Tuesday, February 28, 2006

Conflict of Laws – Part 1 (The Basic Principles)

This will be a two-part reviewer on the very difficult subject of Conflicts of Law. The first part will cover basic principles while the second part will deal with Philippine conflict rules found in the Civil Code.

Conflict of Laws is that part of municipal law of the state which directs its courts and administrative agencies, when confronted with legal problems involving a foreign element, to determine whether to apply foreign law or foreign laws.
Breaking it down, the elements are as follows:
It is a part of municipal law of the a state;
There is a directive to courts and administrative agencies;
There is a legal problem involving foreign element; and
There is either an application or non-application of a foreign law or foreign laws.
Steps in dealing with a problem in Conflict of Laws:
1. Determine whether the court has jurisdiction over the case;
2. Determine whether it should assume jurisdiction; and
3. Determine whether to apply the law of the forum or the foreign law.
Forum non conveniens – even if the court has jurisdiction over the case, it will dismiss the case because it will cause great and unnecessary inconvenience on the court or on the parties as well.
Examples: (ABCDEOFF)
1. The local judicial machinery is not adequate for effectuating the right sought to be enforced by the plaintiff;
2. Belief that it can be tried and decided in other court;
3. Court docket is clogged;
4. Difficulty in ascertaining the applicable foreign law;
5. Evidence and witness not available in the forum;
6. Other courts are open and the case may be better tried in said courts;
7. Forum has no particular interest over the case;
8. To curb the evil of forum-shopping.
When do we apply Internal or Domestic Law:
1. When the law of the forum expressly so provides in its conflicts rules;
2. When the proper foreign law has not been properly pleaded and proved;
3. When the case involved any of the exceptions to the application of the proper foreign law:
a) When the foreign law, judgment, or contract is contrary to a sound and established public policy of the forum;
b) When the foreign law, judgment, or contract is contrary to almost universally conceded principles of morality;
c) When the foreign law, judgment or contract involves procedural matters;
d) When the case involves penal laws, contracts, judgments;
e) When the case involves purely fiscal or administrative matters;
f) When the application of the foreign law, judgment or contract may work undeniable injustice to the citizens or residents of the forum;
g) When the application of the foreign law, judgment or contract may work against the vital interests and national security of the state of the forum; and
h) When the case involves real or personal property situated in the forum.
Rationale why foreign law needs to be pleaded and proved
It is because our courts cannot take judicial notice of foreign laws.
Processual presumption of law – this means that foreign law is the same as the law of the forum when the former is either not alleged or if alleged, it is not proved.
Theories on Application of Foreign Law:
1. Theory of Comity – no foreign law would be allowed to operate in another state except by the comity of nations.
a) Comity based on reciprocity – if the laws and judgments of the forum are recognized in a foreign state, the forum in turn will recognize the laws and judgment emanating from said foreign state.
b) Comity based on persuasiveness of foreign judgment – if the forum is persuaded that a foreign judgment is meritorious and has been rendered by a court of competent jurisdiction, it will not hesitate to enforce that foreign judgment in the forum, even if the foreign forum does not reciprocate.
2. Vested Rights Theory - our courts enforce the vested right under the foreign law or judgment.
3. Theory of Local Law – our own law requires us to apply foreign law.
4. Theory of Harmony of Law – identical/similar problems should be given identical/similar solutions.
5. Theory of Justice – logical since the purpose of all law is to give justice.
How do purely internal provision of law differ from conflicts provision in conflict of law?
The former is without a foreign element while the latter involves foreign element.
Requisites Before Foreign Judgments May Be Recognized and Enforced in the Philippines:
1. There must be proof of foreign judgment;
2. Judgment must be on a civil or commercial matter;
3. There must be no lack of jurisdiction, no want of notice, no collusion, no fraud, no clear mistake of law or fact;
4. The judgment must not contravene a sound and established public policy of the forum; and
5. Judgment must be res judicata in the state that rendered it.
Conflict Rules – provisions found in a country’s own law which govern factual situations possessed of a foreign element.
1. one-sided rule – indicates when Philippine internal law will apply;
2. all-sided rule – indicates when foreign law is to be applied.
1. factual situation – problem involving a foreign elemeny;
2. connecting factor – the law of the country with which the factual situation is most likely connected.
Characterization – is the process of assigning a factual situation to its proper or correct legal category.
1. Determination of the facts involved;
2. Characterization of the factual situation;
3. Determination of the conflicts rule which is to be applied;
4. Characterization of the point of contact or the connecting factor;
5. Characterization of the problem as procedural or substantive;
6. Pleading and proving of the proper foreign law; and
7. Application of the proper foreign law to the problem.
Theories on Characterization:
1. Lex Fori – forum merely considers its own concepts and its own characterization;the law of the forum;
2. Lex Causea – follows the characterization of the foreign state which is the principal contact point; the law of the state with which the act or transaction is most closely connected.
… to be continued

Monday, February 27, 2006

Remedies Against An Adverse Judgement

The Rules of Court provides for the following remedies against an adverse judgment:
1. Motion for reconsideration
2. Motion for new trial
3. Appeal
4. Petition for relief from judgment
5. Petition to annul judgment
Motion for Reconsideration
a) Excessive damages has been awarded
b) Findings of facts or of law not supported by evidence
c) Judgment is contrary to law
It differs from Motion for New Trial because the former (MR) needs no trial but may merely be corrected by the court. If the ground is not predicated on the above three grounds, it is pro forma which does not toll the running the reglamentary period of the 15 days (period of appeal) for the finality of the decision. After the lapse thereof, the judgment will become final and executory.
In criminal cases, there is no pro forma rule. The motion for reconsideration is based on any ground.
If the MR is based on No. 2 (not supported by evidence), the rules require that the MR must make reference to the testimonial or documentary evidence referring to the facts on record. The reference must be particular, not merely a sweeping statement.
If the MR is based on No. 3 (contrary to law), the particular law must be stated, making a reference to the portion of the judgment in the transcript that is contrary to law.
Motion for New Trial
a) Fraud, Accident, Mistake, Excusable negligence (FAME) had deprived the movant of his substantial rights during the trial
b) Newly discovered evidence
On the first ground, the FAME could not have been avoided during the trial.
On the second ground, this requires, if admitted, could probably alter the judgment already rendered. If merely corroborative, not within the purview even if discovered after the rendition of judgment. If it is in the nature of forgotten evidence, not a ground for MNT even if it could alter the judgment already rendered.
Whenever you have FAME, affidavit of merit is required on how FAME was incurred but it need not be in a separate paper. May be in the motion but it must be under oath.
It presupposes that the judgment is not yet final and executory. Consider whether the appeal would raise only findings of facts or of law or both. If it only raises question of law, the same may be raised in a petition for review, not an ordinary appeal. But generally, if appeal is the discussion of the facts and of law involved, it is an ordinary appeal where notice of appeal is filed before the court with notice to the adverse party within 15 days from the rendition of judgment. But if it is a multiple appeal, within 30 days from rendition of judgment and record on appeal is filed with MTC/RTC for approval within 30 days. Generally, the decision of the RTC in appealed cases is final and executory but if errors of fact and law are shown, appeal is allowed through petition for review.
Petition for Relief from Judgment
a) FAME (fraud, accident, mistake, or excusable negligence) which deprived the movant to have his day in court or taking his appeal. However, it will only be considered if the petition is filed within 60 days after the movant leans of the judgment or order in question but not more than 6 months after entry of judgment.
Entry of judgment is the date when the judgment becomes final and executory because the finality of judgment may not be the same for each party, it depends upon the date the party receives the judgment.
Petition for relief from judgment presupposes that the judgment in question is already final and executory but if the right to appeal is lost due to negligence, he will not be allowed to file this petition. If petition for relief is granted, its effect is the same as in MNT: it requires filing an answer and the court conducts a hearing. The petitioner must show in an affidavit of merit that he has a meritorious defense for the defendant or in case of the plaintiff, that he has a meritorious cause of action.
Petition to Annul Judgment
FAME (fraud, accident, mistake, or excusable negligence)It is resorted to when the nullity of judgment does not appear in the face of the judgment. So, evidence to prove nullity of judgment will have to be presented in the trial but if the nullity is seen on the face of the judgment itself, this petition is not proper, the same may be challenged as null and void. Nullity must not appear in the face of the judgment. For the enforcement of the judgment, collateral attack is allowed.

Saturday, February 25, 2006

State of National Emergency

This one is confusing, and this may be asked in the BAR exams.


WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme Right, represented by military adventurists–the historical enemies of the democratic Philippine State—who are now in tactical alliance and engaged in a concerted and systematic conspiracy, over a broad front, to bring down the duly constituted government elected in May 2004.
WHEREAS, these conspirators have repeatedly tried to bring down the President;
WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State–by obstructing governance including hindering the growth of the economy and sabotaging the people’s confidence in government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right the opening to intensity their avowed aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic institutions and the State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear and present danger to the safety and the integrity of the Philippine State and of the Filipino people;
NOW, THEREFORE, I Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution which states that: “ The President…whenever it becomes necessary,…may call out (the) armed forces to prevent or suppress…rebellion…, “ and in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well any act of insurrection or rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution do hereby declare a State of National Emergency.
IN WITNESS HEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed.
Done in the City of Manila, this 24th day of February, in the year of Our Lord, two thousand and six.
PresidentRepublic of the Philippines
The following questions come to my mind:
How does it differ from the emergency powers given to the President by Congress?
Is the writ of habeas corpus suspended?
Why are they arresting protesters? What happens to the freedom of speech?
Why is the SC not reacting? Is it unconstitutional?

Friday, February 24, 2006

I am really going...

There are 2 things I want to post today. First is my very first time to particiapate in a real court proceedings as a witness and the second is my enrolment yestereday with a review school.
Last friday, I was asked by one of our legal officers to be a witness representing a claim against the city government in its expropriation case. She asked me to come at 8:30 am but the hearing started at around 10 am because the plaintiff's lawyer was late. To make it short, I was presented as a witness for the defense of the City Government.
What I have noticed however is that what I have learned in moot court is not what is actually happening. First, my lawyer keeps asking me leading questions for which the opposing counsel does not object (and they were not preliminary questions). Second, I was expecting to be briefed of the questions to be asked of me by my counsel but there was none. I even don't know what she'll gonna ask me. (God help me in the cross-exam). Thirdly, our case is the third case on the calendar, but the two cases ahead of us were postponed and the next one after us waslso postponed because of various petty reasons. Is there really speedy trial?
The plaintiff asked the court to set the cross examination on the next scheduled hearing, (Mar 24). I just hope that it would not be postponed because ill be taking my review exam come April.

On to the next topic...

Yesterday, I and my batchmates went to separate review schools to enrol. Majority of my batchmates enroled at UP, while Edward and I enroled at Recoletos (SSC). Classes in Recoletos shall start on April 17 while UP is a day after. For the Recoletos Review, the review days are normally from 5-9 pm on Thursdays and Fridays and whole day on weekends. There is no overlapping of topic - that is, a bar subject is finished first before another bar subject is taught.Since I am not familiar with the methods in UP ill ask my classmate first then I'll post it here. I guess there is no turning back now.

Wednesday, February 22, 2006

Remedies on the decisions of the Constitutional Commissions

Our Constitution provides for three constitutional commissions. The Civil Service Commission, the Commission on Election and the Commission on Audit. Appeals from the decisions of CSC is governed by Rule 43 while the remedy from the decisions of COA and COMELEC are governed by Rule 64.

Civil Service Commission

Governing Rules of Procedure: Resolution No. 991936 known as the “Uniform Rules on Administrative Cases in the Civil Service Commission. It took effect on September 27, 1999.

Where To Appeal

To the Court of Appeals
- Decisions of CSC Proper.
- Ground – questions of facts, of law, or mixed questions of fact and law.
- Mode – Petition for Review under Rule 43 of 1997 Revised Rules of Court.
- Period – within 15 days from the receipt of decision.
- Procedures:
a) File a verified petition for review in 7 legible copies, with proof of service;
b) Pay docketing and other lawful fees and deposit the sum of P500 for costs;

To the Civil Service Commission Proper:
- Decisions of CSC Regional Office
- Ground – lack of a prima facie case
- Mode – Petition for Review
- Period – within 15 days from the receipt of decision

- i. Decisions of head of heads of heads of departments, agencies, provinces, cities, municipalities and other instrumentalities imposing a penalty exceeding thirty days suspension or fine in an amount exceeding thirty days salary.

- ii. Orders of Preventive Suspension
- Ground – questions of fact, of law or mixed question of facts and law.
- Mode – Notice of Appeal
- Period – within 15 days from the receipt of decision
- Procedure:
a) A notice of appeal including the appeal memorandum shall be filed with the appellate authority, copy furnished to the disciplining authority.
b) The disciplining authority shall submit the records of the case, which shall be systematically and chronologically arranged, paged and securely bound to prevent loss, with its comment, within fifteen days, to the appellate authority.
c) The appellant shall pay P300 appeal fee and a copy of the receipt shall be attached to the appeal.

To the Civil Service Regional Offices
- i. Disapproval of appointments of Civil Service Field Offices.
- ii. Protests against the appointments of first and second level employees

Commission on Audit

Governing Rules of Procedure: Revised Rules of Procedure of the Commission on Audit. This took effect on May 8, 1997.

Where To Appeal/Remedy

To the Supreme Court
- Decisions of COA.
- Ground – the COA has acted without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess jurisdiction.
- Mode – an independent civil action (petition for certiorari) under Rule 65.
- Period – within 30 days from the receipt of decision.
- Procedures:
a) File a verified petition for certiorari in 18 legible copies, with proof of service;
b) Pay docketing and other lawful fees and deposit the sum of P500 for costs;

2. To the Commission Proper:

- Decisions of Auditors embodied in a report, memorandum, letter, notice of disallowance and charges and Certificate of Settlement and Balance.
- Ground – questions of law, facts or mixed.
- Mode – Petition for Review
- Period – within the time remaining of the six month period.
- Procedure:
a) File the petition in seven legible copies

3. To the COA Director:

- Decisions of Auditors embodied in a report, memorandum, letter, notice of disallowance and charges and Certificate of Settlement and Balance.
- Ground – question of law, facts or mixed.
- Mode – Ordinary Appeal
- Period – within 6 months from the receipt of decision

Commission on Election

Governing Rules of Procedure: COMELEC Rules of Procedure.

Where To Appeal/Remedy

To the Supreme Court
Decisions of COMELEC.
Ground – the COMELEC has acted without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess jurisdiction.
Mode – an independent civil action (petition for certiorari) under Rule 65.
Period – within 30 days from the receipt of decision.
i. File a verified petition for certiorari in 18 legible copies, with proof of service
ii. Pay docketing and other lawful fees and deposit the sum of P500 for costs;

Tuesday, February 21, 2006


Service of summons is done by the sheriff, prepared by the Clerk of Court addressed to the defendant stated in the complaint.
Manner of Service:
1. in person/mail
2. by substituted service
3. by publication
Substituted Service
If served at his home address, it may be served to any person of sufficient age and discretion and must be residing therein.
If served at his office address, it may be served to any person of sufficient age and discretion tasked or in charged of the office.
So, if the summons were served on the brother of the defendant in his home address who is there only visiting him, the service is not valid.
If it is served on the security guard at the office address of the defendant, the service is also not valid but the defendant is still bound unless he has explained sufficiently why he did not receive it.
However, if the defendant appears in court despite the non-service of summons, then the court acquires the jurisdiction over the person of the defendant. His appearance in court is considered as voluntary appearance because the non-service or defective service is considered waived.
Although the sheriff served the summons and the defendant did not get it but he learned of the case, he is expected to inform the court of the defective service otherwise the court will presume the regular performance of the sheriff of his functions and the court may act on the action and render the defendant in default. However, the presumption is disputable.
Jurisdiction over the person of the defendant may be waived and the defendant should question this seasonably.
If summons had not been served, this results to constitutional infirmity but as long as there is a possibility that the defendant would get it, if under the circumstances, it is reasonable to presume that he has received it, then the court will presume that the defendant got it. The remedy of the defendant is to question the service of summons.
On the other hand, if the defendant was able to receive the summons but no complaint was attached to it, the defendant should bring such matter before the court. Prudence is expected from the defendant otherwise he is deemed to have waived his right to the action.
After the payment of the docket fee, the Clerk of Court will issue the summons based on the given address in the complaint.
After the service of summons, the lawyer or the plaintiff will get the summons from the Clerk of Court and bring this to the sheriff for the payment of the sheriff’s fee (kilometrage fee) otherwise the summons will not be served.
There will be as many summons as there are defendants but for defendants who live in the same area, one summons is enough as each of them is served with a copy of it.
Personal and substituted service are not alternative but substituted service is only resulted to if personal service cannot be made. The SC said that the sheriff must exercise due diligence in the service of summons personally to the defendant. Resort to substituted service must be justified in court by the sheriff.
The defendant must bring to the court’s attention the improper way of service of summons otherwise the court will presume the regularity of the service. So, in case of default, the defendant cannot capitalize on the irregularity of the service. Even if it was served irregularly but the defendant somehow heard of the case filed against him, then he should file a motion to dismiss on the ground that the court has no jurisdiction over his person. But if he just kept silent, he can no longer capitalize on it.
In cases where the summons served was without an attached complaint, the defendant should bring such irregularity to the attention of the court or he should go to court and ask for the complaint and answer it. He should not be allowed to defeat the legal proceeding.
The sheriff served the summons to the wrong address but the name of the person was the same. The defendant was not informed of the case against him. Is there a valid service of summons?
It is where the constitutional guarantee on due process must come in: all the proceedings are null and void. This is an example of defective service rendering the whole legal procedure null and void.
When personal service cannot be done within reasonable time and there is a necessity to serve it, substituted service may be availed of. You must see whether substituted service has deprived the party to due process or if it violated the due process clause.
The sheriff was about to serve the summons on the defendant and was informed that the defendant has gone to the market. The brother, who was there visiting him, met the sheriff and signed the summons. Was the service properly done?
The fact that the defendant was in the market was no reason for the sheriff to resort to substituted service. The sheriff must diligently serve the summons personally. The service was defective because it was done on a person not living there even if he is a brother. But it does not follow that the defendant can escape liability because it is presumed that his brother will give it to him. Unless it has not been explained why he did not receive it, he is bound by that service whether or not the defendant learned of the case filed against him.
By Publication
Valid only in actions in rem and quasi in rem. If the action is purely in personam, service by publication is not valid. It is allowed when a defendant, although a resident of the Philippines, his whereabouts is unknown, his place of business is unknown, address is unknown, or they moved out. It is also applicable if the defendant is a non-resident of the Philippines. Service by publication is always with prior leave of court.
When is it applicable?
Applicable in the following circumstances:
1) The action affects the personal status of the plaintiff.
2) Relates to or subject of which is property in the Philippines (real or personal) in which the defendant has claim, lien or interest, actual or contingent.
3) In which the relief demanded consists wholly or in part, in excluding the defendant from any interest therein.
4) Property of the defendant has been attached in the Philippines.
Personal service may be done to non-residents but with prior leave of court by someone going to his country and the court may deputize such person.
To obtain leave of court, one files a petition and the movant must state the reason why service by publication must be done. It must be certified. If the petitions has merit, the leave will be granted. The court order on leave must be published together with the summons by sending it thru registered mail to the last known address of the defendant.
If the defendant is a resident of the Philippines but is temporarily out of the country, the plaintiff must file a petition to allow him to the service of summons by publication.
Action in personam
It is an action against a person on the basis of his personal liability.
The technical object of the suit is to establish a claim against some particular person, with a judgment which generally, in theory, binds his body, or to bar some individual claim or objection, so that only certain persons are entitled to be heard in defense. (Herrera)
The action is against the thing itself. The status affect the whole world.
An annulment of marriage is an action affecting the civil status. The res is the relation between the parties or their marriage. A court has jurisdiction over the res provided at least one of the parties is domiciled in, or is a national of, the forum. (Herrera)
Not necessarily the subject matter is real property. If the judgment rendered would be binding against all those who will be found in such a property.
Cadastral proceedings. It is binding against the whole world.
But if the judgment will only bind his dependents and privies but not third persons, i.e. ejectment, it is a personal action even if the subject is a real property.
Action quasi in rem
The proceedings which are not strictly and purely in rem but are brought against a defendant personally although the real object is to deal with a particular property or subject it to the discharge of claim asserted therein. Jurisdiction over the person of the defendant is not necessary. (Herrera)
An action intended to exclude a non-resident defendant from any interest in property located in the Philippines. It is binding against the property of the defendant and against all those who has a claim on such property.
However, an action for a writ of attachment, though it is action quasi in rem, becomes a personal action the moment the defendant appears because the judgment is against the defendant.
If the defendant is an association without juridical personality, summons should be served to the managing officer or partners.
If the defendant is a corporation without juridical personality, distinguish if local or foreign.
If local or a foreign corporation licensed to do business in the Philippines, serve it to the president of the company or the company secretary or treasurer or to the in-house counsel of the company. Service must be done in succession.
If the summons were served on the private secretary, it will bind the president of the company because the presumption is that, his secretary gave the summons to him. It will bind the defendant for as long as he learned of the case filed against him.
If the defendant is a foreign corporation not licensed to do business here, summons shall be served upon the government official in the office charged with the supervision of such kind of foreign corporation who will then inform the defendant if the case file against him or their resident agent here.
Offshore banks; superintendent of banks of Central Bank.
If the defendant is a prisoner, summons shall be served upon the officer having supervision or management over such penal institution but such head is deputized to serve the summons.
If the defendants is a minor or an incompetent person, summons shall be served to his father or mother or in their default, to their guardian, or guardian ad litem in whom the plaintiff must provide (plaintiff appeals for his appointment) in order for the case to proceed.
Even if the defendant is insane, summons must be served to him not only to his guardian or supervisor in the mental institution wherein he is confined.
If the defendant is the Republic of the Philippines, the summons must be served upon the Solicitor General.
If the defendant is a political subdivision, summons shall be served upon the executive head thereof. For other political subdivisions, upon public officer designated by the court.
If the defendant informed the court that he will be leaving the country, the service is valid. So even if his summons was served defectively, he can’t question the jurisdiction after voluntary appearance, any question on jurisdiction of the court is precluded.

Thursday, February 16, 2006

Can The President Be Insane

On the lighter side

1. Follow them around the hauz everywhere they go.
2. Pluck sum1s hair out and shout DNA!
3. Always praise PGMA when you see her in TV.
4. Moo when they say ur name.
5. Talk to them in ur littlest voice and say u r Sto. Nino.
6. Have 3 imaginary friends that u talk to all d time.
7. Cry while watching Eat Bulaga.
8. At everything they say, shout LIAR!
9. Do not take a bath or brush ur teeth for one week.
10. Hold their hands and whisper to them “I see dead people”.
On the serious side
Insanity of a person is one topic that is covered by almost all subjects in the bar.
In criminal law, insanity exempts a person from any criminal liability Insanity here means that the accused must be completely deprived of discernment and freedom of will. It must exist as of the time of the commission of the offense, or the accused must have been deranged even prior thereto, provided he was not in a state of lucid interval when he committed the crime, otherwise he will be criminally responsible.
In civil law, an insane person cannot enter into any contract because he cannot give consent. In fact, if one party is insane the contract is voidable and if both parties are insane, the contract is unenforceable. Further, insane person cannot be married because they do not have legal capacity to enter into a contract of marriage. Moreover, if such insanity manifests after marriage, annulment of marriage may be filed based on psychological incapacity.
Remedial Law has special proceedings, Rules 92 to 97, for the appointment of a guardian for the person and estate of such person for the purpose of protecting the person and estate of the insane. There is also Rule 101 prescribing procedures for hospitalization of insane persons for the purpose of protecting the community at large and in the nature of police regulations.
In Taxation, if a taxpayer’s child is insane, then it follows that such insane person is incapable of supporting himself; therefore such insane child can qualify as a dependent.
In Labor Law, handicapped workers are those whose earning capacity is impaired by age or physical or mental deficiency or injury. If you can relate mental deficiency with insanity, then an insane person can be a handicapped worker, although it is a scary thought that you are working with a person who has an unstable mind.
In Legal Ethics, of course there is no doubt that an insane person cannot be admitted to the BAR and if a lawyer becomes insane, then he shall be disbarred because he is no longer fit to practice law.
How about in Political Law? Can an insane person run for public office?Tell me.

Wednesday, February 15, 2006

The Sweetheart Theory

Since today is Valentines Day, love is definitely in the air. And since there is love, passion is not too far behind. Careful, careful – if things passionately blow out of proportion – someone might cry RAPE.
There are a few available defenses to a rape charge: The rape never happened; it happened, but someone else committed the crime; or it wasn't rape, but consensual sex.
The latter defense is what is known as “The Sweetheart Theory”. “A Sweetheart Theory” as an affirmative defense must be established by convincing proof. The defendant must present any credible evidence to prove the supposed intimate relations between the two of them such as love letters, gifts etc. The burden of proof is on the defendant to prove that he and the victim are sweethearts, otherwise such defense shall be considered as purely self-serving and carries no evidentiary weight at all.
For the latest SC decision on sweetheart theory, click here.

Tuesday, February 14, 2006

The Warehouse Receipts Law

A warehouse receipt is a written acknowledgement by a warehouseman that he has received and held certain goods therein described in store for the person to whom it is issued.

A warehouseman is the person lawfully engaged in the business of storing goods for compensation for such service.

To whom Delivered:
Upon demand made by the holder of the recipt or depositor provided such demand is accompanied by:
1. an offer to satisfy WHMan's lien;
2. an offer to surrender receipt; and
3. a readiness and willingness to sign. (Sec. 8)

Negotiable - if deliverable to order or to bearer;
Non-negotiable - if deliverable to a specified person. It must be stamped, otherwise warehouseman is liable to person believing it to be negotiable.

Conflicting Claims - remedy of a warehouseman is to file an action for interpleader.

Warehouseman's Lien - this is effective on the goods deposited which operates as a retaining lien until his charges are paid. The lien is lost (a) by surrender of goods, and (b) refusal to deliver goods when demand is proper.

Remedies Available to WHMan to Enforce his WHMan's Lien:

1. To refuse to deliver the goods until his lien is satisfied.

2. To sell the goods and apply the proceeds thereof to the value of the lien.

3. To institute an action for collection judicially.

Lawful Reasons or Justifications for a WHMan's refusal to Deliver the Goods:

1. The conditions prescribed in Sec. 8 of Art. 2137 was not satisfied by the holder of the receipt.

2. The WHMan has legal title in himself on the goods either through transfer or satisfaction of WHMan's lien.

3. The WHMan has legally set-up the title or right of third persons as lawful defense for non-delivery of goods.

4. The WHMan has a lien valid against the person claiming the goods.

5. The failure was not due to any fault on the part of the WHMan such as calamity and fortuitoud event.

Distinction between Negotiable Instrument and Negotiable Warehouse Receipt

1. as to alteration - NI becomes null and void while NWR is still valid but enforceable only in accordance with its original tenor.

2. if originally payable to bearer - in NI it will always remain payable to bearer reagrdless of the way it is endorsed, whether specially or in blank while in NWR if it is payable to bearer endorsed specially, it will be converted into receipt deliverable to order and can only be negotiated further by indorsement and delivery.

3. as to rights of holder - in NI, a holder in due course may be able to obtain the title better than which the party negotiated the instrument to him had, while in NWR, the endorsee, even if holder in due course, obtains only such title as the person negotiating had over the goods.

Saturday, February 11, 2006

29 Thing You Should Know About Transportation Law

1. Contract of Transportation - contract whereby a certain person or association of persons obligate themselves to transport persons, things, news, from one place to another for a fixed price

2. Parties to the Contract of Transportation:
a. Shipper - one who gives rise to the contract of transportation by agreeing to deliver the things or news to be transported, or to present his own person or those of other or others in the case of transportation of passengers
b. Carrier/Conductor - one who binds himself to transport persons, things, or news, as the case may be, or one employed in or engaged in the business of carrying goods for others for hire

3. Common Carrier - person, corporation, firm, association engaged in the business of carrying or transporting passengers, goods or both, by land, water, air, for compensation, offering services to the public; must exercise extraordinary diligence

Private Carrier - not engaged in the business of carrying; no public employment; undertakes to deliver goods/passengers for compensation; requires only ordinary diligence

4. Requisites of Caso Fortuito
a. event independent of human will
b. occurrence makes it impossible for debtor to perform in normal manner
c. debtor free from aggravation/participation
d. impossible to foresee or avoid

5. Contributory negligence does not entitle passengers to recover moral/exemplary damages.

6. Bill of Lading - written acknowledgment of receipt of goods and agreement to transport them to a specific place to a person named or his carrier
It is not indispensable to the creation of a contract of carriage. The contract itself arises from the moment goods are delivered by shipper to carrier and the carrier agrees to carry them.
The function of the Bill of Lading: the legal basis of the contract between the shipper and carrier shall be the bills of lading, by the contents of which all disputes which may arise with regard to their execution and fulfillment shall be decided, no exceptions being admissible other than forgery or material errors in the drafting thereof.
Carrier’s responsibility starts from the moment he receives unconditionally the merchandise personally or through an agent and lasts until he delivers them actually or constructively to the consignee or his agent.
Mere delay in the delivery of goods to consignee does not give right to refuse goods - only breach of contract, ergo damages. If delay is unreasonable, then he may refuse to accept and make carrier liable for conversion.

7. Vessels - those engaged in navigation, whether coastwise or on the high seas, including floating docks, pontoons, dredges, scows and any other floating apparatus destined for the services of the industry or maritime commerce

8. Persons Participating in Maritime Commerce:
a. ship owner and/or ship agent
b. captain or master
c. other officers of the vessel
d. supercargo

9. Liability of Ship owners and Ship agents:
a. civil liability for the acts of the captain
b. civil liability for contracts entered into by the captain to repair, equip and provision the vessel, provided that the amount claimed was invested for the benefit of the vessel
c. civil liability for indemnities in favor of 3rd persons which may arise from the conduct of the captain in the care of the goods which the vessel carried, as well as for the safety of the passengers transported
· Ship owner/ship agent not liable for the obligations contracted by the captain if the latter exceeds his powers and privileges inherent in his position of those which may have been conferred upon him by the former. However, if the amount claimed were made use of for the benefit of the vessel, the ship owner or ship agent is liable.

10. Doctrine of Limited Liability - liability of shipowners is limited to amount of interest in said vessel because of the real and hypothecary nature of maritime law such that where the vessel is entirely lost, the obligation is extinguished.
Exceptions: (1) vessel is not abandoned
(2) claims under workmen’s compensation
(3) injury/damage due to shipowner’s fault
(4) vessel is insured
· The doctrine also applies for claims due to death or injuries to passengers, aside from claims for goods.
· In abandoning the vessel, there is no procedure to be followed. There is neither a prescriptive period within which the ship owner can make the abandonment. He may do so for so long as he is not estopped from invoking the same or do acts inconsistent with abandonment.

11. Roles of the Captain:
a. general agent of the ship owner
b. technical director of the vessels
c. represents the government of the country under whose flag he navigates

12. Loan on Bottomry - made by shipowner/ship agent guaranteed by vessel itself, repayable upon arrival at destination

13. Loan In Respondentia - taken on security of the cargo repayable upon the safe arrival at cargo destination

14. Accidents and Damages in Maritime Commerce:
a. Averages
b. Arrivals Under Stress
c. Collisions
d. Shipwrecks

15. Average:
a. all extraordinary or accidental expenses which may be incurred during the voyage for the preservation of the vessel or cargo or both
b. all damages or deterioration which the vessel may suffer from the time it puts to sea at the port of departure until it casts anchor at the port of destination, and those suffered by the merchandise from the time they are loaded in the port of shipment until they are unloaded in the port of their consignment

16. Simple Average - expenses/damages caused to the vessel/cargo not inured to common benefit and profit of all the persons interested in the vessel and her cargo; borne by respective owners

17. General Average - expenses/damages deliberately caused in order to save the vessel, its cargo or both from a real and known risk
a. deliberately incurred
b. intended to save vessel and cargo or both
c. from real and known risk
d. there is success

18. Formalities for Incurring Gross Average:
a. there must be an assembly of the sailing mate and other officers with the captain including those with interests in the cargo
b. there must be a resolution of the captain
c. the resolution shall be entered in the log book, with the reasons and motives and the votes for and against the resolution
d. the minutes shall be signed by the parties
e. within 24 hours upon arrival at the first port the captain makes, he shall deliver one copy of these minutes to the maritime judicial authority thereat

19. Arrivals under Stress - arrival of the vessel at a port not of destination on account of (a) lack of provisions; (b) well-founded fear of seizure; (c) by reason of accident of the sea disabling it to navigate
When Not Lawful:
a. lack of provisions due to negligence to carry according to usage and customs
b. risk of enemy not well known or manifest
c. defect of vessel due to improper repair
d. malice, negligence, lack of foresight or skill of captain

20. Collision - impact of 2 vessels both of which are moving

21. Allision - striking of a moving vessel against one that is stationary

22. Cases of Collision:
a. due to the fault, negligence or lack of skill of the captain, sailing mate or the complement of the vessel - ship owner liable for the losses and damages (Culpable Fault)
b. due to fortuitous event or force majeure - each vessel and its cargo shall bear its own damages (Fortuitous)
c. it cannot be determined which of the 2 vessels caused the collision - each vessel shall suffer its own damages, and both shall be solidarily responsible for the losses and damages occasioned to their cargoes (Inscrutable Fault)

23. Error in Extremis - sudden movement made by a faultless vessel during the 3rd zone of collision with another vessel which is at fault, even if the said movement is wrong, no responsibility will fall on said vessel

24. Shipwreck - denotes all types of loss/ wreck of a vessel at sea either by being swallowed up by the waves, by running against another vessel or thing at sea or on coast where the vessel is rendered incapable of navigation

25. Salvage - the compensation allowed to persons by whose voluntary assistance a ship at sea or her cargo or both have been saved in whole or in part from an impending peril, or such property recovered from actual peril or loss, in cases of shipwrecks, derelict or recapture; a service which one person renders to the owner of a ship or goods by his own labor, preserving the goods or ship which the owner or those entrusted with the care of them either abandoned in distress at sea or are unable to protect and secure; a permit is required to engage in the salvage business

26. Derelict - a ship or cargo which is abandoned and deserted at sea by those who are in charge of it, without any hope of recovering it, or without any intention of returning it

27. Elements of a Valid Salvage:
a. a marine peril
b. service voluntarily rendered when not required as an existing duty or from special contract
c. success, in whole or in part, or that the services rendered contributed to such success

28. Contract of Towage - contract whereby a vessel usually motorized pulls another from one place to another for compensation. It is a contract of services.

29. Difference between Towage and Salvage:
a. crew of salvaging ship is entitled to salvage, and can look to the salvaged vessel for its share
while crew of the towing ship does not have any interest or rights with the remuneration pursuant to the contract;
b. a salvor takes possession and may retain possession until he is paid while a tower has no possessory lien; only an action for recovery of sum of money
c. in towage the court has power to reduce the amount of remuneration if unconscionable while in salvage, court has no power to change amount in towage even if unconscionable.

Friday, February 10, 2006

Securities with The La Vida Lawyer

One of the subjects I took-up when I was still in Junior Year was Securities. My professor then was Atty. Aceron of the La Vida Lawyer Blog. He actually introduced me to the world of blogging. Our subject with him even has its securities where we interact.

One of the interesting interactions we had that earned us an open book exam is reposted here:

The Question

Having studied Philippine Securities Law, what do you think are the legal issues that need to be addressed when foreign securities are issued and traded in the Philipines?

My Answer

Sir, I think the following are the legal issues that need to be addressed if we allow foreign securities to be issued and traded in the Philippines. I have also bravely included herein possible solutions and recommendations to resolve such issues:
1. The relationship between our sovereignty and the global market.
This basically involves the question of who has jurisdiction over cases involving securities fraud and insider trading and manipulations. The ability to enforce our law within our own borders has always been the concept of our very own sovereignty, and such power in securities cases is vested in our regulatory agencies such as SEC and the law enforcement authorities. Foreign issuers, however also has their own securities law that governs/regulates their issuances in foreign markets.
Therefore, conflict as to governing law as well as jurisdiction over such cases shall arise.
Possible Solutions:
Cooperation between our laws and the foreign laws. – The very essence of securities law is the protection of investors and the public, therefore, foreign securities regulators must cooperate with our local authorities in order to harmonize both securities laws.This can be best exemplified in a case decided by the Supreme Court of Canada on the question of a Canadian national doing unregistered transactions in the United States securities market.
In the case of British Columbia Securities Commission vs. Global Securities Corp, a Canadian broker-dealer suspected of soliciting US investors while not being registered with the US SEC challenged the subpoena issued by the British Columbia Securities Commission (BCSC), who acted upon US SEC’s request, arguing that assistance of BCSC to US SEC violated Canada’s Constitution by making the BCSC an enforcer of a foreign government’s law. The Supreme Court of Canada rejected this argument and held that the British Columbia Securities Act permitting information-sharing was constitutional because the “pith and substance of the provision in question is the enforcement of British Columbia’s securities law.” The Court continued, “The statute’s dominant purpose is the enforcement of domestic securities law, both by obtaining reciprocal assistance from foreign regulators, and by discovering foreign securities law violations by domestic registrants.
I believe that if US and Canada reciprocated for the mutual protection of investors, then our country can also do that to foreign securities issuers.
2. The lack of relevant securities laws applicable to foreign security issuers.
While our Securities and Regulations Code are basically patterned from foreign securities code (particularly the US SRC), I find it ironic that there are no specific laws or provisions therein regulating the entry of foreign securities issuers. Rule 144A (Regulation S) of the US SRC makes it clear that both foreign and domestic issuers were encouraged to raise capital in the United States. Regulation S provides detailed guidelines to companies offering securities offshore on how to structure these offerings so that they will be deemed to take place solely outside the United States. Such provisions however are absent in our own Securities Regulation Code.
Possible Solutions:
Since our country’s participation in the international capital markets is inevitable, our legislature must pass laws applicable not only to the entry of foreign security issuers but also our entry to other foreign securities markets.
Sir, since we are confined on the issue of legality, I think that those are the primary issues that must be addressed. However, I believe that with our present political climate, accepting issuers of foreign securities in our local market will be detrimental to our economy because I strongly believe that manipulators and insiders shall utilize this vehicle for their personal gains.

Baloy Beach

This is post of our office's field trip/excursion in Olongapo. We decided to stay overnight at Baloy Beach.

Adjacent to Barrio Barretto is Baloy Beach where there is whole range of accomodation, from budget hotel rooms in the beach bars and restaurants, holiday rooms and bungalows, mid-range hotels, and a couple of scuba dive resorts. Although predominantly budget hotels and accomodations, there is something for everyone on Baloy Beach and is gradually seeing more mid-priced hotels being developed. Baloy Beach gets a bit busy over the weekends during the school holidays and during Holy Week.

Wednesday, February 08, 2006

The Iron Curtain Rule

Article 992 of the New Civil Code prohibits absolutely a succession ab initio between the illegitimate child and the legitimate children and relatives of the father or mother of said legitimate child. They may have a natural tie of blood, but this is not recognized by law. Coz there is a presumption that there exists an antagonizing and incompatible relationship between those legitimate and illegitimate family.

Madalas natin mapanood to sa movies, yung anak sa labas ay nilalait lagi ng first family at laging sinansabi sa kanila na produkto sila ng makamundong kasalanan. Yung first family naman ay kinamumuhian usually ng mga anak sa labas kasi nga halos lahat ng pribilehiyo nasa kanila na. Kaya in order to avoid further grounds of resentment, the "Iron Curtain Rule" is applied by law.

The "Iron Curtain Rule" has consistently been applied by the court in several cases and comes up with the following rules:

1. Where the illegitimate child had half-brothers who were legitimate, the latter had no right to the former's inheritance.

2. The legitimate collateral relatives of the mother cannot succeed from her illegitimate child.

3. A natural child cannot represent his natural father in the succession to the estate of the legitimate grandparents.

4. A natural daughter cannot succeed to the estate of her deceased uncle who is a legitimate brother of her natural father.

5. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father.

And so the battle continues...

Tuesday, February 07, 2006


The prisoner so maltreated must be a prisoner in the legal sense, one who is already booked and not merely one who is detained. In other words, the booking sheet and arrest report must have already been fully accomplished, indicating that the subject is already an accountability of the government.

So if the maltreatment was committed before the booking sheet and arrest report was accomplished, there is no crime of maltreatment of prisoner, but only physical injuries, or coercion as the case may be.

The crime can only be committed by those entrusted with the handling of prisoner who “overdo” themselves in disciplining prisoners. It is not really necessary that the prisoners suffer some form of injuries. If injuries were suffered, a separate accusation for the physical injuries suffered aside from the crime of maltreatment of prisoner shall be incurred by public officer liable therefore. IOW, the 2 crimes should not be complexed in one Information only.
The mere handling of prisoner not authorize by the prison rules and regulation would bring about the crime, even without the prisoner suffering from any injury or maltreatment, like hanging a placard on the neck of the prisoner for the public to see the writing on the placard which says, “ Look at his face. This is the face of a rapist.” That is maltreatment of prisoner if the prisoner is already booked and made an accountability of the government. Otherwise, the crime will only be one of libel against the person of the prisoner.

Monday, February 06, 2006


Damage caused to the public is a requisite for the crime of ICPR. The custody must be one conferred by law, and not just a temporary or transient custody.

Where the infidelity consists of destroying, concealing, or removing public document on where it should be, crime of infidelity will be incurred when damage is caused to the public interest involved in the document. Where however the infidelity consists of opening sealed documents or closed documents, even without material damage, the crime shall be incurred by the custodian. The implication is that: WHEN a document before being entrusted to the custodian was sealed or enclosed, the custodian should not allow anyone to discover what the document contains. So if the seal of the closed document or the envelope thereof has been opened, indication that somebody learned of the content of the document, that will be enough to constitute infidelity on the part of the custodian. So damage is not necessary to be proved anymore.

Demurrer to Evidence

Demurrer to evidence is available only after the plaintiff completed his presentation of evidence and have rested his case in chief. The defendant, instead of answering, may file demurrer to evidence because the evidence presented by the plaintiff is not sufficient to warrant relief in point of fact and in point of law.

Friday, February 03, 2006


JOSE L. GARCIA et al. vs.
G.R. No. 110518 August 1, 1994


NASECO is a government-owned or controlled corporation engaged in providing manpower services such as security guards, radio operators, janitors and clerks, principally for the Philippine National Bank. The petitioners were its employees who were either members of the NASECO Employees Union (NASECO - EU) or of the Alliance of Concerned Workers of NASECO (ACW - NASECO). On November 19, 1988, they were among those who staged a strike and picketed the premises of the PNB.

PNB filed a complaint for damages with preliminary injunction against the labor unions with the Regional Trial Court of Manila for which the court granted the application for a preliminary injunction and issued the writ ordering the lifting of the picket.

NASECO also filed a petition with the NLRC to declare the strike illegal. The NLRC rendered its decision sustaining NASECO. The union officers who knowingly and actively participated in the strike, as well as the members of the respondent union who committed illegal acts in the course of the strike, were deemed to have legally lost their employment status. The rest of the striking members, including the herein fifty-one petitioners, were ordered to report for work immediately.

The complaint of the labor union against the PNB for unfair labor practice and illegal lockout was dismissed on the ground that there was no employer-employee relationship between the PNB and the labor unions.

The petitioners reported for work at the NASECO office but they could not be given assignments because the PNB had meanwhile contracted with another company to fill the positions formerly held by the petitioners. NASECO inquired from the PNB whether or not the petitioners could still be accepted to their former positions but the PNB in its reply manifested that it was no longer accepting the petitioners back to their former positions as these were no longer vacant.

NASECO then sought new assignments for the petitioners with its other clients, but the petitioners insisted on their reassignment to the PNB. In the meantime, starting April 1, 1989, NASECO paid the salaries and other benefits of the petitioners although they were not actually working.

Thereafter, the petitioners received notice of separation from NASECO, the reason given was the financial losses NASECO was incurring at that time due mainly to the salaries being paid to the employees who could not be posted despite efforts to place them. Conformably to Art. 283 of the Labor Code, the Department of Labor and Employment was likewise given a 30-day notice of the intended retrenchment.

The petitioners refused to acknowledge receipt of the notice and instead, on October 26, 1989, filed with NLRC a complaint against NASECO for unfair labor practice, illegal dismissal, non-payment of wages and damages. The Labor Arbiter rendered a decision finding that the petitioners had been "fairly discharged by the respondent (NASECO) in a valid act of simple retrenchment." The petitioners appealed to the NLRC but the NLRC issued a resolution affirming the decision of the labor arbiter. A motion for reconsideration filed by the petitioners was likewise denied. The petitioners then appealed the case via petition for certiorari to the Supreme Court.


The main issue before the Court in this petition for certiorari is whether the retrenchment of the fifty-one petitioners by private respondent National Service Corporation as upheld by the Labor Arbiter and later by the National Labor Relations Commission is valid.


The Supreme Court ruled in favor of the respondents and affirmed with modification the decision of the NLRC. The SC held that the requisites for a valid retrenchment are: 1) the losses expected should be substantial and not merely de minimis in extent; 2) the substantial losses apprehended must be reasonably imminent; 3) the retrenchment must be reasonably necessary and likely to effectively prevent the expected losses; and 4) the alleged losses, if already incurred, and the expected imminent losses sought to be forestalled, must be proved by sufficient and convincing evidence. The losses incurred by NASECO for the year 1989 amounted to P1,457,700.42 and were adequately proved by it. These losses were directly caused by the salaries and other benefits paid to the petitioners during the period from April 1 to December 31, 1989. The amount of these payments is not insubstantial in light of the economic difficulties of the country during that year when several coups d' etat adversely affected the nation's economic growth.
The constitutional policy of providing full protection to labor is not intended to oppress or destroy management. The employer cannot be compelled to retain employees it no longer needs, to be paid for work unreasonably refused and not actually performed. NASECO bent over backward and exerted every effort to help the petitioners look for other work, postponed the effective date of their separation, and offered them a generous termination pay package. The unflagging commitment of this Court to the cause of labor will not prevent us from sustaining the employer when it is in the right, as in this case.

Thursday, February 02, 2006


G.R. No. 96169 September 24, 1991


On October 15, 1990, the Regional Board of the National Capital Region issued Wage Order No. NCR-01, increasing the minimum wage by P17.00 daily in the National Capital Region. The Trade Union Congress of the Philippines (TUCP) moved for reconsideration; so did the Personnel Management Association of the Philippines (PMAP). ECOP opposed.

On October 23, 1990, the Board issued Wage Order No. NCR01-A, amending Wage Order No. NCR-01. It provides that all workers and employees in the private sector in the National Capital Region already receiving wages above the statutory minimum wage rates up to one hundred and twenty-five pesos (P125.00) per day shall also receive an increase of seventeen pesos (P17.00) per day.

ECOP appealed to the National Wages and Productivity Commission contending that the board's grant of an "across-the-board" wage increase to workers already being paid more than existing minimum wage rates (up to P125.00 a day) as an alleged excess of authority. ECOP further alleges that under the Republic Act No. 6727, the boards may only prescribe "minimum wages," not determine "salary ceilings." ECOP likewise claims that Republic Act No. 6727 is meant to promote collective bargaining as the primary mode of settling wages, and in its opinion, the boards can not preempt collective bargaining agreements by establishing ceilings.

On November 6, 1990, the Commission promulgated an Order, dismissing the appeal for lack of merit. On November 14, 1990, the Commission denied reconsideration. ECOP then, elevated the case via petition for review on certiorari to the Supreme Court.


The main issue in this case is whether Wage Order No. NCR-01-A providing for new wage rates, as well as authorizing various Regional Tripartite Wages and Productivity Boards to prescribe minimum wage rates for all workers in the various regions, and for a National Wages and Productivity Commission to review, among other functions, wage levels determined by the boards is valid.


The Supreme Court ruled in favor of the National Wages and Productivity Commission and Regional Tripartite Wages and Productivity Board-NCR, Trade Union Congress of the Philippines and denied the petition of ECOP.

The Supreme Court held that Republic Act No. 6727 was intended to rationalize wages, first, by providing for full-time boards to police wages round-the-clock, and second, by giving the boards enough powers to achieve this objective. The Court is of the opinion that Congress meant the boards to be creative in resolving the annual question of wages without labor and management knocking on the legislature's door at every turn.
The Court's opinion is that if Republic No. 6727 intended the boards alone to set floor wages, the Act would have no need for a board but an accountant to keep track of the latest consumer price index, or better, would have Congress done it as the need arises, as the legislature, prior to the Act, has done so for years. The fact of the matter is that the Act sought a "thinking" group of men and women bound by statutory standards. The Court is not convinced that the Regional Board of the National Capital Region, in decreeing an across-the-board hike, performed an unlawful act of legislation. It is true that wage-firing, like rate-fixing, constitutes an act Congress; it is also true, however, that Congress may delegate the power to fix rates provided that, as in all delegations cases, Congress leaves sufficient standards. As this Court has indicated, it is impressed that the above-quoted standards are sufficient, and in the light of the floor-wage method's failure, the Court believes that the Commission correctly upheld the Regional Board of the National Capital Region.

Reserva Troncal

There are two topics in the succession class that we find most confusing. First is the Iron Curtain Rule and second is the reserva troncal. Since the latter topic is still fresh from my mind (courtesy of Judge Arenas) I will post it here.

The parties:
1) Origin - the ascendant, brother or sister from whom the propositus acquired the property by gratuitous title.
2) Propositus - the descendant from whom the reservista acquired the property by operation of law.
3) Reservista - the ascendant of the propostus who acquired the property by operation of law. He is under obligation to reserve the property.
4) Reservatarios - relatives of the propositus who are within the third degree and who belong to the line from which the property came from and for whose benefit the reservation is constituted.

Reserva Troncal may involve three deaths:
1st - The death of the origin - transfers the reserva to the propositus by gratuitous title (donation, transmission, succession).
2nd - The death of the propositus - transfers the reserva to the reservista. (The propositus should have no issue of descendants.)
3rd - The death of the reservatarios - transfers the property to the reservatarios.

May the reservista sell the reserva?
Yes, subject to resolutory condition. In fact, the contract is rescissible.

Suppose there is no reservatarios?
The reserva shall be released and will follow regular order of succession.

Is the right of representation applicable in reserva troncal?

Question of the Day
Can the reservista execute a will disposing of the reservable property? Why?

Wednesday, February 01, 2006

Johor Side Trip

Wanting to have another country stamped in our passports. Our group decided to have a side trip to Johor, Malaysia which is just about an hour's bus drive from Singapore. A large bridge separates Singapore from Johor but there is a very large discrepancy when it comes to the environment. We love Singapore for its clean air and manicured parks and street. On the contrast, Johor is similar to Manila - cluttered and with lots of beggars lined-up on the streets.

After spending about an hour in immigration, the group headed to a Muslim mosque to observe how the Malays pray. Then, we headed to a local community there where we had the chance to mingle with locals and visit their houses similar to our own nipa hut.

We spent only few hours in Johor and headed back to Singapore on that same day. I haven't brought my digital cam so I have no pics to share. However, this picture of a house from the flicker site of Xhaniff is similar to the house we have visited.

Photo from Xhaniff.