October 23, 2000

DAR OPINION NO. 31-00

MR. TROADIO M. BENITEZ

212 Alley 1

Project 6, Quezon City

Dear Mr. Benitez:

This refers to your letter dated 16 August 2000, requesting for legal opinion on the following issues:

1)        Whether or not it is legal for a tenant to deduct first his expenses on seedlings, fertilizer, insecticides and rice thresher rental before dividing the remaining palay harvest into 75-25 sharing ratio on the second crop (2nd planting).

2)        What is the legal sharing on auxiliary crops like string beans, corn, mongo, onions, etc.?

3)        What is the sanction for a tenant who do not inform his landlord when he will be harvesting or threshing?

You stated that you have, more or less, 1.4 hectares of riceland with two (2) tenants; that the sharing is 75-25 in favor of the tenants; that the first tenant is giving you 20 cavans of palay as lease rental, while the second tenant is giving you 15 cavans of palay, likewise, as lease rental; and, that, on the second crop (2nd planting), the first tenant is giving you twenty five percent (25%) of his harvest on palay while the second tenant is giving nine (9) cavans as lease rental, with the rest of the riceland being planted with auxiliary crops like string beans, corn, mongo, etc.

With regard to your first and second queries, pursuant to Section 12 of Republic Act No. 6657 (Comprehensive Agrarian Reform Program Law), the DAR is mandated to determine and fix lease rentals in accordance with Section 34 of Republic Act No. 3844, as amended. Relative thereto, DAR Administrative Order No. 5, series of 1993 provides for the guidelines governing agricultural leasehold and the determination of lease rental for tenanted lands, the pertinent provisions of which are as follows:

a)         Item III.D

The lease rental to be paid by all agricultural lessees shall not be more than the equivalent of twenty-five percent (25%) of the average normal harvest during the three (3) agricultural years immediately preceding 15 June 1988 (i.e., effectivity of RA. No. 6657), after deducting the amount used for seeds and the cost of harvesting, threshing, loading, hauling and processing, whichever is applicable.

b)         Item III.F

The lease rental shall cover the whole farmholding attended to by the lessee and that the computation shall include both primary and secondary crops existing as of 15 June 1988. Secondary crops which are planted to an aggregate area of half a hectare or less shall not be include in the computation of the lease rental. (emphasis supplied)

    c)      Item III.G.

Where the rental has been fixed, whether in cash or in kind, such rental shall constitute the consideration for the use of the land and the lessee may diversify and/or plant secondary crops, provided that all the expenses are shoulder by him/her. (emphasis supplied)

Item III.G. connotes that the lessee may not be compelled to pay additional rent for the secondary crops raised by him/her after the execution of the contract, provided all the expenses are shouldered by him/her.

Concerning your last query, the responsibility to notify is no longer required. By virtue of R.A. No. 3844 (Code Agrarian Reforms) which took effect on 8 August 1963, agricultural share tenancy was declared to be contrary to public policy and was, thereby, abolished. This was further strengthened in Section 4 of R.A. 6389 which provided that agricultural share tenancy throughout the country shall be automatically converted to agricultural leasehold. Under the leasehold system, the prohibition against pre-threshing has no more raison' d' etre because the lessee is obligated to pay a fixed rental as prescribed in section 34 of R.A. No. 3844, as amended by R.A. No. 6389. Thus, the legal maxim, cessante ratione legis cessat ipsa lex (the reason for the law ceasing, the law itself also ceases), applies to this case (People vs. Almuete, G.R No. L-26551, Feb. 27, 1976)

As further ruled by the Supreme Court in People vs. Adillo, L-23785, November 17, 1975, the act of pre-reaping and pre-threshing without notice to the landlord, which is an offense under the Agricultural Tenancy Law (R.A. No. 1199), had ceased to be an offence under the subsequent law, the Code of Agrarian Reforms (R.A. No. 3844). To prosecute it as an offense when the Code of Agrarian is already in force would be repugnant or abhorrent to the policy and spirit of that Code and would subvert the manifest legislative intent not to punish anymore pre-reaping and pre-threshing without notice to landholder.

All the above observations, however, presuppose that the foregoing rental payments were stipulated and fixed in accordance with the cited Section 34 of R.A. No. 3844. We observed though that there is still sharing of produce with respect to the second cropping, an arrangement that is already prohibited by law.

We hope to have clarified the matters with you.

Very truly yours,

(SGD.) FEDERICO A. POBLETE

Undersecretary for Legal Affairs, and Policy and Planning