COMMENT:
(1) Sources of the Civil Code (a) The Civil Code of Spain
(b) The Philippine Constitution of 1935
(c) Statutes or Laws (Philippine, American, European) (d) Rules of Court (local and foreign)
(e) Decisions of local tribunals (particularly the Supreme Court)
(f) Decisions of foreign tribunals
(g) Customs and traditions of our people (h) General principles of law and equity (i) Ideas from the Code Commission itself
[NOTE: The principal basis is the Civil Code of Spain, which became effective in the Philippines either on December 7, 1889 (Mijares v. Neri, 3 Phil. 195) or on
CIVIL CODE OF THE PHILIPPINES
December 8, 1889. (Benedicto v. Rama, 3 Phil. 34). The correct date, it would seem, is December 7, 1889 (or 20 days after publication in the Gaceta de Manila on No-vember 17, 1889). (See Insular Government v. Aldecoa, 19 Phil. 505; Barretto v. Tuason, 59 Phil. 845). Titles 4 and 12, however, of Book 1 of said Civil Code were never applied, for their application in the Philippines was sus-pended. (See also Barretto v. Tuason, 59 Phil. 845). (Note that the Civil Code of Spain was in turn an adaptation of the Code Napoleon –– French Civil Code of 1804)]
(2) Commentators and Annotators on the Civil Code of Spain
Among the famous commentators and annotators on the Civil Code of Spain were:
(a) Justice Jose Ma. Manresa y Navarro (Comentarios al Codigo Civil Español — 12 volumes)
(b) Felipe Sanchez Roman (Estudio de Derecho Civil) (c) Quintus Mucius Scaevola (pen name of a group of
com-mentators borrowed from the famous Roman juris-consult-ant) (Codigo Civil Comentado)
(d) Calixto Valverde (Tratado de Derecho Civil Español) (e) Mario Navarro Amandi (Cuestionario del Codigo Civil
Reformado)
(f) Colin and Capitant (French authors), De Buen (who wrote the Spanish notes). (Curso Elemental de Derecho Civil) (g) Enneccerus, Kipp, and Wolff (German authors — Derecho
Civil)
(h) Chief Justice Jose Castan Tobenas
(3) Brief History of Our Civil Laws
(a) Prior to the present Civil Code, our civil law was premised principally on the old Civil Code (the Civil Code of Spain of 1889).
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(b) Prior to the Civil Code of Spain of 1889, our civil law was found in the Recopilacion de las Leyes de las Indias with the following as supplemental laws to be applied in the following order:
1) the latest Spanish laws enacted for the colonies 2) La Novisima Recopilacion
3) La Nueva Recopilacion
4) the Royal Ordinances of Castille 5) Leyes de Toro (Laws of Toro)
6) the Siete Partidas (promulgated thru the Ordenami-ento de Alcala of 1384)
(4) Sources of Philippine Civil Law
(a) The 1935 and the 1973 Philippine Constitutions, respec-tively. (See Art. 7, par. 2, Civil Code). (In the case of Javel-lana v. The Executive Secretary, L-36283, Mar. 31, 1973, the Supreme Court ruled that there was no more obstacle to the effectivity of the 1973 Constitution. Its effective date is Jan. 17, 1973 noon, according to a Presidential Proclamation). After the 1973 Constitution, we had the Freedom (Revolutionary and Provisional) Constitution promulgated as a result of the EDSA Revolution of Feb.
22-25, 1986. Presently, we have the 1987 Constitution, effective Feb. 2, 1987.
(b) Statutes, laws, presidential decrees, or executive orders which are applicable.
(c) Administrative or general orders insofar as they are not contrary to the laws or the Constitution. (See Art. 7, par.
3, Civil Code).
(d) Customs of the place, provided they are not contrary to existing laws, public order, or public policy. (Art. 11, Civil Code).
(e) Judicial decisions (interpreting the law), as well as judicial customs (where decisions are made notwithstanding the
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absence of applicable statutes or customs). (Art. 11, Civil Code).
(f) Decisions of foreign courts.
(g) Principles covering analogous cases. (Cerrano v. Tan Chuco, 38 Phil. 932).
(h) Principles of legal hermeneutics (statutory construc-tion).
(i) Equity and the general principles of law (juridical stand-ards of conduct premised on morality and right reason-ing).
(5) Books of the Civil Code
(a) Book I — Persons (Note — Book I is called “Persons’’ in-stead of “Persons and Family Relations” because juridical persons such as corporations, which are likewise referred to in Book I, have NO families.)
(b) Book II — Property, Ownership, and its Modifi cations (c) Book III — Different Modes of Acquiring Ownership (d) Book IV — Obligations and Contracts:
Other Parts:
1) Preliminary Title 2) Human Relations 3) Transitional Provisions 4) Repealing Clause
(6) Some Important Changes Made by the Civil Code (a) Book I — The elimination of absolute divorce, the creation
of judicial or extrajudicial family homes, the insertion of a chapter on Human Relations, the abolition of the “dowry,”
greater rights for married women.
(b) Book II — There are new provisions on the quieting of title; on the creation of new easements. The provisions on the “censo” and “use and habitation” have been elimi-nated.
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(c) Book III — The holographic will has been revived; rights (successional) of the surviving spouse and of illegitimate children have been increased; the “mejora” or “betterment”
has been disregarded.
(d) Book IV — Defective contracts have been reclassifi ed;
there is a new chapter on “reformation of contracts;” some implied trusts are enumerated; new quasi-contracts have been created.
(7) The Code Commission
A Code Commission of fi ve members was created by then President Manuel A. Roxas thru Executive Order 48, dated Mar. 20, 1947, in view of the need for immediate revision and codifi cation of Philippine Laws — in conformity with Filipino customs and ideals, and in keeping with progressive modern legislation. The fi nal draft of the Civil Code was fi nished on Dec. 16, 1947. The Commission rendered its report in a pub-lication dated Jan. 26, 1948. Congress approved the draft on June 18, 1949 as Republic Act 386.
(8) The Original Members of the Code Commission (a) Dean Jorge Bocobo (Chairman)
(b) Judge Guillermo B. Guevarra (Member) (c) Dean Pedro R. Ylagan (Member)
(d) Dean Francisco R. Capistrano (Member)
[NOTE: The fi fth member Senator Arturo Tolentino had not yet been appointed at the time the Civil Code was drafted.].
(9) Proportion of Changes
The Civil Code contains 2270 articles, 43% of which are completely new provisions.
(10) Language of the Civil Code
Inasmuch as the Civil Code was written in English, and approved as such by Congress, the English text should
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prevail in its interpretation and construction. (Sec. 15, Rev.
Adm. Code). Literal English translations of Spanish or Latin terms must be interpreted, however, according to their original sources.
(11) Need for a Preliminary Title
Please note that in the preceding Chapter I is the phrase
“Preliminary Title.’’ The purpose of this Title is to set forth general principles.
Art. 2. Laws shall take effect after fi fteen days following the completion of their publication in the Offi cial Gazette, unless it is otherwise provided. This Code shall take effect one year after such publication. (1a)
COMMENT:
(1) Scope of the Article on Effectivity of Laws
This Article provides for the effectivity of two kinds of law, namely:
(a) An ordinary law (b) The Civil Code
NOTE: When a country is placed under martial law, the law-making authority is ordinarily vested in the Chief Executive or President or Commander-in-Chief who usu-ally issues:
(1) General Orders (which may sometimes be similar to CODES)
(2) Presidential Decrees or Executive Orders (which may be similar to STATUTES)
(3) Letters of Instruction or Letters of Implementation (which may be similar to CIRCULARS)
(4) Proclamations (which are announcements of important things or events)
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Tañada v. Tuvera GR 63915, Dec. 29, 1986
The Supreme Court cannot rule upon the wisdom of a law or to repeal or modify it if it fi nds it impracti-cal. That is not its function. That function belongs to the legislature. The task of the Supreme Court is merely to interpret and apply the law as conceived and approved by the political departments of the government in accordance with prescribed procedure.
(Nota Bene: Executive Order 200, dated June 18, 1987, modifying Article 2 of the Civil Code, now provides for the publication of laws either in the Offi cial Gazette or in a newspaper of general circulation in the Philippines as a requirement for effectivity.)
(2) Effectivity Date of an Ordinary Law An ordinary law takes effect:
(a) On the date it is expressly provided to take effect. (Art.
2, Civil Code).
(b) If no such date is made, then after 15 days following the completion of its publication in the Offi cial Gazette (Art.
2, Civil Code) or in a newspaper of general circulation.
(3) When No Publication Is Needed
Where a law provides for its own effectivity, such as, for example July 4, 2002; or “upon approval’’ (i.e., by the President or by Congress over the veto of the President), publication in the Offi cial Gazette is not necessary so long as it is not punitive in character. This was the rule enunciated by the Supreme Court in Askay v. Casalan (46 Phil. 179) and in Balbuna v.
Sec. of Education (L-14283, Nov. 29, 1960).
If a law is signed on the last hour of June 16, and the law itself says it becomes effective upon approval, was it already effective even during the fi rst hour of June 16? In Republic of the Phil. v. Encarnacion (L-3936, Dec. 29, 1950), it was held that the answer should be in the affi rmative, otherwise we
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would be confronted with a situation where the fi xing of the date of effectivity would depend on the unreliable memory of man.
(4) When Publication Is Needed
Unless otherwise provided, laws shall take effect after 15 days following the completion of the publication in the Of-fi cial Gazette (Art. 2, Civil Code) or in a newspaper of general circulation.
Tañada v. Tuvera GR 63915, Dec. 29, 1986
The publication must be in full or it is no publication at all, since its purpose is to inform the public of the contents of the laws. It must be made in the Offi cial Gazette, and not elsewhere, as a requirement for their effectivity after 15 days from such publication or after a different period provided by the legislature.
[NOTE: When an ordinary law or presidential decree is therefore completely published in an issue of the Offi cial Gazette dated say, Sep. 12, 2002, it becomes effective, unless otherwise provided, on Sep. 28, 2002 — the 16th day after its publication. (Note that the laws say “after 15 days following,”
meaning on the 16th day following publication, not on the 15th day following: just as “after Wednesday” means Thursday, and not Wednesday.)]
[NOTE: The provision in the Administrative Code relat-ing to effectivity “at the beginnrelat-ing of the fi fteenth day after the completion of the publication’’ has, therefore, been repealed.]
(5) Rule Applicable to Certain Circulars but not to All The rule relating to the effectivity of a law applies to a Central Bank circular (People v. Que Po Lay, 50 O.G. 4850, GR L-6791, Mar. 29, 1954) inasmuch as the latter, having been issued for the implementation of the law authorizing its issu-ance, has the force and effect of law, according to settled
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prudence. (U.S. v. Tupas Molina, 29 Phil. 119). The fact that the circular is PUNITIVE in character is the principal reason why publication should be made. The Regulations implement-ing the Minimum Wage Law issued by the Chief of the Wage Administration Service cannot be given punitive effect unless published in the Offi cial Gazette. (People v. Uy Kimpang, Jr., C.A., 52 O.G. 3087).
However, circulars which are mere statements of general policy as to how the law should be construed do NOT need presidential approval and publication in the Offi cial Gazette for their effectivity. Such a circular may be exemplifi ed by Circular 22 of the Social Security Commission. Said Circular purports merely to advise employers-members of the System that, in the light of the amendment of the law, they should include in determining the monthly compensation of their employees, upon which compensation the social security contributions should be based. The circular is within the authority of the Social Security Commission to promulgate. (Victorias Milling Co. v. Social Security Commission, L-16704, Mar. 17, 1962).
People v. Que Po Lay L-6791, Mar. 29, 1954
FACTS: Po Lay was accused of violating Circular No. 20 of the Central Bank compelling those who had foreign currency to sell the same to the Central Bank. Po Lay alleged that as the circular had not yet been published in the Offi cial Gazette before he committed the act, the circular should have no effect on his act and that therefore he should be acquitted.
HELD: Po Lay is correct for the circular has the force of law, and should have been published. Moreover, as a rule, circulars which prescribe a penalty for their violation should be published before becoming effective. This is based on the general principle and theory that before the public is bound by its contents, especially its penal provisions, a law, regulation, or circular must fi rst be published, and the people offi cially and specifi cally informed of said contents and the penalties for violation thereof.
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Tañada v. Tuvera GR 63915, Dec. 29, 1986
The circulars issued by the Monetary Board must be pub-lished if they are meant not merely to interpret but to “fi ll in the details” of the Central Bank Act (RA 265) which that body is supposed to enforce.
Escardo v. Manalo Adm. Matter 2268-MJ
Nov. 7, 1980
Barangay court reference or referral is needed — “effective upon receipt of the certifi cation by the Minister (now Secretary) of Local Government and Community Development that all the barangays within the court’s jurisdiction have organized their Lupons provided for in PD 1508, otherwise known as the
“Katarungang Pambarangay Law” (Circular 22 issued by Chief Justice Enrique M. Fernando, and dated Nov. 9, 1979). Said circular was noted in a Letter of Implementation of President Ferdinand E. Marcos dated Nov. 12, 1979.
Phil. Association of Service Exporters v. Hon. Ruben Torres, et al.
GR 10279, Aug. 6, 1992
While the questioned circulars (Department Order 16) and POEA (Memorandum Circular 30, Series of 1991) are a valid exercise of the police power as delegated to the executive branch of the Government, nevertheless, they are LEGALLY INVALID, defective and unenforceable for LACK OF PROPER PUBLICATION and fi ling in the Offi ce of the National Admin-istrative Register as required in Art. 2 of the Civil Code, Art.
5 of the Labor Code, and Secs. 3(1) and 4, Chapter 2, Book VII of the Administrative Code of 1987.
(6) Rule applied to Executive Orders and Administrative Rules
(a) Must conform to standards of the law. (Tayug Rural Bank v. Central Bank, GR 46158, Nov. 28, 1986).
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(b) Administrative Rules have the force of law. (Ibid.)
Tayug Rural Bank v. CB GR 46158, Nov. 28, 1986
If confl ict exists between the basic law and a rule or regulation issued to implement it, the basic law prevails.
Said rule or regulation cannot go beyond the terms and provisions of the basic law. Rules that subvert the statute cannot be sanctioned. Except for constitutional offi cials who can trace their competence to act on the fundamental law itself, a public offi cial must locate in the statute relied upon, a grant of power before he can exercise it. Depart-ment zeal may not be permitted to outrun the authority conferred by statute.
(7) Date of Effectivity of the New Civil Code (BAR)
In the case of Lara v. Del Rosario (GR 6339, 50 O.G. 1957), the Supreme Court in an obiter dictum (obiter — because the principal date concerned in the case was September 4, 1950) held that the Civil Code of the Philippines took effect on Aug.
30, 1950. This date is exactly one year after the Offi cial Gazette publishing the Code was released for “circulation,” the said release having been made on Aug. 30, 1949.
This ruling with respect to the effectivity date seems to be contrary to the provision of the law which states that “This Code shall take effect one year after such publication’’ (Art.
2, Civil Code), not after “circulation.’’ And under the Revised Administrative Code (Sec. 11), “for the purpose of fi xing the date of issue of the Offi cial Gazette, it is conclusively presumed to be published on the date indicated therein as the date of issue.’’ It should be remembered that the June 1949 issue of the Offi cial Gazette was circulated on Aug. 30, 1949. While it is no doubt desirable that the date of issue should be the same as the date of circulation, for otherwise the public may be unduly prejudiced, still no amount of judicial legislation can or should outweigh the express provision of Sec. 11 of the
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Revised Administrative Code. Dura lex sed lex (“the law may be harsh but it is the law’’).
Furthermore, the ruling in the Del Rosario case is con-trary to the Supreme Court’s statement in a prior case that the reason for the conclusive presumption in the Revised Ad-ministrative Code “is obviously to avoid uncertainties likely to arise if the date of publication is to be determined by the date of the actual release of the Gazette.’’ (Barretto, et al. v. Republic, L-2738, 2739, and 2740, Prom. Dec. 21, 1950).
Manuel Lara, et al. v. Petronilo del Rosario, Jr.
L-6339, Prom. Apr. 20, 1954, 50 O.G. 1957
FACTS: The plaintiffs were former taxi drivers of the defendant. When the latter sold some of his vehicles, the plain-tiffs who were no longer needed were dismissed. Because their employer did not give them their one month’s salary in lieu of the notice required in Art. 302 of the Code of Commerce, this action was instituted.
HELD: The services of the plaintiffs ended September 4, 1960, when the new Civil Code was already in force, it having become effective Aug. 30, 1950 (or one year after it was released for circulation). The new Civil Code in Art. 2271 repealed the provisions of the Code of Commerce governing agency, one provision of which was Art. 302. Hence, the plaintiffs are no longer entitled to their one month severance pay.
[NOTE: After this case was decided, an Act (RA 1052) was passed providing for a month severance pay or a one-month notice in case of dismissal from a job where the term of employment has not been defi nitely fi xed. (Jose Monteverde v.
Casino Español, L-11365, Apr. 18, 1958). Subsequently, said Act was further amended by RA 1787 (Termination Pay Law), effective June 21, 1957.]
Art. 3. Ignorance of the law excuses no one from compli-ance therewith. (2)
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COMMENT:
(1) Latin Maxim on Ignorance of the Law
A familiar legal maxim is found in the Latin Ignorantia legis non excusat meaning Ignorance of the law excuses no one.
It would seem that this maxim is a bit unfair today: before the compliance is required, there must be due promulgation of the law; now then, the present method of promulgation — publica-tion in the Offi cial Gazette is clearly inadequate — fi rstly, the Offi cial Gazette generally comes out several years late; secondly, how many of our citizens can get hold of a copy thereof, much less, read the same? Moreover, in a very real sense, law was made for evil men. The good hardly need law when they do good acts, this is not because they are deliberately complying with the law, but because they are simply good men.
Upon the other hand, without the maxim, the corrupt will make social existence unbearable, abuses will increase, and ignorance will be rewarded.
(2) Applicability of the Maxim
Art. 3 applies to all kinds of domestic laws, whether civil or penal (Luna v. Linatoc, 74 Phil. 15; Delgado v. Alonzo, 44 Phil. 739), and whether substantive or remedial (Zulueta v.
Zulueta, 1 Phil. 258) on grounds of expediency, policy, and ne-cessity, i.e., to prevent evasion of the law. However, the maxim refers only to mandatory or prohibitive laws, not to permissive or suppletory laws. (See 1 Manresa 56).
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, there being no judicial notice of said foreign laws. (Adong v. Cheong Seng Gee, 43 Phil. 43; Sy Joc Lieng v. Syquia, 16 Phil. 137).
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, there being no judicial notice of said foreign laws. (Adong v. Cheong Seng Gee, 43 Phil. 43; Sy Joc Lieng v. Syquia, 16 Phil. 137).