Memorandum of the Code Commission (Continued from January Issue).pdf

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extracted text: MEMORANDUM OF THE CODE COMMISSION <Continued from tlte JIM1w1·y Jssu.e ) ARTICLE 522-Justice Reyes proposes that the words "after judicial summons" should be eliminated, because ra possessor, originally in good fa.ith, may become aware of the unlawfulness of his possession even before judicial summons, and if he persists in holding out against the person legally entitled to the possession, he should be liable for t he deterioration or loss. of .the thing. The reason for adding the words "after judicial summons" is hased on the following opinions of Manrcsa: "x x x. El art:'457 solo ticne en esta parte una cxplicacion posible, El Codigo llama poseedor de buena fe al que la ha tenido hasta el momenta ciel litigio, aun suponiendo que por la citacion picrda ese caracter, cosa discustible: sigue llamandole poseedor de buena fe para distinguirle de que siempre la tuvo mala o laperdio anteriormente. El art. 457 se refiere a ese poseedor de buena fe, que, ante el despecho o la con conviccion de 'pedder lo que se habia acostumbrado a mirar como suyo, intencionalment.e destruye la cosa, la oculta, deteriora, etcetera, en el periodo que media desdc la citacion ~asta la entrega, .cuando ya puede sostener~c que se poseedor de mala fe. Al~una. razon hay, porfue esta mala fe dudosa es obra de una ficcion, pues, en rca.lidad, hasta que la senteneia se hace firme, cl poseedor pued~ sequir creyendo que la cosa es suya; ta.I vez por eso solo pena el art. 457 en, ese caso, al dolo, la intencion injusta, el proposito de perjudicar." ARTICLE 562---Justice Reyes states that the description of "usufruct11 misses two fundamental characteristics, namely; that it is a real right, and that it is of temporary duration. These qualities are perfectly well-knowil and understood. At any rate, they are more properly to be dealt with in a treatise and not in a civil code. The emphasizing of the form and substance, which is also done in Art. 467 of the old Civil Code, is necessary because the usufructua.ry in the enjoyment of the property right go so far as to impair the form and substance of the thing. This abuse is all too frequent. TherefoL·e, rt is necessary to make an express limitation to that effect. Of course, title or the law may dispense with this condition, and so a statement to that effect " is made in this article. ARTICLE 587-Justice Reyes states that by translating "caucion juratoria" as me?·ely a promise under oath, .the idea of the Code of 1889 is left truncat~ and unintelligible. It beina- eYident that this Art. 587 h~s been taken from Art. 495 of the old Civil Code, and inasmuch as the "caucion juratoria" has a historic and established meaning in .. connection with said S:)UrcP <Art. 495 of the old Code) , then~· is no need of stating in detail the meaniD.g the promise under oath. ARTICLE 611-Justice Reyes suggests that this article be a_ mended to provide expressly that "successit·e usufructs shall not exceed the limits fixed by Art. 863." · Although the amendment is not absolutely nccesSary because, as Manresa says, a. successive usufruct "casi exclusivamente se constituye por ultima voluntad" and therefore the limitations fixed by Art. 863 in almost all cases of successive lisufruct applies, and although the principle of Art. 863 is applicable by analogy in cases of successive usufructs ~reated inter vivos, nevertheless for purposes of clarification in the rnre cases of successive usufruct created inter vivos, th<' proposal of Justice Reyes is accepted by the Code Commission. ARTICLE 613---Justice Reyes proposes that in lieu of "immoYable," th~ term should be "immovable estate." The proposed amendment would not improve the wording, if such improvement is necesPAY YOUR INCOME. . . <Continued froin J)(iye !:13> informed that the inventory list as required be filed within t hirty (30) days ·after the close of the taxable period of the taxpayer. With reference to the granting of extensions of time within which to file income tax returns, the general public is also informed that t he Bureau is· adopting a strict policy on such extensions· and only in meritorious case will such extensions be granted. The reques~ for extensions shall be filed directly with the Chief of the Income Tax . Division in duplicate and the approval sary, but no improvement or change is necessary because it is selfevident that an .. immovable" by destination, such as ma.chinery or, by a nalogy. like real rights over immovable property, can not bP. dominant or servient estates. 1 ARTICLE 621---Justice Reyes thinks that the words "forbade, hy an instrument a~knowledged befo1;e a notary public" ir& unpleasa.ntly vague. He says that, in the first place, it gives no clear idea of the content of the instrument to be notarized. Our comment is that the rest of the sentence under discussion clearly shows the content of the instrument. The whole sentence says, "x x x from the day on which the owner of the domiuant estate forbade, by an instrument acknowledged before a notary public, the owner of the servient estate, from executing au act which would be lawful witlwut easement." Furthermore, J us ti cc Reyes asks, "How is the servient to know <lf the prohibition?" He, therefore, suggests that document must be served upon the owner of the servient estate. Our observation is that there ·is no necessity for any exprrss provisi6n that the instrument should be served because the words .. the owner of the dominan" t estate forbade" perforce. require that the instrument be served. How can it be .reasonably conceived that there could be a prohibition unless it is conveyed to the owner of the . .servient estate? ARTICLE 624---Justice Reyes i:ecommends that the word "continued" on line 4 should read .. be exercised." His J"eason is that while both estates belong to the same owner, there can be no easement. It is true, strictly speaking, that there is no easement under Art. 613, which requires that there be two owners. However, this is a special kind of an easement which is created by a special situ&tion. ]t will be noted, in this connection, that the first two lines of Art. 624 refer to "the existence of an apparent sign of easement between twu c11tates established or maintained by the owneL: of both." There is no intention in. t he Article to imply that an ordinary easement exists, because it is expressly stated that the easement is bet1veen the two !:!Slate; cstablishd or maintained by the owner of both . . Therefore, the Code Commission tfocs not agree with the proposed amendment. ARTICLE.G26--Justice Reyes makes these observetions: "Why limit the easement to the tenement (not immovable, see comment ~ GlS) originally contemplated? So fong as the burden is not increased <as it is pro'hib1ted by Art. 627) what does it matter that the domina~t estate is enlarged·?" As already stated, the article under consideration is not taken from any provision of the old Civil Code. It does not apply to a case where, for example, in an easement of right of way, the doniinan estates is enlarged. It is an embodiment of the following observations by Manresa: "Solo pucdc usarse la servidumbrc pa.ra utilidad del predio o de la parte de predio en cuyo favot· fue establi:cida, y en el mod<1 Y forma que resulte del tit.ulo, de la costumbre en el caso de poSC'Sivn y .prescripcion, cua:1do esta sea admisiable, o de fa lcy quP. limita la servidumbre a lo estrictamente necesario para el destino y el conveniente uso .de! predio dominante con el menor dafio posible para el sirviente. Asi, en terminos generales, el qlle tiene de-r·echv a tomar ngiw. 7mra el riego <le to<la :m fincn o una partc ([c elfo, no piude ~le6tinorl<i ul rie110 de otra fincn o de ot1'<~ parcion." <Vol. 4, p. [J73J. ARTICLE 657- Justice Reyes :;uggests a n'<irafting of this article as follows: '" Exii;tin~ easements of right of way for the passage of an<l dii:;aJJIH·oval will be stamped on sud1 rL><1ucsts upon 1nes~11 ta tion to this Office. "The filii1i; of the IU53 4th quarterly return 011 withholding tax, f•'orm. W-1, together with the filing of the alphabetical list of t,mployees, and of Form W-3 will be on or before January 31, 1954. "The last day for fi ling of income tax returns covering all incomes earned in Hl53 is March 1, 1954. <Sgd.) SILVERIO BLAQUERA Deputy Collector of Internal Revenue" 94 THE LAWYERS JOURNAL February 28, 1!:154 livestock shall be go,·erned by the ordinances and 1·egulations relating thereto, and in the absC'nce thereof, by the usages and cust~ms of the place. ' "Whenever it is necessary to establish hereafter a compulsory easement of right of way or for a watering place for anin\3.ls, the pr<::>visions of this Section and those of Articles 640 and 641 shall be ob$ervcd. In this c<1sc the width 6hall not exceed JO meters." The Code C:.:mmission disagrc<!s with the proposal, Oecause it i.s 11eccssa1·y lo retain paragraph 2 of the at·ticlc in question, which fixes the width of animal paths and animal trails. This should be done, regardless of any historical b2ckground in Spain, because it is desirable to fix a maximum width for animal paths and animal trails, otherwise the casement, if it is loo wide, may be preju&icial to landowners. ARTICLE 668(2)-Justice Heyes states that express referen~c to Art. 621 is necessary to clarify the meaning of the phrase "formal prohibition." However, such express reference is not necessary because Justice Reyes himself says, "Obviously this means the notarial instrument provided for in Art. 621.'' ARTICLE 669-Justice Reyes states that. to impose a 30 cm. sq. limit on wi11du.vs is ••to undermine the well being of household uwners.'' Iu the first plact!, thest! al'e not. wi1 1d1Jws but mere upen?ugi; to admit light at the height of thi.l ceiling joil>tf> or immediately under the ceiling. It is very evident t hat openings at such a height, that is, immediately under the ceiling, a1·e no~ intended as windows for people to look through or get fresh air, but they are merely, as-the article itself says, "openings to admit light." In the second place, to increase the size to "not less than one meter square" would be dangeJ'ClUS because the wall where· the opening is may be just a iew inches from, (lr iu fact, it may be on the boundary line, as At t. 66:> applies only when the distances in Art. 670 are not obterved. ·<That is to say two meters for direct. views 01· 60 cm. for mdirect views.) This being the case, even if there is an iron grating ~s wtll as a wi!"e screen, it would be easy for thie\1 es and other persons criminally inclined to dcsfroy the grilles and the wire screen in order to go th!·ough the opening. which would be large enough 0 to allow a person to go through. ARTICLES 6•i9-672;· 674; 677-681·-Justice Reyes says that these articles do not rcfe1· to easements b11t to restrictio11s of the right of ownershi p and should be 11laced elsewhere. He refers to his notes to A1·t. 431. . \Ve alSQ l'efe1· to our observations under Art. 431. And also ·to our comment on Art. 1)82 and 683 immediately following. ARTICLES 682 and 683-Justice Reyes hclie"es that these articles on easement against nuisance arc improperly placed in the chapter on "Easements." However, we l>clicve that this i.<; the most logical place for these articles, for t.lu!Se reasons: I According to our comment on lhe 11roJJ01>ed amendment to Arl. 431, no sc11a1·ate chaph!•' on the limitations of ow11crship shuuld be incorporated in the Code. In addition to the reasons already set forth under Art. 431, 'we submit th!lt in such proposed sei)arate chapter on limite.tions to ownership, in ordc1· that it may fully serve its purpose ull the li1nitations of ownershi11 1nust be stated a11d explahied. Now, according to Sanchez Roman, there are many such limitations, and he outlines them as follows: LIMITACIONF.:S DEL DOMINIO. Cuntenido de la relacion juridica, DOMINIO POR HAZON: "I. Del dominio eminente del Estado: a. lmperio general de las !eyes. b. Mes especial y concreto de los reglamentos y ordenanzas. c. Servicios fiscales. d. Expropiacion forzosa y otras formas de utilidad pubtica. c. Scrvidumbres legales. f. Explot.acion del subsuelo. "II. De la volunt.id del transmitente: a. Por contrato. b. Por ultima voluntad. "Ill. De la propia voluntad de! dueiio. (c1·eaci011 de los rlcrechoe realcs llmitativoti de\ dominio.): a. Scrvidumbrcs: Reales. Pc1·sonales. b. Censos: .Enfilca tico. Consignativo. Reserva.t ivo. c. Hipotcca. d. Prenda. e. Superficic. f. Refracto. g . lnscl'ipcion crrendaticia. .. IV. De un conflicto de derechcs pat'ticulares: a. Los nacidos de la posesion civil. <Vol. a, p. 93) In order to make the proposed chapter .S{!l"ve a useful purpose, it would have to he drafted and developed in accordance with the foregoing outline. The result would be that p!'sctically the rest of the Code concerning casements, usufruct, mortgage, pledge, redemption iretracto) and lease recol'd, as well <is 1 msscssion, would have to come under the char)tc-r. In addition all the subjects· coming under Numbers I and II of Sanchez Roman's outline refel'ring· to the "Dominio emi11cnte de! Estado" and "la yoluntad de! transmitente" including contracts and wills would also logical!ly come within the chapter. The result would be fantastk! 2. There is nothing absolute and definitive about the propriety or impropriety of using the term .. easement." or "servitude." For example, J.fanresa clnssifies usufruct as a "servidurnbre personal"; tllen Art. S::H of the old Civil Code provides: "T&.rnbien pueden estabkcerse scrvidumbres en prnvecho de una c mas personas, o de una comunidad, a quiene;; no pel'tePCzca la finca grava'da." - 3. In English and American law, casement and nuisance a.re dealt with together. Tiedeman on Real Prnpcrly says, under the h<·ading of "Easements," <Sec. 622. p. 596): "Le9alized nuie«nces.Where on~ acquires from the owners of the land in the neighbOrhood by grant or prescription the right to do things which without such license would be a nuisance. and for which an action would lie, he is said to have acquired an <:111seme11t fo the lands lo commit the 1mi~ance, fret: frNn liability for t.l1e consequences.'' Jn the "Engliah and Empire Digest," vol. 1(), lljl. 178-179, under the subject of .. Miscellaneous Easements," we read: "By lapse _ of time, if the owner of the a.djoining tenement, which, in the case of light or wnter, is usually called the sel'vient tenement, has not resisted for twenty years, then the owner of t he dominant tenrmcnt has acquir<.!<l the right of discharging the gases or fluid, or sending smoke or noise from his tenement ove1· the tenement of his neighbor.'' ART/ CLf..S 684-687 Justice Reyes says t hese articles do .not create an casement. The 1·cmarks just submitted ure also applica.ble to these articles ott "Lateral and Subjacent Support". Jn the Ame1 ·ica11 and English law .. lateral a nd subj&eent support" is considered an easement. TiedPman on Real Pl'operty, sec. 618, pp. GVU-G!H, under the t<'pic of "Easements," says: "Right of lalerul and subj«cent supiiort. - As an incident to the right of property in lands, the proprietor cannot make excavations upon his land, which will deprive the a.djoining land of that lateral support which is necessar)' to keep it from falling in. In ihe same mannel', where there is a separate ownership in the surface, and the mines beneath, the owner 0£ the mines cannot, by working them, so weaken the subjacent suppol't to the surface as to cause it to cave in. The cases are numerous i11 which the right to lateral and subjacent support is claimed and conceded, and the general principles determine the character and limitations of both kinds of support. These arc naf'itral rights of t:asements, which arc independent of any covenant or grant." Likewise, the "English and Empire Digest," vol. 19, pp. 172-174 deals with "Easement of Support". And the same volume, r 8, quotes Lord Shclborn in one case Ums: "From the view which I take of the nature of the right to support, that it is an eas1mumt, not purely negative, capable of being granted, and also capable of being interrupted, it seems to me to follow that it must be within Prescription Act, 1832 (c, 71), S. 2, unless that section is confined to rights of way and rights of water. February 28, 1954 THE LAWYERS JOURNAL 95 l'x xx l think it Is clea.r that any such right of support to a building, or a part of a building is an easement xx x." Lastly, Sec. 801 of the California Civil Code provides: "Servi. t.udes a-ttached to land. The following land burdens, or servitudes upo11 land, may be attached to other land as incidents or a.1>purLenances, and are then called easement&: "la. xx xx the right of receiving more than natural support from adjacent. land or things affixed thereto." ARTICLE r.92 .Justice Reyes says: "An easement acquired by prescription c&n not be called voluntary, because precisely it is acquired against the will of the owner. This Article logically belongs to section 3 of Chapte~ 1 entitled 'Rights and Obligations of Owners of the Dominant And Servant Estates." This article is an exact re1iroduction of Art. 598, old Code. Attention is invited to the words "in a proper case" under Art 692. vn the first line. Suppose ''A" and "B" enter into a contract whereby "A", the owner of the dominant estate, acquires a right of way through the laiid of "B" for purposes of merely hauling crops and transporting agricultur~l implement.s, such as plows, hai·rows, etc. Later on, "A" establishes a large factory, and he uses the right of way without any authority from "B", for large trucks everyday for hauling the goods manufactured. If this unauthorized use of the. right of way continues for ten years, this ne.w method of using the right of way is acquired by prescription, under Art. C:32, although the original easement has been Cl'eated by contract and is a voluntary easement. This is the interpretation of Sanchez Roman (Vol. 3, p. 648) who, not finding Article 598 misplaced, says: "El regimen juridico por el que se gobierna el contenido de la relacion juridica de servidumbrc, cuando son de la clase de las vobmtu.rias, es el asunto de! art. 598, segun el cual ha de atenderse: primero, al titulo de su constitucion; segu11do, en su caso, a la posesion de la servidumbre adquirida por prescripcion, toda vez que, segun el art. 547, por este medio se adquiere, no solo la scrvidumbrn misma, sino la form.a de prestarla; y tercero, en .defecto de los anteriores ol'igenes, ha de atenderse a las disposiciones de! Codigo que le sean aplicables. En todos estos casos, bajo el influjo de la limitacion general de no contrariar a las leyes ni al orden publico." ARTICLE 694 (5) Justice Reyes states the hindrance or impairment of the use of the property should be qualified by expressly providing that such hindrance or impairment is not authorized, or is excessive or unreasonable or unnecessary. Such an addition would indeed be "excessive", or "unnecessary" because the word "nuisance" implies ex vi termini that it is not authorized, or is excessive, unreasonable or unnecessary. Besides, attention is invited to the following words in Art. G95: "a.lthough the extent of the annoyance, danger 01· damage upon individuals may be unequal.'' Lastly, the very words "hinders or impairs" imply that the act of the defendant is unauthorized, or is excessive, unreasonable or unnecessary, otherwise it would neither be a hindrance to, or an impairment of, the use of property. Title ix. Registry of Property Justice Reyes suggests that an article be inserted requiring the registers of deeds to keep a special book for recording of contracts of marriage settlements. Although this should be the subject of an amendment to the special laws concerning registration of property, however, for purposes of clarification, the proposed amendment is accepted. CONCLUSION The foregoing obser~ations .on the proposed amendments to Book II of the new Civil Code are respectfully submitted to the code committees of both Houses of Congress. The Code Commission earnestly hopes that said observations will be given due anr\ careful consideration not only by the committee members but also ' by th(; Congress as a whole. If t his is done, we are confolent that only those amendments will be made which have been accepted or initiated by the Code Commission. We respectfully urge that with the exceptions just mentioned, the new Civil Code be left intact for the next two years, for these reasons: 1. The legal profession needs at least two more years to meditate upon the philosophy of the reforms, most of which are very ne'v to the majority of lawyers, judges and law professors. Very few _ of the legal profession have read the new Code entirely. 2. Many of the proposed amendments stem from the natural reaction to an innovation, especially because the legal profession ail over the world is conservative. But most of these "innovations" in the new Civil Code have been derived frQm the laws of other countries which they },ave by experience understood the justice and wisdom of the provisions. 3. Other suggested changes on the new Civil Code are due to a mistaken interpretation of the article in question, as already shown in this memorandum and in the previous memoranda as well as in public hearings heretofore held before the code committees. 4. Still other recommended amendments seek to fill gaps. The existence of many gaps in a civil code is inevitable. No civil code in the world can cover all possible situations. Even the longest civil code - which is that of Argentina - ha.s not been able to forsee the numerous doubts that have arisen since its enactment in 1869. The same thing can be said of the Spanish Civil Code of 1889. It is of the nature of a civil code that is only the ha.sic private law. Details are furnished by special laws and court decisions. A legal system gradually built up by the courts upon the foundation of codes and statutes is the best and soundest type. 5. The new Civil Code of the Philippines shOuld be improved and developed as the other civil codes in the world have been improved and developed: by interpretation through judicial decisions. Such an interpretation is the wisest and most advisable because the solution comes, not from mere abstraction or theory but from reality. 6. Only a very small portion of the legal profession has coml' f.orward with proposed amendm~nts. Only two jurists have sug. gested changes. But by waiting fol' two more years, the code committees of Congress would hear from other jurists, and from the legal profession as a whole. Thus, the code committees would ha.ve bdore them at least four or five t.imes more than the number of amendments now suggested. In this way, the code committees would have a more comprehensive view of the orientation of how and on what bases the new Civil Code should be amended. 7. If Congress should effect a gener:d overhauling of t he Hew Civil Code during this session, there would be a. tendency not to undertake the study and consideration of other amendments submitted by the legal profession during the next two Qr three years. Many of the future proposed amendments will likely be better than those already submitted to the code committees of Congress because the .Jcgal profession will have had more time to reflect on the new Code. But such coming proposed amendments will probably not be taken up. So it would be advisable to wait at least two more years, so that when the Congress is 1:eady to undertake a broad revision of the new Civil Code, the better future recommendations will be studied. 8. The Code Commission has accepted or ii;iitiated many amendments. It is earnestly submitted that considering the seven f'lregoing reasons, such accepted or initiated amendments should be the vnly ones to be approved during the current session. Manila, February 17, 1951. Respectfully submitted, JORGE BOCOBO Chail'man, Code Commission "The trouble is that lawyers necessarily acquire the habit of assuming the Jaw to bf, right.. It is their business to advise p<'oplc what the law is and to endeavor hi defend people in the exercis<; of their legal 1·ights. As a rnle, the pure lawyer seldom concern! himself about the broad aspects of public policy which may show a law to be all wrong, and such a lawyer may be obvious to the fact that in helping to enforce the Jaw he is helping to injure the public Then, too, lawyers are almost always conservative. 'fhr(lu.l{h insisting upon the maintenance of legal rules, they become instinctivdy opposed to changed, and thus al'C fre<1l!.ently found aiding in the a>isertion of legal rigl1ts under [(.!.IVS which have once been reasonablf' and fair, but which, through the process of social and business development, have become unjust and unfair without the lawyers seeing it. I am c'lnscious that I have myself al'gued cases and drawn papel's anrl given advice in striot accordance with laws whose wisdom it had nevea· occurred to me to question, but which T should now, after many y13ars of thinkini what the law ought to De, condemn." - Letter, November 16, 1906 to Gen. John C. Black of the U.S. Civil Sen ·ice O:imrn.: 111 <111oted in I JesBlllJ, ELiho; Root, png8 208. 96 THE LAWYJ!:RS JOURNAL Februe.ry 28, Hl!:i4
Date: 1954
Rights