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BAR Reviewer in Persons and Family Relations Part 1

Philippine Bar Exams Reviewer for Civil Law Persons and Family Relations (Part 1) General Considerations – 39 Questions and Answers

#1. ​When do laws in the Philippines take effect?

Laws in the Philippines take effect after fifteen (15) days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.

#2​​What is a retroactive law?

It is one intended to affect transactions which occurred, or rights which accrued, before it becomes operative, and which ascribes to them effects not inherent in their nature, in view of the law in force at the time of their occurrence.

#3. What are the exceptions to the rule that laws shall have no retroactive effect? The following are the exceptions to the rule that laws shall have no retroactive effect:

  1. When the law itself expressly provides for its retroactivity;
  2. When the law is penal insofar as it favors the accused; provided that the accused is not a habitual delinquent;
  3. When the law is procedural so long as it does not affect or change vested rights;
  4. When the law creates new substantive rights;
  5. When the law is curative in character in the sense that the purpose of its enactment is to cure defects or imperfections in judicial or administrative proceedings; and
  6. When the law is interpretative of other laws.

#4. ​What are mandatory laws?

Laws the violations of which, tenders the act or proceeding illegal and void.

$5. What are prohibitory laws?

Laws which, if omitted, renders the proceeding or acts relating to it generally illegal or void.

#6. What are the exceptions to the rule that an act executed against provisions of mandatory or prohibitory laws shall be void?

The following are the exceptions:

  1. Where the law itself authorizes its validity;
  2. Where the law makes the act valid but punishes the violator;
  3. Where the law makes the act only voidable; and
  4. Where the law declares the nullity of an act but recognizes its effects as legally existing.

#7. ​What is a waiver?
It is the intentional relinquishment of a known right or such conduct as warrants an inference of

relinquishment of such right. #8. What is a right?

The power or privilege given to one person and, as a rule, is demandable of another. It denotes an interest or title in an object or property.

#9. Rights may be waived. In what cases may waiver be prohibited and declared null and void? Waiver is prohibited and may be declared dull and void when:

  1. It is contrary to law, public order, public policy, morals and good customs;
  2. When prejudicial to a third person with a right recognized by law.

#10. What are some instances where waiver is considered void? Waiver is considered void in such instances such are:

  1. Waiver of future support;
  2. Waiver of political rights;
  3. Waiver of future inheritance especially if the waiver intended to prejudice creditors.

#11. What are the requisites of a valid waiver? The following are the requisites of a valid waiver:

  1. Full capacity to make the waiver;
  2. Waiver must be unequivocal;
  3. Right must exist at the time of the waiver;
  4. It must not be contrary to law, public policy, morals or good customs;
  5. It must be prejudicial to a third person with a right recognized by law; and
  6. When formalities are required, the same must be complied with.

#12. ​What is a repeal of a law?
It is the legislative act of abrogating through a subsequent law the effects of a previous statute or portions

thereof.
#13. What are the types of repeal? Define each.

1. Express Repeal – One which is literally declared by a new law, either in specific terms, as where particular laws and provisions are named, identified, and declared to be repealed, or in general terms.

2. Implied Repeal – It takes place when a new law contains provisions contrary to or inconsistent with those of a former law without expressly repealing them.

#14. What are the requisites of an implied repeal? The following are the requisites of an implied repeal:

  1. The laws cover the same subject matter; and
  2. The latter is repugnant to the other.

#15. ​What is private international law?

It is a part of municipal law of a state which directs its courts and administrative agencies when confronted with a legal problem involving foreign element, whether or not they should apply the foreign law.

#16. What is conflict of laws?

It is the inconsistency or difference between the laws of different states or countries, arising in the case of persons who have acquired rights, incurred obligations, injuries or damages, or made contracts, within the territory of two or more jurisdictions.

#17. What are the elements of conflicts of laws? The following are the elements of conflict of laws:

  1. Legal problem or case involving foreign element; and
  2. Foreign element – factual situation cutting across territorial lines, affected by diverse laws of two or more states.

Primary function is to determine whether the law or judgments of other state/s will govern and if so the extent if its recognition or application in the forum

#18. What are the different conflict-of-law rules found in the New Civil Code and the Family Code which sanction the operation of either Philippine laws upon Filipinos residing or sojourning abroad and foreign laws upon foreigners residing or sojourning in the Philippines?

They are the following:

  1. With respect to penal laws and laws of public security – Although penal laws are obligatory upon who live or sojourn in Philippine territory, nevertheless, this rule is subject to the principles of public international law and to treaty stipulations.
  2. With respect to laws relating to Family Rights and Duties or to the Status, Condition and Legal Capacity of Persons – As a general rule, nationality rule applies regardless of their place of residence.However, if a divorce is validly obtained abroad by alien spouse capacitating him or her to remarry, the Fiipino spouse shall have the capacity to remarry under Philippine law.
  3. With respect to Laws on Real and Personal Property – The doctrine of Lex Rei Sitae shall govern which provides that the law of the country where the property is situated shall govern property transactions.

The following are its exceptions:

  1. Capacity to succeed;
  2. Intrinsic Validity of testamentary provisions;
  3. Amount of successional rights; and
  4. Order of succession.

4. With respect to Laws on Forms and Solemnities – The doctrine of Lex Loci Celebrationis shall govern which provides that forms and solemnities of contracts, wills and other public instruments (pertaining to extrinsic validity) shall be governed by the laws of the country in which they are executed.

The following are its exceptions:

  1. Marriage between Filipinos validly solemnized abroad shall be void when under Philippine laws, such marriage is void; and
  2. Intrinsic Validity of Contracts which shall be determined by the following rules:
    1. The law stipulated by the parties shall be applied;
    2. In default thereof, and the parties are of the same nationality, their national law shall be applied;
    3. If the parties are not of the same nationalities, the law of the place of the perfection of the obligation shall govern its fulfillment; or
    4. If the above places are not specified and they cannot be deduced from the nature and circumstances of the obligation, then the law of the passive subject shall apply.

#19. What are the rules on personal law? Distinguished.

  1. Domiciliary Rule where the basis of determining personal law of an individual is his domicile; and
  2. Nationality Rule where the basis of determining personal law is his citizenship.

#20. What are the rules to follow when the court is confronted with a case involving a foreign element? If the court is faced with a case involving a foreign element, it should first determine:

  1. Whether it has jurisdiction over the case
  2. If it has no jurisdiction, it should be dismissed on that ground;
  3. If it has jurisdiction, the court will determine whether it should assume jurisdiction, or it should dismiss the case on the ground of forum non-convenience;
  4. Once the court has determined it has jurisdiction over the case, it will next determine whether to apply the internal law of the forum or apply the proper foreign law.

#21. What is Forum Non Conveniens?
It is the refusal to assume jurisdiction because it would prove inconvenience for the forum. #22. When can internal or domestic law be applied?

Internal or domestic law can be applied when:

  1. Law of the forum expressly so provides in its conflicts rule;
  2. Proper foreign law has not been properly pleaded and proved;
  3. Case involves any of the exceptions to the application of the foreign law.

#23. What is the Doctrine of Processual Presumption of law?

When the proper foreign law has not been properly proved, the court of the forum may presume that said foreign law is the same as the law of the forum that said court can now apply.

It applies when the foreign law is not alleged or if alleged, it is not proved. #24. What is renvoi doctrine?

It literally means referring back. It occurs when a citizen of another country dies as a domiciliary of another country.

Where the conflict rules of the forum refer to a foreign law, and the latter refers it back to the internal law, the law of the forum shall apply.

#25. What will the Courts do, if it is confronted with a case with a “Renvoi” problem? The Court has the following options:

  1. Reject the renvoi – If the conflict rules of the forum refer later the case to the law of another state, it is deemed to mean only the internal law of that state.Thus, the court will apply the foreign law.
  2. Accept the renvoi – If the conflict rules of the forum refer the case to the law of another state, it is deemed to include the totality of the foreign law (internal law and conflict of law rules).Thus the court will recognize the referral back and apply the local law.
  3. Follow the Theory of Desisment – also referred to as Mutual Disclaimer of Jurisdiction Theory.The forum court upon reference to another state’s law sees that such law is limited in application to its own nationals domiciled in its territory and has no provision for application to nationals domiciled outside of the territory.Hence the local court will apply the local law.

NOTE: This has the same result as the acceptance of the renvoi doctrine but the process used by the forum court is to desist applying the foreign law.

D. Make use of the Foreign Court Theory – Forum acourt assumes the same position that the foreign court would take if the case is litigated in the foreign state.

#26. What is transmission theory?
It provides that if the foreign law refers it to a third country, the said country’s law shall govern.

#27.​ What is the principle of abuse of rights?
The principle of abuse of rights departs from the classical theory that “he who uses a right injures no one.”

The modern tendency is to depart from the classical and traditional theory, and to grant indemnity for damages in cases where there is an abuse of rights, even when the act is not illicit.

#28. Is abuse of rights actionable? Explain. Yes, abuse of rights is actionable.

This is clear from the provision of Art. 19 of the NCC, which declares that “every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith,” and from the provision of Art. 20, which declares that “every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same.”

#29. What elements of an abuse of right must be present in order that it will be actionable? The following elements must concur:

  1. There is a legal right or duty;
  2. Which is exercised in bad faith; and
  3. For the sole intent of prejudicing or injuring another.

#30. What is the doctrine of Volenti Non Fit Injuria?

It refers to self-inflicted injuries or to the consent to injury which precludes the recovery of damages by one who has knowingly and voluntarily exposed himself to danger, even if he is not negligent in doing so.

#31. What is the doctrine of Damnum Absque Injuria?

It means damage without injury. One who merely exercises one’s rights does no actionable injury and cannot be held liable for damages.

#32. What is the difference between injury and damage?

Injury is the illegal invasion of a legal right; damage is the loss, hurt, or harm which results from the injury; and damages are the recompense or compensation awarded for the damage suffered.

There can be damage without injury in those instances in which the loss or harm was not the result of a violation of a legal duty. In such cases, the consequences must be borne by the injured person alone.

#33. What is the principle of Contra Bonus Mores?

Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.

#34. What are the elements of an action under the principle of Contra Bonus Mores? The following are the elements:

A. There is an act which is legal;

  1. Such act is contrary to morals, good customs, public order or policy;
  2. It is done with intent to injure.

#35. What is Accion In Rem Verso?
It is the remedy for unjust enrichment.
It is an action for recovery of what has been paid or delivered without just cause or legal ground.

If a person acquires or comes into possession of something at the expense of another without just or legal ground through an act or of performance by another or any other means has the obligation to return the same.

#36. What are the elements in order to enforce an Accion In Rem Verso? The following are the requisites:

  1. The defendant has been enriched;
  2. The plaintiff has suffered a loss;
  3. The enrichment of the defendant is without just or legal ground; and
  4. The plaintiff has no other action based on contract, quasi-contract, crime or quasi-delict.

#37.​ What is a prejudicial question?
A prejudicial question is a question which arises in a case, the resolution of which is a logical antecedent

of the issue involved in said case, and the cognizance of which pertains to another tribunal. #38. What are the elements of a prejudicial question?

They are: first, that it must be determinative of the guilt or innocence of the accused in the criminal case; and second, jurisdiction to try said question must be lodged in another tribunal.

#39. What is its effect upon a criminal action?
Its effect upon a criminal case is to suspend it if one has already been commenced. (Art. 36, NCC.) This is, of course, the reverse of the ordinary rule of procedure.

The reason for this is that the resolution of the question is determinative of the guilt or innocence of the accused in the criminal case.

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