Papers of the Private Law of the Philippines and Spain International Scientific Congress

Papers of the Private Law of the Philippines and Spain International Scientific Congress

Coord.: José Manuel de Torres Perea
Universidad de Málaga

Volver al índice


Perry L. Pe

The Philippine New Civil Code took effect on August 30, 1950. In this revision, the Code Commission added a new chapter on Human Relations. The chapter on Human Relations governs several aspects of private affairs not otherwise covered by the old Civil Code.

The chapter of the Philippine Civil Code on Human Relations starts with Articles 19, 20, and 21. These articles provide the legal bedrock for the award of damages to a party who suffers damage. These articles apply either when first, one commits an act in violation of some legal provision, or second, and more relevantly, one commits an act that does not violate any positive law but nevertheless violates rudimentary rights of the party aggrieved. These are so-called catch-all provisions because they provide the bases for actions for damages in the absence of any express provision.

Under Article 19 of the Civil Code, “every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith”. This provision codifies the concepts of justice and fair play. This prevents a person from abusing the rights that he may otherwise have, against another. The law, therefore, recognizes the primordial limitation on all rights; that in their exercise, the norms of human conduct set forth in Article 19 must be observed. A right, although legal because recognized or granted by law, may nevertheless become a source of some illegality. When a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held responsible.

Article 19 abandoned the old theory that no person can be held liable for damages against another while in the exercise of his or her right. And adopted instead the modern thinking, which is to grant indemnity for damages in cases where there is an abuse of right, even when the act is legal. “Law cannot be given an anti-social effect. If mere fault or negligence in one’s acts can make him liable for injury caused thereby (which can be a tortious act), with more reason, should abuse or bad faith make him liable.”

The next one, Article 20 of the Civil Code provides that “every person who, contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the same”. Article 20 was enacted to fill in any gaps in the law. It is a general sanction for all other provisions of law which do not especially provide their own sanction. It makes it now almost impossible to have a situation whereby a person who suffers damage would be left without relief.

The third provision, Article 21, provides that “any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage”. This provision was enacted because of the countless gaps in the statutes, which leave so many victims of moral wrongs helpless, even though they have actually suffered material and moral injury. It provides for adequate legal remedy for that untold number of moral wrongs, which it is impossible for human foresight to capture in the statutes.

Because of this, Article 21 does not refer to any violation of any statute or positive law, but to a transgression of “morals, good customs, or public policy.” This principle is taken from the German Civil Code. It is based on the idea that inasmuch as the Legislative cannot foresee all wrongs that cause damage to another person, there should be an all-embracing clause that will provide remedy in all such unforeseen situations. When therefore combined with Articles 19 and 20, Article 21 broadens our law on civil wrongs; making it more difficult to conceive of any malevolent exercise of a right which could not be sanctioned; and, thus making it more adaptable than the Anglo-American law on torts.

One usual example when Article 21 applies is for a breach of promise to marry as long as one party has paid for preparations when the marriage was called off. The damages due are to recompense a party for such preparations, and not the breach of the promise to marry itself.

With these foundational principles of Human Relations in mind, we now raise a question: What is the boundary between morality and law? Every good law draws its breath of life from morals, from those principles, which are written with words of fire in the conscience of man. The rule is a bastion of justice in the face of the impossibility of enumerating, one by one, all wrongs which cause damage. This helps maintain the social order, by preventing a person from causing damage to his fellow men with impunity, just he does not break any law of the state, though he may be defying the most sacred postulates of morality.

Article 21 may also be justified by the words of Eugen Huber, author of the Swiss Civil Code of 1907:

“Moral law has in law such a penetrating and valuable significance that we cannot speak of positive law without referring to moral law. The moral law and the law of the State have the same object and purpose, and together they govern human aims and conduct, which constitute human society itself. Human community is the field in which morality and law act as immanent ideas in our rational conscience. It is equally possible to consider law as included in morality.”

Question now: Will the person, for example, who fails to render assistance to a drowning man, or to a victim of a hit-and-run vehicular accident, when he has the means to help, make him liable under these three articles? Do these three articles require a person to be altruistic, or to perform charity, or sacrifice if he has the means to do so? Will this act of omission constitute a charge of quasi-delict or culpa aquiliana under Article 2176 of the Philippine Civil Code (which is the equivalent of the Anglo-American concept of torts)?

The Supreme Court of the Philippines in Gashem Shookat Baksh v. Court of Appeals discusses the distinction, and how the provisions on human relations fill in the gaps otherwise not captured by the traditional concept of quasi-delicts:

“Quasi-delict, known in Spanish legal treatises as culpa aquiliana, is a civil law concept while torts is an Anglo-American or common law concept. Torts is much broader than culpa aquiliana because it includes not only negligence, but intentional criminal acts as well such as assault and battery, false imprisonment and deceit. In the general scheme of the Philippine legal system envisioned by the Commission responsible for drafting the New Civil Code, intentional and malicious acts, with certain exceptions, are to be governed by the Revised Penal Code while negligent acts or omissions are to be covered by Article 2176 of the Civil Code. In between these opposite spectrums are injurious acts which, in the absence of Article 21, would have been beyond redress. Thus, Article 21 fills that vacuum. It is even postulated that together with Articles 19 and 20 of the Civil Code, Article 21 has greatly broadened the scope of the law on civil wrongs; it has become much more supple and adaptable than the Anglo-American law on torts.”

The foregoing provisions of law are based upon justice, and were made suitable to Philippine conditions. The Civil Code incorporated into the positive law of the Philippines very many claims that had remained only within the sphere of natural law. It was intended by the Code Commission that the many grievances not redressed and the many injustices committed in the relations among men be righted and given some adequate legal remedy. It was opined by the Code Commission that the guides for human conduct contained in these articles should run as golden threads through society, to the end that law may approach its supreme ideal, which is the sway and dominance of justice.

Let me present a few examples of recent decisions of the Supreme Court of the Philippines, which interpreted and applied these provisions on Human Relations.

In Joyce Ardiente v. Spouses Javier, a seller sold a housing unit to the buyer. Under the terms of their agreement, the buyer would be responsible for all the utilities. However, the seller’s rights over the utilities were never formalized with the water supplier. Hence, the seller was able to cut off the water supply of the buyer. The Court held that such conduct amounted to a violation of Article 19 because even if the seller still had the right to tell the water supplier to cut off the buyer’s water supply, such right was exercised in bad faith to the prejudice of the buyer.

In California Clothing, Inc. v. Shirley Quiñones, a woman bought a pair of jeans at a store. Upon leaving the store, the woman was chased by the store employees, claiming that she failed to pay for the item. The woman showed the employees the receipt, but they were not convinced, so they accompanied her to her office where her belongings were searched, her employer was informed of the supposed theft, and she was humiliated in front of clients. The Court held that while the employees had the right to ensure the item was paid for, that did not justify the excessive means employed by the employees against the woman.

There are several other provisions on Human Relations that the Philippine Civil Code covers. The chapter on Human Relations likewise contains provisions against unjust enrichment, violation of privacy, and unfair competition.

But one more interesting provision is Article 32 . Article 32 allows a person to file an independent civil action for damages arising from a violation of any constitutional right, whether by a public officer or a private individual. This transcends the usual understanding that the constitutional rights provided under the chapter on the Bill of Rights usually just regulate the actions of the Government and its officers and agents. Article 32 expands this by allowing a person to claim damages against a private person who violates his constitutional rights, such as the right to privacy and free exercise of religion.

The underlying purpose of Article 32 is to allow the citizen to enforce his rights in a private action brought by him, regardless of the action of the State attorney. It is not conducive to civic spirit and to individual self-reliance and initiative to habituate the citizens to depend upon the government for the vindication of their own private rights. Article 32 also recognizes that the civil liberties guaranteed by the Constitution need further implementation. The present laws are inadequate for the protection of individual rights as intended by the fundamental law.

Taken alone, the creation of an absolutely separate and independent civil action for the violation of civil liberties is essential to the effective maintenance of democracy. In most cases, the threat to freedom originates from abuses of power by government officials and peace officers. Usually, the citizen has had to depend upon the prosecuting attorney for the institution of criminal proceedings, so that the wrongful act might be punished under the Penal Code and the civil liability exacted. But not infrequently, because prosecutors are burdened with too many cases or because they believe that evidence is insufficient, or worse, he is disinclined to prosecute a fellow public official (usually of a high rank), no criminal action would be filed. The aggrieved citizen is thus left without redress. And at times, even when the prosecuting attorney filed a criminal action, the requirement of proof beyond reasonable doubt often prevented the appropriate punishment. On the other hand, an independent civil action would afford the proper remedy by a mere preponderance of evidence.

Direct and open violations of the Penal Code trampling upon the freedoms named are not so frequent as those subtle, clever, and indirect ways, which do not come within the pale of the penal law. It is in these cunning devices of suppressing or curtailing freedom, which are not criminally punishable where the greatest danger to democracy lies. Thus, the injured citizen will always have, under the Civil Code, adequate civil remedies before the courts because of the independent civil action, even in those instances where the act or omission complained of does not constitute a criminal offense. Malice or bad faith is not necessary under this article because to make it such a requisite would defeat the main purpose of this article, which is the effective protection of individual rights.

Note that the philosophy of individualism that characterizes these new provisions of the Civil Code is not based on Roman law, but on the individualism of American common law. The Code Commission believed that democracy draws its breath of life from the spirit of rugged individualism, and should not derive its effectiveness from the action of public officials. The philosophy of the Anglo-American torts is that private wrongs should be redressed in a private civil action. When this principle shall have seeped into the general consciousness of our people, there will arise and develop a spirit of individual independence on which, when all is said and done, popular government rests. This new reform places in the hands of the people themselves the power to seek remedy in the courts without having to depend on the fiscal or public prosecutor who, for some reason or another, is unwilling to start prosecution. The intention of the new Civil Code is to foster this rugged individualism, which is the very life of democracy.

Article 32 is patterned after the Anglo-American concept of tort. The Philippine Supreme Court explained that as to tort, “[there] are cases in which it has been stated that civil liability in tort is determined by the conduct and not by the mental state of the tortfeasor, and there are circumstances under which the motive of the defendant has been rendered immaterial.” As such, the innovation in the Philippine Civil Code is to “create a distinct cause of action in the nature of tort for violation of constitutional rights, irrespective of the motive or intent of the defendant.”

Thus, the purpose of Article 32 is to cultivate in our citizens an undaunted determination to guard their liberties guaranteed by the Constitution, without depending on public prosecutors. Our citizens should learn to make use of this right of action not only to obtain indemnity, but also to help build a general respect for individual liberties.

It is the belief therefore that taken in their entirety, the combination of Articles 19, 20, 21 and 32, together with the establishment of the courts of justice, simply enhance the time-honored principle that no person hence can take the law in his own hands. Any person who is entitled to enforce a right must resort to the courts, or any other competent authority, to enforce such right.

Interestingly, recent events have shed light on a few potential challenges in the implementation of these provisions.

In 2010, Carlos Celdran, a Filipino tour guide and an advocate of reproductive health rights, disrupted an ongoing mass in order to express his disdain with the Catholic Church. At the time, the Philippine Catholic Church opposed the Philippine reproductive health bill, which, among others, mandated increased availability of artificial contraceptives. In response, Celdran entered the Manila Cathedral and staged a protest during a mass. He dressed himself in garb mimicking Philippine National Hero José Rizal and he held up a sign saying “Damaso” – a reference to a corrupt friar who was a central character in Rizal’s Noli Me Tangere, a book that sparked the Philippine revolution against Spain.

Celdran was arrested and is currently being tried for offending religious feelings, a seldom-used provision under the Philippine Revised Penal Code. But beyond this, and with regard to civil liabilities, public reception for Celdran’s acts is divided: certain sectors of society lauded his acts as a manifestation of an individual’s freedom of expression, while some disagreed, seeing his acts as overtly disrespectful of religious liberties.

From a civil law perspective, thus, the question remains: could there be a concurrent application of the abuse of rights doctrine and the provisions on independent civil actions for violation of a constitutional right? Can, for example, the right to free speech be abused as to be a source of damages, and can such claim for damages be a form of suppression which in turn can be made subject to a claim for damages? As of now, this is a lacuna or a gap in this chapter of the Philippine Civil Code that has yet to find any cogent solution.

I wish to end with a quote from Dr. Eugen Huber, author of the Swiss Civil Code, on “Right and Its Realization.” He stated that:

“Juristic conscience, enlightened by culture and experience in life, in the case of the judge as well as in that of the jurist or of the right-thinking citizen, and above all, of the law-maker, has to seek and formulate that solution which every time responds to the highest exigency, bearing in mind the transcendent purpose of realizing whatsoever is just.”