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PHILIPPINE CIVIL LAW
I. INTRODUCTION
(Reference: COMMENTARIES AND JURISPRUDENCE ON THE CIVIL CODE OF THE PHILIPPINES by Dr. Arturo M. Tolentino, Ph.B.,
D.C.L., pp. 1-10)
A. Concepts of Law. - The term law may be
understood in two concepts: (1) general or abstract
sense, and (2) specific or material sense. First sense
equivalent to Spanish term derecho; in the second, to
Spanish term ley.
Same; General Sense. – In the general or abstract
sense, law has been defined as “the science of moral
rules, founded on the rational nature of man, which
govern his free activity, for the realization of the
individual and social ends, of a nature both
demandable and reciprocal.” (1 Sanchez Roman 3)
Briefly, it is the mass of obligatory rules established
for the purpose of governing the relations of persons
in society. (1 Salvat 1-3)
Same; Specific Sense. – In a specific or material
sense, law has been defined as a “juridical proposition
or an aggregate of juridical propositions, promulgated
and published by the competent organs of the State in
accordance with the Constitution.” (1-I Ennecerus,
Kipp & Wolf 136) It is a norm of human conduct in
social life, established by a sovereign organization
and imposed for the compulsory observance of all. (1
Ruggiero 5-6).
Sanchez Roman defines it as “a rule of conduct, just,
obligatory, promulgated by the competent authority
for the common good of a people or nation, which
constitutes an obligatory rule of conduct for all its
members.”
B. Foundations of Law. - Law is a product of social
life and is a creation of human nature. It was intended
by man to serve man. It regulates the relations of
human beings so that harmony can be maintained in
the social group, by placing restrictions on individual
liberty in order to make co-existence possible. Law,
therefore, rests upon the concepts of order, co-
existence, and liberty.
C. Characteristics of Law. - (1) it is a rule of human
conduct, (2) promulgated by competent authority, (3)
obligatory, and (4) general observance.
D. Law and Morals. - Not all human conduct is
regulated by law. There are other forms of regulation,
such as morals and religion. Only the rules of law,
however, have a legal sanction and can be enforced
by public authority.
Law and morals have a common ethical basis and
spring from the same source – the social conscience.
In fact, there was a time in the remote past, when the
mind of man was still in its childish state, confused,
unable to analyze and abstract, when spiritual and
moral concepts were indistinguishable from the
juristic and legal. It was useless then to search for the
traces of law as distinct from morals. This confusion
continued even into the classical age, as may be seen
from the writings of Plato and Aristotle. In Greece,
there was no word to signify law, because it
was included in the universal concept of justice .
Among the Romans, the term jus is derived from from
justice, and it has been defined as the art of being
good and fair.
Since they spring from a common source, law and
morals have many identical precepts. But the Romans
began to distinguish between law and morals, and the
distinction has remained to the present day. The law
in many cases takes into account moral concepts;
however, not all moral duties have been converted
into juridical obligations, because if this were to
happen, morals would lose their essential
characteristic of being voluntary.
The field of morals is more extensive than that of law.
Law covers only social activities, or the relations of
man to his fellow-man; but the field of morals
includes, not only the duties of man to his fellow-
being, but also those to himself and to his God. Even
among our duties to our fellow-men, many are still
dictated by morals, such as those which have a
psychological basis, including the duties of assistance
and self-sacrifice.
The purpose of law and morals is basically the same:
happiness, which cannot exist for man, except
through a permanent and stable equilibrium between
human personalities. But because of the distinction
between them, an act may be entirely in conformity
with law but contrary to morals; and vice versa,
conduct may be justifiable from the point of view of
morals but contrary to law. Law and morals according
to Colin and Capitant are like two concentric circles;
it is, however, perhaps more accurate to say that they
are like two intersecting circles, with many principles
in a common zone, and yet with some principles of
one at variance with those of the other.
E. General Divisions of Law. – Law in its most
comprehensive sense has been divided into two
general groups: divine law and human law. By divine
law is meant that in which God himself is the
legislator who has promulgated the law; by human
law is meant that which is promulgated by man to
regulate human relations.
Human law is in turn divided into two main classes:
general or public law and individual or private law.
These in turn are subdivided as follows:
I. General or public law:
(a) International law, or that which governs the
relations between nations or states, that is, between
human beings in their collective concept.
(b) Constitutional law, or that which governs the
relations between human beings as citizens of a state
and the governing power.
(c) Administrative law, or that which governs the
relations between officials and employees of the
government.
(d) Criminal law, or that which guaranties the
coercive power of the law so that it will be obeyed.
(e) Religious law, or that which regulates the practice
of religion.
II. Individual or private law:
(a) Civil law, or that which regulates the relations of
individuals for purely private ends.
(b) Mercantile law, or that which regulates the special
relations produced by commercial transactions.
(c) Procedural law, or that which provides for the
means by which private rights may be enforced.
F. Kinds of Specific Law. – Law, in the specific
sense, is generally classified into mandatory,
prohibitory, and permissive. In one sense, every law
commands, because it is obligatory; but it commands
in three different ways: (1) it commands that
something be done, in which case it is mandatory; (2)
it commands that something should not be done, in
which case it is prohibitory; and (3) it commands that
what it permits to be done should be tolerated or
respected, in which case it is permissive. (3 Fabres
90)
This classification has been criticized by some,
including Savigny, as unscientific. It is said that the
more important classification is that of absolute and
suppletory. The first has an obligatory character;
while the second leaves the will of the individual free
to act, and only when this has not manifested itself
does the law present the rule to determine the
juridical fact. (1 Borja 4)
G. Codification of Laws. – As laws multiply, the
need for compilation arises. After compilation,
however, a higher need is felt, that of codification.
This is the systematic organization of the law into one
or more codes. A code is a collection of laws of the
same kind; a body of legal provisions referring to a
particular branch of the law.
A lucid description of codification was made by David
Dudley Field in the following words: “To reduce the
bulk, clear out the refuse, condense and arrange the
residium, so that the people and the lawyer, and the
judge as well, may know what to practise and obey
– this is codification, nothing more and nothing less.
Same; Reasons. – There are various reasons which
lead to codification, among them being: (1) the
necessity of simplifying and arranging the many
juridical rules scattered in several laws and customs;
(2) the necessity of unifying various legislations in the
same country; and (3) the necessity of introducing
reforms occasioned by social changes. (1 Ruggiero
102)
H. Codification in Modern Times. – The path of
codification suitable to modern times was first blazed
by Napoleon when the French civil code, known as
the Code Napoleon, was promulgated in 1804. Since
then this path has been followed by nearly all modern
nations; even the two great exceptions, Great Britain
and the United States, are slowly yielding to this
universal trend toward codification.
The task of codification is a difficult one. It took three
years to draft the French civil code; the first draft of
the German code took fourteen years; the Swiss and
the Chile codes each took eight years; and the
Argentine code took five years. The Civil Code of the
Philippines, however, was completed in seven months.
After their promulgation, the best codes of the world
today underwent several revisions before they took
their present form. The French civil code,
promulgated in 1804, passed through successive
editions, that of 1816 being substantially in force
today. The Italian code was first completed in 1860,
but was revised successively in 1862, 1853, and 1865.
The Swiss civil code of 1900 suffered important
changes introduced by the Swiss parliament from
1904 to 1907. The German Code, which is perhaps
one of the best in the world today, was severely
criticized after its completion in 1887. This led to a
period of revision, from 1890 to 1895, when a second
code was published. This was again revised, and the
present and final edition was approved one year later.
I. Codification in Spain. – The move to make the
laws in Spain uniform was started by Alfonso X,
known as the Wise, by the promulgation in 1255 of
the Fuero Real, which can properly be called a code.
The second step was made by Alfonso XI, when
through the Ordenamiento de Alcala of 1384, he
promulgated the code known as Las Siete Partidas.
This was followed by such other collections or
compilations as the Leyes de Toro, La Nueva
Recopilacion, La Recopilacion de las Leyes de
India, La Novisima Recopilacion, this last one having
been promulgated by Carlos IV on July 15, 1805.
All these codes or compilations, however, were of a
general character embracing all the divisions of law.
The first step towards the codification of the different
branches of law was made in the Constitution of 1812,
which provided that “a single Civil Code shall govern
in all the dominions of the Spanish monarchy.” A
Projecto de Codigo Civil was completed in 1851, but it
was never approved and promulgated. On May 11,
1888, the Ley de Bases was promulgated, to serve as
the legal basis for a new Civil Code, which after some
corrections, took effect in Spain in its final form on
July 24, 1889.
J. Codification in the Philippines. – The first step
towards codification of private law in the Philippines
was taken by President Manuel L. Quezon in 1940,
when he created a Code Committee to formulate a
civil code for the Philippines. This committee was
headed by Supreme Court Chief Justice Ramon
Avancena, with the following as members: Justice Jose
P. Laurel, Justice Antonio Villareal, Dr. Jorge Bocobo,
and Dr. Pedro Ylagan. In June 1941, Justiice Alex
Reyes and Justice Mariano A. Albert were appointed
as additional members. The Department of Justice
assigned then Judge Roberto Concepcion and First
Assistant Solicitor General Jose B.L. Reyes, now
retired Chief Justice and retired Associate Justice of
the Supreme Court, respectively as General
Consultants to the Committee.
During the military occupation of the Philippines, the
Code Committee was retained as an office in the
Japanese-sponsored government. The members were
reappointed on March 12, 1942; but on June 6, 1942,
former Supreme Court Justices Anacleto Diaz and
Antonio Horilleno were added as new members.
Attorney Godofredo Reyes was also appointed
member on August 10, 1942, thereby increasing the
membership to ten.
The Code Committee had begun its work of
codification of the civil code; but its records were
destroyed in the battle for the liberation of Manila in
1945.
On March 20, 1947, by Executive Order No. 48,
President Manuel A. Roxas created a new Code
Commission, composed of five members, in view of
the ‘need for immediate revision of all existing
substantive laws of the Philippines and of codifying
them in conformity with the customs, traditions and
idiosyncracies of the Filipino people and with modern
trends in legislation and the progressive principles of
law.”
The four original members appointed were: Dr. Jorge
Bocobo, as chairman, and Judge Guillermo B.
Guevarra, Dr. Pedro Y. Ylagan, and Dean Francisco R.
Capistrano, as members. The present writer (Dr.
Tolentino) was appointed as the fifth member of this
Code Commission on February 29, 1948; but he
resigned in 1949 due to his election as member of the
House of Representatives of the Congress of the
Philippines in January, 1948, and approved on June
18, 1949, as Republic Act No. 386.
K. Definition of Civil Law. – Under the Roman law,
the term civil law was used in four different concepts.
In the first sense, it was equivalent to the national
law, or the law applicable to the individuals of each
particular city exclusively. In the second sense, it was
used to distinguish that body of law composed of
plebiscites, imperial constitutions and others from
the jus honorarium or pretorium. In the third sense, it
was understood to mean the law applicable to the
citizens of Rome, as distinguished from that
applicable to foreigners or the jus gentium. In the last
sense, it was sometimes used to designate the
opinions of authorized jurisconsults. (1 Sanchez
Roman 64-65)
In its present concept, however, civil law is that
branch of law which has for its double purposes the
organization of the family and the regulation of
property. (1 Falcon 34; 1 Sanchez Roman 70) It has
thus been defined as “the mass of precepts which
determine and regulate the relations of assistance,
authority and obedience among the members of a
family, and those which exist among members of a
society for the protection of private interests.” (Julian
Arribas, cited in 1 Sanchez Roman 70)
L. Sources of Philippine Civil Law. – At present,
the immediate sources of Philippine civil law are (1)
the new Civil Code and (2) some statutes, such as the
Copyright Law, the Patent Law, the Law of Waters,
and various labor laws and social legislation. The
great bulk of our civil law is derived from Spanish and
American law. The origin of the laws we have copied
from Spain and the United States may therefore be
considered also as indirect or remote sources of our
present civil law.
M. Influences on Spanish Civil Law. – The civil law
of Spain was influenced by several factors. They are:
the Roman law, the Germanic law, the canon law,
scientific evolutionary thought, foreign legislation,
and the doctrines contained in jurisprudence.
Spain was once a part of the great Roman Empire,
and it was natural that the Roman law should be
introduced in Spain. Upon the fall of the Roman
Empire, Spain was overrun by the Goths, who
established their capital in Barcelona in the year 416,
with Ataulfo on the throne. During the period of
Gothic supremacy in Spain, a caste system developed.
The Roman law was continued for the conquered
people, and collected in the Code of
Alaric or Breviario de Aniano. A different set of laws,
of Germanic or Gothic character, was made applicable
to the rulers, compiled in the Code of Euric or of
Tolosa. The canonical influence in Spanish civil law
was due to the spread of Christianity and the constant
intervention of the clergy in legislation. (1 Sanchez
Roman 72-76, 145)
N. Anglo-American Common Law. – Neither
English nor American common law is in force in the
Philippines nor are the doctrines derived therefrom
binding upon our courts, save only insofar as they are
founded on sound principles applicable to local
conditions and are not in conflict with existing law.
(U.S. vs. Cuna, 12 Phil. 241; Arnedo vs. Llorente, 18
Phil. 257; U.S. vs. Abiog, 37 Phil. 137) But many of
our laws are of American origin, and they can be
construed and applied only with the aid of the
common law from which they are derived, and, to
breathe the breath of life into some of the institutions
introduced into these islands under American
sovereignty, recourse must be had to the rules,
principles, and doctrines of the common law. (Alzua
vs. Johnson, 21 Phil. 308, 42 Phil. 980)
Notwithstanding this tendency, however, when cases
are not covered by the letter of any written law,
theories and precedents of Anglo-American cases are
not applied when they conflict with well-defined civil
law theories based on existing Spanish written law, or
are inconsistent with local customs and institutions.
(In re Shoop, 41 Phil. 213) This is especially true now
that the Philippines is an independent country. During
the American regime, the Supreme Court of the
Philippines felt itself bound by the rulings of the
Supreme Court of the United States in construing and
applying statutory enactments modelled upon or
borrowed from English or American originals.
(Cuyugan vs. Santos, 34 Phil. 166) Such decisions
rendered after Philippine independence should not be
so controlling, although they may still have persuasive
effect. Even laws taken bodily from American sources
not infrequently acquire a characteristic coloring
from the change of environment. (Javellana vs.
Mirasol, 40 Phil. 761)
O. Civil and Commercial Law. – In many countries,
there is a distinction between civil law and
commercial law, represented by a separate code for
each. There have been movements towards unification
of these two branches of law. Such unification has
been carried out in the Swiss federal code of
obligations. There are attempts towards this direction
in the civil code of the Union of Socialist Soviet
Republics of 1942, and in the Franco_Italian project
approved in Paris in 1927 and published in Rome in
1928. Vivante, among others, advocates it, saying that
there exists no fundamental difference between civil
and commercial acts.
Munoz, however, believes that complete unification is
impossible; and Vidari strongly opposes it. Because of
the modern developments in commercial law,
unification is becoming increasingly more difficult day
by day. The disintegration of commercial law into
definite independent branches will be the greatest
obstacle to unification. Thus, the law on negotiable
instruments, the law on securities, the law on
banking, the law on maritime commerce, the law on
corporations, and other specialized legislation in the
commercial field, will be barriers to the projected
unification.
Partial unification, however, can surely be attained.
The present civil code is a step towards that objective.
It has repealed many provisions of the code of
commerce, and has unified the law on sales,
partnership, agency, deposit, and guaranty.