ARTICLES 11

AND 12 OF
THE CIVIL
CODE OF THE
PHILIPPINES
Article 11. Customs which are
contrary to law, public order and
public policy shall not be
countenanced.
Article 12. A custom must be
proved as a fact according to the
rule of evidence.
Custom is the juridical rule which results
from a constant and continued uniform
practice by the members of a social
community , with respect to a particular
state of facts, and observed with a
conviction that is juridically obligatory
In order that a custom may be considered as a source of right, the
following requisites must be proven:

1. plurality of acts;
2. uniformity of acts;
3. general practice by the great mass of the people of the country
or community;
4. general conviction that it is the proper rule of conduct;
5. continued practice for a long period of time; and
6. conformity with law, morals and public policy.
Customs should not be against public policy
• It must always be supposed that the Congress in adopting this provision
concerning customs, design to favor and foster, rather than to contravene, that
public policy which is based upon the principles of natural justice, good morals,
and the settled wisdom of the law as applied to the ordinary affairs of life.
• If a custom is repugnant to public policy, public order, or law it ought to be
restrained so that it may comport with those principles. Nor should custom be
allowed or permitted which disturbs public order or which tends to incite
rebellion against constituted authorities or resistance against public commands
duly issued and legally promulgate. While the courts should be ever vigilant to
protect the rights and customs of the people, they nevertheless should be
equally vigilant that customs destructive of public order or subversive of public
policy and morality be curbed rather than sanctioned.
Martinez vs. Van Burskirk, 18 Phil. 79

G.R. NO. L-5691; DECEMBER 27, 1910

S.D. MARTINEZ and his wife, CARMEN ONG DE

MERTINEZ, Plaintiffs-appellees,
VS.
WILLIAM VAN BUSKIRK, Defendant-appellant.

PONENTE: J. Moreland
FACTS
• On September 11, 1908, the plaintiff, Carmen Ong de Martinez, was riding
in a carromata on Calle Real, district of Ermita, city of Manila, along the
left-hand side of the street as she was going, when a delivery wagon
attached to a pair of horses belonging to the defendant, William Van
Buskirk, used for the purpose of transportation of fodder by the defendant,
came along the street in the opposite direction. The driver of the
carromata, observing that the delivery wagon was coming at great speed,
crowded close to the sidewalk on the left-hand side of the street and
stopped so that the delivery wagon can pass by, but instead of passing by,
the defendant’s wagon and horses ran into the carromata occupied by
the said plaintiff with her child and overturned it. The said plaintiff sustained
a serious cut upon her head. The carromata and the harness of the horse
drawing it was both damaged.
FACTS
• The defendant contended that his cochero, who was driving the delivery
wagon at the time of the accident, was a good servant and was a safe
and reliable cochero. The defendant also claims that the delivery wagon
had sent to deliver forage at Paco Livery Stable on Calle Herran, his
chochero tied the driving lines of the horses to the front end of the delivery
wagon to unload the forage to be delivered. While in the act of unloading
said goods and carrying some of it out, another vehicle drove by, the
driver of which cracked a whip and made noises, which frightened the
horses attached to the delivery wagon and they ran away. When the
horses took off, the driver was thrown from inside of the wagon out through
the back and into the ground and he was unable to stop the horses that
then ran up and on to the street where they came into a collision with the
carromata the plaintiff was riding. The defendant was not with the vehicle
on the day in question.
FACTS
• Upon these facts the court below found the defendant guilty of
negligence and gave judgement against him for ₱442.50, with the interest
thereon at the rate of 6 percent per annum from the 17th day of October,
1908, and for the costs of the action.
ISSUE
Whether or not the defendant is liable for the negligence of his
employee?
HELD
No. The defendant Is not liable because the evidences does not
prove that his cochero was negligent. It was held that the act of the
cochero in the manner proved was not unreasonable or imprudent. It
is a matter of common knowledge that it is the universal practice to
leave the horses in the manner in which they were left at the time of
the accident. It has not been proved to cause damage or injury. The
reason why they are permitted by the society to do so is because it is
more beneficial rather than prejudicial. Those conditions show that the
defendant’s cochero was not negligent and that the defendant is not
liable for any accusations.
The judgment has been reversed without special finding as to
cost.
REFERENCES

• Albano, E. (2017). Family Code of the Philippines, pp. 38-39. Quezon City, Philippines: Central Books
Supply, Inc.
• Arellano Law Fovndation. (2019). The LAWPHiL Project. Philippine Jurisprudence. Retrived August
2019, from <https://www.lawphil.net/judjuris/juri1910/dec1910/gr_l-5691_1910.html>