STATUTORY CONSTRUCTION ASSIGNMENT

Joynilenge C. Lavador, JD1A

I. Discuss the different tests which are used to determine the mandatory
or directory nature of statutes.

Mandatory Statutes- is a statute, which contains word of command or

prohibition, to which a person has no choice but to obey. Examples: Republic
Acts, Presidential Decrees, Ordinances. The effects are Acts executed
against mandatory and prohibitory law shall be void except as when the law
itself authorizes its validity. The court has no power to distinguish between
material and immaterial breach or omission to comply with what requires.
Directory Statutes- is a statute, which operates to confer discretion
upon a person, namely to act according to the dictates of their own judgment
and conscience and not controlled by the judgment of others. Examples:
Memorandum Circulars, Memorandum Orders. The Effect is the non-
performance of what it prescribes, though constituting in some instances an
irregularity or subjecting the official concerned to disciplinary or administrative
sanction, will not vitiate the proceeding s therein taken.
When Statutes is Mandatory of Directory, the rules are No absolute test
to determine whether a statute is directory or mandatory, To determine the
classification, legislative intent should be ascertained, There are statutes that
are mandatory in form and directory in nature, The matter of essence of
determining whether mandatory or directory is determined only by judicial
constructions.
Test to determine the nature of the statute: (1) Test for Mandatory: If
substantial rights depend on it and injury can result from ignoring it; If
intended for the protection of the citizen and if disregard, then rights are
injuriously affected; Purpose is in a manner other than that prescribed and
substantially the same result obtained; If it will cause hardship of injustice to a
party not at fault; If it will lead to absurd and impossible mischievous
consequences. The language used for mandatory are shall or shall not, must
or must not, ought or ought not, should or should not, can or cannot.
The word “shall” or “must” mean “ought to”. In a common parlance it
presents a signification of command, and one that needs to have a
compulsory meaning. The word shall be used in an imperative and not in a
directory sense. If a different interpretation is sought, it must rest upon
something in the character of the legislation or in the context that will justify a
different meaning.
The word “must” in a statute is not always imperative. it may be
consistent with discretion. Example is that in a statute, considering the whole
with due regard of its nature and object reveals that the legislature intended to
use “must” as directory, then it will be used as such.

THE USE OF “may” “MAY” General Concept: It is an auxiliary word

showing opportunity or possibility. Generally, directory in nature It is liberally
construed and used in procedural or adjective laws. When shall is construed
as “may” and vice versa. The rule “may” should be read as “shall” Instances:
Where such construction is necessary to give effect to the apparent intention
of the legislature Where statute provides for the doing of some act required by
justice or public duty Where it vests a public body or officer with power to take
action concerning public interest or rights of individuals.
Mandatory Statutes:
Statutes conferring power:

The Statutes which confer upon a public body or officer power to

perform acts which concern the public interests or rights of the people. The
Power is given for the benefit of third persons, not for the public official. It is
given as a remedy to those entitled to invoke its aid, and who would otherwise
be remediless. Intent of the legislature was to impose absolute and positive
duty rather than conferring privileges.

Statutes granting benefits:

Statutes that require certain steps to be taken or certain conditions to
be met before concerned persons can avail of the benefits conferred by law.
These are considered mandatory with respect to such requirements. Failure
of the person to take the required steps or to meet the conditions will preclude
him from availing of the statutory benefits. This rule is based on the maxim
Vigilantibus et non dormientibus jura subveniunt. Vigilantibus et non
dormientibus jura subveniunt- The law aids the vigilant, not those who
slumber on their rights. Potior est in tempore, potior est in jure- He who is first
in time is preferred in right. Statutes relating to procedure, every act which is
jurisdictional, or of the essence of the proceedings, or is prescribed for the
protection or benefit of the party affected. Failure to comply with certain
procedural requirements will have the effect of rendering the act done in
connection therewith void, the statute prescribing such requirements is
regarded as mandatory, even though the language used is permissive in
nature.

Election Laws on conduct of election:

The provisions governing the conduct of elections and prescribing the
steps of election officials are required to do in connection are MANDATORY
before the elections. When sought to enforce them after the elections, they
 are only DIRECTORY. Directory when: In support of the result, unless of a
character to affect an obstruction to the free and intelligent casting of the
votes; To the ascertainment of the result; The provision affects an essential
element of the election; It is expressly declared by the statute that the
particular act is essential to the validity of an election, or an omission shall
render it void. ballot have not done their duty. Mandatory when: If
enforcement is sought before the election in a direct proceeding for that
purpose. Provisions of the election laws- adopted to assist the voters in their
participation in the affairs of the government, and not to defeat the object.
When the voters honestly cast their ballots, the same should not be nullified
simply because the officers appointed under the law to direct the elections
and guard the purity. The rule that election laws are mandatory before but not
after the elections, applies only to provisions that are procedural in nature.
The rule does not apply to provisions of the election laws prescribing the time
limit to file certificates of candidacy and the qualifications and disqualifications
to elective office. These provisions are considered MANDATORY even after
the elections.

Directory Statutes:
Regulation designed to secure order, system, and dispatch in
proceedings, and by a disregard of which the rights of parties interested may
not be injuriously affected – directory. The exception is unless accompanied
by negative words importing that the acts required shall not be done in any
other manner or time than that designated. Except: Intention to the contrary is
manifest time is of the essence of the thing to be done language of the statute
contains negative words designation of the time was intended as a limitation
of power, authority or right always look at intent to ascertain whether to give
the statute a mandatory or directory construction.
The Basis is EXPEDIENCY – less injury results to the general public by
disregarding than enforcing the little of the law and that judges would
otherwise abstain from rendering decisions after the period to render them
had lapsed because they lacked jurisdiction to do so.

II. Discuss the importance of Latin Maxims.

A legal maxim is an established principle or proposition of law, and a
species of aphorism and general maxim. The word is apparently a variant of
the Latin maxima, but this latter word is not found in extant texts of Roman
law with any denotation exactly analogous to that of a legal maxim in the
Medieval or modern definition, but the treatises of many of the Roman jurists
on regular definitiones and sententiae iuris are to some degree collections of
maxims. Most of the Latin maxims originate from the Medieval era in
European states that used Latin as their legal language. Latin maxims are
 used not only in interpreting statutes. They are also used by judges and
justices in their decisions to add elegance to their language and to give
emphasis to the legal points therein. This is so because Roman legal
literature is noted for originality and the style of Roman jurists is simple, clear,
brief and precise.
Each legal maxim is the concise form of a big definition and each of
them came from a different source or case laws. There are many different
types of legal maxims. Most of them came from the ancient Latin usage of a
certain word or phrases. Legal maxims are established principles of law that
are universally admitted, and people in the legal field are very well aware of
these words. They are mostly Latin words or a combination of few words.

III. Enumerate at least 10 Latin Maxims found in Chapter VII of your text
book and describe each.

1. Tradition brevimanu - Latin, meaning “delivery with the short hand.”

Traditio brevi manu or “delivery with the short hand” refers to the act of a
person, to whom an item is transferred, who is already in possession of
the item but not as the owner of the item. The concept prevents the need
for a needless “double delivery” for a party to take ownership of an item
they already have in their possession. It is a constructive or implied
delivery. For example, a person who leases a car has possession of the
automobile although not the owner. If the lease contains an option to buy,
the lessee then could become a purchaser. It would be needless and
burdensome to require the lessee to return the car to the lessor solely to
afford the lessor/owner with the ability make a legal delivery of the car
back to the lessee/purchaser to legally complete the act of a purchase. In
essence, the car is delivered with the short hand since the lessee already
has the car in his or her possession.
2. Traditio longa manu - Latin, meaning “delivery with the long hand.”
Traditio longa manu or “delivery with the long hand” refers to the act of
delivery of a transferring party to the receiving party who does not yet
have the object in their possession. For example, if a party purchases a
car from an auto dealer that is on the auto dealer’s lot, the transferror
auto dealer will deliver the vehicle to the transferee/purchaser at the
purchaser’s home. Another example is “I give to you the umbrella that you
bought from me”. Contrast this with traditio brevi manu, where the
purchaser already has possession of the item, such as a party who
leases a car with an option to purchase and later exercises such option. A
token act of delivery is not required.
3. Constitutum possessorium - The change in intention of one having
legal possession of real or personal property whereby the original
 possessor of the property remains in control but transfers the legal
possession to another. A Latin term used to describe the case where an
item is sold by a seller to a purchaser, but before it can be transferred to
the new owner (purchaser), the item is kept or stored by the former owner
(seller). A type of constructive delivery in which mediate possession is
transferred while the immediate control or custody remains in the
transferor. Thus, the parties rights over the object have changed despite
physical delivery to the new owner not having taken place. The seller
agrees to keep the item for the purchaser or when the seller transfers
ownership and retains a usufruct.
4. Negotiorum gestio - Negotiorum gestio is the voluntary administration of
the property, business or affairs of another, without his consent or
authority, that creates an obligation for reimbursement for the necessary
expenses the gestor had spent. Example: Juliet left her farm unattended
for 1 week because she is having a vacation. Latin for "management of
business") is a form of spontaneous voluntary agency in which an
intervenor or intermeddler, the gestor, acts on behalf and for the benefit of
a principal (dominus negotii), but without the latter's prior consent. The
gestor is only entitled to reimbursement for expenses and not to
remuneration, the underlying principle being that negotiorum gestio is
intended as an act of generosity and friendship and not to allow the
gestor to profit from his intermeddling.
5. Solutio indebiti - refers to the juridical relation which arises whenever a
person unduly delivers a thing through mistake to another who has no
right to demand it. If something is received when there is no right to
demand it, and it was unduly delivered through mistake, the obligation to
return it arises. (Art. 2154, CC). Solutio Indebiti (Payment by mistake) It is
the juridical relation which arises when a person is obliged to return
something received by him through error or mistake. Example- Arvin
owed Ian the sum of P1, 000.00. By mistake, Arvin paid P2, 000.00.
6. Lex Prospicit, Non Respicit - The law looks forward, not backward. This
refers to the Article 4 of our New Civil Code, which provides as follows:
“Article 4. Laws shall have no retroactive effect, unless the contrary is
provided”. This means, all statutes are to be construed as having only a
prospective operation unless the purpose and intention of the legislature
to give them retrospective effect is expressly declared or is necessarily
implied from the language. In every case of doubt, the doubt must be
resoloved against retrospective effect.
7. Lex de Futuro, Judex de Praterio – This means “The law provides for
the future, the judge for the past”. The law is prospective as a
characteristic that there will be no law shall be constructed for retroactive
effect but prospective or for the future. While the judges, will be applying
the based on the crime committed by a person. When there is strict and
fair application of the law, then there is Justice in the country. The Judges
 will be providing its decision based on the laws provided by the legislative
body of the government.
8. Absolute Sentencia Expositore Non Indiget – This means when the
language of the law is clear, no explanation of it is required. G.R. No.
165287, September 14, 2011, ARMANDO BARCELLANO, Petitioner vs.
DOLORES BAÑAS, represented by her son and Attorney-in-fact
CRISPINO BERMILLO, Respondent.
9. Optima Statuti Interpretatix Est Insum Statutum – The best interpreter
of the statute is the statute itself. Before going to the extrinsic aide for the
interpretation, it should go first to the intrinsic aid for interpretation such
as preamble, title, body, punctuation, and et cetera.
10. Ratio Legis Est Anima – which means the reason of the law is its soul or
the reason of the law is the soul of the law. The reason of a law may
cease in a given situation. This may happen when the purpose of the law
sought to be achieved is accomplished, or the mischief sought to be
repressed is prevented, by an act or event independent of the statute
itself. The law, in such a case, though remaining in force and effect, finds
no application in the given situation. This truism holds true in the case at
bar. Cenon A. Vargas, CSC Resolution Nos. 94-2795; 95-5559

IV. Outline how words and phrases used in statutes are interpreted.

1. How are words and Phrases in a Statute Interpreted?

If the words and phrases used are defined in the statute itself, such
definition controls the meaning of the statutory word, irrespective of any
other meaning the word or phrase may have in its ordinary or usual sense
If there is no such definition, the words or phrases in the statute should be
interpreted in accordance with its well-accepted meaning and they should
be construed in the light of the context of the whole statute.
A. Read the statute. The primary language of the statute should always
serve as the starting point for any inquiry into its meaning. To properly
understand and interpret a statute, you must read the text closely,
keeping in mind that your initial understanding of the text may not be
the only plausible interpretation of the statute or even the correct one.
B. Understand your client’s goals. Make sure that you have a firm
grasp of your client’s goals and the underlying facts of your client’s
legal problem so that you will be able to determine which statutes are
relevant to your case.
C. Confirm the statute is still good law. Be sure to Shepardize or
KeyCite the statute to determine: (a) whether the statute or parts of the
statute have been repealed or otherwise invalidated; (b) whether the
 statute has been amended; and (c) whether there are any court
decisions that can guide your analysis of the statute.

2. Is the Statutory Definition Conclusive to the Courts?

A statutory definition is not necessarily conclusive to the courts in the

following cases:
1.) When such definition creates obvious incongruities;
2.) When it contravenes the major purpose of the statute;
and
3.) When it becomes illogical as a result of a change in its
factual basis.
In such cases, the words will be given a meaning that will serve the
purpose of the law, or which will make the law logical and free from
incongruities

3. Rules that Govern the Following Situations

 When a word used in a statute has a general meaning;
 When the word used has a technical meaning;
 When the word used has no meaning in harmony with the
 legislative intent; and
 When the word or phrase is repeatedly used in a statute.

4. When the Word Used in a Statute Has a General Meaning

The general word should not be given a restricted meaning unless it is

otherwise indicated. This is founded on the Latin Maxim - GENERALIA
VERBA SUN GENERALITER INTELLIGENCIA, which means that what is
generally mentioned shall be generally understood.

5. When the Word Used Has a Technical Meaning

When the words or phrase used have a technical meaning, they are
considered to have been used in their technical sense.

6. When the Word Used Has No Meaning in Harmony with the

Legislative Intent

When the words used have no meaning in harmony with the legislative
intent, they can be treated as surplusage and they may entirely be
ignored. Before resorting to this, however, the courts should construe the
 statute in its entirety 'and find out if the words used can still admit a
reasonable construction which will give them force and meaning. In the
absence of any reasonable construction, then the said words can be
ignored.

7. When the Word of Phrase is Repeatedly used in a Statute

A word or phrase used in one part of a statute shall receive the same
interpretation when used in every other part of the statute, unless a
different meaning is intended. Likewise, when a word or phrase is
repeatedly used in a statute, it will, as a rule, bear the same meaning
throughout the statute. (Kriuenko v. Register of Deeds, 79 Phil. 461)

8. Particular Words and Phrases

 The words "OR" and "AND"

 The terms "AND/OR'
 The words "SHALL" and "MAY"
 The words "ALL," "EVERY" and "ANY"
 The phrase "AND SO FORTH"
 The phrase "AND THE LIKE"
 Negative words and phrases like "CANNOT," "SHALL Not'
 Affirmative words and phrases like "THE FOLLOWING
 MAY," "THE FOLLOWING SHALL"

9. Due Process of Law

Due process of law has procedural and substantive requirements.

From the procedural point of view, it simply means that the procedure to
be observed should be fair or as Daniel Webster puts it, it is a "law which
hears before it condemns."
Requirement of due process:

 SUBSTANTIVE DUE PROCESS - is a guarantee that life,

liberty, and property shall not be taken away from anyone
without due process of law.
 PROCEDURAL DUE PROCESS - refers to the regular methods
of procedure to be observed before one's life, liberty or property,
can be taken away from him

10. Courts Power to Construe Statutes Arises Only if The Statute is not
Clear
 A statute, which is clear and free from ambiguity, need not be
interpreted by the courts. They must be applied to give effect to the intent
expressed in the language of the statute. This principle is based on the
Latin Maxim DURA LEX SED LEX (The law may be harsh but it is the law)
and in another Latin maxim ABSOLUTA SENTENTIA EXPOSITORE NON
INDIGET (When the language of the law is clear, no explanation of it is
required).

11. In the Process of Construing a Statute, what are Those That the
Court Can Do and Cannot Do

What the court can do?

1. Primarily, the court's duty is to ascertain the true intent of the
statute.
2. In the pursuit of this duty, the court can resort to all legitimate aids
to construction. These aids are those found in the law itself, known
as intrinsic aids, and those extraneous facts and circumstances
outside of the statute, known as extrinsic aids.
3. It can depart from the language of the statute if by so doing, the
legislative purpose could be carried out.
4. It may correct clerical errors, mistakes or misprints, which, if not
corrected, would render the statute meaningless.
5. It can issue guidelines in applying the statute in order to delineate
what the law requires.
What the court cannot do?
1. The court cannot speculate as to the intent of the law.
2. The court cannot supply a meaning not found in the phraseology of
the law.
3. The court cannot assume a purpose, which is not expressed in the
statute.
4. The court cannot change the meaning of the law, especially if the
meaning will defeat the purpose of the law.
5. The court cannot rewrite the law and invade the domain of the
legislature (This is known as JUDICIAL LEGISLATION).
6. The court cannot interpret into the law a requirement, which the law
does not prescribe.
7. The court cannot enlarge the scope of the statute and include
transactions or situations not provided by the legislature.

12. What Happens if The Statute is not Capable of Interpretation of

Construction?
When a statute is not capable of construction or interpretation because
it fails to express a meaning, or if the absurdity in the law cannot be
 reconciled despite resorting to all aids in construction, it becomes
inoperative (Manila Jockey Club, Inc. v. Games and Amusement Board,
107 Phil. 151).

13. Can the Supreme Court Abandon or Overrule its Earlier Decision?

The Supreme Court, sitting en banc, may abandon or overrule its

earlier decision, if it is right and proper to do so but the new decision
modifying or overruling a doctrine or principle should only be applied
prospectively, and should not apply to parties who had relied on the
doctrine and acted on the faith thereof.

14. If the Decision of the Supreme Court in a Particular Cas is Not

Correct, should it be Followed by the Inferior Courts?

Unless and until that decision of the Supreme Court is reversed by

itself, sitting en banc, it shall be binding not only upon the inferior courts
but also upon all branches of the government. The basis for this is Article 8
of the new Civil Code, which provides as follows:
"Article 8. Judicial decision applying or interpreting the laws or the
Constitution shall form a part of the legal system of the Philippines."

V. Discuss how to construe Contracts.

Article 1305 of the New Civil Code defines a contract as "a meeting of
minds between two persons whereby one binds himself, with respect to the
other, to give something or to render some service."
The general rule is that whilst the court strives to give effect to the
intention of the parties, it must give effect to that intention as expressed. That
is to say it must ascertain the meaning of the words actually used and not try
to interpret the motive or state of mind of the parties. The courts must have
regard to the ordinary meaning of words used unless they are technical or
scientific. That being said the courts are concerned to ascertain the intention
of the parties and not merely indulge in semantic exercises.
In construing particular terms of a contract, the whole of the contract
must be considered. Further, if there is no ambiguity or uncertainty, then the
court must give effect to the intention of the parties, however harsh. Where
the parties have made manuscript deletions, additions or amendments to a
printed form, in the event of any ambiguity in construing the document as a
whole, the manuscript will be given greater weight than the printed terms.
Where there is inconsistency between figures and words the court will have
regard to the words before the figures. If there is inconsistency between
different parts of the same contract then, in the absence of an express term
resolving the ambiguity, the courts will endeavour to give effect to that part of
the contract which expresses the real intention of the parties. If the contract
document or documents establish a clear intention, the courts adopt an
interventionist approach to resolve any difficulties flowing from the actual
words used by the parties.
The results of the authorities is that, when a court of law can clearly
collect from the language within the four corners of a deed or instrument in
writing, the real intention of the parties, they are bound to give effect to it by
supplying anything necessary to be inferred from the terms used, and by
rejecting as superfluous whatever is repugnant to the intention so discerned’.
The following should be considered in construing the contract:

 Can the Contracting Parties Enter into Any Kind of Agreement

and Establish Such Terms and Conditions That They May Deem
Proper?
 Who Are Bound by The Terms of The Contract?
 When Is It Necessary and Not Necessary to Interpret the Terms
of The Contract?
 In Case of Conflict Between the Words of The Contract and
Evident Intention of The Parties, Which Prevails?
 How to judge the intention of the parties?
 VI. Rules Governing the Following:
o Effect of the use of several terms
o Effect of stipulations that admit of several meanings
o Effect of words which may have different significations
o Effect of usage or custom of the place
o Effect of obscure words or stipulation in a contract
 Use of General Terms
 Stipulations That Admit General Meanings
 Usage or Custom of The Place
 Obscure Words or Stipulation
 Rule in Case of Doubt as To the Principal Object and As to The
Incidental Circumstances
 Other Rules of Interpretation
 REFERENCES
Suarez, R.A. (18 December 2014). Statutory Construction (2014 Ed.). Manila: Rex
Book Store.

Wikipedia. (n.d.). Legal Maxim. Wikipedia. Retrieved from

https://en.wikipedia.org/wiki/Legal_maxim

The Law Dictionary. (n.d.). TRADITIO BREVI MANU. Law Dictionary. Retrieved
From https://dictionary.thelaw.com/traditio-brevi-manu/

Designing Buildings Wiki. (11 November 2020). Construing a contract. Designing

Buildings Wiki. Retrieved From
https://www.designingbuildings.co.uk/wiki/Construing_a_contract