Presentation on Effect and Application of Laws by Prof. Fretti Ganchoon.pptx

1. EFFECTAND
APPLICATION OF LAWS
ATTY. FRETTI G. GANCHOON
JURISTS BAR REVIEW CENTER™

2. Chapter 1, Preliminary Title, Civil Code
-entitled “Effect and Application of
Laws”
-has 18 Articles
-provides for basic principles applicable
to the Civil Code and other laws in
general

3. Article 1
This Act shall be known as the “Civil
Code of the Philippines.”

4. Article 2,
as amended by E.O. 200, s. 1987
Laws shall take effect after fifteen days
following the completion of their publication
either in the Official Gazette, or in a
newspaper of general circulation in the
Philippines, unless it is otherwise provided.
 Tañada v. Tuvera (1985)

5. Article 3
Ignorance of the law excuses no one from
compliance therewith.

6. Article 4
Laws have no retroactive effect, unless the
contrary is provided.

7. ~ Retroactivity of Laws ~
General Rule: Non-retroactive
Exceptions:
1.When the law expressly provides for
retroactivity
2.When the law is curative or remedial in nature
3.When the law is procedural in nature

8. ~ Article 2253, Civil Code
The Civil Code of 1889 and other previous laws govern rights
originating under said laws, from acts done or events which took
place under their regime, even thought this Code may
regulate them in a different manner, or may not recognize them.
But if a right should be declared for the first time in this Code, it
shall be effective at once, even though the act or event which
gives rise thereto may have been done or may have occurred
under the prior legislation,provided said new right does not
prejudice or impair any vested or acquired right, of the same
origin.
 Uson v. Del Rosario (1953)

9. ~ Art. 256, Family Code
The Code shall have retroactive effect
insofar as it does not prejudice or impair
vested or acquired rights in accordance with
the Civil Code and other laws.

10. Article 5
Acts executed against the provisions of
mandatory or prohibitory laws shall be void,
except when the law itself authorizes their
validity.

11. ~ Article 1412
If the act in which the unlawful or forbidden cause consists does not
constitute a criminal offense, the following rules shall be observed:
(1)When the fault is on the part of both contracting parties, neither
may recover what he has given by virtue of the contract, or demand
performance of the other’s undertaking;
(2)When only one of the contracting parties is at fault, he cannot
recover what he has given by reason of the contract, or ask for the
fulfillment of what has been promised him. The other, who is not at
fault, may demand the return of what he has given without any
obligation to comply with his promise.
in pare delicto principle

12. ~ Article 1416
When the agreement is not illegal per se but is
merely prohibited, and the prohibition by the
law is designed for the protection of the
plaintiff, he may, if public policy is thereby
enhanced, recover what he has paid or
delivered.
Ras v. Sua (1968): exception to
in pare delecito principle

13. Article 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 person with a right recognized by law.
Gongon v. CA (1970)

14. ~ Requisites of Valid Waiver ~
1) right must be in existence at the time of the
waiver;
2) knowledge, actual or constructive of the
existence of the right or of all the material facts
upon which they depend; and
3) waiver must be exercised by a duly capacitated
person actually possessing the right

15. Article 7
Laws are repealed only by subsequent ones, and their
violation or non-observance shall not be excused by
disuse, or custom or practice to the contrary.
When the courts declare a law to be inconsistent with
the Constitution, the former shall be void and the
latter shall govern.
Administrative or executive acts, orders and
regulations shall be valid only when they are not
contrary to the laws or the Constitution.

16. ~ Repeal of Laws ~
1. Express vs. Implied
*Iloilo Palay and Corn Planters Association v. Feliciano (1965): RA
3452 provides that “all laws and parts thereof inconsistent with
the provisions of this Act are hereby repealed or modified
accordingly”
 Is this an express or implied repeal? (Implied repeal)
2.Special Law vs. Subsequent General Law
*NAPOCOR v. Arca (1968): subsequent general does not repeal
prior special law

17. ~ Unconstitutionality and Illegality of
Laws ~
In case a law is declared unconstitutional, the Doctrine of
Operative Fact may be applied to the validity acts done in
observance of the law before it is declared unconstitutional.
In case of partial unconstitutionality, the other valid
provisions of the law can be given effect, unless they are very
much dependent and connected to the unconstitutional parts.
Executive issuances implementing a law cannot contravene the
law or expand the coverage or meaning its provisions.

18. Article 8
Judicial decisions applying or interpreting the
laws or the Constitution shall form part of
the legal system of the Philippines.
People v. Jabinal (1974): judicial decisions must
be applied prospectively

19. Article 9
No judge or court shall decline to render judgment by
reason of the silence, obscurity or insufficiency of the
laws.
 equity, fairness, sense of justice as guides by judge or court
 In re Padilla (1943): SC used the Roman law principle of jure nature aequum
est, meminem cum alterius detrimento et injuria fieri locupletiorem = no one should be
enriched with detriment and injury to another
 Is this judicial legislation? (Floresca v
. Philex Mining [1985]: SC ruled that
judicial legislation is allowed under Article 9, but must only fill in the gaps in
the law and must not contravene the law)

20. Article 10
In case of doubt in the interpretation or
application of laws, it is presumed that the law-
making body intended right and justice to
prevail.
 construction in favor of right and justice
 Salvacion v
. Central Bank (1997): law preventing
attachment of foreign dollar accounts was construed to apply
only to foreign investors, not foreign tourists sojourning in the
Philippines in order to prevent injustice

21. Articles 11 and 12
-Customs which are contrary to law
, public order or
public policy shall not be countenanced.
-A custom must be proved as a fact, according to the
rules of evidence.
In the Matter of the Petition for Authority to
Continue to Use the Firm Name Ozaeta,
Romulo, De Leon, Mabanta, Reyes (1979):
law prevails over custom

22. Article 13
When the law speaks of years, months, days or nights, it shall be
understood that years are of three hundred sixty-five days each;
months, of thirty days; days, of twenty-four hours; and nights from
sunset to sunrise.
If months are designated by their name, they shall be computed by
the number of days which they respectively have.
In computing a period, the first day shall be excluded, and the last
day included.
 Garvida v. Sales (1999): interpretation of “year” = set of 365 days
National Marketing Corporation v
. Tecson (1969): computation
of period, must take into consider leap years of 366 days

23. Article 14
Penal laws and those of public security and
safety shall be obligatory upon all who live or
sojourn in the Philippine territory, subject to
the principles of public international law and
to treaty stipulations.
 exceptions: immunity of Heads of
State and diplomatic immunity

24. Article 15
Laws relating to family rights and duties, or to the
status, condition and legal capacity of persons are
binding upon citizens of the Philippines, even
though living abroad.
 lex nationalii or law of nationality

25. ~ Personal Law ~
• Follows a person wherever he is, and governs his status and
capacity to contract
• Two theories
1.Nationality Theory – lex nationalii
 It is up for each State to determine who are its nationals
based on its laws.
2.Domicilliary Theory – lex domicilii
Controlling in case of stateless individuals or those with
dual or multiple nationalities.

26. ~ Extrinsic Validity of Marriage ~
Family Code, Art. 26, 1st paragraph:
All marriages solemnized outside the Philippines, in
accordance with the laws in force in the country
where they were solemnized, and valid there as such,
shall also be valid in this country, except those
prohibited under Articles 35(1), (4), (5) and (6), 36,
37 and 38.
lex loci celebrationis, exception: lex nationalii

27. ~ Exceptions to lex loci celebrationis ~
Art. 35(1) – marriage between minors
Art. 35(4) – bigamous or polygamous marriages Art.
35(5) – mistaken identity of the other party
Art. 35(6) – subsequent marriage where judgment of annulment or
absolute nullity of the 1st marriage, the partition and distribution of
property of the spouses and delivery of the children’s presumptive
legitimes were not recorded in the appropriate civil registry or
registries of property
Art. 36 – other party is psychologically incapacitated
Art. 37 – incestuous marriages
Art. 38 – marriages against public policy

28. ~ Exceptions … Incestuous Marriages ~
Family Code, Art. 37
Marriages between the following are incestuous and
void from the beginning, whether the relationship
between the parties be legitimate or illegitimate:
1.Between ascendants and descendants of any degree;
and
2.Between brothers and sisters, whether of the full or
half blood.

29. ~ Exceptions … Marriages
against Public Policy ~
Family Code, Art. 38 (Marriages against public policy):
1. Between collateral blood relatives, whether legitimate or illegitimate, up to
the fourth civil degree
2. Between step-parents and step-children
3. Between parents-in-law and children-in-law
4. Between adopting parent and the adopted child
5. Between the surviving spouse of the adopting parent and the adopted child
6. Between the surviving spouse of the adopted child and the adopter
7. Between the adopted child and a legitimate child of the adopter
8. Between the adopted children of the same adopter
9. Between parties where one, with the intention to marry the other, killed that
other person’s spouse or his or her own spouse

30. ~ Re: Divorce ~
Family Code, Art. 26, 2nd paragraph:
Where a marriage between a Filipino citizen and
a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the
Filipino spouse shall have capacity to remarry
under Philippine law.

31. Relevant Jurisprudence
on Foreign Divorce
• Q: Is divorce decree obtained abroad by a former Filipino spouse
valid?
A: Yes (Republic v
. Orbecido [2005])
• Q: Is the divorce decree jointly obtained abroad by the
Filipino and alien spouse valid?
A: Yes (Galapon v
. Republic [2020], citing Republic v
. Manalo [2018]);
Medina v
. Koike [2016])
• Q: Is the divorce decree obtained abroad by a Filipino spouse
valid?
A: Y
es (Republic v
. Manalo [2018])

32. ~ Law of Domicile (Lex domicilii) ~
Art. 816. The will of an alien who is abroad produces effect
in the Philippines if made with the formalities prescribed by
the law of the place in which he resides, or according to the
formalities observed in his country, or in conformity with those
this Code prescribes.
Art. 829. A revocation done outside the Philippines by a person
who does not have his domicile in this country, is valid when it
is done according to the law of the place where the will was
made, or according to the law of the place in which the
testator had his domicile at the time; and if the revocation
takes place in this country, when it is in accordance with the
provisions of this Code.

33. Article 16
Real property as well as personal property is subject to the
law of the country where it is situated.
However
, intestate and testamentary succession, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national
law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless
of the country wherein said property may be found.”
 lex situs or lex loci rei sitae
 with exception: succession (Miciano
v
. Brimo [1927])

34. Article 17
The forms and solemnities of contracts, wills and other public
instruments shall be governed by the laws of the country in which they
are executed.
When the acts referred to are executed before the diplomatic or
consular officials of the Republic of the Philippines in a foreign country,
the solemnities established by Philippine laws shall be observed in their
execution.
Prohibitive laws concerning persons, their acts or property, and those
which have for their object public order, public policy and good customs
shall not be rendered ineffective by laws or judgments promulgated, or
by determinations or conventions agreed upon in a foreign country
lex loci celebrationis, with exceptions

35. ~Extrinsic Validity of Wills
Civil Code, Art. 815:
When a Filipino is in a foreign country, he is
authorized to make a will in any of the forms
established by the law of the country in which
he may be. Such will may be probated in the
Philippines.
 lex loci celebrationis

36. ~ Re: Joint Wills,
exception to lex loci celebrationis for Filipinos
Art. 818. Two or more persons cannot make a will jointly, or in
the same instrument, either for their reciprocal benefit or for
the benefit of a third person.
Art. 819. Wills, prohibited by the preceding article, executed
by Filipinos in a foreign country shall not be valid in the
Philippines, even though authorized by the laws of the
country where they may have been executed.

37. Article 18
In matters which are governed by the Code of
Commerce and special laws, their deficiency shall
be supplied by the provisions of this Code.
Enriquez v. Sun Life Assurance Company of Canada (1920): Civil
Code suppletorily applies to Insurance Law with respect to the
issue of perfection of insurance contracts

38. Bar Exam Question

39. 2015
Alden and Stela were both former Filipino citizens. They were
married in the Philippines but they later migrated to the United
States where they were naturalized as American citizens. In
their union they were able to accumulate several real
properties both in the US and in the Philippines. Unfortunately,
they were not blessed with children. In the US, they executed a
joint will instituting as their common heirs to divide their
combined estate in equal shares, the five siblings of Alden and
the seven siblings of Stela. Alden passed away in 2013 and a
year later, Stela also died. The siblings of Alden who were all
citizens of the US instituted probate proceedings in a US court
impleading the siblings of Stela who were all in the
Philippines.

40. 2015 (con’t)
a)Was the joint will executed by Alden and Stela
who were both former Filipinos valid? Explain
with legal basis. (3%)
b)Can the joint will produce legal effect in the
Philippines with respect to the properties of
Alden and Stela found here? If so, how? (3%)
c)xxx

41. Thank you,
Good luck and
God bless!