Memorandum of the Code Commission

Media

Part of The Lawyers Journal

Title: Memorandum of the Code Commission
Language: English
Source: The Lawyers Journal XIX (5) May 31, 1954
Year: 1954
Subject: Civil Code of the Philippines
Rights
Abstract: [This contains the proposed amendments submitted by the members of the Bar to the provisions on succession, continued from April 1954 issue.]
Fulltext: MEMORANDUM OF THE CODE COMMISSION <Continued from April Issue) ARTICLE 902 Mr. Justice .Reyes contend! that the provisions of Articles 90~, 989 and 998 confer the right of representation upon the illegitimate issue of an illegitimate cMld; while the illegitimate ia8U6 of a le~ gittmate child is denied the right of representation by Article 992, and therefore unfair 3lld unjustified. In answer to this claim of unfairness and injustice, we would like tJO cite the provisions of Article 982: "Art. 982. The grandchildren and other deseendanta shall inherit by right of representation, and if any one of them sh.011Id have died, leaving several heirs, the portion pertaining to him &hall be divided among the latter in equal portions.'" If the provisions of the above article ai-e e<1rreetly interpreted and understood, do they exclude the illegitimate issue of a legitimate child? The terms "grandchildren and other descendants" 1ue not confined to legitimate offspring.· We submit that not only legitimate but also illegitimate descendants should be included in the interpretation of Articles 902, 9S9 and 998. In eases of this kind, where the Code does not ex. pressJ.7 provide for specific rights, a.nd for t.hat matteP. all code" have gaps, equity and justice should prevail, taking into consideration the fundamental purpose of the whole law on succession which, among other things, gives more rights to illegitimate children, the.re.. by rela.xing the rigidity of the old law, and liberating these unfortunate persons from the humiliating status and condition to which they have been dJllll.ped. It may be mentioned in this connection, that the old Civil Code fails to provide for several concurrences of heirs, but aR th" same have correctly said, justice and equity should prevail in such ...... With respect to the provisions of Articles 903 and 993 allowing illegitimate children and descendants to inherit from an :ta. cendant. but the illegitimate grandparent may not inherit from a grandson, the Code Commission has in mind that the succession of illegitimate ascendants shall be confined only to the parents a.nd &hould not go beyond that degree of relationship Sb that his or her spouse and/or brothers and sisters shall be entitled to the same CArt. 994>. ARTICLE 904, P"'· 2 This proposed amendment is already discussed in connection with Article 864. ARTICLE 908, par. 2 The Code Commission accepts the proposition of Mr. J"ustice Reyes by eliminating the words 1'that a.re subject to co11ation" found in lines 2 and 3 of the second paragraph of this article. ARTICLE 900 The Code Commission has no objection to the aubstitution of the words "compulsory heirs" to the word "children" found in line 1 of this first paragraph of this article. The further suggestion of inserting "without prejudice to tb<' provisions of Article 1064" is not necessary becau1e the p)lrase may be out of place in this section on le£"itime, and bec1J.use the idea in Article 1064 should not be repeated here. The additional rule also proposed may not be necesaary because anything that will be in excess of the legitirne shall be considered a part of the free portion, and may be given to stra.ueers. ARTICLE 911 C2> The rule established in this article is different from that mentioned in Article 950. The rule established in No. C2) of Article 911 speaks of the reduction to be made of legacies if the legltiinu is impaired. The rule provided, however, in Article 950 deals with cases where the total free portion is not sufficient to pay all the legacies and devices mentioned by the testator in his will. ARTICLE 912 The proposed amendment wholly depends v,pon the policy to be adopted, whether the compulsory heirs should be favored or not. As it is, the article provides that if the reduction a.bsorba exactlf one.half U/2) of the value of the legacy or devise, the property should go to the compulsory heirs, Blld this ehould be the case, because as between the compuleory heirs and third persons, the for .. mer shall be preferred, as the testator owes more obligations le"al and moral, to his own parents, descendants and spouse. ARTICI,E 918 The proposed amendment to this a.rticle Is to clarify th" effects Clf a defective disinheritance, and the Code Commission has no objection in eliminating the phrase "annul the institution of heirs insofar as it may prejudice the person disinheri,ted'' in lines 4 and 5 of the said article, and in replacing the same with "not prevent the disinherited heir from receiving his share in the legitime." ARTICLE 919 C'l> One of the grounds for diSinheritance of children· and descend. ants under the old Civil Code is prostitution of daughters or grand .. daughters <Art. 858, No. 8, Spanish Code>. Under this law, sons and other male descendants an not included because prostitution ean onl:v apply to women. It seems unfair and unjust because a 9on or a grand.son may live a life more immoral than tha.t of a daughter, and yet they cannot be disinherited. To avoid this double standard, the new Civil Code in Article 919, No. '1, provides: U(7) When a child or descendant leads a dishonorable or disgraceful life". With this provision Of the law, both sons and daughteH are placed on the same level. Mr. Justice Reyes claims that what the testator deems .. dishonorable" or "disgraceful" may not appear .DO ·to the judge. May we ask, have the ·Filipino people so lost their sense of moral values that they can no longer discern what is dishonorable and disgraceful life? Has the moral standard of our people com~ to the level that . they can no longer distinguish the moral from the immoral? Is the judiciary so ignorant or morally warped tha.t those interpreting the law and administering justice can understand llnly "prostitution of daughters" but can not under • stand what comtltutes a diahononble or disgraceful life on thei part of a son? On this point, the German Civil Code provides in Article 2338. No. <6>: ••If the descendant leads a dishonorable or immoral lifo · contrary to the testator's wishes." Let the court establish its doctrine a.nd prnpound its juri&p"l"U• dence. ARTICLE 928 The Code COD"l!Dission accepts the proposed amendment to Article 928, which should constitute itB first paragraph: "A valid disinheritance not C1nly deprives the disinherited heir of any share in the legitime, but au~matically revokes any disposition in his favor chargeable to the free portion." The above &mendment shall make the effects of valid disinherit.. ance very clear. It will also clarify the effects of restoration of the right.a of a compulsory heir in case of preterition as well as those of compulsory heirs restored to their rights in case of a defective disinheritance. ARTICLES 929 AND 981 There seems to be no inconsistency between the&e two articlt'$. Article 929 refers to a case where the testator owns only a pa.rt uf, ff' intffeat in, the thing bequeathed, in which case, the legacy or bequest shall be limited to such pa.rt or interest, unless the testator exp~Bsly declares that he gives the thing in its entirety. Article 931 speaks of a thing esclu.wely belonging to ruwther, in which case he ma.y order that it be acquired in order to be given to the legatee or devisee. In case the testator bequeathes an undivided share that does not belong to him as provided in Article 929, do not the provisions of Article 931 apply, which requires that it be acquired in order to be gi.ven to the lega.tee 01• devisee? Mr. Justice Reyes asks why the new Civil Code suppressed the sublegacy permitted by Article 868 of the old Civil Cod.e. There is nothing wrong with it, but the Code C<immission believes that it is not necessary to be included. inasmuch as the same is covered by Articles 925 and 952. Article 868 of the old Civil Corle providU: 11Art. 863. A legacy made to a third person of a thing belonging to the heir or to a legatee, shall be valid, and su:eh May 31, 1954 LAWYERS JOURNAL 267 heir or legatee, on accepting the succession, must deliver the thing bequeated or its value, subject to the limitations established by the following article. "The provisions of the foregoing paragraph are understood to be without prejudice to the leg:itime of the forced heirs." Arltcles 925 and 952, par. 1, of the new Civil Code provide: "Art. 925. A testator may charge with legacies and devises not only his compulsGry heirs but also the legatees and devis~a. "The latter shall be liable for the charge only t.o thfll extent of the value of the legacy or the devise received by them. The compulsory heirs shall not be liable for the charge beyond the amount of the f1·ee portion given them." uArt. 952. The heir, eharged with a legacy or devise, or. the e1:ecutor or administrator of the estate, must deliver the very thing bequeathed if he is able to do so and cannot discharge this obli&"ation by paying its value." The legacy mentioned in Article 863 of the old Civil Code ts a variety of wha.t is called "legado de cosa ajena". In other words. the thing bequeathed does not belong to the testator bot the same mar belong to a third person, or to the heir, or to the legatee or devisee. From the provisions, therefore, of Article 925 and Article 952, par. 1, we maintain that they include what is intended by Article 863 'Of the old Civil Code. ARTICLE 932, par. 1 and ARTICLE 933, pew. 1 The two pamgraphs of thC!Se two articles are said to expreaa the same rule, and hence, It is cls.imed that tho latter ts a miire repetition of the former. The firat parts of 1Jle two paragraphs may provide for the same rule, but the latter pa.rls o/ the same f)Olragratphs provi~ for different effects. Moreover, the M!cond paragraph of Article 923 is very different from the provisions of paragraph 2 of Article 933. By placing these two articles close to each other, the reader can readily compare their respective provisions as well as their reapec:tive effecta ARTICLE 934 The proposed amendment to this article is not necessary ina~ much as the meaninc of both fonns is the same. ARTICLE 943 It is suggested that the last part of this article which provides that "but a choice once made shall be irrevoca.ble" should be elimi .. nated because 1t is a repetition of paragraph 3 of A1·ticle 940. llowever, Article 940 deals with tht. ••heir, legatee or devisee, who ma~ have. been given the choice", but ''dies be/C1.,.e making it", while Article 943 deals with cases where the "heir, legatee or de'lisee cannot make the choice," not only because of death but because of other causes, likP. disinheritance or unworthiness. ARTICLE 950 our ~!!'m::P:: ~:: 9 o;:er or payment of Iegaclea, please sea Mr. Justice Reyes contends that Article 950 which gives the order of payment of legacies and devises, doea not include donatinna given in a marriage settlE:ment by a future spouse to the otl:.er which is mentioned in Article 180 of the new Civil Code, and whir.b shall be chargeable kl the free portio11.. Article 950 gives the order of payment of various kinds of legacies and devises, taking into C'lnsideratio~ their particular purposes and objectives. Inasmuch as the donation of futun property mentioned in Article 130 mav n?t have a particular purpose or objective, it may be classified either under No. (2) or under No. (6) of the article depending how it wau given. We do not believe that such a donation he giveJt a special pnference as contended, inasmuch as it was given in consideration of marriage, and it is for this rea.son that thf" same should be treated as an ordinary donation and should fall under No. C6> of .the article, unless declared by the testator to b.:! preferential, in which ease, it should fall under No. (2). ARTICLE 967 Another paragraph is proposed to be added to this a11icle, to read. thus: ·• (4) A legacy in favor of the spouse whO subsequently gives cause for a decree of legal separation, as provided in Article 106; (4) of this Code." We beg to disagree with the proposed amendment because it is a mere repetition 'lf Article 106, No. <4>. This Article 106 provides for the dfects of legal separation, and No. C4) expressly do!als with the subject in both intPst&te and testate successions. ARTICLE 960 t""3> The new Civil Code does not include as a cause of intestacy the case of a conditional heir who survives the testator but dies before ·the fulfillment of the suspensive coRdition. Thif is not necessary because if an heir subject to tile fulfil1ment of a suspensive condition should die before the' f'Jlfillment of said condition, he shall of course acquire no rights no1· transmit any to his cwn heirs. Hence, intestacy shall take place. Please see our comments on Article 878, ante. Besides, in the case mentioned by Justice Reyes, ''the suspensive conJition x x x x x does not happ.en or is not fulfilled" within the meaning of No. 3 of Art, 960. ARTICLES 963-967 These Articles 963 to 967 deal with the degree of relationship of personB, and the manner of computing the proximity of relationship. Mr. Justice Reyes proposes that these articles should be in Book I dealing with Family Relations. W~ beg to differ. The question is whether the provisf.Oils of theSe a.rticles have more relation with intestate succession or with the la.w on persons and family relations. We maintain that if these provislonft should be embodied in ~k I, they would really be out of place there. As a matter of faet, the only instance: where Vie degree of relationship is mentioned in Book I is in connection with incestuous marriage <Article 81, No. (3)). A person will be at a loss to be reading the. rules on the degree of relatlo"J.ship in a Book where they ~II have no bearing with the other provisions found therein. The arrangement of the new Civil Code is adopted not only by the Spanish Civil Code but a.Iso by the Civil Codes of France and Switzerland. ARTICLE 968 It is proposed that the term "accrue" used in line 3 of this article be replaced by the word "benefit'" or "pass", so as to a\oold C'>nfusion that may arise with the provisions of the Code on accretion, mentione4;1 in Articles 1015 to 1023. The term "accrue" is better than the word "benefit" or "pe.ss" because it is mort. comprehensive, and it caL·ries the meaning that the Code wants to impart. In law, "accrue" means "to come into existence as an enforceable claim; to vee~ as a right; as a ca.use of action has accrued when the right to sue ha.s become vested". In general, it means "to come, by way of increase; to be added as increase, or profit". Moreover, "accretion" is· nearer to the Spanish original, "acrecer'". Lastly, Article 968 ·deals with accretion. See also Articles 1080 and 1020. AllTTCLE 972, pM. 2 The propo!ed amendment to this article is unnecessary, noT wi11 the rule be inconect without the amendment to pa1·agraph 2 of this article. Article 972 provides for the persons in whose favor the right of representation is established, the first paragraph being in favor oi the direct descending line, while the second paragraph in favor of the colfateral line. Article 975 deals with a concurrence of heirs, that is, if .uncles· or aunts surrive with nephews or nieces. Besides, Article 975 is sO near that a reference to it is unnec~ sary. Any one who wanta to study rEipresentation would read the whole subsection 2. ARTICLE 978 It is proposed that Article 978 be suppressed on the ground that under the new Civil Code when tke spouse concurs with legitimate dt:scendants, the said spouse "has in the succession the same share as that of each of the children", and hence, "the .surviving spouse is an in.testate heir together with the descendaJLts." Artiele 978 ordains: "Art. 97JI. Succession pertains, in ihe first place, to th,; descending direct line." This article assumes that there are no pther heirs who may concur with the ehlJd·ren or desceudants. So that if they concu1 with the survivjng spouse, the rule is provided for in Articles 996, 9!18, and 999. 258 LAWYERS JOURNAL May 31, 1954 Besides, Justice Reyes fail.;i to grasp the method of the mw Civil Code in See. 2 - "Order of Intestate Succession". By Articles 978, 985, 988, 995, 1001, and 1103, the Code names the re. latives who, in the order stated, inherit the whole est<it.. Article 978 assumes that there is no surviving spouse. (To be Continued) A CRITICAL STUDY ... <Continued from page 219) CONCLUSIONS AND RECOMMENDATIONS Much of the possible difficult situations we have endeavored to present which cannot be adequately solved by the present provisions of the Code without absurd results may be remedied by eliminating the conclusive presumption of legitimacy provided for in Article 258 of the present Civil Code in s.ny of the three case9 therein mentioned. This will make the present rigors of the law more flexible to permit its rigidity yield to the realities 9f hfe. The Prima. facie presumption of illegitimacy provided for in Article 257 <C. C.> shoUld be reversed. The presumption of legitimacy should be the rule, but its rebuttal should be allowed under the conditions and circumstances mentioned in Article 257 <C. C.l and adding thereto the case of rape of the wife dul'ing the S•1me period of time. Articles 255 and 259 may remain as they .:ire subject to a modification of Article 259 CC. C.> for clarity only by incorpore.ting to the opening paragraph thereof the foUowing phrase, "notwithstanding the provisions of Article 255". · It is, therefore, recommended that Articles 257, 258 and 259 of the Civil Code be redrafted to read as follows: "Art. 257. In case of the commission of adultery by the wife or rape of the wife at or &bout the time of conception of the child, but there was no physical impossibility of access by the husband to the Wife as set forth in Article 255, the presumption of legitimacy therein provided, may be overcome by proof that it is highly improbable for ethnic reasons that the child is that of the husbaiad. Fo1• purposes of this Article the adultery or the rape as the case may be need not be proved in a criminal case.'' rPattemP.d after House Bill No. 1019; Francisco, I Civil Code of the Philippines 683). "Art. 258. A child born within one hundred eighty days following the celebration of the marriage is prima. facie presumed to be legitimate.'' "Art. 259. If the marriage is dissolved by the dee.th of the husband, and the mother contracted another marriage within tliTeO hundred days following such death, the&e rules shall govem, notwithstanding the provisions of article 255: (ll A child bom before one hundred eighty days after the sol~niYtion of the subsequent marriage is disputably presumed to have been conceived during the former marria.ge, provided it be born within three hundred days after the death of the former husband; (2) A child bom after one hundred eighty days following the celebration of the subSequent marriage i.s primer. faoi.e presumed b have been conceived during such marriage, even though it be bol'D within the three hundred days after the death of the former husband.'' DECISION OF THE. . . <ConUnu•d r- page 248l of time on a particular style of packages any registration which might issue upon its application would not be limited to use upon such packages, and the p&ckages used could be changed by either party at any time. Ambrosia Chocolate Co. v. Myron Foster, 603 0. G. 545, 74 USPQ 307. U1ide-r well settled tW.thority <General Food Corporation v. Casein Company of America, Inc .• 27 C.C.P.A. 797, 108 F.2d 261 144 USPQ 33); Barton Mfg. Co. v. Hercules Powder Co., 24 C.C.P.A. 982, 88 F.2d 708 (33 USPQ 105); Sharp & Dohme, Incorporated v. Abbott Laboratories, 571 0. G. 519, 64 USPQ 247>, the difftn-ences in packaging ca• not affect the right to .. e. gistra.tion." (underscoring supp1ied} In view of the well-settled principle that an opposer need not own a trademark; a registered trademark; or have exclusive rights FOR lHE SAKE OF TRUlH BY POR~'IRIO C. DAVID I wish to make a vigorous exception to Mr. Federico B. Moreno's article ROLL OF HONOR (of judges of First Instance) as published in the Sunday Times Magazine of May 9, 1954. I do not question Mr. Moreno's right to praise a particular judge or group of judges. For the consumption of the public, he can even raise them to the level of an· Arellano, a Cardozo or Holmes. But, he has no right to do so at the expense of other judges whom he had degraded and ridiculed by publishing his conclusions about their efficiency on the basis of half-truths and mis-truths. The proficiency of a judge cannot be co:irrectly Jl)easured by the precise action of the Supreme Court on his appealed decisions and orders for only one year (last year) and on the applications for writs of certiorari, prohibition and mandamus decided in the preceding three years and on the basis of important cases settled by the Court of Appeals in 1952 and 1953 as published in the Official . Gazette. One who is familiar with the machinery of justice, like Mr. Moreno, who is a lawyer, should know that not all decisions are published in the Official Gazette. Hence, to rate a judge en what might have been published of his appealed decisions in the Official Gazette alone would be the height of irresponsibility. Take, for instance, the particular cases of Judges Barot, Moscoso and Ocampo, who are represented to have had Jlo affirmed · decisions of any sort during the period given. This is unbelievable. I regret that I do not have offhand the records CJf Judge Moscoso, wbo is in the Visayas, and of Judge Barot, who is in Pampanga. But from the records alone of Judge Ocampo as available in the Office of the Clerk of Court of the Court of First Instance of Manila, where said judge has been presiding since 1951, I can say that the conclusions of Mr. Moreno about these judges are at once preposterous and gratuitous, if not libelous. In this connection, I am supporting my stand with .the facts and figures appearing on the correct copies of Reports of Cases decided by Judge Ocampo and brought to the Appellate Courts, duly , certified by the clerks in charge, which are self-explanatory. Summarizing, I find: Criminal cases appealed •..•.............. , 34 Affirmed ... . ... . .•. . .... ....... ..... .. 8 Modified , • . • . • • • . . . • . . . . . . . . . . . . . . • . . • 3 Appeal abandoned ......... , . . . • . . • • . . . . 8 Reversed . . . . . . .. . . . . . . . .. • • • . .. . . . . . . . 2 Pending .............•......... ; . . . . . . . . 13 Civil cases appealed to Supreme Court . . . . . . 4 Pending . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . 2 Affirmed .... , .• ,. . . . . . . . • • • . . • . . . .. . . 2 Reversed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . None Civil cases appealed to the Court of Appeals . . 19 Pending . . . . . . . . . . . .. . • . . . . . . . . . . . . . . • 13 AJ;lpeal dismissed or abandoned .... , . . . . 4 Affirmed . . •. . . . . .. . • . . • . . • . . . . . .. . . . . . 2 Reversed . . .. • . . . . . . . . . . . • . . . . . . . . . . . . . Non~ If only to set tlle record straight and to oorrect any wrong impression which Mr. Moreno's article may have produced on the readers' minds, I have taken pains to dig up the above facts and figores. to a trademark, registered or unregistered; all he needs being something which is analogous to a trademark, and e. showing that he would probably be damaged by the registration sought; and in view of the egually well-settled principle that the appearance fJf the labels bearing the rival trademarks cannot affect the right to registration of one of them, the motion to dismiss the Opposition ia rejected, and the Respondent-Applicant is' directed to answer the same within fifteen (15) days of his receipt of a copy hereof. SO ORDERED. Manila, Philippines, October 31, 1952. <SGD.) CE1$DONIO AGRA VA Director of Patents May 31, 1954 LAWYERS JOURNAL 2159
pages: 257-259