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- Civil Code of the Philippines
- Tolentino Reviewer
- (Reviewer - Tolentino) Obligations and Contracts
- Tolentino Chapter 1
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Civil Code of the Philippines
A type of modality that is very much visible in contracts is the deontic modality. A considerable body of literature, various empirical studies and actual Philippine court cases put forward how deontic uses in legal documents such as contracts can bring about issues and confusion leading to comprehension problems.
Contract drafting entails a specialized work that a legal drafter must be able to write assessable and comprehensible contracts. This study addressed how contractual modalities are interpreted in the Philippine context and investigated how the most commonly misused modal shall is employed in different Philippine contracts. USA: Aspen Publishers construct on the correct usage of shall in contracts served as frameworks of this study. Results reveal the concurrence or likeness in the use of modals of these contracts vis-a-vis the local codified laws and in a number of contracts in other countries Bondi and Diani, Conveying deontic values in English and Italian contracts: A cross-cultural analysis.
ESP Across Cultures 7. More importantly, two central findings of this study have uncovered the differences on the rules and at the same time the overwhelming number of incorrect shall uses, resulting in misunderstanding of the contracts, as reflected in a number of Philippine legal cases filed in court. The general features of the legal language and the development and changes it underwent over time; discourse and pragmatic analyses; comprehensibility and simplification are just some of the studies conducted about the interconnection between language and the law.
Correspondingly, in admitting that the law profession is the most word-replete next to journalism, Cruz and Quiason recognize the heavy demands expected from law practitioners about the use of the oral and written language in the legal profession. It must then be emphasized that language plays a very important role in the field of law. The law itself would be meaningless without language; it largely depends on language.
Considerably, the legal language is dominated by repetitions, archaic words and phrases, technical terms, binomial and multinomial expressions, long sentences containing several clauses, unusual propositional phrases and the use of nominalization. A problem arises in written legal texts when lay people are hardly able to understand such documents. One specific type of these legal documents with growing issues on comprehensibility is the contract.
A significant number of studies point out that contracts are still couched in traditional old-fashioned drafting of complex and impenetrable legalese Adams ; Broome and Hayes ; Damstadter ; Williams The calls for clarification of written legal discourse including contracts have resulted in the passing of laws, one of which is the signing of the Plain Writing Act of by U. President Barrack Obama on October 13, Corollary to this law, the U.
Order No. Simplification mostly affected are loan contracts, insurance policies, leases and similar types of documents dealing with commerce, banking or insurance, while in other types of legal instruments, ancient formulas recur and preserved patterns remain intact. In the Philippine setting, major and minor initiatives both in the current Sixteenth Congress — and in the Fifteenth Congress — have been carried out but no bills were approved beyond the committee level that may be due to the lack of priority afforded by the lawmakers to these kinds of bills.
One of the issues confronting the language of the law is the use of modals that are apparent in contracts. The concept of modality has been the subject of an appreciable body of research from different disciplines such as philosophy and logic and linguistics. Cameron asserts that modality serves as means that allow people to forge or devise varying claims such as assertions, opinions, hypotheses and speculations and present varying levels of commitment to these assertions.
The research efforts on the part of linguists such as Trosborg and Lauridsen paved the way for new discoveries on some notable taxonomies and functions of modal auxiliary verbs. For this reason, modal auxiliary verbs may be involved in the expression of time, necessity, possibility, permission and obligation as well as such grammatical phenomena as negation, affirmation and questioning. The synallagmatic nature of contracts which pose reciprocative obligations and shared duties and rights between parties bring about the use of deontic expressions.
Nuyts et al. In this case, sentences containing deontic meanings affect how actions and situations are realized. Matulewska did a comparative study of the methods of presenting deontic modality of 45 British-English, American-English and Polish contracts and statutory instruments British laws or regulations.
She found out differences in the use of deontic modality between the two materials to some extent; that is, fewer uses on contracts. The use of must which is gaining popularity in modern statutory instruments and in American setting replacing shall, is not found in contractual clauses except for the contracts promoted by the Plain English Campaign.
Lauridsen investigated how the English modals can and may in four text types comprising the Contract Law based on logico-semantic and pragmatic parameters. Noted indeterminancy between the two modals was noted. Results revealed obscure or hazy in terms how these modals were used in the documents. The study of Bondi and Diani examined the deontic values conveyed in English and Italian contracts.
The study revealed that the use of shall in English contracts and dovere in Italian contracts were the commonly used modals. Moreover, the modals of obligation were dominantly used in the English contracts. However, there was a balanced use of the modals of obligation, permission, and prohibition in the Italian contracts. It is also important to note that in their study, English contracts were characterized to be formulaic and that the presence of the modal shall is an evident marker of an occurrence of a mandatory rule.
In his book on Statutory Constructions in the Philippine context, Suarez : explains:. Such puzzlement in the use of the word shall is the main contention in a Philippine legal case of Diokno vs. Rehabilitation Finance Corporation in when Diokno, the plaintiff, filed a case against his company and obliging the latter to accept his backpay certificate as payment for his loan. His argument was based on Section 2 of the Republic Act No.
It was emphasized in the ruling that while it is true that the meaning of shall is considered to be requisite or binding, such word may not always be absolute and may mean only as a possibility depending on how it is used in context or by the intention of the statute. Other legal court cases were contended in the use of the modals in the case of Bersabal vs. Salvador , with the petitioner seeking to invalidate or reverse the orders of the respondent Court of First Instance judge, the ruling upheld the mandatory meaning of the word shall in R.
Encamacion, L- , Dec. The preceding literature, various empirical studies and actual Philippine court cases put forward how deontic uses in legal documents such as contracts can bring about issues and confusion leading to comprehension problems. In the light of these concerns, it is significant and interesting to analyze the modals in view of how contractual modalities are interpreted in the Philippine context.
In the same way, it would be noteworthy to investigate how the most commonly misused modal shall is employed in the different Philippine contracts. This study then was aimed at examining the use of deontic modality in selected Philippine contracts.
Specifically, it attempted to address the following questions:. This study was hinged on the following frameworks in studying how the deontic meanings of obligation, permission and prohibition are expressed in different Philippine contracts, and in examining how the most commonly misused modal shall was employed in the different contracts.
Matulewska cited three meanings expressed by the modal verbs in the analysis of the contracts: 1 obligation, 2 prohibition, and 3 permission. Prohibition refers to the obligation not to perform or withhold or refrain from doing with the three sub-meanings as follows:. Permission- the right or claim to which a party is allowed or authorized.
The following are sub-meanings characterized in permissions:. In terms of the use of shall and will , Stark presents the fundamental rules in using will and shall in contracts: use shall to illustrate obligation and will to signify the future.
She further admits that drafters commonly misuse shall that they even believe they are employing it correctly even if they are not. Stark also demonstrates that basically, a party must come before the word shall ; otherwise, the use of shall is wrong. Next, shall must not be coupled with a form of the verb, to have or to be e. The Bank shall have the authority… or This agreement shall be governed…. Thirdly, if a party precedes shall in a clause that illustrates conditions in which an event may occur, then the use of shall is wrong e.
In the end, she asserts that to ascertain the correctness of the word shall , it must be preceded by a party and must be followed by a promise or an obligation to do or not to do something. Using the classifications of legal documents used by Hathaway , all the following types of contracts served as the data in this study: consumer-finance, insurance, construction services, employment and investment contracts.
The entire corpora of 38, words were culled from 10 different Philippine contracts from the following: 1 a credit card contract; 2 an employment contract; 3 an airline service contract; 4 a car loan contract; 5 an insurance and investment contract; 6 a residential building construction agreement; 7 a shop construction contract; 8 an agreement on photocopying services 9 a cable contract; and 10 a telecommunications service contract.
For ethical reasons, the contracts under study were masked as XXX and labeled Contract 1, Contract 2, Contract 3 up to Contract 10, respectively. A textual analysis was employed in examining the usage of modals in selected Philippine contracts. Each modal and even a non-modal expressing the meanings of obligation, prohibition and permission was evaluated separately using Antconc , a freeware concordancer together with Microsoft Word and Excel programs.
As discussed in the earlier part of this study, obligations have sub-meanings; namely, unlimited duty, conditional duty and external duty. The modal shall was the most common word used in expressing obligation. The chart Figure 1 above presents the number of occurrences of shall 94 expressing obligation, as understood as the duty to perform.
Based on the corpora used, 30 or The seafarer shall submit to the order of the master or to the laws of any country within the territorial jurisdiction of which the ship may enter to have such vaccination or inoculation or to undertake measures to safeguard his health and the entire crew complement. The sample above highlights the subject seafarer has the duty obligation to perform which is binding no matter the situation to perform the action to submit to have such vaccination or inoculation or to undertake measurer to safeguard his health and the entire crew complement.
The seafarer shall join the ship and be available for duty at the date and time specified by the employer. The given example emphasizes that the subject seafarer is enforced to fulfill his obligation to perform shall join the ship and be available for duty only in specific circumstances at the date and time specified by the employer. The example cited above exhibits that there is an obligation to perform imposed on the actor not by the contract itself but by a statutory instrument, a non-contractual obligation.
Based on Table 1 alone, out of the 94 incidence of shall in all of the 10 contracts under study, it is evident that the strong occurrences of shall expressing obligation is in Contract 2- Employment Contract, in which the modal shall represents the principal means of expressing obligations unlimited duty; conditional duty- 21; external duty- 6. One party of the contract e. Based on the example above, shall has a characteristically deontic meaning, prescribing that the grammatical subject perform the action predicated in the verb form.
It should be noted as well that the main aspects in dealing with contracts are in the obligations and intentions. Figure 2 shows the number of times 26 will was used in contracts. Will is particularly frequent in certain types of contracts; but in most legislative texts, it is comparatively rare, as judges may consider it as not having legally binding force.
Will expresses futurity or signals an agreement between the parties. With 26 occurrences, the term is not merely stating future event; it is creating a promise to perform such as in Contract 3 Airline Service Contract on General Terms and Conditions of Carriage of Passengers and Baggage example provided below:.
The Airline will accept formal and legal notices or documents only at its head office in Pasay City, Philippines, unless otherwise permitted by the Warsaw Convention or Montreal Convention. Table 2 shows that of the 26 total number of occurrences of will , with majority of its uses assessed as an obligation of external duty totaling to 10, a non-contractual obligation found in Contract 3- Airline Service Contract, an extract of which is provided below:.
If a Checked Baggage is carried on a subsequent flight, the Airline will deliver it to the Passenger unless applicable law requires the Passenger to be present for clearance by customs authorities. It is also interesting to note that the same contract Contract 3- Airline Service Contract contains the bulk of the modal will with 20 occurrences unlimited duty-2; conditional duty-8 and external duty all accounting for The Airline will retain Passenger information for as long as it is necessary to fulfill the purpose for which the information was obtained or collected, or as may be required by law.
The given example with the use of the modal will emphasizes an obligation to perform will retain Passenger information no matter the situation unlimited duty as evident in the phrase for as long as it is necessary to fulfill the purpose unlimited or as may be required by law.
The Airline will exert reasonable efforts to notify the affected Passengers of any change in or postponement of the flight schedule through the contact details which the passenger provided at the time of booking. Meanwhile, notable two number of occurrences of modal will reflecting unlimited duty appears in Contracts 3 — Service Contract, Contract 8- Service Agreement on Photocopying Services and Contract 10 — Telecommunications Service Contract with the following extracts:.
Except for this instance, the airline will follow a one booking-one Travel Fund policy. The modal will in the example above emphasized an unlimited obligation to perform a duty, that is, to follow a one-booking one Travel Fund policy which applies to all.
The Civil Code of the Philippines is the product of the codification of private law in the Philippines. It is the general law that governs family and property relations in the Philippines. It was enacted in , and remains in force to date with some significant amendments. The Commission's records were later destroyed by Allied bombing during the Battle of Manila in Capistrano , and future Vice-President Arturo Tolentino. The Code Commission completed the final draft of the new Civil Code by December , and this was submitted to Congress , which enacted it into law through Republic Act No.
(Reviewer - Tolentino) Obligations and Contracts
Professor: Atty. Alden C. Gonzales Source: Tolentino, Arturo M.
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Tolentino Chapter 1
Капля Росы. Беккер задумался. Что это за имя такое - Капля Росы. Он в последний раз взглянул на Клушара. - Капля Росы. Вы уверены.
Шеф систем безопасности прочитал текст и схватился за поручень. - О Боже, - прошептал. - Ну и мерзавец этот Танкадо. ГЛАВА 110 Невидящими глазами Джабба смотрел на распечатку, которую ему вручила Соши.