Civil Personality Report

8/3/2019 Civil Personality Report

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Agatep | Mayuga | Mendoza | Miranda |Patawaran

CIVIL PERSONALITY


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Sources of Islamic Law

(1) The Glorious Qu'ran

(2) Prophetic Sunna or Hadith,

(3) Ijma - consensus of the community/ of

the learned scholars or jurists(4) Qiyas - reasoning by analogy

Supplementary sources:(1) Istihsan or juristic preference - accepts a rule on thebasis of what is believed to constitute a more relevantlegal reason

(2) Istislah - taking public interest or welfare into account

(3) Urf or custom


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Journey to P.D. 1083

13 August 1973 Pres. Marcos issuedMemorandum Order 370 creating a ResearchStaff for draft of a proposed Muslim Code

(finished April 1974)23 December 1974 Executive Order 442creating the Presidential Commission toReview the Code on Filipino Muslim Laws

29 August 1975 Presentation of theCommission of their report to the President

4 February 1977 Signing of PresidentMarcos of P.D. 1083


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What is LEGALCAPACITY?


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Overview of LegalCapacity and Capacity

to Act

A comparison of civil law and Islamic lawon these points shows that Arts. 8 to 12 ofthe MC are practically lifted from Arts.

37-43 of the NCC. This does NOT mean that the MC is copied

from the CC (old and new) Historical Basis the Iberian Peninsula had

been under Islamic domination for 8centuries

Taudih (Sadrush Shariat) Spanish Civil

Code Civil Code of the Philippines


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Civil Code Provision

Art. 37. Juridical capacity, whichis the fitness to be the subject oflegal relations, is inherent in

every natural person and is lostonly through death. Capacity toact, which is the power to do acts

with legal effect, is acquired andmay be lost


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CMPL Provision

Art. 8. Legal capacity. Juridicalcapacity, which is the fitness tobe the subject of legal relations,

is inherent in every naturalperson and is lost only throughdeath. Capacity to act, which is

the power to do acts with legaleffect, is acquired and may belost.


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Civil Law Concept ofCapacity

Union of juridical capacity andcapacity to act forms the full civilcapacity

Juridical capacity can exist withoutcapacity to act, but capacity to actimplies the existence of a juridicalpersonality

According to Tolentino, mostscholars regard personality and

juridical capacity as one and thesame

Status personal quality of


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Civil Law Concept ofCapacity

Capacity only part of status andmay be defined as the sum total ofhis rights and obligations.(Graveson); the ability, power,

qualification or competency ofpersons, artificial or natural, for theperformance of civil acts dependingon their state or condition, as

defined or fixed by law. (Tolentino)Juridical capacity (inherent) Ahliatul

wujub Capacity to act (active) Ahliatul ada

Illustrative cases: Barrientos v. Daarol,


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Islamic Law Concept

Ahliyyah From ahl - "sufficient

qualifications, the possession ofwhich enables the possessor toenjoy something or be qualifiedfor certain matters"

Ahliyyat al-wujup and Ahliyyat al-ada'.


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First Element

Ahliyyat al-wujup: ability of aperson to acquire rights andobligations. This is the core of legal

personality (but is still a conceptdistinct from legal personality). Maybe restricted (naqisah) or full(kamilah).

Restricted ability to acquire a limitednumber of rights and obligations; appliesto fetus and embryo only, duringpregnancy.

Full attributed to every human beingfrom birth up to death.


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Second Element

Ahliyyat al-ada: discretioncapacity; that ability ofcomprehension, discretion anddiscernment sufficient for a person to

conduct his affairs by himself, Once aperson has this, he has full legalcapacity, and becomes able to receivethe Shari'ah injunctions and be

accountable for actions involvingobligations and use or abuse of rights.May be obsolete (ma'doumah) orrestricted (naqisah) or full (hamilah).


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Obsolete persons who have not yetattained de age of discernment orattained it but for some reason could notsatisfy its requirements (eg., childrenless than 7 yrs. old and the insane)

Restricted persons who satisfy the

discernment requirement but have notyet attained a sufficient level of mentaland physical maturity (children over theage of 7)

Full Akin to the concept of

CAPACITY TO ACT under CIVILLAW


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What are the

RESTRICTIONSon Capacity to Act?


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Art. 39. The following circumstances,among others, modify or limit capacityto act: age, insanity, imbecility, the

state of being a deaf-mute, penalty,prodigality, family relations, alienage,absence, insolvency and trusteeship.

The consequences of these

circumstances are governed in thisCode, other codes, the Rules of Court,and in special laws. Capacity to act isnot limited on account of religious belief

or political opinion.


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CMPL Provision

Art. 9. Restrictions on capacity. Thefollowing circumstances, among others,modify or limit capacity to act: age,

insanity, imbecility, the state of beingdeaf-mute, the condition of death-illness (marad-ul-maut), penalty,prodigality, absence, family relations,

alienage, insolvency, and trusteeship.The consequences of thesecircumstances are governed by thisCode and other Islamic laws and, in a

suppletory manner, by other laws.


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The capacity to act, unlike juridicalcapacity, may be restricted by the

above circumstances.


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AGE this does not mean onedoes not have a capacity to act;rather, such act is limited or

restricted A comparison of the age of

majority or agil baligue (age of

discernment or reason) CIVIL CODE:

Art. 402, NCC: 21 years of age

Art. 234, FC, as amended by RA 6809:

18 years of age

AGE


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ISLAMIC LAW: GR: 15 years of age

Exception: women date ofmenstruation; men date ofihtilam

(wet dreams)

Marriage In the Family Code, the legal age to marry is

18 with parental consent (Art. 14)

Prof. Araceli Baviera comments that raisingthe marriageable age to 18 ignores thebiological fact that some persons may want

to get married below that age.

AGE


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Other Civil Acts A minor cannot enter into contracts (Art.

1327 par. 1)

A minor cannot make a will (Art. 797, NCC;Art. 105, CMPL).

A minor must pay for necessaries (Art.1489, par. 2).

Delicts Minor is liable with his property for crimes

committed by them, if they have noguardian (Art. 101, par. 3).

Quasi-delicts Minor shall be answerable with his property

if he causes damage, and has no parent orguardian (Art. 2182).


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INSANITY AND IMBECILITY INSANITY a condition of mental sickness

IMBECILITY a condition in which a personthinks like a small child

Civil Acts Testator must be of sound mind at the time

of its execution (Art. 798, NCC; Art. 105,CMPL).

Contracts entered into during a lucidinterval are valid (Art. 1328).

When the defect of the contract consists inthe incapacity of one of the persons, theincapacitated person is not obliged tomake any restitution except insofar as hehas been benefited by the thing or price

received by him (Art. 1399).


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Delicts The property of the insane or imbecile shall

answer for civil liability for crimescommitted by them, if they have noguardian or the latter is insolvent (Art. 101

(3), RPC). Quasi-delicts If the minor or insane person causing

damage has no parent or guardian, the

minor or insane shall be answerable withhis property (NCC Art. 2182).


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DEAF MUTE

DEAF-MUTISM sane or insane; ifsane, presumption may run againsthim (Director v. Abelardo); he maymake a will but (Art. 807) but

cannot be a competent witness to anotarial will (Art. 820) Art. 1327. The following cannot give

consent to a contract: (2) Insane or

demented persons, and deaf-muteswho do not know how to write.


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DIRECTOR OF LANDS v. ABELARDO(54 PHIL 687): The old rule that adeaf-mute was presumed to be anidiot no longer prevails; suchpersons are now considered ascapable of entering into contracts ifshown to have sufficient mentalcapacity.

Deaf-mutes may:

Make a will (Art. 807) Repudiate an inheritance (Art. 1048) But may not:

Be a witness to the execution of a


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PENALTYCivil Law The RPC provides for principal penalties and accessory

penalties (Art.25). Civil interdiction is a different penalty that also restricts

capacity to act. It is an accessory penalty imposed withimprisonment for 12 years and 1 day to 20 years (Art. 41,RPC).

Effects of civil interdiction (Art. 34): Deprivation of parental or marital authority; Deprivation of the right to be the guardian of the person

or property of a ward; Deprivation of his property by acts inter vivos; and Deprivation of the right to manage ones properties.

Civil interdiction is a ground for the dissolution of partnership(Art. 1830 [7], NCC), the extinguishment of the contract ofagency (Art. 1919 [3]) , judicial separation of property (Art.135 [1], FC), and guardianship.

CMPL Art. 52 (b) Conviction of the husband by final judgment

sentencing him to imprisonment for at least one year is aground for divorce by faskh


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A spendthrift or prodigal is a person who by excessivedrinking, gambling or idleness or debauchery of any kind whoshall so spend, waste or lessen his estate as to exposehimself or his family to want or suffering.

MARTINEZ v. MARTINEZ (1 PHIL 182): The acts of prodigality

must show a morbid state of mind and disposition to spend,waste and lessen the estate to such an extent is likely toexpose the family to want of support, or to deprive thecompulsory heirs of their legitime.

RULES OF COURT. Rule 92, Sec. 2. Meaning of word"incompetent." - Under this rule, the

word "incompetent" includes x x x persons not being ofunsound mind, but by reason of age, disease, weak mind, andother similar causes, cannot, without outside aid, take care ofthemselves and manage their property, becoming thereby aneasy prey for deceit and exploitation.

PRODIGALITY


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A person is absent when he disappears from his

domicile, and his whereabouts are unknown. Hecannot properly administer his properties, and soanother person is appointed to administer them.

Art. 41 of the Family Code presumptive death forpurposes of remarriage

NCC provides for the periods: 7 years, except for the purpose of opening his

estate for succession.

10 years, for the purpose of opening hissuccession after an absence of ten years.

4 years if he disappeared under dangerouscircumstances (Art. 391) or

5 years if the person who disappeared is above 75years old (Art. 390).

ABSENCE


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Condition of Death-Illness(Marad-ul-mauit)

Death illness is defined as illness from which death isordinarily apprehended in most cases, provided in theparticular case in question, it has actually ended in

death. But if the disease be of long standing and doesnot increase from day to day that death may beapprehended from it or does not ultimately end indeath, it will not be regarded as death-illness.

What is death-illness (Section 244, Indian Law) isan illness which ends fatally provided that

There isproximate dangerof death;

There is subjective apprehension in the mind of thepatient;

There are external indicia (e.g. ability to say


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CMPL Art. 32: Fasid marriages those contracted by

a party in a condition of death-illness, withoutthe same being consummated

Contrast with Art. 27, FC marriages in articulomortis

Art. 96(2): the husband who, while in acondition of death-illness, divorces his wife,

shall not inherit from her, but she shall havethe right to succeed him even after her iddaexpires


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Effect on marriage.(Section 245) Marriage contractedduring death-illness is irregular but it becomes valid If it is consummated; or If the party in health predeceases the one who is ill.

Effect on dower.(Section 246) Amount. Specified or proper dower, whichever is less,

shall be payable. Guardian in death-illness as surety. The contract would be

void if either the husband or wife is an heir, otherwise itwould be valid to the extent of one-third of his assets.

Effect on divorce.(Section 247) In the case of an irrevocable talaq (otherwise than at the

wifes request or for an act of the wife) or lian or ila thewife shall be entitled to inherit to the husband during iddatbut the husband will lose the right.

In the case ofkhula during the death-illness of the wife,the husband is bound to restore the consideration of the


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Effect on debts due from the deceased.(Section 248)Debts acknowledged in health or proved otherwise have priorityover those proved only by acknowledgement during death-illness.

Effect on gift.(Section 249) Gifts are valid to the sameextent as wills. Thus

release from a debt (i.e. gift of a debt to a debtor) is void infavor of heir and valid to the extent of one-third to a stranger;

release of a dower debt by the wife in death-illness is void;

transfer of property by the husband in death-illness in lieu ofdower is valid only to the extent to which it is supported byconsideration.

Effect on wakfs.(Section 250) Wakfs take effect to the sameextent as will


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Family Relations

Under family relations, thefollowing may be included: Marriage Divorce Legitimacy Paternity & Filiation Inheritance or succession Use of names & surnames


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Marriage

Who to marry Donations & Sale Rights & Obligations between

spouses Prescription A wifes life


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Who to marry

Civil Law Art. 37, Family Code.Marriages between thefollowing areincestuous and voidfrom the beginning,

whether relationshipbetween the parties belegitimate orillegitimate:

(1) Between ascendants

and descendants of anydegree; and

(2) Between brothers andsisters, whether of the fullor half blood. (81a)

CMPLArticle 24. Prohibition byconsanguinity(tahrimjbin-nasab). No

marriage shall becontracted between:

(a) Ascendants anddescendants of any degree;

(b) Brothers and sisters,

whether germane,consanguine or uterine; &

(c) Brothers or sisters andtheir descendants within thethird civil degree.


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Prohibition by Affinity

Civil lawArticle 38,Family Code:void by reason

of public policy1. Between collateral bloodrelatives, whether legitimateor illegitimate, up to thefourth civil degree;

2. Between step-parents andstep-children;

3. Between parents-in-lawand children-in-law;

CMPL

Article25. Prohibition

by affinity(tahrim-bill-musahara).(a) Any of the spouses and their respectiveaffinal relatives in the ascending line andin the collateral line within the thirddegree;

(b) Stepfather and stepdaughter when themarriage between the former and themother of the latter has beenconsummated;

(c) Stepmother and stepson when the


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4.Between theadopting parentand the adoptedchild;

5.Between the

survivingspouse of theadopting parent

and the adoptedchild;

6.Between the

surviving

Article64. Adoption.No adoption in anyform shall conferupon any person

the status andrights of alegitimate child

under Muslim law,except that saidperson mayreceive a gift

(hiba).


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9. Betweenparties where

one, with theintention tomarry the other,killed that otherpersons spouseor his or her ownspouse.

Article26.Prohibition

due to fosterage(tahrim-bir-rada'a).

(1) No personmay validlycontractmarriage with

any woman whobreastfed himfor at least five

times within two


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Donations & Sale

Moderate gifts between husbandsand wives allowed duringmarriage [Article 87, Family Code]

Cannot donate to persons yourehaving extramarital affairs with[Article 739, Civil Code]

Husband and wife cannot sell toeach other, unless underexceptions [Article 1490, Civil

Code]

Ri h d Obli i


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Rights and ObligationsBetween Spouses

Civil law

FamilyDomicile: fixedby BOTHhusband andwife [Article 68,

Family Code] Management

of Household:

duty of BOTH

CMPL FamilyResidence:fixed by husband

[Article 35]

Management

of Household:Wifes duty, buthusband paysfor the expensesArti l


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Prescription

DOES NOT RUN between: Husband and wife Parents and children (during

minority or insanity of the latter)

[Article 1109, Civil Code]


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A wifes life

G.R.: Married woman, 21 years ofage or above, is qualified for allacts of civil life

X: in cases specified by law


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Under CMPL

Wife needs consent of husband to

acquire property by gratuitous title

engage in an profession oroccupation or in lawful business[Article 36] If widowed/divorced/repudiated:

should observe idda in varyinglengths of time


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Divorce

GR: NOT ALLOWED

X:

1. Alien spouse procures divorce[Art 26, Family Code]

2. Filipino who subsequentlyacquires another citizenship

procures divorce [Republic v.Obrecido]

3. Under CMPL


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Succession

Consider compulsory heirs


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Use of Names & Surnames

Articles 364-366 of the New CivilCode imposes upon children thesurnames they are supposed to use

As to married women, the wife hasthe exclusive right to use thesurname of her husband to the

exclusion of other women [Silva v.Peralta]


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Alienage

Cant vote, cannot be voted upon(unless they subsequently acquireFilipino citizenship)

Generally cant own lands (unless byhereditary succession or unless theywere former Filipinos) but can own

properties on the lands Restricted in the areas of business

they can engage in

Restricted capacity to sue


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Insolvency

Insolvent (muflis): debts equalto his assets or more, or if heattempts to place his property

beyond the reach of his creditorsby transactions apparently of thenature of a sale or the like, but

subject to some secretarrangement for his own benefit


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when a person declared insolvent+ assignee is appointed for hisassets

= insolvent cannot dispose of hisproperty

=assignee will act for the insolvent

under the direction of the Court(Act No. 1956)


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Trusteeship

powers of trustee limited byThe instrument creating thetrust (A1410-1475)

By law (Rule 98, ROC)


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How is PersonalityACQUIRED?


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Art. 40. Birth determinespersonality; but the conceivedchild shall be considered born forall purposes that are favorable toit, provided it be born later withthe conditions specified in the

following article.


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Art. 41. For civil purposes, thefetus is considered born if it isalive at the time it is completelydelivered from the mother'swomb. However, if the fetus hadan intra-uterine life of less than

seven months, it is not deemedborn if it dies within twenty-fourhours after its complete delivery

from the maternal womb.


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CMPL Provision

Art. 10. Personality, howacquired. Birth determinespersonality; but the conceivedchild shall be considered born forall purposes that are favorable toit, provided it be born alive,

however, briefly, at the time it iscompletely delivered from themother's womb.

Ci il La Concept of


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Civil Law Concept ofPersonality

Personality is the quality derivedfrom being a person. While aperson is any being susceptible

of rights and obligations,personality is the aptitude ofthat being of becoming subject,

active or passive, of juridicalrelations. (Tolentino) Existence of personality

depends upon birth.

Civil Law Concept of


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Before birth, the fetus is not aperson, but merely a part of theinternal organs of the mother.

HOWEVER, because of theexpectancy that it may be born,

the law protects it and reserves itsrights, making its legal existence,If it should be born alive, retroactto the moment of its conception

Ci il L C t f


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Since the conceived child isconsidered born for purposes

favorable to it, it can acquireand enjoy rights while it is in themothers womb. It may be givendonations. It can also inherit bywill or intestacy.


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Civil Code, Art. 41: If a fetus had an intra-uterine

life ofless than 7 months, theCivil Code requires that it should

live at least 24 hours aftercomplete separation from themothers womb.

In this case, if a child does notlive for 24 hours after completeseparation from the motherswomb, it does NOT acquire civil

ersonalit .


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Islamic Law Concept of

Personality Civil personality has not been

mentioned explicitly by classical

Muslim jurists (fuqaha).

Pursuant to the Code of Muslim

Personal Laws, personalitybegins upon birth, and endsupon death.

Islamic Law Concept of


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Islamic Law Concept ofPersonality

The Code of Muslim PersonalLaws does not distinguishbetween a fetus which had anintra-uterine life of less than 7months, or more than 7 months.

All that the law requires is that the

child be alive from the time ofcomplete separation from themothers womb, for it to beconsidered born for all purposes

favorable to it.


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The duration of extra-uterine lifeis immaterial.

For acquisition of civilpersonality, it is enough that the

child lives for an instant.


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Before birth, the fetus can enjoycertain rights. Professor Al-Zarqa

defines those rights as fourcategories: namely, the familyname (Nasah); Inheritance;

bequeathed Will (Wassiyah); andwaaf.


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A fetus may inherit, provided:

That it is certain that the

fetus is in the womb of hismother at the time of thedeath of the decedent; and

That it be born alive,however briefly, at the timeit is completely deliveredfrom the mothers womb.


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If a crime is committed against itsmother, and the fetus dies, whatright/s does it have?

Al-Sabouni: only the right tocompensation (ghurrah)

Hanafi: right to inherit

(wassiyyah) and right tocompensation, because a fetuscan have an ACTUAL andPRESUMED existence


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Zahiri: fetus has life only afterthe first four months. Entitled toghurrah only when fetus

develops human features Malik; Al-Shafiie: life begins

only after it is delivered alive.

Entitled to ghurrah though


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How is PersonalityEXTINGUISHED?


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Art. 42. Civil personality isextinguished by death. The effect

of death upon the rights andobligations of the deceased isdetermined by law, by contractand by will.


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CMPL Provision

Art. 11.Extinction ofpersonality.

(1) Civil personality is

extinguished by death. Theeffect of death upon the rightsand obligations of a deceasedperson is determined by this

Code, by contract, and by will.

(2) After an absence of sevenyears, it being unknown whether

or not the absentee still lives, he


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Physical or natural deathextinguishes civil personality.

Law: right to legal supportends, marriage is terminated,tenure of public office

terminates.


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Contract: Rights under the

contract like indebtedness orobligations that are recognizedand secured by contract. Estate

continues personality such thatrights and obligations whichsurvive after death have to beexercised and fulfilled only bythe estate of the deceased.


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RASUL: The question is not

whether it is impossible thatthe person may be alive butwhether the circumstancesdo not present so strong a

probability of his death thata Court should act thereon. Evidence of actual death is not

necessary; moral conviction issufficient to establish a fact ofdeath to demand or claim forcompensation.


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Art. 98. Succession by absentee. The share of an heir who ismissing or otherwise absent at thetime of the death of the decedentshall be reserved:

(a) Until he reappears and claimsit;

(b) Until he is proven dead; or(c) Until the lapse of ten years

after which he shall be presumed

dead by decree of the court.

CMPL Provision

A t 11 d A t 98 CMPL


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What is the correct period after which a personmissing or absent shall be presumed dead, 7 or 10years?

Period of 10 years is a view of Al Imamia, whereas

the period of seven years is a compromiseperiod arrived at after a lengthy discussionand debate on the reasonability of thedifferent periods posed by the differentschools of thought. This is one of the instanceswhere the members of the PresidentialCommission has exercised some form of ijtihad(modest).

Alauuya proposed that the correct period is onethat will be decreed by the Judge on the bases ofthe circumstances under which a person

Art. 11 and Art. 98, CMPL

The ulama (elders) are not


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The ulama (elders) are notunanimous as to the resolution ofthis issue

(a) School of Iam Abi Hanifa: The personmissing or absent shall be presumed deadby decree of the court after no one of his

contemporaries is still living. Some of thedisciples of the school said that he will bepresumed dead after 90 years.

(b) School of Imam Malik: After four years.This is based on the saying of Caliph 'Omar -

Any woman whose husband is missing andshe does not know his wherabouts must waitfor four years, thereafter observe the 'idda offour months and ten da s and after that she


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(c) School of Imam Shafi'i: After theexpiration of a period that no one of hiskind may live, the Judge may decree hisdeath.

(d) School of Imam Abi Hanifa: Period

depends upon the discretion of theJudge. This is supported by Imam Shafi'i.

(e) School of Imam Ahmad: If he has

been absent or missing in a dangeroussituation, like war, his death can bedecreeed by the court after four years. Ifhe is missing or absent under normal

and peaceful situation, it depends upon


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What are the Rules on

Simultaneous Deaths?

Ci il C d P i i


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Art. 43. If there is a doubt, asbetween two or more personswho are called to succeed each

other, as to which of them diedfirst, whoever alleges the deathof one prior to the other, shallprove the same; in the absence ofproof, it is presumed that theydied at the same time and thereshall be no transmission of rights

from one to the other.

CMPL P i i


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CMPL Provision

Art. 12.Simultaneous death. If, asbetween two or more persons who arecalled to succeed each other, there isa doubt as to which of them died first,whoever alleges the death of one priorto the other shall prove the same; inthe absence of such proof, it ispresumed that they died at the sametime and there shall be notransmission of rights from one to theother. However, the successional

rights of their respective heirs shall


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Art. 12 is taken from Art. 33 ofthe Old Spanish Civil Code of1899 and Art. 43 of the New

Civil Code. This provision is tobe read with Rule 131, Sec. 5 onDisputable Presumptions.

That except for purposes of succession, when two personsi h i h l i h k b l


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perish in the same calamity, such as wreck, battle, orconflagration, and it is not shown who died first, and thereare no particular circumstances from which it can beinferred, the survivorship is determined from the

probabilities resulting from the strength and the age ofthe sexes, according to the following rules:

If both were under the age of fifteen years, theolder is deemed to have survived;

If both were above the age sixty, the younger is

deemed to have survived; If one is under fifteen and the other above sixty,

the former is deemed to have survived;

If both be over fifteen and under sixty, and the sexbe different, the male is deemed to have survived,if the sex be the same, the older;

If one be under fifteen or over sixty, and the otherbetween those ages, the latter is deemed to havesurvived.

That if there is a doubt, as between two or more personswho are called to succeed each other, as to which of themdied first, whoever alleges the death of one prior to theother, shall prove the same; in the absence of proof, they


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Art. 12 is taken from Art. 33 ofthe Old Spanish Civil Code of1899 and Art. 43 of the New

Civil Code. This provision is tobe read with Rule 131, Sec. 5 onDisputable Presumptions.

C l i


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Conclusion

The concept of juridical capacityand capacity to act as well as therestrictions thereon is similar tothat in Title I of Book I of the Civil

Code of the Philippines. There isone fundamental difference,however, in that under this Code, aconceived child under anycircumstance is consideredborn for all legal purposesfavorable to it if it lives after

Civil Personality Report

Documents

Transcript of Civil Personality Report