Preliminary Title Flashcards
curative statutes
… provided no impairment of vested right
exceptions for prospectivity; when retroactivity of law is allowed.
when EXPRESSLY provided doesn’t impair vested rights curative/remedial… provided doesn’t impair vested rights law is PROCEDURAL (e.g. prescribing form of pleadings)… may apply to existing cause of action/PENding action, PENAL statute (e.g. lesser penalty) when favorable to accused who’s NOT a habitual delinquent… even though serving sentence
example of mandatory law
impugning legitimacy of a child
rights that CANNOT be waived
those vested with public interest preferential rights of tenants under CA 539
publication
must be FULL and INDISPENSABLE
publication of a LAW
publication: full or nothing at all indispensable law presumed valid requirement for ignorantia legis; conclusive, constructive knowledge
laws that need to be published
charter of a city naming of a place exempting a person from requirements or prohibitions
retroactivity
GR: Prospectivity
xpn: EPC
provides for it expressly curative/remedial law procedural penal… favorable to accused, not habitual delinquent, and not expressly made inapplicable to pending actions or existing causes of action
Waiver of Rights
GR: PUWEDE XPN: Pag may public interest at stake, like rights in land reform vested with public interest, i.e. social justice
general repleal
Not an EXPRESS repeal
because it does not mention specific provisions or laws to replace repeal.
General repeal is only for IMPLIED, irreconcilable conflicts. Pwedeng part ang repealed. Pero pag lahat ng provisions dependent talaga with each other, the others must fall with them: void.
If clear, apply. If in doubt…
aids: ordinary meaning “upon its face,” the ordinary meaning understod by those who ratified it and not the framer’s intention. Framer’s intention last resort. FAVORED CONSTRUTION: self-executing mandatory prospective harmonious whole
national territory
overt act
proximate cause
upon
full publication
notice…
there’s rights–waivable and obligations
compliance… good. butwhat happends in non-compliance–ineffective ba ang law?
doesn’t mean law no longer effective.
Law beocmes ineffective only through
repeals/self-repeals
struck down by courts
Preliminary Title
Main Diagram
preliminary title
foreign law…
prove as fact.
Once proven, it’s LAW.
Ignorantia legis doesn’t excuse
when is retroactuve law llowed bylaw
publication in full or no publication at all
publication of ordinances
duty of courts
Judicial legislation
SOI
in case of silence, obscurity or insufficiency of the law…
preliminary title diagram
who is BORN?
foreign law must be proven as fact
administrative rules cannot amend laws or the Constitution
penal laws are subject to treaties
Publication of Municipal Ordinances
vested right, defined
acts against mandatory provisions of law.
When are they valid?
Art. 5.
When the law authorizes their validity.
newspaper of general circulation
actually it’s Official Gazette OR newpaper of general circulation
What laws need to be published
charter of a city (*** 3)
laws on prescription (4)
PDs naming a public place after a favored individual or exempting him from certain prohibitions or requirements
Circulars issued by the Monetary Board, if meant not just to interpret but to fill in the gaps in the Central Bank Act.
like presidential decrees and executive orders promulgated by the President, legislative power having been validly delegated to him or directly conferred to him by Constitution, in the exercise of legislative power (* 3)
Administrative rules and regulations if their purpose is to enforce or implement existing laws to the public, must also be published (* 3)
THIS RULE DOES NOT COVER
what it does not cover and thus need not be published: interpretive regulations and those merely internal in nature, i.e., regulating only the personnel of the administrative agency and not the public; not even LOI issued by administrative superiors to be followed by their subordinates; instruction of the Minister of social welfare on case studies to be made in the petitions for adoptions; rules laid down by head of government agency on assignments/workload of his personnel/wearing of office uniforms
BUT MUNICIPAL ORDINANCES ARE NOT COVERED BY THIS RULE BUT BY THE LOCAL GOVERNMENT CODE.
publication is/must be…
full
indispensable
for due process… to apprise people about the law
Ignorance of the law (and jurisprudence) excuses no one from compliance therewith…
To what laws (and jurisprudence) does this apply?
Mandatory/prohibitory laws (Consunji Case)
When may laws retroact…
when expressly provided, without prejudice to VESTED RIGHTS..
curative statutes… without prejudice to VESTED rights.
remedial law–there are no vested rights in rules of procedure
penal laws–if favorable to the accused who is not a habitual delinquent
Who is a HABITUAL DELINQUENT?
prospectivity rules (read and reread)
A statute must be construed as only having prospective application.
An act must be punished by the law in force at the time of the act’s commission.
In case of doubt, favor prospectivity (6)
Jurisdiction of a court depends on the law existing at the time an action is filed (x 31)
If the Commissioner of Internal revenue has a circular or ruling, if retroactivity would adversely affect a taxpayer, it shall have no retroactive effect (prs 32)
Supreme Court doctrine abandoned, the new doctrine should be applied PROSPECTIVELY. If applied retroactively, ithis would prejudice parties relying on the old doctrine and acting on the faith thereof (prs 32)
If an act violates mandatory/prohibitory law, it’s void; exception if a law authorizes their validity.
Examples of the exception.
Waiver of rights; requirements.
There’s a known right, which must exist.
There should be no misapprehension of facts and there should be awareness of the consequences of the waiver.
Waiver–intentional relinquishment of a KNOWN right. Person waiving must be CAPACITATED to make waiver (NOT a MINOR or INSANE person) x 39 prs
Waiver must be CLEAR (xx prs 39)
(In some instances, the waiver, in express remission of a debt, must comply with the formalities of a donation xxx 39 prs)
Waiver must not be contrary to law/public policy/morals/good customs (in a particular place * 39 prs)/prejudicial to a non-consenting third person (* 39 prs)
And if it’s (proven to be, not presumed) waived by a duly capacitated possessor (9) of said known right.
THEN WAIVER CAN BE MADE.
BUT IF…
waiver is contrary to law/public policy/morals/ or good customs/
prejudicial to a third person (who did not consent x 38 prs) a right recognized by law. (e.g. waiver of rights in the conjugal partnership is void)
WAIVER CANNOT BE MADE.
Repeal of laws; hierarchy of laws.
Judicial Decisions (of the Supreme Court) form part of the legal system of the Philippines
Duty of Judges in case of silence, obscurity, or insufficiency of laws.
custom defined
requisite for a custom to be countenanced
Computation of periods… application
FELI
and if last days falls on a Sunday/holiday
Generality and territoriality
penal laws, and laws on safety and security…
subject to principles of public international law and treaty stipulations
1sts:
person… if Filipino…
nationality rule
family relations/status/capacity/condition shall be governed by national law of that person
…
EVEN IF ABROAD!!!!!!!!!
1STS:
real/personal property
what law governs
general rule: law of the country where located.
exception: if property’s owner dies… intrinsic validity of the will, capacity to succeed, order of succession, amount of succession shall be governed by the national law of the decedent.
prohibitive laws and laws for public order, public policy and good customs
Art. 17 par. 3.
Art. 16 Public instruments
GR: lex loci celebrationis
XPN:
real/personal property–lex rei sitae
will, as regards capacity to succeed, intrinsic validity of testamentary provisions, amount of succession, order of succession–national law of decedent
Art. 14. Penals laws… generality/territoriality… subject to principles of public international law and treaty stipulations
1sts:
act–exercise of right… and causes damage
Art. 19
Art. 19, 20, 21 on Human Relations
Unjust enrichment
(Art. 22, 23)
Art. 24. Parens Patriae for the underdog
In all contractual, property or other relations, when one of the parties is at a disadvantage on account of his moral dependence, ignorance, indigence, mental weakness, tender age or other handicap, the courts must be vigilant for his protection.
Art. 25. Thoughtless extravagance
Art. 26. Respect for dignity, privacy, peace of mind
similar acts (not exclusive)
though not criminal acts
Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:
(1) Prying into the privacy of another’s residence:
(2) Meddling with or disturbing the private life or family relations of another;
(3) Intriguing to cause another to be alienated from his friends;
(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.
Art. 27.
public servant or employee
public office, public trust. TILL THE LAST DAY OF TENURE.
Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against he latter, without prejudice to any disciplinary administrative action that may be taken.
Art. 28. Unfair competition
Unfair competition in agricultural, commercial or industrial enterprises or in labor through the use of force, intimidation, deceit, machination or any other unjust, oppressive or highhanded method shall give rise to a right of action by the person who thereby suffers damage.
read and reread the kinds of strikes…
Art. 29 when accused is ACQUITTED bec. guilt was not established BEYODN REASONABLE DOUBT
Art. 30. Civil action WITHOUT criminal action
Art. 30. When a separate civil action is brought to demand civil liability arising from a criminal offense, and no criminal proceedings are instituted during the pendency of the civil case, a preponderance of evidence shall likewise be sufficient to prove the act complained of.
Art. 31
civil action NOT ex delicto
Art. 31. When the civil action is based on an obligation not arising from the act or omission complained of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter.
Art. 32. violation of constitutional rights (independent civil action)
Art. 33. defamation, fraud, physical injuries
Art. 33. In cases of defamation, fraud, and physical injuries a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence.
Art. 34. police (city or municipality)
Art. 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action.
Art. 35
where no independent civil action is granted by NCC or Special law
Art. 35. When a person, claiming to be injured by a criminal offense, charges another with the same, for which no independent civil action is granted in this Code or any special law, but the justice of the peace finds no reasonable grounds to believe that a crime has been committed, or the prosecuting attorney refuses or fails to institute criminal proceedings, the complaint may bring a civil action for damages against the alleged offender. Such civil action may be supported by a preponderance of evidence. Upon the defendant’s motion, the court may require the plaintiff to file a bond to indemnify the defendant in case the complaint should be found to be malicious.
If during the pendency of the civil action, an information should be presented by the prosecuting attorney, the civil action shall be suspended until the termination of the criminal proceedings.
Art. 36. prejudicial questions
