Commentaries and Jurisprudence on the Civil Code (A. Tolentino, p1-10)

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