justice, and it has been defined as the art of being good
and fair.
III. 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
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.