Articles 11 and 12 of the Civil Code of the Philippines

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Article 11. Customs which are contrary to law, public order and public policy shall not be countenanced.

Article 12. A custom must be proved as a fact according to the rule of evidence.

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 is juridically obligatory (1 Tolentino, Civil Code, p.38, 1974 ed.).

But according to the rules of evidence, a custom must be proven as a fact (Art. 12, New Civil Code).

In order that a custom 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)


Customs should not be against public policy

It is presumed that the legislature or congress intends its enactments to accord with the principles of sound policy and the interest of public morality, not to violate them; and due weight should be given to this presumption in the construction of a doubtful and ambiguous statute (Black, Interpretation of Laws, 134; Aircardi v. State, 19 Wall 635, 22 L. Ed. 215)

It must always be supposed that the Congress in adopting this provision concerning customs, design to favor and foster, rather than to contravene, that public policy which is based upon the principles of natural justice, good morals, and the settled wisdom of the law as applied to the ordinary affairs of life.

If a custom is repugnant to public policy, public order, or law it ought to be restrained so that it  may comport with those principles. 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 promulgate. While the courts should be ever vigilant to protect the rights and customs of the people, they nevertheless should be equally vigilant that customs destructive of public order or subversive of public policy and morality be curbed rather than sanctioned (Garcia & Alba, Civil Code of the Phils. P. 34, 1950 ed.)






Case Digest of Martinez vs. Van Burskirk, 18 Phil. 79

G.R. No. L-5691; December 27, 1910

S.D. MARTINEZ and his wife, CARMEN ONG DE MERTINEZ, plaintiffs-appellees,
Vs.
WILLIAM VAN BUSKIRK, defendant-appellant.

PONENTE: J. Moreland

FACTS:

  • ·        On September 11, 1908, the plaintiff, Carmen Ong de Martinez, was riding in a carromata on Calle Real, district of Ermita, city of Manila, along the left-hand side of the street as she was going, when a delivery wagon attached to a pair of horses belonging to the defendant, William Van Buskirk, used for the purpose of transportation of fodder by the defendant, came along the street in the opposite direction. The driver of the carromata, observing that the delivery wagon was coming at great speed, crowded close to the sidewalk on the left-hand side of the street and stopped so that the delivery wagon can pass by, but instead of passing by, the defendant’s wagon and horses ran into the carromata occupied by the said plaintiff with her child and overturned it. The said plaintiff sustained a serious cut upon her head. The carromata and the harness of the horse drawing it was both damaged.
  • ·        The defendant contended that his cochero, who was driving the delivery wagon at the time of the accident, was a good servant and was a safe and reliable cochero. The defendant also claims that the delivery wagon had sent to deliver forage at Paco Livery Stable on Calle Herran, his chochero tied the driving lines of the horses to the front end of the delivery wagon to unload the forage to be delivered. While in the act of unloading said goods and carrying some of it out, another vehicle drove by, the driver of which cracked a whip and made noises, which frightened the horses attached to the delivery wagon and they ran away. When the horses took off, the driver was thrown from inside of the wagon out through the back and into the ground and he was unable to stop the horses that then ran up and on to the street where they came into a collision with the carromata the plaintiff was riding. The defendant was not with the vehicle on the day in question.
  • ·        Upon these facts the court below found the defendant guilty of negligence and gave judgement against him for  ₱442.50, with the interest thereon at the rate of 6 percent per annum from the 17th day of October, 1908, and for the costs of the action.


ISSUE:
  • ·        Whether or not the defendant is liable for the negligence of his employee?


HELD:
  • ·        No. The defendant Is not liable because the evidences does not prove that his cochero was negligent. It was held that the act of the cochero in the manner proved was not unreasonable or imprudent. It is a matter of common knowledge  that it is the universal practice to leave the horses in the manner in which they were left at the time of the accident. It has not been proved to cause damage or injury. The reason why they are permitted by the society to do so is because it is more beneficial rather than prejudicial. Those conditions show that the defendant’s cochero was not negligent and that the defendant is not liable for any accusations. The judgment has been reversed, without special finding as to cost.





References:

  • Albano, E. (2017).Family Code of the Philippines, pp. 38-39. Quezon City, Philippines: Central Books Supply, Inc.
  • Arellano Law Fovndation. (2019). The LAWPHiL Project. Philippine Jurisprudence. Retrived August 2019, from <https://www.lawphil.net/judjuris/juri1910/dec1910/gr_l-5691_1910.html>





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