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1 Persons and Family Relations by Edgardo L.

Paras

PERSONS AND FAMILY RELATIONS Bases of Human Positive Law


by: Edgardo L. Paras
1. Divine Pronouncement;
INTRODUCTORY CHAPTER 2. Natural Moral Nature of Man;
3. Legislative Enactments;
Law an ordinance of reason promulgated for the common good by Him Who is in 4. Jurisprudence or Judicial Decisions;
charge. 5. Conventions or treaties; and
6. Customs and Traditions.
Classification of Law according to the Manner of its Promulgation:
Concepts of Law
I. Natural Law promulgated impliedly in our conscience and body
1. Derecho considered as a cause and effect. It is the abstract science of
a. Natural Moral Law applies to our higher faculties (ex. Do good and law. Ex: A student of law.
avoid evil)
2. Ley is a specific law. Ex: Studies specific law
b. Law of Nature applies to both our higher and lower faculties (ex. Law
Ex: A student of Law (Derecho) studies specific laws (Leyes).
of gravity)

Classification of Human Positive Law


II. Positive Law promulgated expressly or directly

I. According to whether a right is given, or merely the procedure for enforcement is


a. Divine Positive Law ex. 10 commandments
laid down:
b. Divine-Human Positive Law ex. Commandments of the Catholic
1. Substantive Law that which establishes rights and duties.
Church
2. Remedial (or procedural or adjective) law that which prescribes the
c. Human Positive Law ex. Congressional Statutes or Executive Orders
manner of enforcing legal rights and claims.

Human Positive Law is a reasonable rule of action, expressly or directly


II. According to the scope or content of the law:
promulgated by competent human authority for the common good, and usually, but
not necessarily, imposing a sanction in case of disobedience. 1. Private Law that which regulates the relations of the members of a
community with one another. It consist of:
Essential Elements of Human Positive Law a) Civil Laws; and
b) Commercial Laws.
1. Reasonable rule of action;
2. Due promulgation; 2. Public Law that which governs the relations of the individual with the
3. Promulgation by competent authority; and State or ruler or community as a whole. It includes:
4. Sanction imposed for disobedience. a) Political Law;
b) Criminal or Penal Law; and
Human Positive Law Morality c) Remedial Law.
Covers only external conduct Covers both external acts and internal
thoughts. III. According to force or effect:
Enforced by the State Not enforced by the State except moral
legislation. 1. Mandatory (absolute, imperative) and/or Prohibitive Law those
which have to be complied with because they are expressive of public
policy. Disobedience is punished either by direct penalties or by considering
an act or contract void.
2. Permissive (or suppletory) Laws those which may be deviated from,
if the individual so desires.
2 Persons and Family Relations by Edgardo L. Paras

Civil Law is that branch of the law that generally treats of the personal and 1. Persons;
family relations of an individual, his property and successional rights, and the 2. Property, Ownership, and its Modifications;
effects of his obligations and contracts. 3. Different Modes of Acquiring Ownership;
4. Obligations and Contracts.
Civil derived from the latin word Civiles, a citizen pertained to a member of a
Art. 2 Laws shall take effect after fifteen days following the completion of
civitas or free political community.
their publication in the Official Gazette, unless it is otherwise provided.
Civil Law Political Law This Code shall take effect one year after such publication.
Governs the relations of the members of Deals with the relations of the people
a community with one another. and the government. Scope of the Article on Effectivity of Laws:

1. An ordinary law; and


2. The Civil Code.
Civil Code is a compilation of existing civil laws, scientifically arranged into
books, titles, chapters, and subheads and promulgated by legislative authority. It
When a country is placed under martial law, the law-making authority is
contains 2,270 Articles, 43% of which are completely new provisions.
the Commander-in-Chief who usually issues:
Sources of Civil Code
1. General Orders;
2. Presidential Decrees or Executive Orders;
1. The Civil Code of Spain; 3. Letters of Instructions or Letters of Implementation; and
2. The Philippine Constitution of 1935; 4. Proclamations.
3. Statutes or Laws;
4. Rules of Court;
An Ordinary Law takes effect:
5. Decisions of local tribunals;
6. Decisions of foreign tribunals;
7. Customs and traditions of our people; 1. On the date it is expressly provided to take effect; or
8. General principles of law and equity; and 2. If no such date is made, then after 15 days following the completion of its
9. Ideas from the Code Commission itself. publication in the Official Gazette or in a newspaper of general circulation.

When no publication needed:


CHAPTER 1: EFFECT AND APPLICATION OF LAWS
1. Where a law provides for its own effectivity. Publication in the Official
Art. 1 This act shall be known as the Civil Code of the Philippines. Gazette is not necessary so long as it is not punitive in character; or
2. Where the law itself says it becomes effective upon approval, it should be
Sources of Philippine Civil Law effective even during the first hour.

1. The 1935 and the 1973 Philippine Constitutions; When publication is needed:
2. Statutes, laws, presidential decrees, or executive orders which are
applicable; Where a law is punitive in character and which prescribe a penalty for their
3. Administrative or general orders insofar as they are not contrary to the violation should be published before becoming effective
laws or the constitution;
4. Customs of the place, provided they are not contrary to existing laws,
public order, or public policy;
5. Judicial decisions as well as judicial customs; Rule applied to Executive Orders and Administrative Rules:
6. Decisions of foreign courts;
7. Principles covering analogous cases;
1. Must conform to standards of the law; and
8. Principles of legal hermeneutics; and
2. Administrative Rules have the force of law.
9. Equity and the general principles of law.

Books of the Civil Code:


3 Persons and Family Relations by Edgardo L. Paras

If conflict exist between the basic law and a rule or regulation issued to Ignorantia legis non excusat latin legal maxim. It refers only to mandatory
implement it, the BASIC LAW PREVAILS. or prohibitive laws, not to permissive or suppletory laws.

August 30, 1950 date when the Civil Code of the Philippines took effect. Ignorance of foreign law is not ignorance of the law, but ignorance of the
fact because foreign laws must be alleged and proved as matters of fact,
TAADA vs. TUVERA there being no judicial notice of said foreign laws.
136 scra 27
Processual Presumption if the foreign law is not properly alleged and proved,
Facts: the presumption is that it is the same as our law.

Petitioner seek a writ of mandamus in compelling respondent public It is believed that while the proving of a foreign law requires the proving of
officials to publish and/or cause the publication in the Official Gazette of various a fact, still once the foreign law is actually proved, what has been proved is
presidential decrees, letter of instructions, general orders, proclamations, executive a law, and not a mere fact.
orders, letters of implementation and administrative orders.
Written foreign law can be proved in our courts by:
The general rule in seeking writ of mandamus is that it would be granted
to a private individual only in those cases where he has some private or particular 1. Official publication;
interest to be subserved, or some particular right to be protected, independent of 2. A copy attested by the officer having the legal custody of the record, or by
that which he holds with the public at large, and it is for the public officers his deputy and accompanied with a certificate that such officer has the
exclusively to apply for the writ when public rights are to be subserved. custody; or
3. When foreign law has been presented properly in evidence during trial, the
The legal capacity of a private citizen was recognized by court to make the court can take judicial notice of said foreign law in a subsequent hearing,
said petition for the reason that the right sought to be enforced by petitioners without proof any more of such law.
herein is a public right recognized by no less than the fundamental law of the land.
However, the Supreme Court ruled that it is essential to prove all over
Issue: again the existence of the foreign law already proved in a prior case for the
reason that the foreign law may have undergone changes or amendments
Whether publication in the Official Gazette is still required considering the since the hearing of the original case.
clause in article 2 unless otherwise provided.
Ignorance of the Law refers not only to the literal words of the law itself, but
Held: also to the meaning or interpretation given to said law by our courts of justice.

Unless it is otherwise provided refers to the date of effectivity and not While ignorance of the law is no excuse for not complying with the law,
with the publication requirement which cannot be omitted as public needs to be ignorance of the fact eliminates criminal intent as long as there is no
notified for the law to become effective. The necessity for the publication in the negligence.
Official Gazette of all unpublished presidential issuances which are of general
application, was affirmed by the court on April 24, 1985. This is necessary to The Civil Law specifically provides that a mistake on a doubtful or difficult
provide the general public adequate notice of the various laws which regulate question of law may be the basis of good faith. This does not mean,
actions and conduct as citizens. Without this, there would be no basis for Art. 3 of however, that one is excused because of such ignorance. He is still liable
the Civil Code Ignorance of the law excuses no one from compliance therewith. but his liability shall be mitigated.

Wherefore, the court hereby orders respondents to publish in the official Art. 4 Laws shall have no retroactive effect, unless the contrary is
gazette all unpublished presidential issuances which are of general application, and provided.
unless so published, they shall have no binding force and effect.
In general, laws are prospective. The legislator must look forward.
Art. 3 Ignorance of the law excuses no one from compliance therewith.
4 Persons and Family Relations by Edgardo L. Paras

If the laws were retroactive, grave injustice would occur, for these laws Art. 5 Acts executed against the provisions of mandatory or prohibitory
would punish individuals for violations of laws not yet enacted. laws shall be void, except when the law itself authorizes their validity.

It applies to amendment of statutes. After an Act is amended, the original It refers to mandatory or prohibitive laws. While one has to obey
Act continues to be in force with regard to all rights that had accrued prior mandatory statutes, otherwise his acts would generally be void; the
to such amendment. violation of directory laws does not result in invalid acts.

Exceptions to the Prospective Effects of Laws: Kinds of mandatory legislation:

1. If the laws themselves provide for retroactivity, but in no case must an ex 1. Positive when something must be done;
post facto law be passed.
2. Negative or prohibitory when something should not be done.
Ex post facto law is one that makes criminal and punishable
an act done before the passing of the law and which was innocent Exceptions:
when done.
1. When the law makes the act not void but merely voidable (valid, unless
2. If the laws are remedial in nature. annulled) at the instance of the victim;
2. When the law makes the act valid, but subjects the wrong-doer to criminal
There are no vested rights in rules of procedure, therefore, new responsibility;
rules of court on procedure can apply to pending actions. 3. When the law makes the act itself void, but recognizes some legal effects
flowing therefrom; or
3. If the statute is penal in nature, provided: 4. When the law itself makes certain acts valid although generally they would
a. It is favorable to the accused or to the convict; have been void.
b. And provided further that the accused or convict is not a habitual
delinquent. Art. 6 Rights may be waived, unless the waiver is contrary to law, public
order, public policy, morals, or good customs, or prejudicial to a third
Statutes which lighten the penalty or completely extinguish the
person with a right recognized by law.
liability.
General Rule: Rights may be waived.
4. If the laws are of an emergency nature and are authorized by the police
power of the government.
It deals with the waiver of rights, not the waiver of obligations or duties.
5. If the law is curative (this is necessarily retroactive for the precise purpose Waiver of obligations or duties would be possible only:
is to cure errors or irregularities). However, to be valid, must not impair a. If the person being possessed of certain rights, and the resultant
vested rights nor affect final judgments. obligations or duties waives the said rights; or
b. If the law itself authorizes such waiver.
6. If a substantive right be declared for the first time, unless vested rights are
impaired. Exceptions:

Vested or Acquired Right defined as some right or interest in 1. When the waiver is contrary to law, public order, public policy, morals, or
property that has become fixed and established that it is no longer good customs; or
open to controversy. It may also be defined as such right the 2. When the waiver is prejudicial to a third person with a right recognized by
deprivation of which would amount to a deprivation of property law.
without due process of law. A right is also vested when it has so
Right the power or privilege given to one person and as a rule demandable of
far been perfected that nothing remains to be done by the party
another.
asserting it.

It involves two subjects:


a. Active Subject the person entitled; and
5 Persons and Family Relations by Edgardo L. Paras

b. Passive Subject the person obliged to suffer the enforcement of 7. Although a tax obligation has already been extinguished by prescription,
the right. the taxpayer may waive the benefit granted by law by reason of said
prescription by the execution of a chattel mortgage to secure the payment
Rights may be: of the same;
a. Real Rights (Jus in re, Jus in rem) enforceable against the whole 8. An individual who accepts the office of an executor or administrator may
world (absolute rights); waive compensation therefor;
b. Personal Rights (Jus in personam, jus ad rem) enforceable 9. The right to the back pay of an employee who has been dismissed without
against a particular individual (relative rights). any justifiable cause may be waived by him. This is particularly so when he
has been put back to work;
Waiver the intentional or voluntary relinquishment of a known right, or such 10. Failure to ask for vacation and sick leave privileges after a period of more
conduct as warrants an inference of the relinquishment of such right. A waiver may than 5 years constitutes a valid waiver unless the intent of the law granting
be express or implied. the same is clearly otherwise; or
11. Prescription, if not pleaded as a defense before or during the trial, is
Requisites for a Valid Waiver: deemed waived, and said defense cannot therefore be raised for the first
time on appeal.
1. The person waiving must be capacitated to make the waiver;
2. The waiver must be made clearly, but not necessarily express; Art. 7 Laws are repealed only by subsequent ones, and their violation or
3. The person waiving must actually have the right which he is renouncing;
non-observance shall not be excused by disuse, or custom or practice to
otherwise, he will not be renouncing anything;
the contrary.
4. In certain instances the waiver, as in the express remission of a debt owed
in favor of the waiver, must comply with the formalities of a donation;
When the courts declare a law to be inconsistent with the
5. The waiver must not be contrary to law, morals, public policy, public order
Constitution, the former shall be void and the latter shall govern.
or good customs; and
6. The waiver must not prejudice others with a right recognized by law.
Administrative or executive acts, orders and regulations shall be
Rights that cannot be renounced: valid only when they are not contrary to the laws or the Constitution.

1. Natural rights (ex. Right to life); Sources of Law:


2. Alleged rights which really do not yet exist (ex. Future inheritance);
3. Those the renunciation of which would infringe upon public policy; and 1. Constitution;
4. When the waiver is prejudicial to a third person with a right recognized by 2. Laws or Presidential Decrees; and
law; 3. Administrative or Executive Acts, Orders and Regulations.

Rights that may be renounced:

1. Support in arrears; Laws are Repealed:


2. The right granted to prepare at least two days before trial is waivable,
expressly or impliedly. It can be implied from the failure to ask for 1. Expressly; or
2. Impliedly.
sufficient time to prepare for trial;
3. The right to object to testimony of a wife on information obtained because
The Civil Code repeals:
of her domestic relation with her husband, is waived when a husband
accused of killing his son, does not only deny his guilt, but also points to
1. The old Civil Code of 1889;
the wife as the killer;
2. The Code of Commerce provisions on sales, partnership, agency, loan,
4. The right of the accused to be helped by counsel may also be waived;
deposit and guaranty;
provided, the judge informs said accused of his right;
3. The provisions of the Code of Civil Procedure on prescription, as far as they
5. The right of the accused in a criminal case to have a preliminary
are inconsistent with the new Civil Code; and
investigation may be waived;
4. All laws, acts, parts of acts, Rules of Court, executive orders, and
6. The venue of actions may be waived, but not the courts jurisdiction;
administrative regulations, inconsistent with the new Civil Code.
6 Persons and Family Relations by Edgardo L. Paras

Rule for General and Special Laws: Effect of Repealing Law:

1. If the general law was enacted prior to the special law, the latter is 1. When a law which expressly repeals a prior law is itself repealed, the law
considered the exception to the general law. Therefore, the general law, in first repealed shall not be thereby revived, unless expressly so provided;
general remains good law, and there is no repeal, except insofar as the and
exception or special law is concerned; 2. When a law which repeals a prior law, not expressly but by implication, is
2. If the general law was enacted after the special law, the special law itself repealed, the repeal of the repealing law revives the prior law, unless
remains unless: the language of the repealing statute provides otherwise.
a. There is an express declaration to the contrary;
b. There is a clear, necessary and unreconcilable conflict; or Note:
c. Unless the subsequent general law covers the whole subject and is
clearly intended to replace the special law on the matter. Non-observance of the Law such as disuse, custom or practice to the
contrary does not repeal a law.
Lapse of Laws end by itself in view of the expiration of the period during which it A mistake in the law or in legislation cannot be corrected by executive fiat
was supposed to be effective. Laws may lapse without the necessity of any repeal as but by another legislation.
exemplified by the law granting the President Emergency Powers or the annual
appropriation law.

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