My experience as a law professor, bar reviewer, and bar exam coach in Remedial Law made me notice the following ten common misconceptions of bar reviewees studying remedial law review. A bar reviewee may do well to take note of these misconceptions and avoid falling into them during the bar examination.
1. ACTIONABLE DOCUMENT IS SET FORTH ONLY IN COMPLAINT AND NOT IN ANSWER. While most actionable documents are set forth in the complaint or initiatory pleading, they may also be set forth in the answer or responsive pleading. After all, an actionable document is one on which an action or defense is based.
2. WHEN A MOTION FOR RECONSIDERATION OF A JUDGMENT OR FINAL ORDER IS DENIED, THE MOVANT HAS THE BALANCE OF THE REMAINING PERIOD BUT NOT LESS THAN 5 DAYS TO APPEAL. Remember that what applies to the denial of a motion for reconsideration of a judgment or final order is the Neypes Rule, which states that the movant has a fresh 15-day period counted from notice of the denial of the motion for reconsideration. The “balance but not less than 5 days” rule applies to denial of a motion for a bill of particulars or denial of a motion for a new trial or a motion for reconsideration of a judgment or final order of the COMELEC or COA under Rule 64.
3. HEARSAY APPLIES ONLY TO ORAL NOT TO DOCUMENTARY EVIDENCE. The hearsay rule applies as well to documentary evidence. In fact, many examples of hearsay are of documents, such as affidavits or letters.
4. THERE IS NO HEARSAY WHEN A WITNESS TESTIFIES ON WHAT WAS SAID TO HIM BECAUSE HE HAS “PERSONAL KNOWLEDGE” OF THE STATEMENT. This is a common misconception which even some trial judges suffer from. When a witness has no personal knowledge as to the truth of the statement, it is still hearsay although he had “personal knowledge”of the making of the statement to him. Hence, a witness who testifies that he heard Pedro say that it was Doro who shot the victim is testifying on hearsay because he (the witness) has no personal knowledge of whether Doro did indeed shoot the victim, although the statement was uttered by Pedro in his presence. In other words, hearsay refers to lack of personal knowledge of the truth asserted in the statement, not the making of the statement itself.
5. INDEPENDENTLY RELEVANT STATEMENT IS AN EXCEPTION TO THE HEARSAY RULE. Hearsay is correctly defined as an out-of-court statement offered for the truth of the matter asserted therein. An independently relevant statement on the other hand is an out-of-court statement which is offered not for the truth of the matter stated therein but for something else, like the declarant’s state of mind or other cases where the utterance has an legal or evidentiary significance other than for its truth. In fine, an independently relevant statement is not an exception to the hearsay rule because it is in the first place not hearsay.
6. SUBJECT-MATTER JURISDICTION IS PROVIDED FOR IN THE RULES OF COURT. This is a common and grave misconception. The Supreme Court has no power to lay down rules on subject-matter jurisdiction. It is the legislature which has that power. The general law on jurisdiction is not the Rules of Court but B.P. Blg. 129.
7. DOUBLE JEOPARDY IS PROSECUTING A PERSON TWICE FOR THE SAME ACT. The Constitution provides that “[n]o person shall be twice put in jeopardy of punishment for the same offense.” Note that the word used is “offense” not “act.” The rule is that a person may be prosecuted twice for different offenses even if they arose from the same act, like in the case of issuance of a bouncing check which may be prosecuted under both Article 315 of the Revised Penal Code and B.P. Blg. 22.
8. THERE IS RES JUDICATA WHEN THERE IS IDENTITY OF RELIEFS SOUGHT IN THE TWO ACTIONS. The test is not identity of reliefs sought but identity of causes of action between the first and second actions. Hence, there is res judicata even if the reliefs sought are different but the causes of action are the same. Thus, a mortgagee-creditor who had filed a loan collection case and lost cannot subsequently file a foreclosure suit over the mortgage securing the loan. There is res judicata since the causes of action (nonpayment of the loan) are the same even though the reliefs sought (collection and foreclosure) are different.
9. A SPECIAL CIVIL ACTION OR THOSE GOVERNED BY SPECIAL RULES CANNOT BE SET UP AS A COUNTERCLAIM. This misconception arises from applying the rule on joinder of parties (Section 5[b], Rule 2) to the rule governing counterclaims (Section 7, Rule 6). There is no rule barring a pleader from setting up a counterclaim just because it involves a special civil action or is governed by special rules.
10. LACK OF CAUSE OF ACTION IS AN AFFIRMATIVE DEFENSE THAT MAY BE SET UP IN THE ANSWER. The affirmative defense that may be set up in the answer is not “lack of cause of action” but “failure to state a cause of action.” Failure to state a cause of action is the failure of the complaint to allege facts constituting a cause of action. It is a failure of the allegations in the pleading. On the other hand, lack of cause of action is a failure of the plaintiff’s evidence to prove a cause of action. Failure to state a cause of action may be set up as an affirmative defense in the answer and may cause the dismissal of the complaint without a trial, while lack of cause of action as a rule may be determined only after the plaintiff has rested its case or after trial.
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