PERSONS AND FAMILY

RELATIONS I. PRELIMINARY TITLE (Article 1-36 NCC)

Notes by: CJabagat

B. Conflict of Laws Provisions (Articles 15-17 NCC)

1.Nationality Theory ARTICLE 15. Laws relating to family rights and duties or to the status, condition and
legal capacity of persons are binding upon citizens of the Philippines, even though
State National Theory. living abroad.
Define status. 1. ‘Status’ Defined
The status of a person in civil law includes personal qualities and relations, more or
less permanent in nature, and not ordinarily terminable at his own will, such as his
being married or not, or his being legitimate or illegitimate.
What is the scope of Art 15? 2. Scope of Art. 15 (Nationality Principle)
Art. 15 refers to:
(a) Family rights and duties (including parental authority, marital authority, support);
(b) Status;
(c) Condition;
(d) Legal capacity. (But there are various exceptions to this rule on legal capacity.)
How is National Theory applied? 3. Applicability of Art 15
Regardless of where a citizen of the Philippines might be, he or she will be governed
by Philippines laws with respect to his or her family rights and duties, or to his or her
status, condition, and legal capacity.
What governs the capacity to enter 4. Capacity to Enter into Ordinary Contract
ordinary contract? The capacity to enter into an ordinary contract is governed by the national law of the
person, and not by the law of the place where the contract was entered into (lex loci
celebrationis), as erroneously enunciated by our Supreme Court in the case of Gov’t.
v. Frank, 13 Phil. 239.
What governs the capacity to contract 5. Capacity under the Code of Commerce
under Code of Commerce? Art. 15 of the Code of Commerce says that “foreigners and companies created abroad
may engage in commerce in the Philippines subject to the laws of their country with
respect to their capacity to contract.’’
Cite examples concerning other 6. Capacity to Enter into Other Relations
governing rules on capacity to enter Capacity to enter into other relations or contracts is not necessarily governed by the
in other relations. national law of the person concerned. Thus:
(a) Capacity to acquire, encumber, assign, donate or sell property depends on the law
of the place where the property is situated (lex situs or lex rei sitae).
(b) Capacity to inherit depends not on the national law of the heir, but on the national
law of the decedent.
(c) Capacity to get married depends not on the national law of the parties, but on the
law of the place where the marriage was entered into (lex loci celebrationis or locus
regit actum), subject to certain exceptions.

2. Domiciliary Theory While it impossible for an individual to have no citizenship, it is impossible for an
State Domicile Theory. individual to be without domicile.

3. Generality ARTICLE 14. Penal laws and those of public security shall be obligatory upon all
who live or sojourn in the Philippine territory, subject to the principles of public
international law and treaty stipulations.
 Espouses the principle of generality of penal laws. Anyone who stays in the
Philippines is governed by our penal or criminal laws. In case of violation, the
offender may be prosecuted before our Philippine courts.
- While generality talks about “who is governed by our penal laws,” territoriality
pertains to jurisdiction. Hence, penal laws have force and effect only within Philippine
territory, subject to various exceptions. (Art 2 RPC)

4. Territoriality Subjective Territoriality principle

What are the two Territoriality • The country where the crime was started may have jurisdiction over the crime even if
Principles? Define. the crime was completed in another country.

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 Objective Territoriality principle
• The country where the crime was completed may exercise jurisdiction even if it was
started outside.

5. Lex Situs Art. 16. Real property as well as personal property is subject to the law of the country
where it is situated.

However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found. (10a)
What is the General Rule 1. Applicability
contemplated in Article 16? 1st paragraph: Espouses the principle of Lex Rrei Sitae.
If the transaction involves property, all components of transaction shall be governed by
Lex Rex Sitae (Law of the country where the property is located)
What are the matters governed by 2. Matters governed by of Lex Rei Sitae
Lex Rei Sitae? a) Capacity of the contracting parties
b) Formalities of the contract involving properties
c) Intrinsic validity
d) Conveyances, prescription, easements, eminent domain, accession,
registration, title, possession
What are the Exceptions 3. Exceptions:
contemplated in Article 16?  If the issue involves succession, even if property is involved (2nd par of Art
16)
a. Order of succession (Who should inherit first)
b. Amount of succession rights (How much is one entitled to inherit)
c. Intrinsic validity of testamentary provisions
- Shall not be governed by Lex Rei Sitae but by the national law
of the decedent (not the heir). (Art 15)
- Do not confuse decedent with heir.
d. Capacity to succeed. (Art. 1039, Civil Code).

 If the property is merely incidental to the transaction.

Example: When A and B enters into a contract involving the design of
A’s house because B is an interior designer. The contract is entered into
in Japan and the property is in the Philippines. In Japan, 15 years old may
validly enter into a contract. But in the Philippines, a person should be 18
years old. Is the contract valid?
Yes. While the contract involves property, it being the subject of interior
decoration, the nature of the transaction is merely a contract of service.
The property merely being incidental. (The property is not the subject of
the contract and it is not a contract involving the conveyance of a title or
property) Hence, it is just an ordinary contract.
What is the rule on Ordinary Rule on ordinary contracts:
Contracts? Capacity of contracting parties shall be governed by Art 15 (Nationality theory) and
not Lex Rei Sitae because the property involved is merely incidental.
Extrinsic validity of ordinary contracts – Art 17

Rule: If the contract involves property as the subject of the contract, all aspects of the
contract shall be governed by Art 16 Lex Rei Sitae. But if it is an ordinary contract
where property is merely incidental, capacity – Art 15 while formalities – Art 17.
Explain Renvoi Problem. The Renvoi Problem
Renvoi literally means a referring back; the problem arises when there is a doubt as to
whether a reference in our law (such as Art. 16, par. 2 of the Civil Code) to a foreign
law (such as the national law of the deceased) —
(a) is a reference to the INTERNAL law of said foreign law; or
(b) is a reference to the WHOLE of the foreign law, including its CONFLICTS
RULES.

In the latter case, if one state involved follows the nationality theory, and the other, the
domiciliary theory, there is a possibility that the problem may be referred back to the
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 law of the first state.

6. Lex Loci Celebrationis ARTICLE 17

The forms and solemnities of contracts, wills, and other public instruments shall be
governed by the laws of the country in which they are executed.

When it is executed before the diplomatic or consular officials of the RP in a foreign

country, the solemnities established by Philippine laws shall be observed in their
execution.

Prohibitive laws shall not be rendered ineffective by laws or judgments promulgated in

a foreign country.
Explain the Doctrine of Lex Loci 1. Doctrine of Lex Loci Celebrationis
Celebrationis The law provides clearly that the forms and solemnities of public instruments,
wills and contracts shall be governed by the laws of the country where they are
executed. (extrinsic validity):
• Whether the contract or will is in writing or verbal
• Whether it should be notarized
• Whether it should be witnessed by a number of witnesses
Hence, forms and solemnities of contracts shall be governed by the law of the place
where the contract is executed.
What governs acquisition, 2. Formalities for the Acquisition, Encumbering, or Alienation of Property
encumbering or alienation of  (whether real or personal) shall however, be governed not by the lex loci
property? celebrationis but by the lex rei sitae. (See Art. 16, par. 1).
Explain the Principle of 3. Rule of Exterritoriality
Exterritoriality. Even if the act be done abroad, still if executed before Philippine diplomatic
and consular officials, the solemnities of Philippine laws shall be observed.
The theory is that the act is being done within an extension of Philippine
territory (the principle of exterritoriality).
Explain the rule respecting 4. Rule Respecting Prohibitive Laws
Prohibitive Laws. The third paragraph gives one exception to the rule that a foreign law,
contract, or judgment can be given effect. The reason is that public policy in
the Philippines prohibits the same.

Examples:
(a) A contract for the sale of human flesh (prostitution) even if valid where
made cannot be given effect in the Philippines.
(b) An absolute divorce granted Filipinos abroad even if valid where given
cannot be recognized in the Philippines inasmuch as under the Civil Code,
absolute divorce is prohibited (except insofar as Mohammedan Filipinos are
concerned).
(c) A U.S. court allowed a mother living with a man other than her husband to
exercise authority over her child with the lawful husband. It was held by our
Supreme Court that such a decision cannot be enforced in the Philippines.

Was Intrinsic Vailidity of Contracts 5. Intrinsic Validity of Contracts

contemplated in Art 17? It should be noted that while the first paragraph of Art. 17 speaks of forms
and solemnities, no mention is made of the law that should govern the
intrinsic validity of contracts in general. The prevailing rule in Private
International Law today is to consider the lex loci voluntatis (the law of the
place voluntarily selected) or the lex loci intentionis (the law of the place
intended by the parties to the contract).

What are the intrinsic aspects of a Intrinsic aspects:

contract? 1. Effect
2. Terms and Conditions
3. Interpretation
4. Subject matter

What law governs these intrinsic What law governs intrinsic aspects of a contract?
aspects? Fundamental Rule: Liberality; Parties are free to establish the terms and conditions and
stipulations of the contract as they may deem convenient, unless it is contrary to law,
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 morals or public policy. Hence, pursuant to the liberality of contract, our policy is to
give effect to the intention of the parties.

For purposes of conflict of laws, intrinsic validity of the contract shall be

governed by the:
1. Law intended by the parties (lex loci voluntatis)
This is determined by looking at the choice of law clause (where the parties expressly
indicate what law governs their contract)
Limitations:
a. The parties cannot validly stipulate a specific law which has nothing to do with the
contract at all.

2. The law which the parties presumed to have agreed upon. (lex loci intentionis)
When the contract is silent as to the choice of law of the parties and when the intention
cannot be determined in the absence of the choice of law clause, you apply lex loci
intentionis.
This is determined by the most significant relationship theory by examining the
various significant components of the contract (e.g. parties, subject matter, terms and
conditions, performance, effects, considerations) and determining as to which country
these significant components refer to.
Contract executed in the Philippines by two Japanese involving a property in the
Philippines and it be performed in the Philippines, the effects of the contract takes
place in the Philippines and considerations paid in the Philippines. (Obviously the most
significant aspect of the contract pertains to the Philippines, hence the law of the Phils
shall govern the intrinsic validity of the contract)

3. The law of the country where the contract is likely to be upheld as valid.
- When the significant components are evenly distributed to the countries involved.
- Consistent with the principle of liberality of contract.

Takeaways:
NATIONALITY RULE: Basis for determining personal law of an individual is his citizenship.
DOMICILIARY RULE: Basis for determining personal law of an individual is his domicile.
LEX NATIONALITY LEX REI SITAE LEX LOCI CELEBRA-TIONIS
Art. 15, CC Art. 16, CC Art. 17, CC
Citizenship is the basis for Law of the place where the Law of the place where the
determining the personal law property is situated is the basis for contract was executed is the basis
applicable determining law applicable for determining law applicable
Covers family rights & duties, Covers both real & personal Covers only the forms &
status, condition & legal capacity property solemnities (extrinsic validity)
Exception: Exceptions: Exceptions:
Art. 26, par. 2 of Family Code (CIAO) 1. Art. 26, par. 1 of Family Code
1. Capacity to succeed (marriage involving Filipinos
2. Intrinsic validity of the will solemnized abroad, when such are
3. Amount of successional rights void in the Philippines)
4. Order of succession 2. Intrinsic validity of contracts

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