.17, directed that the communal property be divided between the parties, with costs against the defendant, and in event that the parties could not agree to the division, it was to be effected by commissioners according to law. Both parties appealed from this judgment, but notwithstanding the appeal, the partition of the property, by means of commissioners, was proceeded with. These latter, after various vicissitudes, rendered their report and account of the partition to the court, who then rendered final judgment, from which, also, both parties appealed. Issue: Whether or not the Court of First Instance over the case and partition of property as decided by the court should be affirmed. Held: The partition of property decreed in the judgment appealed from of the 9th of September, 1911, should be and is hereby confirmed. The two judgments appealed from are hereby affirmed, without special pronouncement of costs in this instance. Ratio: The authority of jurisdictional power of courts to decree a divorce is not comprised within the personal status of the husband and wife, simply because the whole theory of the statutes and of the rights which belong to everyone does not go beyond the sphere of private law, and the authority and jurisdiction of the courts are not a matter of the private law of persons, but of the public or political law of the nation. The jurisdiction of courts and other questions relating to procedure are considered to be of a public nature and consequently are generally submitted to the territorial principle. . . . All persons that have to demand justice in a case in which foreigners intervene, since they can gain nothing by a simple declaration, should endeavor to apply to the tribunales of the state which have coercive means (property situated in the territory) to enforce any decision they may render. Otherwise, one would expose himself in the suit to making useless expenditures which, although he won his case, would not contribute to secure his rights because of the courts lack of means to enforce them. (Torres Campos, Elementos de Derecho International Privado, p. 108.) Justice, says the same professor, is a principle superior to that of nations, and it should therefore be administered without taking into any account whatsoever the state to which the litigants belong. . . . In order to foster their relations and develop their commerce, all civilized nations are interested in doing justice, not alone to their own people, but to those foreigners who contract within the

country or outside of it juridical ties which in some manner effect their sovereignty. (Ibid, p. 107.) Might its courts, in some cases, in suits between foreigners residing in its territory, apply the personal law of the parties, but abdicate their jurisdiction, refrain from administering justice because the personal law of the foreigner gave the jurisdiction of the given case to some court that is not the territorial one of the nation? This has never yet been claimed in any of the theories regarding the conflict of laws arising out of questions of nationality and domicile; it would be equivalent to recognizing extraterritorial law in favor of private persons. The provisions of article 80 of the Civil Law of Spain is only binding within the dominions of Spain. It does not accompany the persons of the Spanish subject wherever he may go. He could not successfully invoke it if he resided in Japan, in China, in Hongkong or in any other territory not subject to the dominion of Spain. Foreign Catholics domiciled in Spain, subject to the ecclesiastical courts in actions for divorce according to the said article 80 of the Civil Code, could not allege lack of jurisdiction by invoking, as the law of their personal statute, a law of their nation which gives jurisdiction in such a case to territorial courts, or to a certain court within or without the territory of their nation. It is a question that has already been settled in two decisions of the Supreme Court (Benedicto vs. De la Rama, 3 Phil. Rep., 34, and Ibaez vs. Ortiz, 5 Phil. Rep., 325). In the present action for divorce the Court of First Instance of the city of Manila did not lack jurisdiction over the persons of the litigants, for, although Spanish Catholic subjects, they were residents of this city and had their domicile herein.

ARTICLE 16- LAWS GOVERNING REAL PROPERTIES TESTATE ESTATE OF BOHANAN vs. BOHANAN, et al. Facts: C.O. Bohanan died and left a last will of testament where he left half of his residuary estate to his grandson, and the other half to his brother and sister. He also gave small amounts of legacies to his children and to other people. His wife, Magdalena was excluded in the will. The testator was a citizen of Nevada, USA and divorced his wife in Reno. Magdalena and her children, question the validity of the will, claiming that they have been deprived of their legitimes. Issue: Whether or not the testamentary disposition based on the national law of the decedent is valid. Held: Yes, the testamentary disposition is valid. Ratio: Article 10 of the old Civil Code provides that the validity of the testamentary dispositions

are to be governed by the national law of the person whose succession is in question. In case at bar, the testator was a citizen of the State of Nevada. SInce the laws of said state allow the testator to dispose of all his property according to his will, his testamentary dispositions depriving his wife and children of what should be their legitimes under Philippine law should be respected. BELLIS vs. BELLIS Facts: Amos Bellis was born in Texas and was a citizen of the State of Texas and of the United States. By his first wife, Mary Mallen, whom he divorced, he had five legitimate children; by his second wife, Violet Kennedy, who survived him, he had three legitimate children; and in addition, he had three illegitimate children. He executed a will in the Philippines which divided his estate in the following manner: (a) $240,000 to his first wife, Mary Mallen; (b) 120,000 divided equally among the three illegitimate children and c) the residual estate divided equally among his seven legitimate children. Two of the illegitimate children questioned this. According to them they are being deprived of their legitimes based on Philippine law. Issue: Whether or not the petitioners are entitled to their legitimes as per Philippine law and whether or not the situation calls for the application of the renvoi doctrine. Held: No, the decedent is a citizen of Texas, USA. The Philippine law would not apply. No, the Renvoi doctrine is not applicable in this case. Ratio: Art. 16 of the Civil Code states that "intestate and testamentary successions...shall be regulated by the national law of the person whose succession is under consideration". Under Texas law, there are no forced heirs or legitimes so the illegitimate children are not entitled to the decedent's estate. The renvoi doctrine arises where the decedent is a national of one country and domiciled in another. The decedent is a citizen of Texas and domiciled therein. It would only arise if Texas has a conflict rule providing that the law of the country where the properties are situated will govern, where the said properties involved are found in the Philippines whose law provides that the national law of the testator should govern.

AZNAR vs. GARCIA Facts: Edward Christensen , a citizen of California, but domiciled in the Philippines, died and left his estate to his daughter Maria Lucy Christensen. In his will, he made mention of

the name of Maria Helen Christensen, gave her a bequest amounting to Php 3,600 and said that they are not related. Maria Helen Christensen claims that she is also a child of the decedent, this had been previously decided by the court, and that she had been deprived of her legitime under the Philippines law. Issue: Whether or not the distribution should be governed by the laws of the Philippines. Whether or not the distribution is contrary to Philippine law as it denies Helen, one of the acknowledged natural children one-half of the estate in full ownership. Held: Yes, although he is not a Filipino citizen, the US law, which is his national law, refers to the law of his country of domicile. This gave rise to an instance where the Renvoi doctrine is to be applied. As such, the Philippine laws should still apply and Helen should receive her legitime which is equal to one-half of the estate. Ratio: The conflict of law rule in California, Article 946 Civil Code, refers back the case when a decedent is not domiciled in california, toy the law of his domicile, in this case the Philippines. The renvoi doctrine should be applied, such that the Philippines should not refer the case back to California. Philippine laws should be applied.

PERSONS & FAMILY RELATIONS CASE DIGESTS Prepared by: Rosalynne Sanchez (1D) Submitted to: Judge Bonifacio PART II: HUMAN RELATIONS ARTICLE 19-21: ABUSE OF RIGHT DOCTRINE DEVELOPMENT BANK OF THE PHILS. vs. CA Facts: Spouses Jacinto Gotangco and Charity Bantug are the owners of seven parcels of land which they mortgaged to the Development Bank of the Philippines in order to secure a loan. They subsequently entered into contract to sell with Elpidio Cucio over the same properties and agreed that the payments should be made by Cucio directly to DBP. When the loan was about to mature, the DBP wrote a demand letter to the spouses Gotangco, to which they did not respond. A follow-up demand letter was made after seven months. Since the spouses did not pay nor respond, the DBP proceeded with the extra-judicial foreclosure of the properties. Cucio, having paid the lots in full, filed a complaint for injunction and payment of damages. Spouses Gotangco also claim for moral damages for the pre-mature foreclosure. Issue: Whether or not the petitioner caused the extrajudicial foreclosure of the real estate mortgage to harass the respondents, the Spouses Gotangco. Held: We find no sufficient basis for the award of moral damages in favor of the respondents spouses based on Article 19 of the New Civil Code as a result of petitioner's application for foreclosure of real estate mortgage. Ratio: Abuse of right under Article 19 of the New Civil Code, on which the RTC anchored its award for damages and attorney's fees, provides: Art. 19. Every person must, in the exercise of his rights and in the performance of his

duties, act with justice, give everyone his due, and observe honesty and good faith. The elements of abuse of rights are the following: (a) the existence of a legal right or duty; (b) which is exercised in bad faith; and (c) for the sole intent of prejudicing or injuring another. Malice or bad faith is at the core of said provision. Good faith is presumed and he who alleges bad faith has the duty to prove the same. Good faith refers to the state of the mind which is manifested by the acts of the individual concerned. It consists of the intention to abstain from taking an unconscionable and unscrupulous advantage of another. Bad faith does not simply connote bad judgment or simple negligence, dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of known duty due to some motives or interest or ill-will that partakes of the nature of fraud. Malice connotes ill-will or spite and speaks not in response to duty. It implies an intention to do ulterior and unjustifiable harm. Malice is bad faith or bad motive. The Spouses Gotangco failed to prove malice on the part of the petitioner. There was, for sure, a divergence of opinion between the petitioner, on the one hand, and the Spouses Gotangco, on the other, relative to the issue of whether Cucio's payments were mere deposits or partial payments for the lot covered by TCT No. NT-177647, and whether the respondents Spouses Gotangco had agreed to the offer of the pool of insurers to pay the amount of P167,149.14 as indemnity for the loss of their poultry farm. However, the bare fact that the petitioner filed its application of the extrajudicial foreclosure of the mortgage, notwithstanding those differences, cannot thereby give rise to the conclusion that the petitioner did so with malice, to harass the Spouses Gotangco. The records show that, time and again, the petitioner had sent notices to the respondents spouses and demanded the updating of their account and the payment of the balance thereof, but the respondents spouses failed to comply. In the meantime, interests and penalties on the loan considerably accrued. Under the terms of the real estate mortgage and its charter, the petitioner had the right to foreclose the said mortgage extrajudicially. Hence, the petitioner was constrained to file its application for the extrajudicial foreclosure of the mortgage for the Spouses Gotangco's past due obligation. Instead of settling their account, the Spouses filed their petition for a writ of preliminary injunction. Because of the preliminary injunction issued by the trial court, the foreclosure was aborted. Under the circumstances, it cannot be gainsaid that the petitioner acted in bad faith or with malice in seeking the extrajudicial foreclosure of the mortgage in its favor. UYPITCHING vs. QUIAMCO Facts: Ernesto Quiamco was was given a motorcycle by Davalan, Gabutero and Generoso as settlement for a civil liability of a criminal case for robbery. Unknown to him, the motorcycle was mortgaged to Ramas Uypitching Sons, Inc. for it was bought by

Gabutero under installment. The installment payments were not paid in full, so Uypitching, one of the owners of the company, wanted to recover the motorcycle. Davalan informed Uypitching that the motorcycle was taken by Quiamco. Uypitching, with policemen, went to Quiamco's residence, forcibly took the motorcycle and accused Quaimco of being a thief. He filed a complaint of qualified theft and/or violation of the anti-fencing law, while respondent filed a counter complaint for unlawful taking of the motorcycle, utterance of a defamatory remark, and precipitate filing of a baseless and malicious complaint. Issue: Whether or not the petitioner abused his right of recovery against mortgage. Held: The recovery of the motorcycle by the petitioner is against the law. The right of Uypitching, as a mortgagee, was exceeded. He should have first filed a complaint for civil action either to recover the possession, or to obtain judicial foreclosure. Bad faith was also exhibited for concluding that the respondent was a thief even without performing due diligence in obtaining the facts. Ratio: The basic principle of human relations, embodied in Article 19 of the Civil Code, provides: Art. 19. Every person must in the exercise of his rights and in the performance of his duties, act with justice, give every one his due, and observe honesty and good faith Article 19, also known as the "principle of abuse of right," prescribes that a person should not use his right unjustly or contrary to honesty and good faith, otherwise he opens himself to liability.19 It seeks to preclude the use of, or the tendency to use, a legal right (or duty) as a means to unjust ends. There is an abuse of right when it is exercised solely to prejudice or injure another.20 The exercise of a right must be in accordance with the purpose for which it was established and must not be excessive or unduly harsh; there must be no intention to harm another.21 Otherwise, liability for damages to the injured party will attach.

ARTICLE 22: UNJUST ENRICHMENT VILLALVA vs. RCBC Savings Bank Facts: In June 1993, petitioner spouses issued forty-eight (48) checks totaling P547,392.00 to cover installment payments due on promissory notes executed in favor of Toyota,

Quezon Avenue (TQA) for the purchase of a 93 Toyota Corolla. The promissory notes were secured by a Chattel Mortgage executed by the petitioner spouses on the vehicle in favor of TQA. Under the Deed of Chattel Mortgage, petitioner spouses were to insure the vehicle against loss or damage by accident, theft and fire, and endorse and deliver the policies to the mortgagorThe promissory notes and chattel mortgage were assigned to Rizal Commercial Banking Corporation (RCBC), then further assigned to RCBC savings bank, the respondent in this case. The petitioners were able to comply with the mortgage requirement on insurance until 1996. In 1997, they failed to deliver a copy of the insurance policy to the respondent. As a consequence, the respondent had the mortgaged vehicle insured and paid Php 14,523.36 insurance premium, which was later cancelled due to the insurance obtained by the petitioners. RCBC was reimbursed by Php 10,939.86 by the insurance company. In 1999, respond dent sent a letter of demand to the petitioners amounting to Php 12,361.02 allegedly for unpaid obligations on the mortgage and demanded that the petitioner surrender the vehicle. The petitioners ignored the demand letter for as per their claim, they have fully paid their obligations. The remaining amount was due to the insurance obtained by the respondent. The respondent filed a complaint for Recovery of Possession with Replevin. The municipal trial court and regional trial court ruled in favor of Villalva, however the Court of Appeals reversed the decision and ordered the petitioners to pay the difference between the premium paid by RCBC against what they were able to reimburse from the insurance company. The motion for reconsideration was dismissed by the CA, hence the petition for review in this court. Issue: Whether or not the petitioners failed to comply with their obligation to insure the subject vehicle under the Deed of Chattel Mortgage. Held: We hold that petitioners did not default in the performance of their obligation. As a rule, demand is required before a party may be considered in default. However, demand by a creditor is not necessary in order that delay may exist: (1) when the obligation or the law expressly so declares; (2) when from the nature and the circumstances of the obligation it appears that the designation of the time when the thing is to be delivered or the service is to be rendered was a controlling motive for the establishment of the contract; or (3) when demand would be useless, as when the obligor has rendered it beyond his power to perform. None of the exceptions are present in this case. Ratio: In a previous case, Servicewide Specialists, Incorporated v. Court of Appeals this Court observed that the Deed of Chattel Mortgage required that two conditions should be met before the mortgagee could secure the required insurance: (1) default by the mortgagors in effecting renewal of the insurance, and (2) failure to deliver the policy with endorsement to mortgagee. The mortgagee contended that notice was not required due

to the nature of the obligation, and that it was entitled to renew the insurance for the account of the mortgagors without notice to the latter should the mortgagors fail to renew the insurance coverage. To substantiate its claim, the mortgagee relied on the Chattel Mortgage provision that the car be insured at all times. This Court rebuffed the mortgagees arguments: If petitioner was aware that the insurance coverage was inadequate, why did it not inform private respondent about it? After all, since petitioner was under no obligation to effect renewal thereof, it is but logical that it should relay to private respondents any defect of the insurance coverage before itself assuming the same. Due to the mortgagees failure to notify the mortgagors prior to application of the latters payments to the insurance premiums, this Court held that the mortgagors had not defaulted on their obligation to secure insurance over the mortgaged vehicle, and affirmed the Regional Trial Courts decision dismissing the mortgagees complaint for replevin. In the case at bar, the respondent failed to demand that petitioners comply with their obligation to secure insurance coverage for the mortgaged vehicle. Following settled jurisprudence, we rule that the petitioners had not defaulted on their obligation to insure the mortgaged vehicle and the condition sine qua non for respondent to exercise its right to pay the insurance premiums over the subject vehicle has not been established. The respondent further contends that its payment of the insurance premiums on behalf of the petitioners unjustly enriched the latter. Respondent adverts to the provisions on quasi-contractual obligations in the New Civil Code. Enrichment consists of every patrimonial, physical or moral advantage, so long as it is appreciable in money. It may also take the form of avoidance of expenses and other indispensable reductions in the patrimony of a person. It may also include the prevention of a loss or injury. In the case at bar, petitioner spouses were not enriched when respondent obtained insurance coverage for the mortgaged vehicle as the petitioner spouses had already obtained the required insurance coverage for the vehicle from August 14, 1996 to August 14, 1997. ARTICLE 26- RESPECT OF OTHER'S PRIVACY, PERSONALITY, ETC. VAN DORN vs. ROMILLO, JR. Facts: Alice Reyes Van Dorn, the petitioner, is a citizen of the Philippines while private respondent, Richard Upton, is a citizen of the United States. They were married in Hongkong in 1972, after the marriage, they established their residence in the Philippines and had two children. In 1982, they obtained a divorce in Nevada, USA and the petitioner remarried Theodore Van Dorn. In 1983, private respondent filed suit against the petitioner stating that the petitioner's business in Ermita, Manila, is conjugal property and asked that the petitioner be ordered to render an accounting of that business, and that private respondent be declared with right to manage the conjugal property. Petitioner moved to dismiss the case on the ground that the cause of action is barred by previous judgment in the divorce proceedings before the Nevada Court wherein

respondent had acknowledged that they have no community property. The Regional Trial Court denied the Motion to Dismiss filed by petitioner on the ground that the property is in the Philippines where the Divorce decree has no bearing. The denial is now the subject of this Certiorari proceeding. Issue: Whether or not the foreign divorce between the petitioner and private respondent in Nevada is binding in the Philippines where petitioner is a Filipino citizen. Held: The divorce is valid and binding on the private respondent as his national law allows it. Ratio: There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State of the Union. What he is contending in this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to local law and public policy. As stated by the Federal Supreme Court of the U.S. (in Atherton VS Atherton, 45 L. Ed. 794, 799): The marriage tie, when thus severed as to one party, ceases to bind either. A husband without a wife or a wife without a husband is unknown to the law. Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner's husband entitled to exercise control over conjugal assets. As he is bound by the Decision of his own country's Court, which validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal property. To maintain that under our national laws petitioner has to be considered married to the respondent and still subject to a wifes obligations cannot be just. She should not be discriminated against in her own country if the ends of justice are to be served. PILAPIL vs. IBAY SOMERA Facts: In September 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, married the private respondent Erich Ekkehard Geiling, a German national, in Germany. After more than three years the private respondent initiated a divorce proceeding in Germany and claimed that there was failure of their marriage and that they had been living apart. Petitioner, on the other hand, filed an action for legal separation, support and separation of property before the Regional Trial Court of Manila. where the case is still pending. On January 1986, the divorce was promulgated in Germany on the ground of failure of marriage and of the spouses. More than five months after the issuance of the divorce decree, private respondent filed two complaints of adultery before the City Fiscal of

Manila alleging that, while still married to said respondent, petitioner had an affair with two other men. Issue: Whether or not the petitioner would be prosecuted for adultery even after the issuance of the decree of divorce. Held: No, the respondent does not have the legal standing to file the complaint since he is no longer the husband of the petitioner at the time the complaint was filed. Ratio: The law specifically provides that in prosecutions for adultery and concubinage the person who can legally file the complaint should be the offended spouse. Corollary to such exclusive grant of power to the offended spouse to initiate the action, it necessarily follows that such initiator must have the status, capacity or legal representation to do so at the time of the filing of the criminal action. This is a familiar and express rule in civil actions. American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia with ours, yields the rule that after a divorce has been decreed, the innocent spouse no longer has the right to institute proceedings against the offenders where the statute provides that the innocent spouse shall have the exclusive right to institute a prosecution for adultery. Where, however, proceedings have been properly commenced, a divorce subsequently granted can have no legal effect on the prosecution of the criminal proceedings to a conclusion. In the present case, the fact that private respondent obtained a valid divorce in his country, the Federal Republic of Germany, is admitted. Said divorce and its legal effects may be recognized in the Philippines insofar as private respondent is concerned 23 in view of the nationality principle in our civil law on the matter of status of persons. Under the same considerations and rationale as in the case of Van Dorn vs. Ronillo, private respondent, being no longer the husband of petitioner, had no legal standing to commence the adultery case under the imposture that he was the offended spouse at the time he filed suit.