Effectivity of the Code.

The new Civil Code became

A. Preliminary Title
effective on August 30, 1950.

THE CIVIL CODE

Effectivity of Laws. The provisions of the Code on the

date when laws become effective apply only when the

FIRST CONGRESS OF THE REPUBLIC OF THE PHILIPPINES
particular statute does not provide its own date of effectivity.

Thus, where the statute provides that it shall be effective

Fourth Session
upon approval, no publication is necessary before it becomes

[REPUBLIC ACT NO. 386] effective (1 Tolentino 18 citing Askay v. Cosalan, 46 Phil.

179).
AN ACT TO ORDAIN AND INSTITUTE THE CIVIL CODE OF THE

PHILIPPINES Article 3. Ignorance of the law excuses no one from

compliance therewith.
Be it enacted by the Senate and the House of Representatives

of the Philippines in Congress assembled: Presumption of Knowledge of Law. Everyone is

conclusively presumed to now the law. This presumption is

PRELIMINARY TITLE very far from reality; but it has been established because of

the obligatory force of law. Once the law has been

Chapter 1
promulgated and has taken effect, it is the duty of everyone

to know it. Compliance with it becomes unavoidable, and

EFFECT AND APPLICATION OF LAWS
nobody can escape its effects by alleging, in good faith or in

bad faith, that he does not know its provisions (1 Tolentino 18

Article 1.This act shall be known as the Civil Code of
citing 1 Oyuelos 2; 1 Nunez 97; Fernandez, p. 67; Sentencia
the Philippines. (n)
of Nov. 23, 1912).

Civil Code defined. A civil code is a collection of laws

Reasons for Article. Evasion of the law would be
which regulate private relations of the members of civil
facilitated, and the administration of justice defeated, if
society, determining their respective rights and obligations,
persons could succesfully plead ignorance of the law to
with reference to persons, things, and civil acts (1 Tolentino
escape the legal consequences of their acts, or to excuse non-
11 citing 9 Fabres 10).
performance of their legal duties. Actual ignorance of the law

would thus afford immunity from punishment for crimes and

Article 2. Laws shall take effect after fifteen days
from liability for violations of personal and property rights of
following the completion of their publication in the
others. The rule in this article is, therefore, dictated not only
Official Gazette,
by expediency but also by necessity (ibid., citing Zulueta vs.

(qualification) unless it is otherwise provided. Zulueta, 1 Phil. 254).

(second sentence, Effectivity of the Civil Code) This Code The following reasons have thus been advanced for this

shall take effect one year after such publication. article, which is a logical consequence of the conclusive

presumption of knowledge of the law:

Page 1 of 18
(1) If laws will not be binding until they are actually known, injury cannot be remedied without impairing anothers rights,

then social life will be impossible, because most laws cannot the mistake cannot be corrected to the prejudice of the latter

be enforced due to their being unknown to many. (1 Tolentino 20).

(2) It is absurd to absolve those who do not know the law and Mistake of Fact. Ignorance may either be of law or of

increase the obligations of those who know it. fact. Ignorance of fact (ignorantia facti) may excuse a party

from the legal consequences of his conduct; but not ignorance

(3) It is almost impossible to prove the contrary, when a of law, for ignorantia juris neminem excusat.
person claims ignorance of the law.

Republic Act (R.A.) No. 394 recognized validity of

(4) In our conscience, we carry norms of right and wrong, Mohammedan divorces.
and a sense of duty, so that our reason indicates many times

what we have to do; and in more complicated juridical Difficult Questions of Law. In specific instances provided

relations, there are lawyers who should be consulted (1 by law, mistake as to difficult legal questions has been given

Tolentino 18 citing 1 Valverde 131-133). the same effect as a mistake of fact. The following articles of

the Code may be cited as examples:

What Laws Covered. Local laws only, foreign laws not

covered. And with respect to local laws, the article is limited ART. 526. He is deemed a possessor in good faith who is not

to mandatory and prohibitory laws. It does not include those aware that there exists in his title or mode of acquisition any

which are merely permissive (id., citing 1 Manresa 56). flaw which invalidates it.

Application of Rule. The ignorance suffered by contracting He is deemed a possessor in bad faith who possesses in any

parties because of their ignorance of the law must be borned case contrary to the foregoing. Mistake upon a doubtful or

by them, because ignorance of the law does not favor or difficult question of law may be the basis of good faith.

prejudice anyone, nor justify the amendment or annulment of

a contract (Sentencias of Feb. 20, 1861, May 9, 1867, and ART. 1334. Mutual error as to the legal effect of an

December 8, 1867; Luna vs. Linatoc, 74 Phil. 15). agreement when the real purpose of the parties is frustrated,

may vitiate consent.

No Exceptions Admitted. Some writers, as Toullier and

Goyena, believe that when for some reason, as flood, fire, ART. 2154. If something is received when there is no right to

war, etc., the official newspaper does not reach some region, demand it, and it was unduly delivered through mistake, the

and the interruption of communication is clearly shown, the obligation to return it arises.

article should not be applied because it would be unjust to do

ART. 2155. Payment by reason of a mistake in the
so. However, the rule is based on public interest and is
construction of a doubtful or difficult question of law may
designed precisely to avoid abuse through allegation that the
come within the scope of the preceding article.
law has not come to the knowledge of a party (1 Tolentino 20

citing 1 Manresa 55)

Same; Mistake of Lawyer. No man is supposed to know

any branch of the law perfectly, particularly when called upon

Irrevocability of Acts. If, through mistake or ignorance of
to act at once without time for reflection, The knowledge
law, a person does an act which prejudices himself, and the
which we use the utmost industry to acquire, is often
Page 2 of 18
forgotten at the moment when most needed. The science of (2) in case of remedial statutes;

law is a most extensive and difficult one. Cases frequently

occur when learned men differ, after the greatest pains is (3) in case of curative statutes;

taken to arrive at a correct result. No one, therefore, would

(4) in case of laws interpreting others, and
dare to pursue the profession of law, if he were held

responsible for the consequences of a casual failure of his

(5) in case of laws creating new rights.
memory, or a mistaken course of reasoning. It has thus been

held that a lawyer cannot be disbarred for an honest mistake

Same; Same; Unconstitutional Provisions. -The rule that
or error of law (In re Filart, 40 Phil 205)
a statute will be given retroactive effect if it so expressly

provides, has two exceptions with a constitutional basis:

Article 4. Laws shall have no retroactive effect,

(1) when the retroactivity of a penal statute will make it an ex

(exception) unless the contrary is provided.
post facto law; and

Concept of Retroactive Law. A retroactive law is one

(2) when the retroactive effect of the statute will constitute
intended to affect transactions which occurred, or rights
an impairment of the obligation of contract. In these two
which accrued, before it became operative, and which
cases, the provision giving the statute a retroactive effect will
ascribes to them effects not inherent in their nature, in view
be held inoperative, because it would violate the Constitution.
of the law in force at the time of their occurrence. It is one

which changes or injuriously affects a present right by going

Same; Same; Penal Statutes. -Penal laws shall have a
behind it and giving efficacy to anterior circumstances t
retroactive effect insofar as they favor the accused who is not
defeat it, which effect they did not have when the right
a habitual criminal, even though at the time of the enactment
accrued. It creates a new obligation and imposes a new duty,
of such laws final sentence has already been rendered (Art.
or attaches a new liability, in respect to transactions or
22, Revised Penal Code).
considerations already past (1 Tolentino 22, citing 50 Am. Jur.

492-493). Same; Remedial Statutes. Remedial statutes are those

which refer to the method of enforcing rights or of obtaining

Application of Article. All statutes are to be construed as
redress of their invasion. It is a well-established doctrine that
having only a prospective operation, unless the purpose and
the procedure of the court may be changed at any time by
intention of the legislature to give them a retrospective effect
law to become effective at once, so long as it does not affect
is expressly declared or is necessarily implied from the
or change vested rights (1 Tolentino 24, citing Aguillon vs.
language used. In every case of doubt, the doubt must be
Director of Lands, 17 Phil. 506; Laurel vs. Misa, 76 Phil. 372).
resolved against the retrospective effect (1 Tolentino 23 citing
A remedial statute, therefore, may be made applicable to
Montilla vs. Agustinian Corporation, 24 Phil. 220).
cases pending at the time of its enactment (Enrile vs. Court of

First Instance, 36 Phil. 574; Hosana vs. Diomano, 56 Phil.

Exceptions to Rule. -Statutes can have retroactive effect in
741; Guevarra vs. Laico, 64 Phil. 144). Such a law is made to
the following cases:
insure the better administration of justice, and its immediate

enforcement is of public interest (1 Colin & Capitant 125).

(1) when the law itself so expressly provides;
Thus, with respect to remedies, forms of proceedings, and

Page 3 of 18
limitation of action, legislation may be retroactive in a right be declared for the first time by a new law it shall take

character. The period of extinctive prescription may be effect from the time of such declaration, even though it has

shortened even in relation to actions the rights to which has arisen from acts subject to the former laws, provided that it

already accrued. Rules of evidence may be changed at any does not prejudice another acquired right of the same origin

time, and the changes are applicable to existing causes of (Bona vs. Briones, 38 Phil. 276; Bustamante, et al. vs. Cayas,

action and pending cases. 98 Phil. 107; Ilegay, et al. vs. Ilegay (S.C.), 49 O.G. 4903)

This rule is expressly contained in the transitory provisions of

Same; Curative Statutes. Curative statutes are those the Civil Code.
which undertake to cure errors and irregularities, thereby

validating judicial or administrative proceedings, acts of public Article 5. Acts executed against the provisions of

officers, or private deeds and contracts which otherwise would mandatory or prohibitory laws shall be void,

not produce their intended consequences by reason of some

statutory disability or the failure to comply with some (exception) except when the law itself authorizes their

technical requirement. They operate on conditions already validity. (4a)

existing, and are necessarily retroactive in operation. Thus, it

When Law Authorizes Validity. Law here refers to the
has been held that a judgment which was correct when
juridical order in its totality. It is possible that the legislator
rendered, holding that a particular tax law was
has prohibited the performance of a particular act, and has
unconstitutional, may be reversed on account of an
even provided a penalty, without destroying its validity in
amendment enacted pending the appeal, by which the defect
case it is done in spite of the prohibition. Such character of
in the law is cured.
the prohibitory law may be inferred from various

Nevertheless, there are limitations on the extent of circumstances, one of which is that the nullity of the act may

retroactivity of curative laws. Obviously, they cannot violate bring about harmful consequences which the law does not

rights of third persons. They cannot affect a judgment that sanction (1 Tolentino 27, citing 5 Von Tuhr 6-8).

has become final.

Manresa enumerates three cases which may fall under this

Same; Interpreting Statutes. Similar to curative statutes exception:

are those intended to clarify doubts or interpret an existing

(1) Where the violation does not refer to an essential matter,
law. The principle of retroactivity of such statutes, which we
the law considers that nullity may be more disadvantageous
submit is applicable in this jurisdiction, is stated by the civil
than validity. For instance, where a marriage is solemnized
code of Chile (article 9) in the following manner: Laws which
without one or more formal requirements. The marriage is
merely interpret the meaning of other laws are considered as
valid, although the parties who acted contrary to what is
incorporated in the latter; but they shall not affect judicial
required by law may become criminally liable.
decisions which have become final in the meantime. An

identical provision is found in the code of Colombia (article

(2) This law may make the validity of the act depend upon
14).
the consent of the party directly interested in the nullity of

such act. Thus, marriages annullable because of force or

Same; Laws Creating New Rights. The principle that a
fraud may be validated by the injured party by freely
new law shall not have retroactive effect only governs rights

arising from acts done under the rule of the former law; but if

Page 4 of 18
cohabiting with the party guilty of force or fraud after the include all others. Civil rights may be further classified into

force has ceased or the fraud is discovered. the following:

(3) The law may declare the nullity of an act, but at the same (1) The rights of personality. They are sometimes called

time recognize its effects as legally existing/ For example, human rights, and arise from the fact of being a man. These

when a marriage is annulled, the children born before the include all rights intended to protect the human personality in

annulment are considered legitimate (ibid., 1 Manresa 64- its existence, integrity, and development, in its physical,

65). intellectual, and moral aspects. Examples: the right to life, to

physical security, to honor, and to individual liberty; the right

Article 6. Rights may be waived, to teach and to learn freely; the right to write and to speak;

the right to work, etc. These rights increase in number as

(exceptions) unless the waiver is contrary to law, public
humanity progresses, and as the sphere of social solidarity
order, public policy, morals, or good customs, or
expands.
prejudicial to a third person with a right recognized by

law. (2) Family rights. These include all the rights of a person as a

member of a family.
Elements of Right. Every right has three elements: the

subjects, the object, and the efficient cause. (3) Patrimonial rights. These have property for their object.

They tend to the economic satisfaction of men, and are

The subjects of rights are persons; rights exist only in favor of
measurable pecuniarily. They are of two kinds: real rights,
persons. There are two kinds of subjects:
such as ownership, mortgage, etc., and personal rights, such

as the right to collect a debt (1 Salvat 35; 1 Colin & Capitant

(1) the active subject, who is entitled to demand the
246-248)
enforcement of the right, and

Renunciation or Waiver. Waiver is defined as the

(2) the passive subject, who is duty-bound to suffer its
relinquishment of a known right with both knowledge of its
enforcement. The passive subject is an indeterminate person
existence and an intention to relinquish it. The right, benefit,
in what are known as personal rights, and indeterminate (or
or advantage must exist at the time of waiver, there must be
the whole world) in what are known as real rights.
actual or constructive knowledge of such existence; and there

must be an intention to relinquish it. Voluntary choice is the

Things and services constitute the object of rights. They are
essence of waiver.
such things and services which are intended for the

satisfaction of human wants, physical or spiritual.

Same; Express or Implied. -A waiver may be express or

implied. There is implied waiver, when from the acts or

The efficient cause is the fact that gives rise to the legal
conduct of a party the intention to relinquish a right may be
relation. It may spring from the will of man or independently
reasonably inferred.
of such will; fortuitous event is independent of such will.

Same; Reason for Article. A person can renounce what

Kinds of Rights. -Rights may be classified into political and
has been established in his favor or for his benefit, because
civil; the former include those referring to the participation of
he prejudices nobody thereby; if he suffers some loss, he
persons in the government of the State, while the latter

Page 5 of 18
alone is to blame. But the renunciation must not prejudice the (3) If the full ownership is renounced, the thing becomes res

rights of others who have not intervened in such nullius and may be acquired by occupation (1 Tolentino 31,

renunciation; much less can it impair public order or interest, citing Valverde 262-264).

because these are superior to the individual will (1 Tolentino

30, citing 1 Oyuelos 15-16). Same; Same; Prohibited Waiver. Laws cannot be

renounced, although the rights arising therefrom may be

Same; Requirements of Waiver. renounced. And the right itself cannot be waived, if such

waiver is contrary to public interest or public order, to morals

(1) He must actually have the right which he renounces. or good customs, or to the rights of a third person.

(2) He must have the capacity to make the renunciation. Article 7. Laws are repealed only by subsequent ones,

and their violation or non-observance

(3) Renunciation must be made in a clear and unequivocal

manner. The formality required by law for such renunciation, (obligatory force) shall not be excused by disuse, or
if there is any, should be followed; if no particular formality is custom or practice to the contrary.
required, the renunciation may even be tacit, provided the

intent to renounce should be clearly established. (second paragraph) When the courts declare a law to be

inconsistent with the Constitution,

Same; Same; Obligations. Generally, obligations cannot

be renounced. But a person may exempt himself from an (obligatory force, Doctrine of Supremacy of the

obligation which is inherent in a right, upon the renunciation Constitution) the former shall be void and the latter shall

of such right. govern.

Same; Same; Real Rights. According to Valverde, while (third paragraph) Administrative or executive acts,

the renunciation of a personal right requires the consent of orders and regulations

the debtor (as in case of remission or condonation), the

renunciation of a real right is unilateral and depends upon the shall be valid only when they are not contrary to the

exclusive will of the owner of the right. laws or the Constitution.

Effect of renunciation: Reason for Article. Only the State can abrogate its own

acts. Hence, as long as a law remains in the statute books, its

(1) If the right renounced is a real right distinct from legal force and effect subsists, notwithstanding any practice

ownership, such as usufruct, easement or mortgage, it is or usage to the contrary.

obvious that the right is merged in the owner of the property;

Lapse of Laws. There are laws which, without any repeal,

(2) If on the same thing there are various holders of a real cease to have effect because they lapse by their own terms. A

right, such as in co-ownership, the renunciation by one of his law may expressly provide that it shall be effective only for a

rights will proportionately increase the shares of the others; fixed period.

Examples:

Page 6 of 18
Rental Law (Com. Act No 689, as amended by Rep. Act No. the duty of the court no purpose to repeal being clearly

66) indicated or expressed is, if possible, to give effect to both

(Lichauco vs. Apostol, 44 Phil. 138; Compania General vs.

Emergency Powers Act (Com. Act No. 671) see Rodriguez Collector of Customs, 46 Phil. 8).
vs. The National Treasurer, 84 Phil. 724

Same; Same; General and Special Laws. a subsequent

Repeal of Laws. general statute will not be held to repeal a prior special one,

unless there is a clear and necessary conflict between the

(1) Express or declared repeal, contained in a special
two.
provision of a subsequent law, and

Same; Same; Effect of Codification. The Civil Code lays

(2) implied or tacit repeal, when provisions of the subsequent
down general rules, and the principles of implied repeal
law are incompatible or inconsistent with those of an earlier
accepted by jurisconsults should apply to it; namely, that a
law.
general law does not tacitly repeal a special law; unless the

intention of the legislature to make repeal is clearly deduced

Same; Implied Repeal. From the moment there is conflict
from the object or spirit of the later law (1 Tolentino 35; 1
between and old and a new law, the conflict must be resolved
Borja 471, quoting from Demolombe and Zacharie). But when
in favor of the later law. This implied repeal of an earlier law
the intent to repeal an existing special law can be clearly
takes place without any special declaration in the subsequent
shown, the adoption of a new code may repeal a prior special
law.
law. Where a statute purports to cover the whole subject-

matter, it supersedes former laws on the same subject-

Same; Same; Not Favored. Implied repeals are not to be
matter.
favored, because they rest only on the presumption that

because the old and the new laws are incompatible withe
Effect of Repeal of Law.
each other, there is an intention to repeal the old. There must

be a plain, unavoidable and irreconcilable repugnancy

General Rule: Effect of a repealing act must generally be
between the two; if both laws can by reasonable construction
governed by the rules on retroactivity of laws. Hence, the
stand together, both will be sustained (Lichauco vs. Apostol,
repeal of a statute cannot affect or impair any vested right,
44 Phil. 138; Compania General vs. Collector of Customs, 46
act done, penalty accrued, or judgment already final before
Phil. 8)
the repeal.

Same; Same; Requisites.

Exception: But because of the rule that penal statutes

favorable to the accused have retroactive effect, the repeal of

(1) the laws cover the same subject matter, and
a penal law during the pendency of a criminal prosecution

under it, has the effect of depriving the court of jurisdiction to

(2) the latter is repugnant to the earlier.
further proceed with the case, which must be dismissed

Same; Same; Rule Applied. (People vs. Tamayo, 61 Phil. 225; People vs. Sindiong, 77

Phil. 1000).

But in all cases where two statutes cover, in whole or in part,

the same matter, but they are not absolutely irreconcilable, Repeal of Repealing Law.

Page 7 of 18
If First Repeal is Express: Law first repealed shall not be legislative power, he certainly can formulate and declare the

revived unless expressly so provided (Sec. 14, Revised law as applied concretely to the case before him. Courts are

Administrative Code) not limited to the automatic and mechanical function of

interpreting the law.

If Second Repeal Not Express: Repeal of repealing law will

revive the prior law, unless the language of the last law Double Function:

provides otherwise (U.S. vs. Soliman, 36 Phil. 5;

Administrative Code, in repealing Perjury Law, revived Penal (1) To fill the deficiencies of legislation and provide a rule for

Code provisions on perjury). the facts of a given case for which there is neither positive

provision of law nor established custom; and

Determination of Constitutionality. Criterion for

determining the validity of the statute must be sought in the (2) To adapt and adjust rigid and inflexible provisions of law,

Constitution itself. Some particular provision in the rendered inadequate by time and circumstances, to the

Constitution, be it a general principle or a specific rule, must changing conditions of life and society, so that the law may

have been violated. accomplish its social mission.

Executive Orders and Regulations. The regulations Because of this, jurisprudence must necessarily be flexible,

adopted under legislative authority by a particular department capable of receiving impressions from without, so that it can

must be in harmony with the provisions of the law, and for be an advance guard in the equitable application of law and

the sole purpose of carrying into effect its general provisions. an active instrumentality in the progressive development of

The law itself, however, cannot be extended by such the law (1 Tolentino 37, citing 1 Valverde 194-196)

regulations (U.S. vs. Molina, 29 Phil. 119).

Doctrine of Stare Decisis. The doctrine of stare decisis

Article 8. Judicial decisions applying or interpreting the enjoins adherence to judicial precedents. It requires courts in

laws or the Constitution a country to follow the rule established in a decision of the

supreme court thereof. That decision becomes a judicial

(obligatory force, Doctrine of Stare Decisis) shall form a precedent to be followed in subsequent cases by all courts in

part of the legal system of the Philippines. the land. The doctrine of stare decisis is based on the

principle that once a question of law has been examined and

Decisions Not Source of Law. Jurisprudence, in our decided, it should be deemed settled and closed to further
system of government cannot be considered as an argument (1 Tolentino 37, citing Prall vs. Burckhart, 299 Ill.
independent source of law; it cannot create law. A law 19, 132 N.E. 280).
established by jurisprudence would be a judge-made law,

which is juridically impossible in our governmental system in The doctrine, however, is flexible; so that when, in the light of

which there is separation of powers, inasmuch as the sole changing conditions, a rule has ceased to be of benefit and

function of our courts is to apply or interpret the laws (1 use to society, the courts may rightly depart from it. Stare

Tolentino 36-37, citing 1 Camus 38). decisis is a principle of policy and not a mechanical formula of

adherence to the latest decision, however recent and

Role of Jurisprudence. -While a judge cannot create questionable, when such adherence involves collision with a
abstract rules of law, because that would be an invasion of prior doctrine more embracing in its scope, intrinsically

Page 8 of 18
sounder, and verified by experience. (1 Tolentino 37-38, shall be applied, and, in the absence thereof, the general

citing Helvering vs. Hallock, 309 U.S. 444) principles of law. In the draft of the present Code, an article

was inserted on this subject providing:

Article 9. No judge or court shall decline to render

judgment by reason of the silence, obscurity or When there is no law clearly applicable to the point at issue,

insufficiency of the laws. or if the law is doubtful, ambiguous or conflicting, and

previous judicial decisions do not throw light upon the

Applicability of Article. This article does not apply to question, the general or local customs shall govern. In the
criminal prosecutions, because when there is no law punishing absence thereof, the judge shall apply that rule which he
an act, the case must be dismissed, however reprehensible believes the lawmaking body would lay down, but he shall be
the act may seem to the judge (1 Tolentino 38) guided by the general principles of law and justice. The spirit

of analogous laws may be considered. He may bear in mind

Duty of Court to Decide. The ignorance of the court or his
foreign legislation and decisions as well as the opinion of
lack of knowledge regarding the law applicable to a case
jurists. He may likewise take into consideration legal
submitted to him for decision, the fact that the court does not
maxims.
know the rules applicable to a certain matter, and his not

knowing where to find the law relative to the case, are not The foregoing provision, however, was eliminated by the
reasons for dismissing the case without deciding the issues (1 Congress when it enacted the Civil Code. Hence, there is no
Tolentino 38). express provision in the present code with respect to

suppletory rules in case of deficiency in the law. In spite of

Same; Obscurity or Deficiency of Law. If the law is
this, however, such suppletory rules must be considered as
vague or obscure, the court should clarify it in the light of the
existing. Even in countries where there is no express
rules of statutory construction; if it is silent or insufficient, the
enumeration of the rules that may be applied in the absence
court should fill the deficiency by resorting to customs or
of positive law, custom and jurisprudence are always
general principles of law (1 Tolentino 39, citing 1 Oyuelos 23)
considered as suppletory rules, contributing to the evolution

of law and its adjustment to changing conditions. The

Same; Unjust Laws. It is the sworn duty of the judge to
opinions of jurisconsults and commentators are also
apply the law without fear or favor, to follow its mandate, not
constantly referred to in judicial decisions; they serve to fill
to tamper with it. The court cannot adopt a policy different
gaps in the application of the law (1 Tolentino 40, citing 1
from that of the law. What the law grants, the court cannot
Camus 26, 39-40)
deny (Go vs. Anti-Chinese League, 84 Phil. 867). The judge

cannot refuse to apply a law just because he considers it

Concept of Customs. Custom may be defined as the
unjust. If the law is clear, it must be applied; dura lex sed
juridical rule which results from a constant and continued
lex. The judge cannot legally invade the domain of the
uniform practice by the members of a social community, with
legislative branch of the government (1 Tolentino 39, citing 1
respect to a particular state of facts, and observed with a
Llerena 61)
conviction that it is juridically obligatory.

Rules Suppletory to Law. Under article 6 of the old Civil

Same; Requisites of Custom; To Have Force of
Code, it was provided that where there is no statute exactly
Suppletory Rule.
applicable to the point in controversy, the custom of the place

Page 9 of 18
(1) Plurality of Acts, or various resolutions of a juridical be treated as if there is no custom (1 Tolentino 41, citing 1

question raised repeatedly in life; Manresa 82). Sanchez Roman sustains the view, however,

that in the absence of reasons for preference, the general rule

(2) uniformity, or identity of the acts or various solutions to should be to apply the custom of the place for the
the juridical question; performance or consummation of the juridical act (1 Tolentino

41, citing 2 Sanchez Roman 78).

(3) general practice by the great mass of the social group;

General Principles of Law. This phrase has not received a

(4) continued performance of these acts for a long period of
unanimous interpretation among writers on civil law. There
time;
are some, led by Valverde and Sanchez Roman, who define

general principles of law as universal juridical standards

(5) general conviction that the practice corresponds to a
dictated by correct reason; or those principles of justice
juridical necessity or that it is obligatory; and
beyond the variability and uncertainty of facts, those high

standards which serve as a foundation to positive law, those

(6) the practice must not be contrary to law, morals or public
rules accepted by jurisconsults which constitute real axioms
order
for all those who intervene in juridical life, and which form a

(1 Tolentino 40; 1 Manresa 82; 1 Ruggiero 80-81; 1 Salvat law superior to that which is enacted. (1 Tolentino 42, citing

191-192; 1 Camus 32-33; 1 Valverde 185) 2 Sanchez Roman 102)

Same; Distinguished from Law. Custom differs from law According to Manresa, however, the view generally sustained

in its origin and form. As to origin, custom comes from the by most Spanish authors (Buron, de Diego, Castan de Buen,

society, while law comes from the governmental power of the etc.) does not regard these principles as in incarnation of an

State; the former is a spontaneous, while the latter is a absolute and immutable natural law, but as the principles

conscious creation, As to form, custom is tacit, being which serve as the basis for positive law in each country. (1

manifested in acts or usages, while law is express, manifested Tolentino 42, citing 1 Manresa 18; 1 De Diego 334)

in solemn and official form. The former is unwritten law, the

There is a tendency to unite and harmonize these two views
latter is written law (1 Tolentino 41, citing 1 Castan 69)
on the meaning of general principles of law, as shown in the

Same; What Custom Applied. It is to be presumed that a works of Clemente de Diego,de Buen, Perez, Gonzales, and

person who performs a juridical act, not provided for by law, Alguer who consider that there is a limitation on the

acts according to the custom of the place. This principle application of general principles of law; that is, that they

should be the basis for determining conflicts between should not be in conflict with the general or particular

customs of different places. When the places where the court provisions of the law. Under this theory, the court should first

is located and the domicile of the parties is different, and look into the general principles underlying the positive law of

each place has a different custom, it is to be presumed that the land; and when these have been exhausted, then it

they knew the custom of their domicile and not that of the should proceed to apply the rules that it may deem most

courts location. If the domiciles of the parties are different reasonable and just, provided that they do no violate the

and they have different customs, Manresa believes that there fundamental concepts of the law, customs, or established

is no reason for making a preference, and the matter should doctrines (1 Tolentino 42, citing 1 Castan 72-73)

Page 10 of 18
Since the essential mission of courts is to do justice, and a or decision which sanctions it (1 Tolentino 43, citing 1

decision must always be rendered in a given case, general Manresa 87).

principles of law must be given a broad meaning, with the

only limitation that decisions should not establish rules Same; Illustrations.

contrary to the essence and the fundamental purpose of the

Article 10. In case of doubt in the interpretation or
existing social order. The phrase may therefore be considered
application of laws,
as equivalent to equity, to natural law, to the fundamental

principles of juridical science, so long as in applying them the

(legal presumption, intent of the lawmaker) it is presumed
Judge complies with his duty to do justice (1 Tolentino 43,
that the lawmaking body intended right and justice to
citing 1 Camus 36)
prevail.

Deficiencies in legal provisions may therefore be supplied by

Source of Article. Taken from article 4 of the Swiss code,
those general principles which have received universal
which provides: Where the statute refers the judge to his
sanction from the opinion of jurists and from the human
discretion or estimation of the circumstances, or to sufficient
conscience, founded on the intimate sentiments of justice and
reasons, there he must decide according to right and equity.
equity which God has inspired in the human heart. The exact

notion of what is just and equitable is always the strongest

A similar provision in the Colombia code (article 32) is as
foundation in the interpretation of law (1 Tolentino 43, citing
follows. In cases where all rules of interpretation fail,
1 Llerena 64)
ambiguous and contradictory clauses shall be construed in a

manner most in conformity with the general spirit of

Same; How Applied. In early decisions of the Spanish
legislation and natural equity.
Supreme Court, it was held that in order to rely upon a

general principle of law, it was necessary to cite the law or

In justifying the inclusion of the present article in the Code,
the decision of the Supreme Court which attributes to such
the Code Commission said: Though the foregoing is also an
principle the character of a legal doctrine (Sentencias, Dec.
unquestionable rule, yet it is necessary to embody it in this
31, 1898, February 7, 1899, and April 15, 1899). This ruling
Code, so that it may tip the scales in favor of right and justice
has been severely criticized as involving a vicious circle and
when the law is doubtful or obscure. It will strengthen the
making it impossible to apply a general principle of law which
determination of the courts to avoid and injustice which may
has not yet been applied by the court. Later, however, it was
apparently be authorized by some way of interpreting the
held that every principle of law must be strictly observed
law (Commission, p. 78).
(Sentencias, October 31, 1914). A tendency to abandon the

old view is indicated by another later ruling that general
principles of law are not applicable unless they are alleged in
the absence of an applicable law, or unless the law or legal
doctrine which sanctions it is cited (Sentencia, April 30,
1923). This gives rise to the impression that the allegation of
general principles of law is admissible, when there is no law
applicable to the point in controversy, without showing a law
Applicability of Article. The rule stated in this article is to
be applied only in case of doubt, and when all other rules of
interpretation fail (1 Tolentino 44, citing 1 Borja 375). When
the law is clear, and there is no doubt as to its meaning, the
judge cannot go above the law but must apply it, even if it
does not conform to his concept of right and justice (1
Tolentino 44, citing 1 Von Tuhr 64).

Page 11 of 18
Equity in Application of Law. Equity is an attribute of it shall be understood that years are of three hundred

justice, and there can be no justice if the application of the sixty-five days; months, of thirty days; days, of twenty

law is not made with equity. Equity may correct and modify four hours; and nights from sunset to sunrise.

the bare written law, sometimes limiting its excessive

generality, and at times extending it to supply deficiencies. (second paragraph) If months are designated by their

Its mission is to temper the rigor of positive law. As Justinian name, they shall be computed by the number of days

said, equity is justice sweetened with mercy; its purpose, which they respectively have.

therefore is to seek and follow the intention of the legislator

(third paragraph) In computing a period, the first day
rather than the barer legal provision, to adapt the rigid
shall be excluded, and the last day included.
precept of law to the social life (1 Tolentino 45, citing 1

Valverde 211)
Meaning of Week. This article does not define what is a

week. It has been held, however, that the term week,

Article 11. Customs which are contrary to law, public
when computed according to the calendar, means a period of
order or public policy
seven days, beginning on Sunday and ending on Saturday,

(obligatory force, prohibition) shall not be countenanced. but where the word is used simply as a measure of duration

(n) of time and without reference to the calendar, it means a

period of seven consecutive days without regard to the day of

Source of Article. This is a restatement of a principle the week on which it begins.

generally accepted even without specific provision in the law

(1 Tolentino 45, citing 1 Camus 32-33; 1 Valverde 185). Meaning of Month. There are several senses in which

the term month may be understood. A lunar month is

Application of Rule. No man or set of men can create a composed of twenty-eight days. A calendar month is a

custom for their benefit or convenience and give it a force month designated in the calendar without regard to the

paramount to that of an express law. The Courts will not number of days it may contain; in commercial transactions, it

recognize the force of a custom in opposition to positive law means a period ending on the day in the succeeding month

(1 Tolentino 45) corresponding to the day in the preceding month from which

the computation began, and if the last month has not so

Article 12. A custom must be proved as a fact, many days, then on the last day of that (citing Gutierrez vs.
according to the rules of evidence. Carpio, 53 Phil. 334). The Code, however, does not use

month in either use of these senses, but strictly in a legal

Non-existence of Custom. When the alleged custom or
sense, as a period composed of thirty days (National
usage is not known to those who, from business connections,
Marketing Corporation vs. Tecson, et al., 29 SCRA 70)
have the best means of knowing it, this ignorance is, in some

sense, positive evidence of its non-existence (The Ship Computation of Time. The rule stated in the last
Success, 18 La. Ann, 1) paragraph of this article is similar, but not identical, to Rule

28 of the Rules of Court, which provides: In computing any

Article 13. When the laws speak of years, months, days
period of time prescribed or allowed by the Rules of Court, by
or nights,
order of a court, or by any applicable statute, the day of the

act, event, or default after which the designated period of

Page 12 of 18
time begins to run is not to be included. The last day of the
period so computed is to be included, unless it is a Sunday or
a legal holiday, in which event the time shall run until the end
of the next day which is neither a Sunday nor a legal holiday.
It will be noted that the present article of the Code does not
contain the exception referring to Sundays and legal holidays
mentioned in the Rules of Court. The Rules of Court, however,
applies only to a period of time prescribed or allowed by the
Rules of Court, by order of a court, or by any applicable
statute. From this, it seems logical to conclude that when the
act and the period are contractual, not required by law, court
order, or rule of court, the exception referring to Sundays and
holidays does not apply, and the act must be done on the last
day, even if the latter should be a Sunday or a holiday. This is
in consonance with the rule that the contract is the law
between the contracting parties. This, of course, is without
prejudice to special laws on the particular contract involved,
such as in the case of negotiable instruments.
Same; Date Specified. The rule stated above is applicable
only where a given period of time must be counted from a
certain date in order to determine the date on which an act
must be performed. But there is no necessity for such
computation when the date is fixed; that is, when the act is to
take place at a specified future date (U.S. vs. Painaga, 27
Phil. 18).
Article 14. Penal laws and those of public security and
safety
(obligatory force, Principle of Territoriality in Penal Law) shall
be obligatory upon all who live or sojourn in Philippine
territory,
(qualifications) subject to the principles of public
international law and to treaty stipulations.
Applicability of Laws to Aliens. Every sovereign state
has absolute and exclusive power of government within its
own territory. Aliens in general, being within the limits and
jurisdiction of the State, are bound to respect its laws, and
cannot exact any other mode of promulgation other than that
which is marked out for the information of citizens (1
Tolentino 48, citing Moores International Law Digest, Vol. IV,
p.10). They owe a local and temporary allegiance to the
government of the country where they are; they must,
therefore, obey its laws, and may be prosecuted for violating
them. They may fairly be called upon to bear their share of
the general public burden, when properly imposed upon them
and other members of the community alike (Ibid., p. 21).
On the other hand, aliens enjoy the civil rights guaranteed by
the Constitution to all the inhabitants of the State. They come
under the protection of the Bill of Rights in the same manner
as citizens. The enjoyment of civil rights is independent of
citizenship. This principle is expressly provided in the codes of
France (article 7), of Romania (article 6), of Greece (article
9), of Serbia (article 6), of Chile (article 57), and of Brazil
(article 3). Notwithstanding the lack of positive provision in
our Code, it is submitted that the principle is acceptable
under our law, especially when we consider that our dominant
theory in conflict of law is of French origin.
Same; Offenses by Military Personnel. The jurisdiction
of the civil tribunals of the Philippines is not affected by the
military or special character of the person brought before
them for trial. The mere fact that the offender is a member of
the United States Army and subject to court-martial, does not
exempt him from punishment under the laws of the
Philippines when he has violated them (U.S. vs. Sweet, 1 Phil.
18; Valdez vs. Lucero, 76 Phil. 356). Provisions of treaties
must, however, be taken into account.
Exemption under International Law. Under the theory
of extraterritoriality, foreigners may be exempted from the
operation of the laws of the Philippines in the following cases:
(1) when the offense is committed by a foreign sovereign
while in Philippine territory;
Page 13 of 18
(2) when the offense is committed bu diplomatic
representatives; and
(3) when the offense is committed in a public or armed vessel
of a foreign country.
Same; Offenses in Merchant Vessels. A merchant vessel
in a foreign registry does not enjoy the extraterritorial
privilege of foreign public or war vessels. A merchant vessel
of one country which enters the port of another, subjects
itself to the laws of the latter so long as it remains within the
territorial waters. An offense committed on such vessel while
it is in a Philippine port, constituting a breach of public order
and a violation of the policy established by the legislature, is
triable in Philippine court (U.S. vs. Bull, 15 Phil. 7; U.S. vs.
Wong Cheng, 46 Phil. 729; U.S. vs. Look Chaw, 18 Phil. 573).
Exemption by Treaty. By express provisions in a treaty
with a foreign power, the Philippines may agree to exempt
from the operation of its penal laws certain nationals of the
former. An example of this is the Philippine-United States
Military Bases Agreement of March 14, 1947, under which the
United States shall have jurisdiction over the following
offenses:
(a) those committed in any base by any person, except when
the offender and the offended party are both Filipino citizens,
or when the offense is against the security of the Philippines;
(b) those committed outside the bases, when the offender
and the offended party are both members of the Armed
Forces of the Philippines; and
(c) those committed outside the bases by any member of the
armed forces of the United States against the security of the
United States. The Philippines shall have jurisdiction over all
other offenses committed outside the bases by any member
of the Armed Forces of the United States.
The rights granted by this treaty are no less than those
conceded by the rules of international law toa foreign army
allowed to march through a friendly country or to be stationed
in it, by permission of its government or sovereign (Dizon vs.
Commanding General, G.R. No. L-1715).
Article 15. Laws relating to family rights and duties,
or to the status, condition and legal capacity of persons
(obligatory force, Theory of Nationality) are binding upon
citizens of the Philippines, even though living abroad.
(9a)
Theories on Personal Law. There are two theories for
determining what personal laws shall apply to a particular
person. In one system, the necessary connection between a
State and an individual is found in the fact that the individual
is domiciled in the State in question; this is the domiciliary
theory, followed in the United States, according to which the
personal laws of a person are determined by his domicile. The
other system makes nationality or citizenship as the basis for
determining the personal laws of an individual; this is
the nationality theory.
The nationality theory was first established at the beginning
of the 19th century in the Code Napoleon, which provided
that the French laws concerning the personal status and
capacity govern Frenchmen even when residing in foreign
countries. In the converse case of a foreigner residing in
France, the French courts generally apply by way of analogy
the law of the country of which he is a national. This notion
that an individuals private rights should be determined, not
by his physical location but by his political allegiance, owes its
origin to the awareness of national identity that was born in
the French revolution and strengthened in the Italian struggle
for national unity. It is this theory that is followed in our Civil
Code (see Vivo vs. Cloribel, et al., 25 SCRA 616)
Page 14 of 18
Application of Article. This article treats of purely rights and to the intrinsic validity of testamentary

personal relations, and the status (Ellis, et al. vs. Republic provisions.

[S.C.] G.R. No. L-16922, April 30, 1963) and capacity for

juristic acts (Gibbs vs. Government of the Philippines, 59 Phil. (obligatory force of exception, Theory of Nationality) shall be

293) . All questions relating to marriage and divorce or legal regulated by the national law of the person whose

separation, to the conjugal partnership, to support between succession is under consideration,

members of a family, and to marital authority, are governed

whatever may be the nature of the property
exclusively by the law of the Philippines, when Filipinos are

involved (Barnuevo vs. Fuster, 29 Phil. 606)

and regardless of the country wherein said property

may be found. (10a)

Same; Capacity to Contract. If under the law of the State

of which a party to a contract is a citizen, he is already of age

Law on Property. Property is subject to the laws of the
at the time he enters into the contract, he cannot set such
country in which it is located; Savigny bases this principle
contract aside on the ground of minority, even if under the
upon a voluntary submission to local laws implied in the
laws of the Philippines he is still a minor (Government vs.
holding of property within the country. As all tangible things
Frank, 13 Phil. 238)
occupy space, the place in space in which the thing is located

must be regarded as the situs of the legal relationship which

Same; Renunciation of Allegiance. The question of how
is the subject of the property right (1 Tolentino 52, citing
a citizen may strip himself of the status as such citizen is
Kuhn, Comparative Commentaries on Private International
governed by his national law (Oh Hek Chow vs. Republic, 29
Law, p. 230)
SCRA 94).

Same; Real Property. The legal and actual situs of

Same; Foreign Adoption. It is the principle in Private
immovables are identical. By no fiction of law nor theory of
International Law that the status of adoption, created by the
public policy can land be regarded as constructively located at
law of a State having jurisdiction over it, will be given the
any other place than its actual situs. It naturally follows that
same effect in another state as is given by the latter to the
every question affecting title to land must be governed by the
status of adoption when created by its own law. This principle
law of the space where the land is situated. No principle is
is recognized in this country, except when public policy or the
more fundamental or thoroughly settled than that the local
interests of its inhabitants forbid its enforcement and demand
sovereignty can alone adjudicate upon and determine the
the substitution of the lex fori.
status of lands and immovable property within its border,

Article 16. Real property as well as personal property including their title and its incidents and the mode in which

they may be charged or conveyed (Kuhn, ibid., pp. 222-

(obligatory force, Principle of Lex Rei Sitae) is subject to the 2223).

law of the country where it is situated.

Same; Personal Property. Under article 10 of the old Civil

(second paragraph, Exception) However, intestate and Code, personal property was subject to the laws of the nation

testamentary successions, both with respect to the of the owner, applying the principle that movables follows the

order of succession and to the amount of successional owner, mobilia sequntur personam. The new code has

changed the rule, following the more modern doctrine which

Page 15 of 18
subjects personal property to the law of the place where it is of the nation of the deceased; the present article applies in

located. The modern tendency is to make no distinction such case.

between mobility and immobility of property (Asiatic

Petroleum vs. Co Quico, 40 Off. Gaz. [6th Supp.] 133). Thus, The distribution of the estate may involve various questions:

it has been held that personal property may be separated (1) the order of succession in cases of intestacy, (2) the

from its owner, who may be taxed on its account at the place intrinsic validity of the testamentary provisions in case of

where the property is located, although such place is not his testate succession; (3) the extent or amount of property

domicile and he is not a citizen or resident of the State which which each heir is entitled to inherit, (4) the capacity of

imposed the tax (Manila Gas Corporation vs. Collector, 62 certain heirs to succeed, and (5) questions of preterition,

Phil. 895). disinheritance, and collation. All these matters are governed

by the law of the nation of the decedent, irrespective of the

The maxim mobilia sequntur personam grew up in the Middle nature and location of the properties left by him at the time of

Ages when movable property consisted chiefly of gold and his death.

jewels, which could easily be carried by the owner from place

to place, or hidden in spots known only to himself. This The reason for this unity of the applicable law has been aptly

maxim, however, has yielded to the lex situs because of the stated by Dean Capistrano thus: With respect to succession

great increase in modern times of the amount and variety of there is only one will, express in testamentary and presumed

property not immediately connected with the person of the in intestate succession. The oneness and universality of the

owner. Furthermore, modern business is largely conducted by inheritance cannot be divided or broken up merely because of

corporations, which frequently do not conduct their principal the different countries where properties of the estate are

operations in the place of their technical domicile. situated (1 Tolentino 54, citing Capistrano, Civil Code, Vol. 1,

p. 21)

Same; Determination of Property. According to

Manresa, under the Spanish Civil Code, the determination of Same; Applicability of Foreign Law. The second paragraph

what property is movable must be made according to the of this article applies only when a legal or testamentary

national laws of the owner. Under the present code, the lex succession has taken place in the Philippines in accordance

situs should govern. with the law of the Philippines; and the foreign law is

consulted only in regard to the order of succession or the

Same; Right to Possession. The right of a person to be extent of the successional rights; in other words, the second

respected in his possession of movable property, until it is paragraph of this article can be invoked only when the

shown that he is possessing illegally, must be governed by deceased was vested with a descendible interest in property

the law of the state in which the property is found, because it within the jurisdiction of the Philippines (Gibbs vs.

refers to a matter of public order. Government of the Philippines, 59 Phil, 293).

Law on Succession. The law governing succession may be The intrinsic validity of the provisions of the will of a foreigner

considered from the point of view of (a) the execution of wills, who dies in the Philippines is to be determined by the laws of

and (b) the distribution of property. The formalities of his own state or country, and not by those of the Philippines

execution of will are generally governed by the law of the (In re Estate of Johnson, 39 Phil. 156; Templeton vs.

place of execution; article 17, first paragraph, applies in this Babcock, 52 Phil. 130; Collector vs. Fisher, et al. (S.C.) G.R.

case. But the distribution of the estate is governed by the law Nos. L-11622, january 28, 1961; Bohanan, et al. vs.

Page 16 of 18
Bohanan, et al. (S.C.) 60 O.G. 4615). Thus, a condition in a in Government vs. Frank, 13 Phil. 236, where the contract

will of a foreigner that his legatee respect his order that his was entered into in Illinois, U.S.A., between the Philippine

property be distributed according to the laws of the Government and an American citizen, the latter was already

Philippines instead of the laws of his own country, was held of age and had capacity to contract under the laws of Illinois,

illegal and considered not written (Miciano vs. Brimo, 50 Phil. but was still a minor under the laws of the Philippines. In an

867) action upon the contract, brought against him by the

Government, the defendant alleged that the contract could

Same; Proof of Foreign Law. When a foreign law is not be enforced against him because he was a minor under
involved, it must be alleged and proved. the laws of the Philippines. HELD: Defendants contention is

untenable. No rule is better settled than that matters bearing

Article 17. The forms and solemnities of contracts, will,
upon the execution, interpretation, and validity of a contract
and other public instruments
are determined by the law of the place where the contract is

made (Tolentino: This decision is not under the provisions of

(obligatory force, Rule on Extrinsic Validity of Will) shall be
article 17 of the Civil Code, which refers only to the forms
governed by the laws of the country in which they are
and solemnities of contracts).
executed.

Performance and Enforcement. Matters connected with

(second paragraph, before consular officials) When the acts
the performance of contracts are regulated by the law
referred to are executed before the diplomatic or
prevailing at the place of performance. Remedies, such as the
consular officials of the Republic of the Philippines in a
bringing of suit, admissibility of evidence, and the statute of
foreign country,
limitations, depend upon the law of the place where the

action is brought (Government vs. Frank, 13 Phil. 236; see

the solemnities established by Philippines laws shall be
also Mac Millan & Bloedel, Ltd. vs. Valderrama, etc., (C.A.)
observed in their execution.
O.G. 1696).

(third paragraph) Prohibitive laws concerning persons,

Foreign Judgments. Litigants by mutual agreement
their acts or property, and those which have for their
cannot compel the courts to approve of their own actions or
object public order, public policy and good customs
permit the personal relations of citizens of the Philippines to

(obligatory force, Rule on Exception to Lex Loci be affected by decrees of foreign courts in a manner which

Celebrationis) shall not be rendered ineffective by laws our government believes to be contrary to public order and

or judgments promulgated, or by determinations or good morals (Barretto vs. Gonzales, 58 Phil. 67, 72) The

conventions agreed upon in a foreign country. legislative policy in this jurisdiction on any particular subject

cannot be defeated by a foreign judgment obtained by Filipino

Execution of Contracts. Under the first paragraph of this citizens. That the law on the subject in the Philippines is too

article, it was held that a power of attorney executed in strict or too liberal is beside the point (Sikat vs. Canson, 67

Germany, should be tested as to its formal validity by the Phil. 207).

laws of that country, and not by the provisions of the Civil

Code (German & Co. vs. Donaldson, Sim & Co., 1 Phil. 63) Validity and Effects of Obligations. The code fails to

mention the law which shall govern the validity and effects of

obligations. Since the rule contained in this article follows the

Page 17 of 18
Italian code, Manresa and Valverde believe that the doctrine be cited as examples of this want of a uniform criterion in the

in that code, as stated in Fiore, can be followed. First, the law Code:

designated by the parties shall be applied; if there is no

stipulation on the matter, and the parties are of the same (1) In the contract of transportation by common carriers,

nationality, their national law shall be applied; if this is not article 1766 provides: In all matters not regulated by this

the case, the law of the place of perfection of the obligation Code, ther rights and obligations of common carriers shall be

shall govern its essence and nature, and the law of the place governed by the Code of Commerce and by special laws.

of the performance shall govern its fulfillment; but if these

(2) In the contract of loan, when usurious, article 1961
places are not specified and they cannot be deduced from the
provides: Usurious contracts shall be governed by the Usury
nature and circumstances of the obligation, then the law of
law and other special laws, so far as they are not inconsistent
the domicile of the passive subject shall apply (1 Tolentino
with this Code.
57, citing 1 Valverde 151).

(3) In the Title on preference of credits, when the properties

Considering the facts of Government vs. Frank, 13 Phil. 236
of the debtor are not sufficient for his debt, article 2237
(see supra, under this article), the rule laid down in that case
provides: Insolvency shall be governed by special laws
is in conformity with the above doctrine. It is submitted that
insofar as they are not inconsistent with this Code.
the principles set forth by Fiore are applicable under our law.

Article 18. In matters which are governed by the Code

of Commerce and special laws,

(Rule on Suppletory Application) their deficiency shall be

supplied by the provisions of this Code.

Application of Article. Where there is no deficiency in the

special law, the provisions of the Civil Code cannot be applied.

Thus, the Civil Code provisions on the formality of sales and

transfers of large cattle which fall under a special law

containing provisions on the matter. This is in consonance

with the principle that on a specific matter, a special law shall

prevail over a general law, which shall be resorted to only to

supply deficiencies in the former (Leyte vs. A. & M. Oil Co. vs.

Block, 52 Phil.429).

Exceptions to Article. The Code does not observe the

principle contained in this article with consistency. There are

special cases expressly provided in the Code itself, where the

special law or the Code of Commerce is made only suppletory,

while the Civil Code is made primary law. The following may

Page 18 of 18