Planking

A classroom is a place where minds clash, ideas are harnessed, and theories are tested to discover knowledge. In some cases, it also provides an opportunity for a comic to pose as a teacher, or for a teacher who wants to be a comic. This section contains funny stories from my classroom. Well, at least for me, they are.       

The first story is during a discussion in Administrative Law, particularly in the case of Malaga v. Penachos, Jr., 213 SCRA 516. The case revolved around anomalies in the bidding process for a government project.

The student who was called to recite started to narrate the facts of the case. Since I am quite particular in the facts, I asked her how did the bidders show their protest against the award to the winning bidder.  Of course, the expected answer was that they filed a case before the court.

I noticed though she was taken aback. I was surprised because filing a case in court is an obvious answer. But she stood there, quite puzzled.

So I repeated the question "So, Ms. ______, what did they do?" in my usual "teacher's tone." Still no answer.

So I answered my own question "Nagplanking sila!" And of course laughter ensued.

Oh, then I realized that I was at the school where student activism is very much alive. Oh oh.   

 

SCL Topics Based on 2012 SC Bar Exam Syllabus

I'm posting the entire syllabus of SCL as a gift to my students. Please take note that cases for study will be identified later. In addition, we will study several other special commercial laws if time permits. Included in the list is the pertinent provisions of the Code of Commerce. If we don't have time, we will just include them in our exams.  Peace.  

I. Letters of Credit

A. Definition/concept

B. Governing laws

C. Nature of letter of credit

D. Parties to a letter of credit

1. Rights and obligations of parties

E. Basic principles of letter of credit

1. Doctrine of independence

2. Fraud exception principle

3. Doctrine of strict compliance         

II. Warehouse Receipts Law

A. Nature and functions of a warehouse receipt

1. To whom delivered

2. Kinds

3. Distinctions between a negotiable instrument and a negotiable warehouse receipt

4. Rights of a holder of a negotiable warehouse receipt as against a transferee of a nonnegotiable warehouse receipt

B. Duties of a warehouseman

C. Warehouseman’s lien

III. Trust Receipts Law

A. Definition/concept of a trust receipt transaction

1. Loan/security feature

2. Ownership of the goods, documents and instruments under a trust receipt

B. Rights of the entruster

1. Validity of the security interest as against the creditors of the entrustee/innocent purchasers for value

C. Obligations and liability of the entrustee

1. Payment/delivery of proceeds of sale or disposition of goods, documents or instruments

2. Return of goods, documents or instruments in case of sale

3. Liability for loss of goods, documents or instruments

4. Penal sanction if offender is a corporation

D. Remedies available

IV. The Chattel Mortgage Law (Act 1508 in rel. to Arts. 1484, 1485, 2140 and 2141 of the Civil Code)

A. Essential requisites

B. Formal requisites

C. Registration, when and where

E. After-acquired property

F. After-incurred obligation

G. Right of junior mortgagee

H. Foreclosure procedure           

I. Redemption

J. Claim for deficiency

1. General rule

2. Exception

3. Article 1484

V. Real Estate Mortgage Law (Act 3135, as amended by R.A. 4118)

A. Coverage

B. Remedies available to mortgagee upon default of the mortgagor

C. Need for special power of attorney

D. Authority to foreclose extrajudicially

E. Procedure

1) Where to file

2) Where to sell

3) Posting requirement

4) Publication requirement

a. Sufficiency of newspaper publication

b. Need for republication in case of postponement

c. Personal notice to the mortgagor when and when not needed

F. Possession by purchaser of foreclosed property

G. Remedy of debtor if foreclosure is not proper

H. Redemption

a. Who may redeem

b. Amount of redemption price

c. Period for redemption

d. Effect of pendency of action for annulment of sale

I. Writ of possession

a. Ministerial duty of the court

b. Enforcement against third parties

c. Pendency of action for annulment of sale

J. Annulment of sale

VI. Truth in Lending Act (R.A. 3765)

A. Purpose

B. Obligation of creditors to person to whom credit is extended

C. Covered and excluded transactions

D. Consequences of non-compliance with obligation

VII. Anti-money Laundering Law (R.A. 9160, as amended by R.A. 9194)

A. Policy of the law

B. Covered institutions

C. Obligations of covered institutions

D. Covered transactions

E. Suspicious transactions

F. When is money laundering committed

G. Unlawful activities or predicate crimes

H. Anti-money laundering council

             I. Functions

J. Freezing of monetary instrument or property

K. Authority to inquire into bank deposits

VIII. Foreign Investments Act (R.A. 7042)

A. Policy of the law

B. Definition of terms

a) Foreign investment

b) “Doing business” in the Philippines

c) Export enterprise

d) Domestic market enterprise

C. Registration of investments of non-Philippine nationals

D. Foreign investments in export enterprises

E. Foreign investments in domestic market enterprises

F. Foreign investment negative list

Hardheadedness

A very dear friend suggested that I create another blog where I can post my deepest thoughts since this one is supposedly for an academic purpose. Probably I'm just too hardheaded or too old, or both, since I just posted something that is too personal (again).

Well, I suggest that you just exercise your right not to read, and I will exercise my right to, uhm, be hardheaded. :)

Oh, I just realized. This is the reason why I lose some precious ones, though I also gained so much from it. Life.  

Losing a loved one, deux (days after)

For my golden girl. My only regret is that I did not say enough "I love you" to her. 

First (Satur)Day Blues

It's been awhile since I attended a class on a Saturday. Today is supposed to be a comeback of some sort since today is my first regular day for my SCL class. Well, it seemed that the multitudes of people in the metropolis have other ideas. For some reason, the streets were unbelievably clogged. Santa Clause probably sent notice already that he can't deliver his gifts for the nice kids this Christmas, forcing everyone to do their shopping in frantic mode. Haaist.

Special Commercial Law, Part I - Letters of Credit

Course Syllabus based on 2012 Bar Exams Released by the Supreme Court

I. Letters of Credit

A. Definition/concept

B. Governing laws

C. Nature of letter of credit

D. Parties to a letter of credit

1. Rights and obligations of parties

E. Basic principles of letter of credit

1. Doctrine of independence
2. Fraud exception principle
3. Doctrine of strict compliance

Cases:

1. Metropolitan Waterworks and Sewerage System v. Hon. Reynaldo B. Daway and Maynilad Water Services, Inc., G.R. No. 160732, June 21, 2004

2. Mico Metals Corp. v. Court of Appeals and Philippine Bank of Communications, G.R. No. 117914, Feb. 1, 2002

3. Transfield Philippines, Inc. v. Luzon Hydro Corporation, Australia and New Zealand Banking Group Limited and Security Bank Corporation, G.R. NO. 146717, Nov. 22, 2004

Administrative Law, defined

"The beginning of wisdom is a definition of terms." Socrates

Administrative law has been defined in so many ways by so many authors. I particularly like the one given by Dean Roscoe Pound as "That branch of modern law under which the executive department of the government acting in a quasi-legislative or quasi-judicial capacity, interferes with the conduct of the individual for the purpose of promoting the well-being of the community, as under laws regulating public corporations, business affected with public interest, professions, trades and callings, rates and prices, laws for the protection of the public health and safety and the promotion of the public convenience and advantage."

This definition specified that administrative law is a modern law. Of course, we need to know why it is so. What makes administrative law "modern" and for better understanding, why are there laws not considered "modern." I am fond of this lesson since it presents me an opportunity to cite some stories in the Bible.

Also, it mentioned that this law is centered on the executive department, acting weirdly. And finally, the definition ended with the reason why the executive department acts that way. If only this is true all the time.

Intellectual Property Law Course Outline

Course Syllabus For Intellectual Property Law Based on 2012 Supreme Court Bar Examination Syllabus


1. Intellectual Property Rights in general (Sec. 1-4, Rep. Act No. 8293)

a. Intellectual property rights (Sec. 4)

Case:

a. Mighty Corporation and La Campana Fabrica de Tobaco, Inc. v. E. & J. Gallo Winery and Andersons Group, Inc., G.R. No. 154342, July 14, 2004

b. Differences between copyrights, trademarks and patent (Sec. 4)

Case:

a. Pearl & Dean (Phil.) Inc. v. Shoemart, Inc. and North Edsa Marketing Inc., G.R. No. 148222, August 15, 2003
b. Elidad C. Kho, doing business under the name and style of KEC Cosmetics Laboratory v. Hon. Court of Appeals, Summerville General Merchandising and Company, and Ang Tiam Chay, G.R. No. 115758, March 19, 2002

c. Technology transfer arrangements

Add: The Intellectual Property Office (Sec. 6-19, Rep. Act No. 8293)
Republic Act No. 10055 and 10372


Case:

a. In-N-Out Burger, Inc., v. Sehwani, Incorporated and/or Benita’s Frites, Inc., G.R. No. 179127, December 24, 2008
b. Phil Pharmawealth, Inc., v. Pfizer, Inc. and Pfizer (Phil.) Inc., G.R. No. 167715, November 17, 2010


2. Patents (Secs. 21 – 120, IPC)

Add: Applicable Provisions of Rep. Act No. 9502

a. Patentable inventions

(1) Elements of Patentability
(2) Novelty
(3) Non-Prejudicial Disclosure
(4) Inventive Step
(5) Industrial Applicability
b. Non-patentable inventions
c. Ownership of a patent

(1) Right to a patent
(2) First-to-file rule
(3) Inventions created pursuant to a Commission
(4) Right of priority

Add: Procedure in Patent Registration
Term of Patent Registration

Case:

a. Phil Pharmawealth, Inc., v. Pfizer, Inc. and Pfizer (Phil.) Inc., G.R. No. 167715, November 17, 2010

d. Grounds for cancellation of a patent
e. Remedy of the true and actual inventor

Add: Remedies of a Person Declared by Final Court Order
Having Right to the Patent

f. Rights conferred by a patent
g. Limitations of patent rights

(1) Prior user
(2) Use by the government

h. Patent infringement

(1) Tests in patent infringement

(a) Literal infringement
(b) Doctrine of equivalents


Case:

a. Smith Kline Beckman Corp. v. Court of Appeals and Tryco Pharma, G.R. No. 126627, August 14, 2003

(2) Civil and criminal action
(3) Prescriptive period
(4) Defenses in action for infringement

i. Licensing

(1) Voluntary

Add: Prohibited Clauses
Mandatory Provisions

(2) Compulsory

j. Assignment and transmission of rights


Add: Utility Models
Industrial Designs


3. Trademarks (Secs. 121 – 170, IPC)

a. Definitions of marks, collective marks, trade names (Sec. 121)

Add: Functions of a mark

Case:

a. Mirpuri v. Court of Appeals, G.R. No. 114508. November 19, 1999

b. Berris Agricultural Co., Inc. v. Norby Abyadang, G.R. No. 183404, October 13, 2010

b. Acquisition of ownership of mark (Sec. 122)
c. Acquisition of ownership of trade name

Case:

a. Coffee Partners, Inc. v. San Francisco Coffee and Roastery, Inc, G.R. No. 169504, March 3, 2010

d. Non-registrable marks (Sec. 123)

Case:

a. Fredco Manufacturing Corp. v. President and Fellows of Harvard College, G.R. No. 185917, June 1, 2011
b. Ana Ang v. Toribio Teodoro, G.R. No. L-48226, December 14, 1942
c. McDonald’s Corporation v. L.C. Big Mac Burger, Inc. G.R. No. 14399
d. McDonald’s Corporation v. MacJoy Fastfood Corp., G.R. No. 166115, February 2, 2007
e. Lyceum of the Philippines v. Court of Appeals, G.R. No. 101897, March 5, 1993

e. Prior use of mark as a requirement
f. Tests to determine confusing similarity between marks

(1) Dominancy test
(2) Holistic test

Add: Lack of Proof of Actual Confusion

Case:

a. Del Monte Corp. v. Court of Appeals, G. R. No. L-78325, January 25, 1990
b. Asia Brewery, Inc. v. Court of Appeals and San Miguel Corporation, G.R. No. 103543, July 5, 1993
c. Berries Agricultural Co., Inc. v. Norvy Abyadang, G.R. No. 183404, October 13, 2010
d. Prosource International, Inc., v. Horphag Research Management SA, G.R. No. 180073, November 25, 2009


g. Well-known marks (Sec. 123.1 [e] and [f])

Case:

1. 246 Corporation v. Hon. Reynaldo B. Daway, G.R. No. 157216, G.R. No. 157216, November 20, 2003

h. Rights conferred by registration (Sec. 147)

Add: Application Procedure (Sec. 124 – 144)
Priority Right (Sec. 131)
Duration (Sec. 145)
Renewal (Sec. 146)

Use of Indications by Third Parties for Other Purposes (Sec.148)
Assignment and Transfer of Registration (Sec. 149)
License Contracts (Sec. 150)
Cancellation (Sec. 151)
Effect of Non-use (Sec. 152)
Remedies (Sec. 155 – 158)
Limitations (Sec. 159)
Trademark Dilution

Case:

a. Prosource International, Inc., v. Horphag Research Management SA, G.R. No. 180073, November 25, 2009
b. Dermaline Inc. v. Myra Pharmaceuticals, Inc., G.R. No. 190065, August 16, 2010
c. Levi Strauss v. Clinton Apparelle, Inc., G. R. No. 138900, September 20, 2005


i. Use by third parties of names, etc. similar to registered mark
k. Unfair competition (Sec. 168)

Add: False Designation of Origin (Sec. 169)
Distinguish from Trademark Infringement

l. Trade names or business names (Sec. 165)
m. Collective marks (Sec. 121.2 in relation to Sec. 167)
n. Criminal penalties for infringement, unfair competition,
false designation of origin, and false description or misrepresentation


4. Copyrights (Secs. 171 – 129, IPC)

a. Basic principles
b. Copyrightable works

(1) Original works (Sec. 172)
(2) Derivative works (Sec. 173)

c. Non-copyrightable works (Secs. 175-176)

Case:

a. Joaquin v. Drilon, G.R. No. 108946, January 28, 1999

d. Rights of copyright owner (Sec. 177)
e. Rules on ownership of copyright (Sec. 178 – 183)
f. Limitations on copyright (Sec. 184 – 190)

(1) Doctrine of fair use
(2) Copyright infringement (Sec. 216)

Case:

a. Habana v. Robles, G.R. No. 131522, July 19, 1999
b. NBI-Microsoft Corp. v. Judy Hwang, et al., G.R. No. 147043, June 21, 2005
c. ABS-CBN Broadcasting Corporation v. Philippine Multi-Media System, Inc., et al., G.R. No.s 175769-70, January 19, 2009

(a) Remedies
(b) Criminal penalties (Sec. 217)
Add: Moral Rights (Sec. 193 – 199)

Losing a loved one

There are words of wisdom handed from one generation to another. I questioned some of those probably because of my youth, foolishness, or inadequacies. I realized later that only by experiencing would I fully comprehend the truth behind those words.

Parenthood is an example.

Unfortunately, late did I realize that is also true about losing a mother. The importance of telling them how much you love them while they are alive. Well, I guess it’s too late for that now. But it is never too late for healing.

Mom, in a nutshell (kudos to EJ, my nephew)

My Love Affair

I am sure people who know me would raise eyebrows upon seeing the title of this post since they think that there are no love veins flowing inside my body. But I do love some people, places, ideas, events, etc. I also love the law and this is about my love affair with this "Jealous Mistress."

It was not my intention to be a lawyer at first but I loved her the first time I met her. She was first introduced by an old lady, a retired justice, who taught us Persons and Family Relations. Years later, I found myself being inducted to the profession in a lavish ceremony before the Supreme Court en banc.

I took a full time job in a publishing company as editor of law books. I loved the job but then realized that I was already someone else. I did not like the person nor the situation he was in.

Twelve years down the road, I gave up this job, or the job gave up on me, whatever. I am now heading, as i write this post, to an unknown destination. All I know is that my "jealous mistress" is calling and I need to respond. And the loudest and most eloquent response I can give at this point is to become an even better teacher. Shivers.

Calm Before The Storm

Saturday morning before the first day of the bar exams. Everything seems so quiet its almost like an ambush. I just hope that all those years of preparation will be enough to help our students and other deserving Bar candidates hurdle this year's exam featuring that dreaded MCQ's. Pray and eat well my dear students. Start strong and finish the race even stronger. Good luck.

Administrative Law Course Outline AY 2011-12 Second Sem

Guys,

Here is the first part of the course outline. I expect that this will cover our Mid-Term Exams.
This is based on the Supreme Court Syllabus for the 2011 Bar Exams with modifications, of course.

ADMINISTRATIVE LAW

Course Outline

By:  Atty. Ernesto C. Salao

ecsalao@blogspot.com

I.             GENERAL PRINCIPLES

§      Definitions

a.    Administrative Law

b.    Government of the Republic of the Philippines (see Administrative Code of 1987, Section 2)

c.     National Government (see Administrative Code of 1987, Section 2)

d.    Local Government (see Administrative Code of 1987, Section 2)

e.    Agency of the Government (see Administrative Code of 1987, Section 2)

f.     Department (see Administrative Code of 1987, Section 2)

g.    Bureau (see Administrative Code of 1987, Section 2)

h.    Office (see Administrative Code of 1987, Section 2)

i.      Instrumentality (see Administrative Code of 1987, Section 2)

j.      Regulatory agency (see Administrative Code of 1987, Section 2)

k.    Chartered institution (see Administrative Code of 1987, Section 2)

l.      Government-owned or controlled corporation (see Administrative Code of 1987, Section 2)

§      Kinds of Administrative Law

§      Scope of Administrative Law

§      Sources of Administrative Law

Cases:

1.    Mecano v. COA, 216 SCRA 500

2.    Leveriza v. IAC 157 SCRA 282

3.    Luzon Development Bank v. Association of Luzon Dev. Bank Employees, 64 SCAD 918 or 249 SCRA 162

4.    Iron and Steel Authority v. Court of Appeals, 65 SCAD 261 or 249 SCRA 538

5.    Ignacia Balicas v. Fact-Finding & Intelligence Bureau (FFIB), Office of the Ombudsman, G.R. No. 145972, March 23, 2004

6.    Malaga v. Panachos, Jr., 213 SCRA 516

7.    Preclaro v. Sandiganbayan, 247 SCRA 454

II.               ADMINISTRATIVE AGENCIES

§      Creation, Establishment and Abolition of Administrative Agencies

2003 Bar Exams: Validity of abolition of long-standing Bureau under DILG by the President.

Cases:

1.         Crisostomo v. Court of Appeals, 258 SCRA 134

2.         Viola v. Alunan, III,  277 SCRA 409 (1997)

3.         Biraogo v. The Philippine Truth Commission of 2010, G.R. No. 192935, Dec. 7, 2010

4.         Kapisanan ng mga Kawani ng Energy Regulatory Board v. Commissioner Fe Barin, G.R. No. 150974, June 29, 2007

5.         Commission on Human Rights Employees Association v. Commission on Human Rights, G.r. No. 155336, November 25, 2004

§      Reorganization of Administrative Agencies

a.    Definition of Reorganization

b.    President’s power to reorganize; basis

c.     Power of other agencies to reorganize; limitations

Cases:

1.    Anak Mindanao Party-List Group v. The Executive Secretary, G.R. No. 166052, August 29, 2007

2.    Bagaoisan v. National Tobacco Administration, G.R. No. 152845, August 5, 2003

3.    National Land Titles and Deeds Registration Administration v. Civil Service Commission, 221 SCRA 145

4.    Sinon v. Civil Service Commission, 215 SCRA 410

5.    Domingo v. DBP, 207 SCRA 766

6.    Eugenio v. Civil Service Commission, 60 SCAD 262 or 242 SCRA 196 (1995)

7.    Larin v. Executive Secretary, G.R. No. 112745, October 16, 1007

§      Reasons/purposes for creating administrative agencies

§      Common types of administrative agencies

 

III.               POWER OF ADMINISTRATIVE AGENCIES

§      General Principles

Cases:

1.    Makati Stock Exchange, Inc. v. Securities and Exchange Commission, 16 SCRA 623 (1965)

2.    Kilusang Bayan, etc. v. Dominguez, 205 SCRA 92 (1992)

3.    Senator Robert S. Jaworksi v. PAGCOR, G.R. No. 144463, January 14, 2004

4.    Radio Communications of the Phils., v. National Telecommunications Commission, 215 SCRA 455 (1992)

5.    Matienzo v. Abellera, 162 SCRA 11 (1988)

6.    Cooperative Development Authority v. Dolefil Agrarian Reform Beneficiaries Cooperative, Inc., 382 SCRA 552 (2002)

7.    Laguna Lake Development Authority v. Court of Appeals, 49 SCAD 649 or 231 SCRA 292 (1994)

§      Quasi-Legislative Power (Rule-Making)

a.    Legislative power

b.    Doctrine of Separation of Powers

c.     Non-delegation of legislative power

d.    Exceptions to the doctrine of non-delegation of legislative power

Cases:

1.    US v. Barrias, 11 Phil. 327 (1908)

2.    People v. Vera, 65 Phil 327 (1937)

3.    Maceda v. Macaraig, 197 SCRA 771 (1991)

4.    Eastern Shipping Lines, Inc. v. POEA, 166 SCRA 533 (1988)

5.    Rabor v. CSC, 61 SCAD 569 or 244 SCRA 614 (1995)

6.    Araneta v. Gatmaitan, 101 Phil. 328 (1956)

7.    Edu v. Ericta, 35 SCRA 481 (1970)

 

a.    Kinds of Administrative Rules and Regulations

o   Supplementary or detailed legislation

o   Interpretative legislation

o   Contingent legislation

Cases:

1.    ABAKADA Guro Party List v. Purisima, G.R. No. 166715, August 14, 2008

2.    Gutierrez v. DBM, G.R. No. 153266, March 18, 2010 (and other allied cases)

3.    BPI Leasing v. Court of Appeals, G.R. No. 127624, Nov. 18, 2003

4.    Board of Trustees v. Velasco, G.R. No. 170436, February 2, 2011

b.    Requisites for Validity of Administrative Rules and Regulations

Cases:

1.    Dagan v. Philippine Racing Commission, G.R. No. 175220, February 12, 2009

2.    Smart Communications Inc., v. NTC, G.R. No. 151908, August 12, 2003

3.    Conte v. Commission on Audit, 76 SCAD 16 or 264 SCRA 19 (1996)

c.     Penal Rules and Regulations

2002 Bar Exams: Validity of rules and regulations issued by a Department Secretary providing penalties.

Cases:

1.    People v. Santos, 63 Phil. 300 (1936)

2.    People v. Que Po Lya, 94 Phil. (1954)

3.    People v. Maceren, 79 SCRA 450 (1977)

d.    Force and effect of administrative rules and regulations

Cases:

1.    Peralta v. Civil Service Commission, 212 SCRA 425 (1992)

2.    Javellana v. DILG, 212 SCRA 475 (1992)

e.    Requirements of notice and hearing or publication

Case:

1.  Commissioner of Internal Revenue v. Court of Appeals, 261 SCRA 236 (1996)

2000 Bar Exam: Requirement of notice and hearing of proposed administrative rules.

f.     Construction of administrative rules and regulations

Case:

1.    Victorias Milling Co v. Social Security Commission, 4 SCRA 627

2.    National Food Authority v. MASADA Security Agency, G.R. No. 163448, March 8, 2005

3.    SGMC Realty Corporation v. Office of the President, G.R. No. 126999, August 30, 2000

g.    Prospective or retroactive operation of rules and regulation

Case:

1.  Commissioner of Internal Revenue v. Azucena T. Reyes, G.R. No. 159694, January 27, 2006

2.  Rosario Dadulo v. Honorable Court of Appeals, Office of the Ombudsman, et al, G.R. No. 175451, Sept. 28, 2007

h.    Amendment or repeal of administrative rules and regulations

Case:

1.    Republic of the Philippines v. Express Telecommunications Company, Inc., G.R. No. 147096, January 15, 2002

i.      Administrative rule and interpretation distinguished

o.  Kinds of executive interpretations of the law

Case:

1.  San Miguel Corp. v. Inciong, 103 SCRA 139 (1981)

p. Weight accorded to contemporaneous construction

Case:

1.  Asturias Sugar Central Inc. v. Commissioner of Customs, 29 SCRA  617 (1967)

r. When contemporaneous construction disregarded

s. Erroneous construction creates no right; exception