Part One

Chapter One: PRE-CONQUEST SOCIETY AND CUSTOM LAW

A. Identification of custom law.
Custom law (PRE-CONQUEST)
- refers to the body of customs and usages in dealing with liability in pre-conquest
society.
- enforced, or permitted to be enforced, by political authority in the communities
-criteria applied are highly general, based on data: use of recognitional rules not
permitted ( in short, applicable :D see example in Modern System).
Modern System (Present day) simplified through recognitional rules.
-Example: Statute is part of our law if adopted in accordance with the
requirements of the Constitution enacted by Congress and approved by the
President
At the time of the Conquest- operative custom law rules in a barangay can be
identified because of knowledgeable old people.
-conflict of opinion might have existed but it may be assumed that there was
general agreement on the prevailing corpus (Latin: Body) of custom law.
In our time, this technique of identification (time of conquest) is no longer
possible. Thus, one must identify and segregate them from the mass material of
contemporary accounts of custom and usages since not all are legal in character.
(Disadvantage: difficult, risk of error, Advantage: minimized guesswork)
REQUISITES to be part of Custom Law (guidelines by established criteria of
legality):
1.) Normativeness- a clear rule of a general character prescribing a specific norm
of conduct.
2.) Sanction should exist.
-If in doubt, it is enough if custom or usage dealt with a clear legal subject. Ex:
right or privilege recognition, duty or liability imposition, or proceeding or
authorized exercise of public authority
* Also, there must be an enforcement of the rule by the political authority (datu,
judge, or private parties with community's consent like self-help)
With this, some legal status of custom and usage may be open to question but at
least there's a sound basis of classification
B. Regional Diversity of Custom Law
The term custom law (here) does not suggest that one system of law had
prevailed throughout pre-conquest Philippines. In fact, many system flourished
such as the customs of the ethnic groups or various sets of ugali: Tagalogs,
Visayas or Ilocos (based on recitals). Despite uniformity of basic concepts and
principles among these ugali, it is useful to regard each of them as a different
system.
In textbooks, ethnic groups from coastal areas and plains of Filipinas (conquest
time) were descendants of settlers (from islands like Indonesia and Malaysia) who
share common cultural inheritance but had differences (example) in language
and ways of life. Presumption: they generally settled in open or unoccupied
territory along the coast or along navigable rivers. Then, they expanded in the
course of time, principally due to population pressure into the surrounding
countryside, or nearby islands. Result: Population dispersal and village growth ->

cultural inheritance spread (by irradiation until entire island/region is under its
influence) but modified according to needs. Example: Tagalog culture and custom
law dominated central portion of Luzon
C. Regional Political Communities
No political communities more extensive than the various barangays, which
territorially were miniscule units
What is Political community?
Earlier theories: requires compresence of both law and operating government.
Example: Tagalogs and Pampangos (at conquest time) do not constitute a
political community, since there was no single political organization which
administered such system of law on a regional basis (so no regional government)
despite existence fairly coherent custom law system.
Later social theory: any group with common interests constitutes a political
community as long as, within group, there exists regulation of the use of force.
Generally, a political community is a society where there is prevailing
recognition of use of force that is (1) wrongful and (2) privileged or legitimate.
From this viewpoint, it is undeniable that political communities more extensive
than the barangays had existed (like large areas or regions under the sway of
fairly coherent systems of custom law).
Because of its obligatory character, custom law was a highly integrative force
resulting to a substantial degree of political unity within area/region.
And the existence of the political community is not affected by the fact that
there was no political organization that exercised governmental authority on a
regional basis. Instead, this merely indicated a situation where governmental
power within the political community was diffused or decentralized
(manifestation: law enforced by barangays/ interested households within region so
in effect: existing government but difffused).
D. Diversity Within the Regional Community
The political unity achieved was highly fragile. As area become fairly extensive,
counter-pressures for political fragmentation came into operation.
Factors that fostered Diversity in Custom Law
1. Lack of centralized administration - through increasing divergence in the rules
applied. Inherent impetus towards diversity (accelerated by faulty recollection of
ugali, inadequacy of inter-communication among communities within the region,
differences in local conditions and the rise of strong datus in particular barangays)
resulted in the development of sub-systems of custom law. No central authority to
oveerrule the innovations. With the interpretation of ugali in different ways,
separate bodies of custom law developed.
2. Emergence of the barangay as a political entity - with the aid of the physical
barriers (Ex: mountains, sea etc.), each barangay tended to lose its sense of
community and develop into
a separate political entity with distinct community interest just like the time of
conquest. Intergration still happened through the Inter-action between two or
more barangays which resulted to application of same rule while still having
separate jurisdiction and independent system of law.

Exceptional cases of Integration:

a. Barangays where the datu had a firm consolidation of authority, attained
distinct law system, distinguishable from parent system within the region. The
power of the datu was unchallenged. He undertook the functions of a judge and a
legislator. Application of received laws were made to meet local conditions.
b. Partial integration (regional system usually prevails). The datu functioned only
as leader of his peers, who executes the received law. He has no judiciary powers
and only act as mediators and conciliators who can only involve himself in
disputes if the parties had agreed to submit the matter to his final determination.
Community interest in security of person and property
Murder and Theft grave public offenses amenable to redress by public authority.
Any household which had suffered a grave wrong was free to undertake own
vengeance especially if murder. Alternative: harm done to communal interest
vindicated by public authority generally at the instance of the aggrieved party
(same as time of conquest)
E. General Aspects of Custom Law
This part focuses on exposition of ideas and precepts of custom law prevailing at
the time of conquest, concentrating on common rules and significant variances.
Limitation: Materials (few accounts/records, incomplete, silent on matters that aid
for fuller understanding)
Findings:
1. Uniformities persist, especially on fundamental precepts. (just like principles of
liability- next chapter) . Common rules are traceable (at least in part) to a
common cultural inheritance of pre-conquest Filipinos reinforced by similar
environmental conditions.
2. Highly varied rules a natural result of different origins of tribes, variations in
their culture, relative access to other people/ relative isolation and varying
environmental demands.
Early Custom Law vs Present Legal System
1. Absence of Specialization and paucity of rules government was minimal ( 1.
no specialized machinery of justice, 2. no special functions of police or judge, 3.
no compilation of rules accounting for specials statutes and elaborate codes, 4.
no distinction bet. fundamental law and statute, bet. statute and ordinance, bet.
decision and admin ruling or bet. law and regulation, 5. great mass of legal
concepts and standards are absent as evident in today's differentiation of liability)
F. Social and Legal Change in Pre-conquest Society
Myth/ Belief: The unwritten rules preserved in songs, chants and in elder's
memory were ordained by a wise and just law-giver from long ago and left to the
community for its governance. That it is complete and needed no
modification which resulted to datus as executors and tied to the concept of
immutable law derived from an immemorial past.
Such myths are not in accord with social science discoveries because law
mirrors cultural growth in its principal contours. It cannot stand still but must
respond to dominant needs and interest generated by social process. Ex: If basic
interest is primitive, law will remain primitive.

 Habitual lag in pre-conquest since it remained primitive despite social and

economic changes. There's a degree of response but had not yet generally
adapted the transformation.
Subtle but radical change caused by stimulus of external pressures.
Ex:
1.) Spread of Islam was laying the basis for hegemony.
2.) Trends toward territorial expansion, centralization of authority, increase
governmental activity and economic specialization- in relation to existence of
power centers (Sulu and Manila) where their authority came from firepower of
cannon and firearms.
3.)Recruitment of Alipins (forcible capture of inhabitants from nearby island, slave
trade and disregard of kinship) - caused by production from household
consumption to surplus for trade.
4.) Use of Precious Metals (esp Gold- valuable item) as medium of exchange
stimulated the production of commodities where gold was scarce. *Also growing
appetite for imported goods from Eastern countries.
Note: Developments were with standard weights and measures.
G. Secular Orientation
Orientation of custom law was distinctly secular pre-conquest Philippines never
experienced a political order in the interest of any particular religious creed
instead it was concentrated in the person of datu who has no religious role.
Ratio: Religion is a household affair. No organized religion like churches because
common religious beliefs and practices were never institutionalized. No religious
leadership in rituals, such as catalonan and babaylan.
H. Functions of Custom Law
One must evaluate it in terms of how it meet the social needs
Task: Regulation of force in the resolution of conflicts
1. Prescribed the conditions for legitimate resort to use force
General Rule: Unlawful to use violence on another.
Exceptions: Self-defense or to avenge a grievous wrong (murder of relative)
2. Established alternative remedies: composition and vindication by public
authority
3. Determined the order of power, who had authority to resolve disputes.
4. Determined the order of labor, in accordance with the social and economic
status of persons.
G. Preservation of the Peace
-a central function of custom law. Measures and Limitations just like the general
rule above, were implemented. Peaceful settlement through system of pecuniary
fines were established. Serious offenses against community interest is under
highly rational proceedings by public authority (for highly integrated barangays) .
Little distinction between public offense and privates disputes in terms of
procedures and remedies.
Ratio: violence as threat to community existence. every dispute contained the
seeds of internecine strife, with its threat of disruption to community interests and
activities

H. Order of Power
- essential for two crucial tasks: 1.) Responsibility and authority to resolve
disputes 2.) Decision-making of policies for community action.
Pre-conquest Phil. (Generally): functions pertained to the datu or chief
Less integrated communities: Not fully consolidated authority of a datu. He
functioned as a mediator and arbitrator.
Highly integrated: the unchallenged power of datu includes the role of a leader
(decision on war and peace and legislated on matters not dealt with custom law)
and a judge.
If in the concern of whole community, various heads of household may be
consulted.
I. Order of Labor
Pre-conquest determined those with the power to command and those under the
obligation to serve.
2 types of Obligation to Serve:
1. Obligation of household (particularly the heads) to render service to the chief.
Basis: datu's poiltical authority and social standing (unlike feudal Europe's
vassalage that are generally economic in nature).
2. Servitude imposed for inability to pay debt/fine
(Order: Every chief was under the duty to serve a greater chief in return for
protection. Datu entitled to respect and services from householders, Household
heads(maharlika/timawa) entitled the same from household members and
families under its protection)
J. Community of self-sufficient households
Rules (in next chapters) are few and simple because of the primitive stage of preconquest.
Barangays in riverside village are free households bound by kinship and
neighborship to dominant household (datu).
Household - functions as basic social and economic unit in a barangay with
economic independence and self-sufficiency (Ex: necessities and small comforts
were provided through labor of its members or alipin for large affluent
households)
Requirement for hard work but without the severity or harshness imposed in
less endowed environments. Nature (ex: benign climate, fertile.., abundant..) is at
their advantage. Every need is achieved through efforts (except: salts, ornaments
and some household articles)
Thus, minimal need for elaborate regulation on relations to other household
(applicable only in cooperation for vengeance, marriage, divorce and events
affecting status)
K. Household Contrasted with Ancient Hebrew and Roman Families
Pre-conquest Philippines
Ancient Hebrew and Roman Families
Self-sufficient household
Romans:
Parental and conjugal duties
Self-sufficient with domination
Principle of equality in sexes
approximating patria potestas (Father
has power of life and death over family

Note: Patria postestas precluded by

members)
1.) bilateral relationship: each child was Grown sons with a status of technical
related to two families/kin-groups.
infancy
2.) (Less than absolute authority of
Roman wives and daughter in a state of
head is a) result of abundance in the
permanent legal inferiority
environment and economic
organization. A son who left the preconquest household can easily survive
unlike for Hebrew youth (desert
wilderness) or a Roman son (limited
arable land already occupied and harsh
winters)
3.) No limitation of space (unlike
Romans) son can make own house.
Practice: As sons came of age- separate
dwelling, As they married- separate
household.
Household head- No absolute power but has formidable authority over household.
1.) control and management of resources and assets
2.) household ritual and cremonies
3.) entitled to great respect and even veneration by the members
4.) can compel obedience through discipline and chastisement
5.) decisions in the marriage of children aids alliance and strengthens household
position in the community.
L. Status in Custom Law
Status was largely dependent on wealth and birth.
Social Classes (based on economic conditions)
1. Ruling Household- had the most wealth
2. Common Household- had modest resources
3. Dependents or Alipins has only a little or none.
Status of Households within the community (based on material fortunes)
1. Ruling Group if prospered
2. Subject Household if it declined in wealth
Note: Birth and lineage may be important but not decisive, still based on wealth
and leadership.
Status within Houseold (based on birth)
1. Legitimate succeeded to the prerogatives and privileges of a head.
2. Illegitimate generally no rights but by custom, were assigned with a modest
inheritance
Between Men and Women
Little distinction in legal rights between men and women.
Prior to marriage: women are under a tutelage, can't own a property, can't leave
household and make home elsewhere.

After marriage: virtual emancipation -women can own a property, trade with own
money, maintain independent income from their business, obtain divorce and
remarry and entitled to conjugal share and children.
Chapter Two: LIABILITY

A. Household as Subject of Custom Law

Household as principle subjects even on rules of public offenses particularly on grievous
crimes. Rules dealt with liability of each household to other household, even within
different barangays.
The very structure of pre-conquest society precludes the individual himself to be subject
of custom of law as evident on the basis of membership in a barangay (that provides
protection) which is kinship (required to be related either actual or fictive).
The character of the remedies preclude individual action. An injured victim is entitled to
redress in at least 2 ways. 1.) Retaliate- victim would not only deal with the individual
aggressor but also to his or her household. Thus, the victim had to ask the assitance of
his household. 2.) Petition the datu for redress applicable only if aggressor is within the
datu's barangay
Dominant position of household manifested in the following
1. Ancestor worship -essential part of native religion, a household concern.
2. Requirement in rice culture ready availability of workhands
3. Physical Force of a household essential to security and group respect, should have
retaliatory capacity. family's safety lay in numbers and rights and privileges of a
household is proportionate to strength and resources.
Historically: In the infancy of every society, the group, generally the extended family,
came first before social regulation. Most social regulation that time is in connection of
conflicts between existing groups. It was the relations between groups that was first dealt
with legal rules so such groups are the original subjects of law
B. Wrongs Imputable to the Household
Case: Murder/Homicide
As mentioned, vengeance was taken not only against culprit but to the entire household
especially if the slain is the chief. If culprit is captured, he will be killed along with his
entire household.
Case: Crime subjected to composition (Note: Most offenses are subject to composition.
Liability was extinguished upon payment of customary fine. Payment comes from
household common fund of earnings and assets except personal articles. Service = Asset
)
Fine was not paid, entire family were reduced to servitude
Case: Serious Theft
Death or Fine upon family and those not related but living in his house.
Case: Breach of Agreement (Civil wrongs) Ex: loans, bonds
Entire household could be made to respond.
Unlike today where an individual is provided with substantial security and can secure
justice from the state, pre-conquest society individuals are bound to his group in all
aspects of his life. Individuality recognized within the household but for other households
your social identity is your group: perceived as member. In this regard, custom law is
like international law or the laws of war and peace.

C. Reciprocity or Compensation
Custom law never achieved the sophistication of obligations that are purely creations of
law like taxes or social security payments. No development of kinds, only a faint
recognition of difference from liability from crime and from debt as reflected in sanctios
but w/o fundamental importance.
General Norms (based on the principle of reciprocity and commodities)
1. An injury, detriment or wrong ought to be repaid with a similar injury, detriment or
wrong
2. Whoever sustains a loss thru another's acts or conduct ought to receive an equivalent
compensation.
3. Whoever receives a benefit, advantage or gain, ought to repay or return such
(Debt- see G)
These forms of liability were embraces in the concept of utang.
Utang- applies to any obligation requiring payment or delivery (derived fr: wrong,
contract, etc ).
Why generic norms? Still at a primitive stage and unnecessary distinctions since preconquest only have one type of proceedings for any wrong.
D. Lex Talionis
Liability for infliction of injury was based on the principle of revenge so no different from
ancient as well as primitive cultures. Life for a life. But the rule was modified from special
circumstances:
1. If victim's household has superior strength and prestige (like chief), vengeance >
injury or penalty is higher.
Victim > Offender
Case: Trespass or Insult to a Great Chief
Death and enslavement of entire household.
Case: Grave Crime (Ex : Murder, Adultery or Poisoning) but no proof beyond suspicion of
the victim
Entire household is taken as slaves or killed.
2. If offender belonged to an important and strong household, penalty is lighter.
Victim < Offender
3. Victim and Offender belongs to the same household or were close relatives- revenge is
not applied at fill rigor.
Revenge not only a privilege but a duty.
With their religious belief that in cases of death by treachery or violence, the spirit cries
for vengeance and will not rest (go to the other world) until recompense had been made.
Thus, it is the obligation of the relatives to exact vengeance.
E. Compensation in Lieu of Revenge
Factors that triggered the use of alternatives (not Lex Talionis)
1. Imperatives of communal life
2. Risk of Vengeance -provokes retaliation leading to blood feud
3. Disruption of peace and order in the community
Other forms evolved: When avenging household were superior in strength and
number- ceremonial proceedings (for the satisfaction or religious duty) and composition
(for the satisfaction of civil wrong)
Rule: Certain types of injury were not amenable to revenge and victim is only entitled
with compensation
Development was accelerated by the datu's consolidation of auhority (prev.

discussed)
Composition involving different barangays: victim and offender belong to different
barangay.
Resolution: continued conflict is an interest of all. Chiefs of neutral barangay mediate in
the dispute. Amount may also be settled through arbitration.
F. Liability Based on Fault
Fault- essential component of liability. - an element present in all intentional wrongs such
as murder, theft, adultery and others -may be one of the variables considered in
determination of rates for compensation.
Fault as wanting or not clearly established.
Case: Accident Killing, Homicide or Serious Injury -purely accident, absence of fault
(based on circumstances) Liability is only reduced.
*Thus, schedule of compensation is significant: varying rates for wrong at certain
circumstances. Rates adjusted according to degree of fault.
Liability for loss grounded upon offender
Case: Betrothal broken by one party
Fine was imposed on the theory that a breach is advantageous to one party. Thus, one
must pay for sucg loss.
Divorce
Case: Separation: fault of the Husband
He must pay a fine and sustain the loss of the wife's services. Dowry was kept by the
wife.
Case: Separation: fault of the Wife
She must pay the fine. Dowry must be returned because the separation resulted to loss of
her service in he household.
G. Compensation for Loss or Detriment
- a liability imposed independently of any wrongful conduct and without fault but for
loss/detriment
Case: A freeman who left his barangay to live in another
He must pay a customary fine to his former barangay. Compensate principal household
(Chief).
Case: Marriage of Daughter means a loss of her service in her household (family).
-Husband to be pays the customary payment to the bride's household. Thus, dowry is not
a price for the bride
- He also pays a panhimuyat (amount in excess of dowry) to the bride's mother(for her
care, watchfulness
H. Debt
- is equivalent to the 3rd General Norm: Whoever receives a (substantial and material)
benefit, advantage or gain, ought to repay or return such but in this case.
-most common source of obligation.
In contracts/ agreements obligation is the promise to give or repay (Ex: Loanrepayment + stipulated interest)
No agreements promise to repay is implied in the receipt of benefit.
Case: Inordinately large dowry
Recompense the bridergroom's household to redress the balance and extinguish the debt.
This was a pasonor -obligatory even the absence or prior agreements.
Case- Adopter receives adopted's property
Obligation to provide inheritance to the adopter. It is debt because of the limitation of the
inheritance to double the amount.

Case: Householder paid another man's fine even without the latter's consent.
Subrogation happens where householder becomes the new creditor.
I. Extent of Liability of Houehold
Unlike the modern law that prevents total destitution of the debtor through exemption
statutes (so debtor is still left with something that enable him to make a fresh start),
custom law maintains total liability where payment may include persons of its members.
Creditors may make them as their alipin where member is reduced to dependent status.
Adoption into creditor household *totally or in part- refers to reduction of debtor
household into dependent house.
Acquisition of alipin does not extinguish the unpaid obligation which only happens when
there's actual payment or principal. Alipin service = interest of the outstanding
obligation.
Chapter Four: MINIMUM GOVERNMENT
A. Baranggay as political community
Baranggay- consisted of autonomous (more or less) households bound by kinship and
lead by the datu.
Territory- all areas under their control including adjacent non-arable lands like the
communal properties: hills and forests
Dispute on the boundaries between barangays settled thru arbitration.
Political Character derived from the authority of the datu (not only acknowledgment of
power but also legitimacy of its exercise.) Burden of government fell on the datu and his
household as well as close associates.
Actual authority dependent on ESSENTIAL QUALITIES OF LEADERSHIP( to have full power
over baranggay affairs.
1. Character, 2. Strength and 3. Sagacity
Nominal Authority (not full power) authority of the weak, irresolute and inept datu.
Effective authority would pass to more capable hands.
As a political political community:
1. Independence from external control caused by a.) resistance to enroachments b.)
tradition and blood ties as constraint to intrude other baranggay (friendship and kinship
are inconsitent to policy of conquest)
c. inherent limitations on expansions: effective consolidation of authority is only possible
with a very limited area, absence of communication facilities, absence of a governmental
machinery to administer the affairs of territorially extensive community) There was not
even mere beginning of bureaucracy.
Membership based on:
1.) Kinship.
2.) Territoriality basis for freeman that transferred his entire household to another
barangay
B. Minimal Government
A virtual one man show
Minimal Government was due to the (1) fact that household organization are virtually sefsufficient and autonomous, (2) partly due to the scarcity of resources, (3) primitive
technology available.
2 Functions of a Barangay as a political organization

1. Maintain its existence as a community resistance to invasion

2. Preservation of peace and order
C. No Monopoly Force
Unlike the modern government where the efficacy of state rest on monopoly of force (Ex:
to compel obedience to laws), pre-conquest society can not establish this monopoly of
force because of its primitive organization (autonomous bound by kinship and
neighborship) and resources. There was no central in the barangay is strong enough to
disarm every resident and repel by itself attacks from the outside except during
emergencies that threatens the community as a whole (warfare among household and
invasion). Datu only intervenes when emergencies and when the parties seek his
solution.
D. Principle of Self- Help
Factors that reinforced this principle:
1. Hostility from other neighboring households.
Thus:
1. Skill and valor in the arms was highly prized essential to survival. Ex:Custom of
freeman to be armed.
2. Acts of bravery are admired
Effects:
1. Military preparedness/ Enhancing survival
2. General (if uneasy) Peace with the understanding that every household can and are
entitled to retaliate...
E. System of Obligations in Barangay
The power structure had the shape of a pyramid.
Apex Datu's household
Middle- Petty chief's household (in smaller barangay, only one chief)
Base- Freemen/Timawa's household
Subordination Status entails reciprocal rights and duties.
Dominate Household -provides protection, security and assistance
Subordinate Household- provides customary services.
F. Status of a Datu
Status of Datu is more akin to that of a chieftain rather than a king. Pre-conquest society
did not achieve that degree of centralization and institunalization of authority which is
the characteristic of royalty in its myriad forms.
Initially recognizes succession unless unfit. Merit was the seal to the datu's power
Real Basis of Power (not the office but the person)
1. Authority is charismatic rather than traditional.
A datu only gained prestige when by his prowess, valor, wealth or wisdom will be able to
provide protection or compel obedience.
2. Based on more or less voluntary allegiance of his peers not permanent allegiance, a
timawa can easily severe attachment and go to another.
3. The checks on his authority were reinforced by household autonomy but does not
mean no datu pursued self-aggrandizement, abuse, oppression or injustice.
4. Leader rather than as a ruler
3. Arbitrator rather than a judge (except where there's consolidated authority)

G. Prerogatives of the datu

Datu entitled to:
1. veneration and respect (prev. discussed implications if violated- ex. death)
2. customary services
H. Datu as captain in war (among themselves or against piratical excursions)
1. Duty to act as barangay captain in war, to plan, direct and lead course of battle.
2. Has emergency powers over manpower and resources of the barangays in times of
grave national peril (Ex: summary execution for desertion/ betrayal and comandeering of
property
I. Datu as a Judge, Arbitrator and Mediator
In line with his role as preserver of peace, he adjudicate disputes among households and
endeavors to have the parties agree on a settlement. In cases of non-compliance to pay,
the datu assist the execution : seizure of property then members of the offender become
alipin.
Generally, he took cognizance of such disputes on petition of the aggrieved party for
protection from violence, for redress of an injury, enforcement of a claim such as unpaid
debt (especially if it involves serious breach of peace)
Process: investigation evidence judgment
Case: Offender/Victim is from another barangay,
Datu will assist the victim in obtaining recompense and will try to settle amicably if
offender is from his barangay. If no settlement, case were submitted to persons with fair
and just dealings for adjudication.
H. Datu as Legislator
Under the stimulus of Demand for China imports, production was slowly being oriented to
the market needs rather than household consumption. Rules had to undergo
corresponding changes too.
Datu:
Interprets custom law when not fully consolidated authority
Legislates freely if authority is undisputed
Chapter Seven: PROPERTY AND CONTRACTS
A. Underdevelopment of Property and Contract Rules
Laws on Properties and Contracts are the least developed in pre-conquest custom law.
These laws are more elaborate if transaction involve future fulfillment (as it is based on
promises only)
Circumstances that contributed in lag:
1. Abundance of resources resulted to little compulsion to produce surpluses hence little
basis of growth of commerce, a prime stimulus for property and contract rules.
2. Economic organization of barangay society (self-sufficiency) principal mode of
acquiring is to produce them for oneself . Thus, exchange was only a subsidiary mode
(little surplus to be traded for goods that they can't produce
3. Nature of Exchange
Personal Property mostly consumables, regular type of exchange. Very few commodities
underwent successive acquisition like gold, jewels and other personal articles.
Forms:
1.) exchange hands and were consumed by the person acquiring them.
2.) Face-to-face Transactions completed on the spot. NO credit transactions

B. Scope of Property
Man acquired things before he acquired property refers to rights over or in respect of
things.
Primitive societies: rules relative to property rights are simple prohibition of theft or
robbery.
Sedentary Societies: More complex because of household occupying a definite territory
for cultivation or mode of production like accumulation of surpluses for exchange.
Barangay Society: same as sedentary societies as it also assumes aspects of
entrepreneurial enterprise. On certain places, some production was specialized and
oriented to trade. Conquest interrupted the commercial evolution, nevertheless,
foundations of legal development has been laid.
Classic Modes of Acquisition
1. Occupation
2. Inheritance
3. Tranfer inter vivos
There exist special contracts like credit transactions, rudimentary and scarce rules: sale,
partnership or inheritance.
C. Lands as Property
Chief Objects: 1. Land (chief source of subsitence), 2. Gold, 3. Slaves, 4. Articles of
Property
1. Occupation basis of title of recognized owner/possessor who cleared and cultivated
the virgin land.
Disputes on land boundaries bet. Barangays through arbitration
New place or territory of the barangay datu allocates arable lands among households.
2. Succession lands are not sold but passed on to descendants.
In case of extreme necessity, lands are diposed or seized by creditors.
D. Commerce in Movables
Factors that encouraged growth of commerce:
1.) Abundance of resources (land is fertile)
2.) Location of barangay favorable to trade on the coast, alongside larger rivers and
streams
3.) Certain articles that locality can't produce by reason of geographical situation (Ex: fish
and salt to inland communities and rice, cloth and forest products for coast-dwellers).
4.) Common tongue and sharing same traditions and customs (No barriers for Trade)most barangays are related by blood since new communities were set up by pioneering
families in older village.
----Chapter Eight: Crime and its Puishments
A. Criminal Law in General
In pre-conquest, distinction was made between conduct which was harmful to the
community and conduct which prejudiced oly the interest of a particular person.
Distinction is clearest in serious offenses but tends to blur with respect to all other
wrongs. (Ex: Adultery as a private wrong)
The principle features of a pre-conquest society:
1. Principle prohibitions were concerned with values of personal security and property.
Criminal law is secular rather than religious
2. Distinction of penalties based on the rank of the wrong doer and the rank of the victim.

3. Sanctions in the form of pecuniary fines

4. Crimes subject to capital punishment, penalty was the ancient procedure of self help
(vengeance)
B. Protection of Secular Value
Unlike many traditional societies and government under the influence of religion, prehistoric society's penal rules have an almost wholly absent religious flavor. No
ecclesiastical class with special privileges was recognized.
Principal Subjects of Penal Rules
1. Security of the Persons - univeral prohibition of murder and homicide
2. Principalia (Datu) - maintain the inviolability of the datu, his household, rights and
interest.
3. Protection of Property from Theft - penalty according to the amount of loss
4. Safeguard for Personal Reputation and Honor C. Distinction according to rank (A Double Standard)
Basis: Common sentiments that social position coferrred special privileges.
Same Case
Penalty when the victim: Chief > Penalty when the victim: Commoner
Penalty when the wrong doer: Commoner = Death penalty, Chief = Fines
D. Sanctions and Penalties
Pre-conquest penalties are most humane and reasonable.
Death- for universally acknowledged heinous crime ( Murder, in some places: incest)
Other offenses- fine (graduated according to 1.) nature, 2.) gravity & 3.) rank of the
parties)
Sevitude - if unable to pay fine
Unlike Europe, no harsh and barbarous penalties like torture, harsh labor or incarceration.
Thus, the post-conquest barbarities are part of Spain's legacy.
E. Exection of Sentence
Death Sentence:
1. Victim's relatives captured and killed the culprit
2. Escaped relatives but later surrendered or was captured by a 3rd party (Datu or other
chiefs) - kills the culprit by hanging and spearing him after he had been lashed by a
stake.
Payment of heavy fine or offered be an alipin - will absolve him from death penalty if
accepted by the wronged party.
Fine (according to a customary schedule, varies from place to place)
- common penalty for homicide to theft.
-generally payable in gold
-if not paid, the property of the culprit was seized
-divided to 1.) aggrieved party and 2.) those who had undertaken the capture
F. Murder and Homicide
owhen the victim is the chief and when the author of the crime is the chief (when war
was declared against him and his relatives)
-if the author could not be found, his relatives and followers were killed

Circumstances affecting penalty:

a. Use of poison is a murder and not a mere killing
b. Mitigating Circumstances (Pampangos): if there's a close relationship
c. If equal rank (commoner killed another commoner) - penalty is death subject to
composition upon payment of fine or become slave (at the offender's own request)
d. Homicide through witchcraft, sorcery and similar practices is a heinous crime subject to
death penalty
G. Offenses against Chief
Datu - privileged position
Virtually all offenses against his persons, his honor and his wives are usually subject to
capital punishment
Case: Chief killed in a village
Penalty: Inhabitants reduced to servitude
Case: Slander to a chief (abusive amd disrespectful language), trespass or commit
adultery with his wife or concubine
Penalty: Capital Punishment
Larao or Enforced Interdict and Mourning - imposed when a chief dies.
Penalty: Death
*Until the interdict was raised, it is the duty of the relatives to seek vengeance.
H. Theft
Unless the value of the thing stolen is triffling, theft is considered serious and punished
rigorously.
Case: Owne caught the thief in the act
Penalty: Owner may kill him or harm the latter with impunity
Penalty graduated according to:
1. Rank of the offender
2. Value of the property
Case: Offender is the chief
Penalty: Fine, regardless of the value
Case: Offender is a commoner
Penalty: Death if value is substantial or otherwise, Fine/Servitude if he can't pay
Special Rules
Manila: Recidivism in thievery
Penalty: 1st Offense= fine, 2nd = Servitude, 3rd=Death
Great Value: even the relatives were punished unless the relative can prove that he's no
longer a member or he lives in his own house
Ratio: Those living under the same may have knowledge and benefited from it.
Trifling Value: relatives are not punished.
I. Insult
Honor and reputation were primary values of the pre-conquest society.
Insult/Disparagement generally provoke instant retailiation. Thus, it is penalized heavily
just like modern day libel (for public order)
J. Other Offenses
Adultery was a private wrong rather than a public offense.The penalty was imposed only

on the man.
Case: Man caught his wife and her paramour
Penalty: He may kill both of them.
Case: Adultery with the chief's concubine
Penalty: Death
In other cases, fine was imposed to the male culprit
Arson is a serious crime among Pampangos
Offender: Chief - Heavy Fine corresponding to the damage
Offender: Commoner - Death, goods were seized and family reduced to servitude.
Incest (in South) is a heinous offense but in some areas, it is regarded in the same light
as concubinage.
Chapter Nine: Remedies and Procedure
A. Development of Judicial System
Three Techniques used for the Settlement and Resolution
1. Mediation and Conciliation
2. Arbitration
3. Formal Adjudication
1. Mediation
Intermediary - is a third party with influence and prestige and may be considered as a
champion of one party.
Purposes for the use of intermediary:
1. To prevent humiiation and loss of face -usually happens consenquent to refusal in faceto-face dealings. (The one refusing here is the third party na, in behalf of someone)
2. Enhances chances of a successful transaction -since it would be difficult to refuse
someone who has influence and prestige.
Reward to the Intermediary - should be given in case of success. (silent on
unsuccessful cases)
Forms: Lance provided to him (suit for the hand of a maiden in behalf of a datu's son),
share in the amount/property in dispute among households
Ratio: Principle of Compensation or Reciprocity. Not only a service but also in the nature
of placing his name and prestige at risk (in case of refusal of the other party). In the
earlier stages, he (as champion of one party) might even assist the claimant to pursue
self-help methods (fighting).
2. Arbitration
Arbitrators - individuals with power, prestige and reputation for fair dealing that are
more akin to judge than a mediator. They are also compensated even if the losing party
refused to pay award or judgment
Disputants sought out for an abritrator, submit their differences for resolution binding
upon parties. The practice continued despite the datu's consolidation of authority. Chief
and associates as judge are also entitled to share in damages.
B. Religion and Justice
The system of justice in pre-conquest was deeply rooted in religion, magic and myth.
Elements of magico-religious derivation had survived:
1. Oath - serves as a substantial assurance of truth to declarations caused by the terror of
supenatural retribution. (Context: Testimonial evidence was crucial and freq. sole source

of proof because of the primitive state of technology)

2. Trial by ordeal- a method of determing guilt in a criminal cases. Accused undergo a test
which may cause him serious harm but pre-conquest society believes that it should have
no effect on the innocent because of the central assumption that gods has the power and
wilingness to intervene for the punishment of the wicked and the protection of the
innocent.
*Refusal to undergo = guilty even w/ legitimate skepticism. (His acceptance that it will
naturally lead to injury was construed as admission of guilt.
C. Oath
Supernatural belief that deities are represented by objects of common experience (Ex:
sun, moon, crocodile, etc.)
Oath following the form of sangla - is a way of invoking a deity as a guarator of its truth,
where he places his body at the disposal of the deity, to be chastised in case the deity is
made party to a false declarations.
D. Techniques of Settlement
Techniques (prev discussed) also apply to disputes between and among barangays.
Arbitrators may be chosen from another village
Case: Murder of a chief caused by an open conflict between two barangays or bet.
factions in a barangay.
Resolution: Common friends undertook to bring about reconciliation - usually in the form
of compositionn -> eventual payment of fine from customary schedule.
Process by Judge or chief: Petition -> summon defendant -> settlement (agreed by
parties)
E. Power of Adjudication
Integration to the extent of consolidation of political authority of the datu, the chief will
now have the sole task of adjudication.
Incomplete Integration
1. The Datu share judicial authority with the old man (by reason of personal interest and
knowledge of ugali)
2. Datu as mere mediator and arbitrator whose authority depend on parties' consent to
submit.
F. Procedure in Contested Case
Trial or Hearing
-happens when the issue was not settled at conciliation or mediation.
-Prelim Step: Chief or Judge- exacts an oath from both parties
-consisted of testimony and declarations, as well as examination of witnesses
-after both parties had been heard, judgment was made.
Outcome/Judgment
Weight based on numbers
-determined by weight of evidence as measured by the number of witnesses in favor of
the cause.
-If there's an equal number of witnesses, the difference of the claim and counterclaim
was split, otherwise the cause was dismissed.
Weight based on preponderance of testimony.
-If it is clear to be in one side, then that is the outcome.
Execution- should be without delay. If losing party refused to comply, the chief or judge
would assist in enforcing it through force or seize of property.

Proceeds of Judgement (similar to arbitration) goes to the ff:

1. Judge/chief (in some cases excessive)
2. Witnesses of the winning party according to rank.
3. Successful Litigant (recieves only small part if #1 is excessive)
G. Determination of Guilt by Ordeal or Magic
-still present at the time of conquest like when the suspects were asked to bring a bundle
of cloth, in which stolen article could be hidden. It will be commingled. Then the owner of
the bundle with the article will be punished. If the item was not found, they will have
another test.
H. Composition
- a customary mode of redress that involves a payment of fines (in gold or jewels)
generally agreed by parties (amt and manner)
-if they can't agree, the offended party may invoke the aid of the datu to adjudicate and
compell.
-applicable when offenses subject to vengeance prescribed or not exacted after a certain
period. Thus, it is the duty of the offended to accept fine. (For Peace of the Community)
-applicable to a persisting internecine strife caused by vengeance. The chief and other
prominent persons act as arbiters. (Public Order)
*similar to modern law's commutation of death penalty.