Percival James L.

Lacebal Midterm Examinations in Practicum II

Wesly Newcomb Hohfeld sets forth the eight fundamental conceptions in terms of which he believed all legal problems could be stated. These are right, duty, no right, privilege, power, liability, immunity and disability. The jural opposites are paired as follows: (right no right), (privilege duty), (power disability), (immunity liability) while jural correlatives are paired as: (right duty) - a right is enjoyed by an individual as against another individual that the second shall do or refrain from doing something for the first, a duty is simply a right viewed from the vantage point of the individual who must do or refrain from doing the act in question; (privilege no right) they are the opposites of right and duty, an individual has no right against another individual with regard to a particular act if and only that individual does not have a right against the second individual with regard to the act. Similarly, an individual has a privilege against a second individual with regard to a particular act if and only the individual does not have a duty toward the second individual with regard to the act; (power liability) A person with a power is capable of performing some act which has the effect of creating or terminating a legal relation, a liability is the correlative of power, it is a power viewed from the point of view of the person whose legal relations may be changed; (immunity disability) these are the opposites of powers and liabilities. If a person does not have a power with regard to an individual, then the former is under disability with regard to the latter. Similarly, if the latter is not under a liability with regard to the former, then the latter has immunity with regard to the former. Each pair of correlatives must always exist together; when person (A) has one of the pair, another person (B) necessarily has the other. One of the terms expresses the relation of A to B; the other term expresses the relation of B to A. No pair of opposites can exist together. That is, when a person has a right, he cannot have a no-right with respect to the same subject matter and the same person. When he has a privilege, he cannot have a duty. A right is a claim against another person, and the right holder may summon the violence of the state to prevent or remedy a violation of that right by the other person. Another use of the term right is to denote that one person is not subject to the power of another person to alter the legal relations of the person said to have the right. It is a legal relation between 2 persons. This is the correlative of duty and opposite of no-right. It is an enforceable claim to performance by another and it is a legal relation of A to B when society commands action or forbearance by B and will at the instance of A in some manner penalizes disobedience. In Obligations and Contracts, when B has contracted for a consideration to deliver goods to or do some service for A, in this case, A has the right and B has the duty to perform such act. A duty or a legal obligation is that which one ought to do or ought not to do. Duty and right are correlative terms and it is the opposite of privilege. When a right is invaded, a duty is violated. It is the legal relation of the person, who is commanded by society to act or to forbear for the benefit of another person either immediately or in future, and who will be penalize by society for disobedience. In Obligations and Contracts, when B has the duty to deliver the goods to A in a specific period of time as written in the contract that binds the parties, the former must comply with the requirements stipulated in the contract in order he will not violate the rights of A. A privilege is the negation or absence of a duty: it is permission to do an act that would normally be a breach of a duty. It is ones freedom from the right or claim of another. Privilege is a term of good repute in law of defamation and in that relating to the duty of witnesses to testify. In defamation, we say that under certain circumstances defamatory matter is privileged that the person having the privilege has an affirmative claim against another such as the other is under the duty to refrain from publishing the defamatory matter. The assertion is merely that under the circumstances there is an absence of duty on the part of the one publishing the defamatory matter to refrain from doing so under the circumstances. The concept privilege does not itself include a right to non-interference by another

person, although such a privilege and such a right very commonly are found together. Being the opposite of duty, it is another name for no duty. If I am under no duty to A, I am with respect to A privileged. For example, in Criminal law, When A assaults B, this gives B the legal privilege of striking back as form of self defense. A no-right is the opposite of right, and the correlative of a privilege: because the other person has a privilege, one has "no-right" to summon the state's violence to prevent or remedy an act that would otherwise be a breach of a duty. For example: A tells B that he may walk across As yard. This gives B a privilege and terminates As right that B shall not walk, thus creating a relation of no right in A. But B does not have a right, for A is privileged to lock B out. Power is the ability to change a legal relationship. A person holding such power has the legal ability by doing certain acts to alter legal relations namely to transfer the ownership of property from one person to another. Whenever a power exists there is at least one other human being whose legal relations will be altered if the power is exercised. For example: A having made an offer to B, the latter has the power to create contractual rights in a written agreement. Liability is the possibility that one's legal relationship will be changed when another person uses their power. Liability is vague term and it usually suggests something disadvantageous or burdensome. For example, one who owns a chattel may abandon it, by doing so; he confers upon each person in the community a legal power to acquire ownership of the chattel by taking possession of it with the requisite of the state of mind. Before the chattel is abandoned, therefore, every person other than the owner is under a legal liability to have suddenly conferred upon him a new legal power which previously did not have. It follows that every person in the community who is legally capable of contracting is under a liability to have such power conferred upon him at any moment. A having made an offer to B, the former has now the liability that B will create contractual relations in a written agreement by accepting the same. Immunity is an exception to the legal power of another: in the absence of the immunity, the other person could summon the violence of the state to change the legal relationship. At times indeed, the word immunity is used in exactly this sense in constitutional law. It is the generic term to describe any situation in which a given legal relation vested in one person cannot be changed by the acts of one person. For example: A owns JOLLIBEE. His right that B shall not enter cannot be extinguished by the voluntary act of B; so that with respect to B, A has immunity. At the same time A may have no such immunity with respect to C, for the latter may have been given the power to convey JOLIBEE to B and thus extinguish As right against B. The constitution declares that no state shall impair the obligation of a contract. With respect to state legislatures, therefore, a contractor has immunity. It is interesting to note that the 1987 Constitution does not provide for presidential immunity from suit. Unlike congressional immunity, presidential immunity is not expressly stated nor prescribed by the Constitution. Basis for the immunity is only found in jurisprudence, both in the U.S. and the Philippines, which, by virtue of Article 8 of the Civil Code, forms a part of the legal system of the Philippines. In the case of In re: Bermudez, (1986), the Supreme Court expressly held that, _Incumbent presidents are immune from suit or from being brought to court during the period of their incumbency and tenure.The purpose of the immunity was discussed in the case of Soliven, et al., vs Judge Makasiar (1988), where the Supreme Court stated that The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the office-holders time, also demands undivided attention. Disability is the opposite of power, and the correlative of immunity: one is disabled from changing a particular legal relationship that one would normally be able to change. For example, A and C are partners, all their terms and agreement are written in their articles of partnership, B a third party, cannot interfere or has no power to change the terms written in the articles of partnership.

A power, therefore, bears the same general contrast to an immunity that a right does to a privilege. A right is ones affirmative claim against another, and privilege is ones freedom from the right or claim of another. Similarly, a power is ones affirmative control over a given legal relation as against another, whereas immunity is ones freedom from the legal power or control of another as regards some legal relation. Rights, privileges, powers and immunities seem fairly to constitute a comprehensive general classification of legal rights in the generic sense. The four correlative terms duty, no right, liability and disability likewise sufficiently classify the legal burdens which correspond to the legal benefits. Powers, immunities, liabilities and disabilities involves changes in legal relations. There are various ways in which legal relations may change, but not all of them are result of an exercise of a power. They also exist in situations in which the potential change in legal relations is dependent on the volitional act of some person. Here are some examples of imbedded legal conceptions in the assertion "As a shareholder, I have voting rights": RIGHT: "The board must hold elections each year." I have a RIGHT to demand elections be held in a timely way. The board has a correlative DUTY to hold them. Without this right, I would have NO-RIGHT. PRIVILEGE: "Shareholders may vote as they please." I have the PRIVILEGE to vote as I choose. The board has NO-RIGHT to demand that I vote a certain way. Without this privilege, I would have a DUTY to vote only for old, gray, bald men. POWER: "Shareholders can vote to amend the bylaws." I have the POWER (shared with other shareholders) to amend the bylaws, such as to change the timing of annual meetings. The board has a LIABILITY to abide by shareholder-initiated bylaw changes, if so specified. Without this power, I would be DISABLED from changing the bylaws, that is I would be "disempowered". IMMUNITY: "The board cannot manipulate the voting process during an insurgency." I have an IMMUNITY from the board fooling with the voting process. The board is DISABLED from fooling around with my voting rights. Without this immunity, I would be LIABLE to (forced to accept) the board's actions.

SOURCES:

Corbin, Arthur. "Legal Analysis and Terminology", 29 Yale Law Journal 163 (1919). Hohfeld, Wesley Newcomb. Fundamental Legal Conceptions as Applied in Judicial Reasoning, Yale University Press (1946). The article appeared earlier at 26 Yale Law Journal 710 (1917). Hohfeld, Wesley. "Some Fundamental Legal Conceptions as Applied in Legal Reasoning," 23 Yale Law Journal 16 (1913). Singer, Joseph William. The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 Wisconsin Law Review 975. W. HOHFELD, SOME FUNDAMENTAL LEGAL CONCEPTIONSAS APPLIED IN JUDICIAL REASONING 23 YALE L.J. 16, 2859 (1913)

Percival James L. Lacebal Midterm Examinations in Practicum II

Republic of the Philippines National Capital Judicial Region Regional Trial Court Branch 20, Manila A, Plaintiff, Civil Case No. 11111 -versusX, Defendant. x------------------------------- x MOTION TO DISMISS COMES NOW the defendant by his undersigned attorney, and to this Honorable Court respectfully moves that the complaint be dismissed on the following grounds: 1. That the court has no jurisdiction over the person of the defending party 2. That the court has no jurisdiction over the subject matter of the claim 3. That the venue is improperly laid 4. That the pleading asserting the claim states no cause of action 5. That the claim or demand set forth in the plaintiffs pleading has been paid, waived, abandoned, or otherwise extinguished.

ARGUMENTS A. THAT THE COURT HAS NO JURISDICTION OVER THE PERSON DEFENDING PARTY.

A cursory reading of the complaint readily shows that this case is not within the exclusive jurisdiction of the Regional Trial Court of Manila because both parties are residents of Barangay Walang Sawang Ligaya, Quezon City. B. THAT THE COURT HAS NO JURISDICTION OVER THE SUBJECT MATTER OF THE CLAIM

That Metropolitan trial Courts has the exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies in proper cases, where the value of the personal property, estate, or amount of the demand does not exceed One hundred thousand pesos (P100,000.00) or, in Metro Manila where such personal property, estate, or amount of the demand does not exceed Two hundred thousand pesos (P200,000.00), exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs, the amount of which must be specifically alleged: Provided, That interest, damages of whatever kind, attorney's fees, litigation expenses, and costs shall be included in the determination of the filing fees: Provided, further, That where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transactions.

C.

THE VENUE WAS IMPROPERLY LAID

The venue of filing of the complaint must be in Metropolitan Trial Court of Quezon City not in Regional Trial Court of Manila because the latter has no jurisdiction in the case matter. D. THAT THE PLEADING ASSERTING THE CLAIM STATES NO CAUSE OF ACTION Allegedly, plaintiff has failed to put into a written agreement the terms and conditions of the said agreement between the parties and has not provided the exact date of delivery of the said pressurized water pump. There was no demand or notice from the plaintiff regarding the delivery of the said pressurized water pump. There was no evidence proving that the defendant acted in bad faith or his actions was fraudulent and his transaction to the plaintiff was unenforceable under the provisions of statute of frauds. E. THAT THE CLAIM OR DEMAND SET FORTH IN THE PLAINTIFFS PLEADING HAS BE EN PAID, WAIVED, ABANDONED, OR OTHERWISE EXTINGUISHED. The defendant already returned the sum of P150,000 to the plaintiff upon the notice of the manufacturer of the pressurized water pump that there will be a 90 days delay of the delivery of the pressurized water pump because they are making improvements for the stability of the product. It was orally agreed by both parties that they will just resume their transaction once the product is already available. PRAYER WHEREFORE, it is respectfully prayed that the Complaint be dismissed for failure to state a cause of action and lack of jurisdiction over the subject matter of the claim. Other reliefs just and equitable are likewise prayed for.

Quezon City; 05 February 2014

PERCIVAL JAMES LACEBAL

Attorney for Defendant Lacebal and Associates 10th floor, Eastwood City, Libis, Quezon City Roll No. 123456 P.T.R. No. 1234567 / Manila/ January 10, 2008 MCLE Compliance No. 1234567