JOINT MEETING OF THE JUNIOR PHILIPPINE SENATE AND THE JUNIOR HOUSE OF REPRESENTATIVES On the night of Oct. 19, the Assembly Hall was full of spectators eager to behold the Junior Congress in session. It was the Joint Meeting of the Junior Philippine Senate and the Junior House of Representatives. Speaker Osmeña was the guest of honor, but due to unavoidable causes he was unable to attend. Honorable Arroyo, Representative from Iloilo, represented him on the occassion. The Immigration Policy about which there are so many conflicting opinions was ably discussed in the Junior House meeting. The Senate discussed the bill concerning compulsory military service submitted by Senator Ampil from the fourth district. Strong opposition to the measure was manifested by the Opposition and Independent parties thru Senators Domingo and Sorreta and at the final voting the bill was defeated. FRESHMAN CLASS ORGANIZATION Those students of the first year who passed the ordeal of the last semester examination were recognized as constituting the Freshman Class of the College of Law and organized themselves by electing the following officers: President.. Secretary.. CECILIO PUTONG JESUS BARRERA Treasurer. ANASTACIO DE CASTRO UNIVERSITY ORATORICAL CONTEST With Messrs. Montemayor, Quirino and Yamzon, graduates and winners of oratorical honors in the College of Law, acting as judges, the semi-final contest, to select the College of Law representative to the University Oratorical Contest was held Friday, November 16. There were eight contestants and the choice fell on Alejo Labrador whose oration is entitled "A Tribute to Lord Kitchener of Khartoun", and on Emilio Javier as alternate, who spoke on "Our National Preparatiom". It is a pity that only two could be selected because all the other orations were very well written and very interesting. Labrador and Javier are the winners of the Carson medals of last year. ELECTIONS With the beginning of the second semester, elections of officers were held by the Junior Philippine Senate and the Philippine Barristers and the results were: PHILIPPINE LAW JOURNAL Vol. IV JANUARY, 1918 No. 6 A PROPOSED UNIFORM PARTNERSHIP LAW FOR THE PHILIPPINE ISLANDS: REASONS FOR ITS ADOPTION BY JOSE A. ESPIRITU, Assistant Professor of Mercantile Law, University of the Philippines. INTRODUCTION Cicero, seeing the chaotic state of the Roman law after its thousand years or more of evolution, had dreamed of a system of a universal and permanent law by saying, "Non erit alia lex Rome, alia Athena, alia nunc, et alia posthac sed apud omnes gentes at omni tempore una lex et sempiterna et immortalis, continebit." The idea of a system of law that can exist without any change for all time to come and among the different peoples of the world is, of course, an impossibility. It directly disregards the truth that law, in its widest sense, is a progressive science. And as such, it should be designated to meet the needs of the people to which it is made applicable and to suit new conditions that may arise from time to time in the locality of its application. A useful and progressive system of law is one which the people among whom it is made enforceable can properly understand and the wisdom of which is appreciated, for the law should be made to suit the people and not the people to suit the law. One of the most striking illustrations of the effect of a scientific system of law enforced among a people who were not ready to appreciate its wisdom and usefulness was that of the Siete Partidas of Spain which though considered as "by far the most valuable monument of legislation not merely of Spain but of Europe since the Roman (Justinian) Code," and "unequaled by any mediaeval code, for its spirit of justice, and for natural arrangement and for knowledge," still it took over two hundred years before the Spanish people could understand its provisions and thus was finally given its full operation throughout the country. Three defects of the law are generally assigned among well-known writers on jurisprudence; namely, rigidity, conservatism and formalism. The law is rigid because every general principle of law is the product of a process of abstraction. It is the 1 De República. 2 Dunham, History of Spain and Portugal, Vol. IV, pp. 109, 131-132. Salmond, Jurisprudence, pp. 23-25; Holland, Jurisprudence; Lee, Historical Jurisprudence. result of elimination by disregarding the less material circumstances in particular cases falling within the scope and putting more attention upon those essential elements which are common among these cases. A principle of law, therefore, is not a mere guide to exercise rational discretion, but it is rather a substitute of it. In its application generally no allowance for special circumstances is made. The result of this inflexibility is that even a carefully framed rule will always work hardship and injustice in some special circumstances. This must be accounted for by the complicated and numerous affairs of men, so that it is impossible to lay down general principles which will be true and just in every case. Conservatism is the general element existing in every system of law. . It is considered one of its defects because it fails to conform itself to those changes and circumstances in men's views of truth and justice, which are inevitably brought about by the lapse of time; that which is true today may become false tomorrow by reason of those changes of circumstances. This being so, some method is found necessary through which the law, which is by its very nature stationery, may be changed to meet the circumstances and opinions of the time. The law being a living organism it requires constant changes in its provisions, and consequently it is necessary to adopt and use some effective means to facilitate legal development in order to counterbalance this fatal conservatism. Today, legislation is the instrument generally approved by all civilized and progressive races by means of which the substitution of new principles for old ones can be made effective. The formalism of the law is the result of the tendency of some legal system to attribute too much importance to form as opposed to substance. It is necessary for every progressive legal system to exercise careful discrimination as to the relative importance of the matters which come within its cognizance and any system which fails to meet these requirements is full of formalism. This is a defect of ancient origin which was shown remarkably in the early Roman legislation until the rigid rules gradually relaxed into a more liberal system of recognizing the intention of the parties as the more important criterion. But even today, this defect is not entirely absent from the most modern legal system. The Philippine Islands has been and is still under the influence of the Civil law as is embodied in the Spanish Codes, as far as her substantive law is concerned. While there have always been some efforts to introduce new legislations based entirely on the progressive Anglo-American ideas, still there seems to be a prevalent desire among the members of the bench and of the bar who know and can appreciate the wisdom of our laws to keep the major part of the present substantive law of these Islands derived from the Civil law unchanged. This idea is plausible, not only because this system has been in force in this Archipelago for over thirty years, and consequently the people of these Islands have already learned to identify themselves and their institutions with its precepts and provisions, but also because it had had a close relation with the historical development of this country and her people. That the provisions of our present substantive law are better known among the majority of the members of the bar and the bench, nobody can deny. The introduction of new laws based entirely on American legislation, no matter how wise and progressive these laws may be, is always a source of hardship and confusion among our Spanish speaking lawyers and judges who cannot study for themselves the history, interpretation, construction and application for the proper mastery of every new law. The consequence of this is, of course, obvious. Instead of quick and inexpensive administration of justice in these Islands, we shall have endless litigations, misunderstanding, and misinterpretation of the law. That the people will understand the law later, nobody can deny, but look at what it costs them to learn its provisions. While the above may be true, it does not however mean that no new changes should be introduced in our laws. On the contrary, the progress of the people demands new legislation providing for better, clearer, and more liberal laws. To this extent, therefore, our existing laws must be modified, not abruptly, but slowly and cautiously. The existing laws should not be wiped out at a stroke of the pen and new and strange laws introduced in their places, but rather let our reform be gradual and limited only to those parts found to be defective or insufficient in their scope. DEVELOPMENT OF PARTNERSHIP LAW The idea of forming partnerships was undoubtedly practiced from the earliest time among those individuals, who, not having sufficient capitals and not being in position to conduct business or to undertake certain enterprises singly, made use of this legal relationship. By means of contributions put by the several members in the capital of the enterprise or business which consisted either of money, property or labor, they were able to carry out their preconceived plans. It is said that of all commercial institutions none had acquired a development and progress so fast, varied and powerful as those that had arisen from the contract of partnership. Tracing the historical evolution of the partnership law, Professor Scott Rowley' says: "From a historical view point, it is probably a safe assertion that no other branch of the law has so interesting a development as has the law of partnership relations, nor has any other legal relation been handed down from generation, through varied nations, conditions, and periods, with such uniformity in principle and in practice. Nearly a thousand years before the Mosaic law was given to the Jews, the Babylonians in the celebrated Code of Khammurabi, had developed a system of partnership law which, in its basic elements, differed but little from our modern law, emphasizing the principle of division of profit and loss. It is perhaps safe to assume that the Babylonian partnership, modified as it passed through Jewish, civil and common law to meet changing conditions, is really the forerunner and the model of our present-day partnership." 4 Supino, Derecho Mercantil, p. 168. Rowley, The Development of Partnership Law, XXIV Case and Comment, p. 367. |