Article 11. Customs which are contrary to law, public order or public
policy shall not be countenanced.
Custom Defined:
-
Custom
is the juridical rule which results from a constant and continued uniform
practice by the members of a social community, with respect to a particular
state of facts, and observed with a conviction that it is juridically
obligatory.
(1
Tolentino, Civil Code, p. 38, 1974 ed)
-
A
custom is a rule of human action (conduct) established by repeated acts, and
uniformly observed or practiced as a rule of society, thru the implicit
approval of the lawmakers, and which is therefore generally obligatory and
legally binding.
(16
Paras, Civil Code, p. 84, 2008 ed)
In the
above definitions, custom is similarly established that it is;
*constant and continued uniform practice
*repeated acts, uniformly observed
by a
social community or society and not by an individual only.
In Martinez v Burskirk, 18 Phil. 79; it was said that a cochero who was
helping a passenger unload his cargo and left the horse unattended to, was not
held to be negligent, even if the horse galloped away, as a result of which the
caretela caused injuries to a pedestrian. It was held that, that was the custom
of the place.
S.D
MARTINEZ vs WILLIAM VAN BUSKIRK
G.R.
No. L-5691, December 27, 1910
FACTS:
·
Carmen
Ong de Martinez together with her child was riding a carromata in Ermita on 11th
of September 1908 when a delivery wagon attached to a pair of horses used for
transporting fodder owned by William Van Buskirk ran at great speed into the carromata
occupied by the plaintiff and overturned it. Severely wounding Carmen Ong de
Martinez by making a serious cut on her head and injuring the carromata itself.
·
The
defendant, William Van Buskirk contends that the cochero who was driving the
delivery wagon at the time of the accident was a good and reliable servant. That
upon the delivery of the forage, the cochero tied the driving lines to the
front end of the delivery wagon and went back inside to unload the forage
delivered. While unloading, another vehicle drove by where the driver cracked a
whip and made other noises, which frightened the horses attached to the
delivery wagon and ran away. The cochero was thrown outside the delivery wagon
and was unable to stop the horses which ran into collision with the carromata
occupied by Carmen Ong de Martinez.
ISSUE:
Whether or not the defendant is liable
for the negligence of his driver.
RULING:
It
was held that the cochero of the defendant was not negligent in leaving the
horses in the manner described by the evidence in this case.
The act of defendant's driver in leaving the horses in the manner proved was not unreasonable or imprudent. Acts the performance of which has not proved destructive or injurious and which have, therefore, been acquiesced in by society for so long a time that they have ripened into custom, cannot be held to be themselves unreasonable or imprudent.
Indeed the very reason why they have been permitted by society is that they are beneficial rather than prejudicial.
It is a matter of common knowledge as well as proof that it is the universal practice of merchants to deliver merchandise of the kind of that being delivered at the time of the injury, in the manner in which that was then being delivered; and that it is the universal practice to leave the horses in the manner in which they were left at the time of the accident.
This is the custom in all cities. It has not been productive of accidents or injuries. The public, finding itself unprejudiced by such practice, has acquiesced for years without objection.
Custom must not be contrary to law,
public order or public policy.
·
While
the customs may be applied in lieu of a law, the same cannot be done if they
are contrary to law, public order or public policy, for the latter cannot be
countenanced.
·
If
a custom is repugnant to public policy, public order or law it ought to be
restrained.
·
Nor
should custom be allowed or permitted which disturbs public order or which
tends to incite rebellion against constituted authorities or resistance against
public commands duly issued and legally promulgated
Note:
-
(Lubos v. Mendoza, C.A., 40 O.G
553); An Igorot
custom of adoption without legal formalities is contrary to law and cannot be
countenanced.
-
(Yamada v. Manila Railroad Co., 33
Phil 8); A custom
which may endanger human life cannot be allowed.
Law distinguished from ‘Custom’
-
While
ordinarily a law is written, consciously made, and enacted by Congress, a
custom is unwritten, spontaneous, and comes from society. Moreover, a law is
superior to a custom as a source of right. While the courts take cognizance of
local laws, there can be no judicial notice of customs, even if local. (Art. 12, Civil Code).
Article 12.
A custom must be proved as a fact, according to the rules of evidence.
In order
that a custom must may be considered as a source of right, the following
requisites must be proven:
1.
Plurality
of acts
2.
Uniformity
of acts
3.
General
practice by the great mass of the people of the country or community;
4.
General
conviction that it is the proper rule of conduct;
5.
Continued
practice for a long period of time; and
6.
Conformity
with law, morals and public policy (1 Manresa 82)
Kinds of Customs
(a)
A general
custom is that of a country; a
“custom of the place” is one where an act transpires.
[NOTE:
A general custom if in confl ict with the local custom yields to the latter.
However, in the absence of proof to the contrary, a general custom is presumed
to be also the “custom of the place.’’ (Reyes and Puno, Outline of Civil Law,
Vol. 1, p. 8).]
(b) A custom may
be propter legem (in accordance with law) or contra legem (against the law). It is unnecessary to apply the first, because it
merely repeats the law; it is wrong to apply the second. Customs extra legem
are those may constitute sources of supplementary law, in default of specific
legislation on the matter. (Reyes and Puno, Outline of Civil Law, Vol. 1, p.
8).
Sources:
*The Civil Code by Paras 2008 Edition
*Family Code of the Philippines by Albano 2017 Edition
