"Whenever the liability in solidum or the subsidiary liability has been enforced, the person by whom payment has been made shall have a right of action against the others for the amount of their respective shares."

Following the general principles enunciated on page 41 of this work, we have to say that the person by whom payment has been made in the last preceding paragraph is subrogated to all the rights and actions of the party offended.

There are some provisions of the Code of Commerce which directly concern subrogation, but they are more or less repealed by some acts of the Philippine Legislature. For example Article 413 of the said code provides that an insurer against fire, after paying the damages suffered because of fire, is subrogated to the rights and actions of the owner of the property insured against the author of the fire or those responsible for it. (Act No. 2427, Section 204.) Whether the repeal of those provisions is wise or not, we deem it not our duty to make any comment.

CHAPTER VII

PARTIAL SUBROGATION

1. ITS STATUS IN OUR LAW.

Article 1213 of the Civil Code provides that "a creditor to whom a partial payment has been made, may enforce his right for the balance, with preference to the person subrogated in his stead by virtue of the partial payment of the same credit." With regard to this article Manresa in his Commentaries of the Spanish Civil Code says: "This article presupposes the possibility of partial subrogation, as it speaks of the subsistence of the rights of the original creditor, and expressly recognizes, even though to consider them preferred, the co-existence of those which the third person subrogated acquires." But our Supreme Court, with Justice Carson rendering a strong dissenting opinion, has held in the case of Somes vs. Molina, 15 Phil. 137. that the surety cannot exercise the rights conferred by subrogation until the debt which the principal debtor owes to the creditor is fully paid." Our Supreme Court in pronouncing this doctrine cited the following: Supreme Court of Spain, July 9, 1897 (No. 37); Wilcox vs. Bank, 7 Allen 270; London and N. W. American Mortgage Co. vs. Fitzgerald, 55 Minn. 71; Lumbermen's Ins. Co. vs. Sprague, 59 Minn. 208; 27 Am. and Eng. Ency. L. 205. As to how far should this ruling of our Supreme Court be extended, the dissenting opinion of Justice Carson furnishes a credible dissertation.

2. IN WHAT CASES APPLICABLE.

Partial subrogation may take place in both conventional and legal subrogation. It exists in all cases where there is valid partial payment. We speak of valid partial payment because the creditor can neither be compelled to receive partial payment, nor to subrogate the payor in the rights the creditor possesses, when the debtor is not aware of the payment. Therefore if the creditor accepts, there may be partial sub

rogation. This is also true when the contract itself provides that there shall be partial subrogation. We have no reason to doubt that there may be partial subrogation if the right granted by paragraph two of Article 1169 is taken advantage of. (In connection with this chapter our discussion on part payment (p. 37) should be read, for in that discussion may be found the general principles on the subject.)

CHAPTER VIII

CONCLUSION

Summarizing the various points that we have endeavored to bring out in this work, we give the following as our conclusion:

1. There are various provisions scattered here and there in our laws whose letter seems to call them subrogation, when in fact they are not, for technical subrogation is the substitution of a third person or one secondarily liable in the place of the creditor either by virtue of a clear agreement or by other circumstances which conclusively prove that the parties understood to have a subrogation, or by opération of law.

2. The general rule is that there is subrogation, although the debtor does not expressly give his consent, but the payor cannot compel the creditor to subrogate him in the rights the creditor possesses. But the creditor alone without the consent of the debtor, either express or implied, cannot authorize a subrogation. What he may do is an assignment of credits.

3. The debtor alone may give consent that the payor be subrogated to the rights of the creditor. In order to do this the formalities required by law must have been strictly followed, otherwise subrogation does not arise.

4. Legal subrogation is the one that is being resorted to more frequently than the conventional subrogation. This right is granted by law for no other reason than to give equity and justice to the payor and the debtor. But the payor must have, more or less, an obligation to pay the debt either to protect his own interests or to fulfill an obligation which he is legally bound to perform because of the default of another.

5. The parties may agree to a partial subrogation. Their agreement is the law to govern their transaction so long as it is not against law, moral, or nature. (See Article 1091 of the Civil Code; Alcantara vs. Aline, 8 Phil. 111; Hijos de I. de la Rama vs. Inventor, 12 Phil. 44.) But with regard to a strictly legal subrogation, the case of Somes vs. Molina, et al., 15 Phil. 137, puts us in a limbo of doubts. It is however, expressly decided in that case that a surety cannot exercise the rights conferred by subrogation until the debt which the principal debtor owes is fully paid.

Whether our development of the subject justifies these conclusions or not, we leave it to our readers to answer. We have done as well as we could, and we must beg their generous indulgence if at any point we have failed to reflect accurately the existing trend of the law.

PHILIPPINE LAW JOURNAL

Published monthly, August to April inclusive, during the academic year, by the alumni and students of the College of Law, University of the Philippines.

FACULTY ADVISORY COMMITTEE

Jorge Bocobo, Dean of the College of Law.

Quintin Paredes, Professorial Lecturer on Criminal Law.

Enrique Altavas, Lecturer on Land Registration and Mortgages.

MARCH, NINETEEN HUNDRED AND EIGHTEEN

NOTE AND COMMENT

RAMÓN R. SAN JOSÉ, Senior

Editor

At the meeting of the Comparative Law Bureau of the American Bar Association, held at Saratoga Springs, on September 3, 1917, Judge Charles S. Lobingier, the representative of the College of Law at the said meeting, advocated the publication of the Siete Partidas, and the following is a part of his remarks:

"There are, it seems to me, several reasons for publishing the Partidas earlier than any other work. In the first place, one of the results of the work of this Bureau will be to bring the American lawyer more into contact with the Spanish law of Central and South America. I suppose that is one of the purposes; at least, it is a very practical and appropriate purpose. Our commercial relations with South America are bound to grow. The lawyer whose practice extends very far is going to encounter the need of a greater and more accurate acquaintance with Spanish law. Now, the Spanish law, as a whole has never been codified. It was not codified in Spain itself until very late in the 19th century, and it is a remarkable fact that our own contact with the Spanish law, particularly in the Philippines, came only nine years after the Spanish Civil Code had been promulgated.

'Nevertheless there is a written pasis for the Spanish law.

"It does not, like the English Common Law, rest solely upon precedent. That written basis is very ancient, very authoritative, universally cited, and highly respected by the courts of the Spanish speaking countries, regardless of what codes they may have since evolved. That basis is Las Siete Partidas, a work produced originally in the 13th century, though not then coming immediately into force. It has the great historic value of marking the 'reception'— to use a technical term of the Roman Law in Spain. It was through the Partidas, and through the introduction, in great part, of the Justinian Codes in the form of the Partidas, that the Roman Law came into Spain. Of course also Spain, with her great colonial enterprises, extending her civilization, language, culture and institutions, over practically all of South America, a large part of North America, and no inconsiderable portion of Asia, diffused the Spanish Law, and with it the Partidas. Hence the Partidas was the original basis of the law in Mexico, Central America, Louisiana, the Philippines, and wherever the Spaniarda have gone.

"You will find the courts of the Spanish speaking countries today citing the Partidas, on any question that antedates their codes, and, naturally, there are many such.

"So if it be the design of our publications to place the American lawyer in touch with the Spanish law in such a way that he will really grasp its historical development and get in touch with its sources, that must be accomplished through the publication of the Partidas. I think its practical value is greater than the Argentine code, e.g. because that is only a local book.

It is, no doubt, desirable that all of these codes be published eventually. I hope they will be, but when we are limited to one or two publications, at the most, during any one year, I think we should seek the fundamental ones first, and I believe that the Partidas should be the initial one. There is the reason I have just discussed that it is the basis of all Spanish law.

TRANSLATION

"Then, there is the additional reason that a translation has been supplied. It is not a case where we need look for a translator, nor consider whether we have the funds to pay for a translator. That burden has been removed, I feel justified in speaking of our [translator because I received not long since, a letter from Mr. Scott, inquiring what had become of his translation, and expressing some disappointment, which seemed to me justified, that it had not been published sooner.

"Now, this is not Mr. Scott's first attempt at the translation of a great Spanish law book. He translated at least one other, I think the first one the Bureau issued, the Visi-Gothic Code. I do not know what its circulation is or how it has been received, but I would not suppose that the circulation of the Visi-Gothic Code would be a reliable index of the circulation of the Partidas, because while they are both books relating to Spanish law, they are very distinct in character, value, and influence. The Visi-Gothic Code ís some six hundred years earlier than the Partidas and is not really a Spanish code, but as its name implies, a Visi-Gothic one; and it never had an influence upon the development of Spanish jurisprudence, nor a place therein at all comparable to those of the Partidas.

"I have examined Mr. Scott's translation of the Visi-Gothic Code and used it considerably, and it has always seemed to me an excellent one. It is well printed, and the Bureau has reason to be proud of having issued that book. I do not believe that anyone who has used it or who is familiar with it, has any regret that the Bureau has published it, and I believe that the results will be even more satisfactory if we publish the Partidas.

"Now, as regards the commercial side of the question-the demand for such a book. There is a growing number of students of Spanish law in English. Not many, even of those who study Spanish are prepared to study the Spanish law in Spanish, and especially the Partidas which is composed in 13th century Spanish. To put a modern student on the original text of the Partidas, would be like putting him on Chaucer, without a glossary. The Spanish of the Partidas is very antiquated, and in fact it has much that never was Spanish, but rather transliteration from the Latin. The use of the original text for the student of even Spanish is almost out of the question. I tried that in classes which I have had in the University of the Philippines, but I found that the text that the Spanish law schools were using was not the original text of the Partidas at all. They were modernized versions, so that if the Partidas are used as a text-book, even in an historical course, there must be some kind of a translation. Why not then have it as in English?

"I think we will find that there will be a demand from the law schools for this English version. I believe that a very considerable demand will come from the Philippines where there are two law schools, in which instruction is given entirely in English. I see in that fact also an opportunity for this Bureau to help along the spread of English in the Philippines. At the present time, those who want to study the Partidas in English are unable to do so except from an old translation of part of the books made by Moreau and Carleton of Louisiana about a century ago. And the fact that these lawyers found it advisable at that time to make the translation for the Bar and legislators of Louisiana, shows that the work is not solely one for the antiquarian. It is true that they omitted certain portions which they considered not of great practical value; but they included the greater portion of the Partidas. Their translation, however, is out of print, and scarce, besides being incomplete; so that there is ample reason for another translation now. Indeed, as Moreau and Carleton say in their preface to the work, the study of the Partidas was necessary to an understanding of the jurisprudence of Louisiana. For it while at one time French, the Spanish law had prevailed for a considerable time, and its basis, I repeat, was the Partidas. You will even find the United States Supreme Court, in cases coming up from Louisiana citing and quoting the Partidas extensively.

"I submit that such a book has a place in American as well as Spanish law. In at least three different jurisdictions now under the American FlagLouisiana, Porto Rico and the Philippines—the Partidas are more than an historical work; they are an actual authority. They are still cited on questions reaching back of the codes. I think that such a book is worthy of presentation in an intelligible form to the American Bar. I believe that it will prove useful, and that it is entirely within the scope of this Bureau's work. So with that amendment, I would favor Dean Wigmore's program. I think that we should first utilize the material we have on hand, especially as it is material which offers so many opportunities of extending the Bureau's influence and usefulness.