Unelemental element

Failed to post yesterday because, I must confess, I have been watching videos as recommended here. But I may have something today.

Funny how a re-reading of a topic can bring up "newly discovered evidence". For instance, I was going through the topic on light threats cross-referencing between Reyes, Regalado, and the 2014 Memory Aid in Criminal Law by San Beda when this got my attention:

That's from the memory aid. It is part of a list of elements for a crime. But it is kind of illogical because the two concepts cancel each other out.

So I checked with Reyes. And found out that the memory aid sourced it from page 621 of The Revised Penal Code, Book Two, 2008 Ed.:

Reyes, among authors, is most fond of breaking down a crime into a list of elements. Other authors shy away from the practice lest, I surmise, they may sound like aping Reyes.

In this instance I dare say that there are only three elements. The rest is surplusage.

Busy, busy, busy again

It's semi-finals, so no posting. But I must confess I went to bed at 1:30 AM because I watched A Few Good Men; that's why. Hehehe.

Saturday typos, 19 Sept 2015

From the 2014 Memory Aid in Remedial Law:

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Page 48-

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Page 52-

Saturday typos, 12 Sep 2015

From the Bedan Red Book 2015, Vol 1: 

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Reinventing reivindicatoria

I first met "reivindicatoria" or more specifically "accion reivindicatoria" in Paras' Civil Code of the Philippines Annotated, Vol. II, 2008 Edition on page 124:

The UP 2012 Remedial Law Reviewer uses the same word and phrase on one page  :

But on the same page a different word twice appeared:

Did UP invent the word? It seems not because the UST 2011 Golden Notes for Civil Procedure uses reinvindicatoria and only that word in conjunction with "accion":

The Bedan Red Book 2015 for Remedial Law  follows suit on page 652:

So I "appealed" to SC jurisprudence and this is when things took an interesting turn.

A Google search shows that the SC uses reinvindicatoria  in 39 decisions, predating those reviewers, which can be seen here. But another Google search lists 53 decisions using reivindicatoria. Click here for a listing.

And five decisions  use both words as listed here.

Which is which then?

Paras got it right. Here's an article from Wikipedia explaining the phrase. Well, OK, that's Spanish. But our Civil Code came from the Codigo Civil, right?

Saturday typos, 5 Sep 2015

From the Bedan Red Book 2015, Vol. 2:

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Amor proprio, motu propio

I know, I know. It is amor propio; not amor proprio. But what about motu propio? I dealt with this in passing here.

My professor in Civil Law review, former RTC Judge Mein Paredes, uses motu propio. Other authors, professors, and lecturers use motu proprio.

Still I think I need to get deeper into this motu propio/proprio thing because when I read the masterful dissent of Justice Leonen on the bail granted by the SC for Enrile there was, lo and behold, motu propio sticking out like a sore thumb.

If you are looking for a definitive discussion of the right to bail as enshrined in the constitution and fleshed out by Rule 114 Justice Leonen's is the go-to exposition. Get it here.

For the moment, though, we are interested in this section:

Amor propio is spanish. So it is not hard to find its meaning through online dictionaries like in this one.   It means a feeling of self-worth. There is no such phrase as amor proprio in Spanish.

Motu propio appears in US Legal in this entry:

Motu propio is a Latin term meaning "on his own impulse". It is used to refer to a document that is issued and personally signed by the Pope. It may be contain instructional matter, administrative matters of church law or governing bodies, or used to grant a special favor.

Other dictionaries use motu proprio as in this from the online version of Black's Law Dictionary:

What is MOTU PROPRIO?
Lat. Of his own motion. The commencing words of a certain kind of papal rescript

So which is which? See here for a discussion for motu propio vs motu proprio.

Personally I go for motu proprio as found in this entry of wikipedia.

Saturday typos, 29 Aug 2015

From the Civil Code of the Philippines, Annotated, Vol I, 2013 Edition by Paras:

Page 427

Page 428

Page 437

Supply defects and curb evils

Some words used by lawyers are very counterintuitive. The first that comes to mind would be continuance.

A layman in court will be surprised to hear that his case will be postponed to sometime in the far future. But didn't he hear the judge say that he will grant a continuance?

While rereading Fr. Bernas' The 1987 Constitution of the Republic of the Philippines: A Commentary, 2009 Edition I noticed that I had made in the end page a reference to page 191 which turned out to be this:

Going by the ordinary meaning of "supply" you will find some kind of dissonance with the goal of curbing evil. Other decisions of the Supreme Court have this variation:

They are intended to supply defects, abridge superfluities and curb certain evils.

Might this be another word with different meaning among lawyers? But  Black Dictionary uses the ordinary meaning:

Even Pres. Marcos may have some misgiving with the word when he came up with PD 44:

WHEREAS, in order that the desired aims and objectives of the Dangerous Drugs Act can be effectivity and satisfactorily attained, it is imperative that the said law be modified so as to cure its defects and supply its deficiencies. 

The Rhode Island Code may provide the legal meaning of supply. This one is from Justia US Law

§ 33-23-15 Want of jurisdiction – Amendments to supply defects. – No order or decree of a probate court which may be appealed from, or in any collateral proceeding when the same shall not have been appealed from, shall be deemed to be invalid, or be quashed, for want of proper form, or for want of jurisdiction appearing upon the record, if the probate court had jurisdiction of the subject matter of the order or decree. The superior court having jurisdiction of the parties to a probate appeal may allow amendments to be made in the papers filed in the case, to supply any deficiency or correct errors therein, upon such terms as it may deem proper.

It seems that this meaning of supply as used by the Supreme Court has been used by courts long ago. Click here for one that dates back to March 28, 1786.

Saturday typos, 22 Aug 2015

From the San Beda Memory Aid in Criminal Law 2014 Edition:

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