CONFLICT OF LAWS

Midterm Reviewer

IN GENERAL
CONFLICT OF LAWS That part of law which comes into play when the issue before the court affects some fact, event, or transaction that is so clearly connected with a foreign system of law as to necessitate recourse to that system. Part of the MUNICIPAL LAW of a state (not part of International Law).

2.

Determine whether to apply the INTERNAL or FOREIGN law.

Per Atty. Torregosa [PAT]: The study of conflict of laws is based on one universal truth that each state/country has its own body of laws. And its body of laws consists of two sets of laws: (1) internal laws which apply to purely local or domestic cases which do not involve foreign elements and (2) conflict of laws which applies to cases involving foreign element. Every body of laws has these two kinds of classification of laws purely internal and conflict of laws.
CONFLICT Private Individuals or Corporations Municipal in character. Strictly personal in nature. Judicial or administrative PIL Sovereign States, UN, etc. International in character. Generally affect public interest Diplomatic negotiations, mediation, etc. OR reprisals, embargo, war

PERSONS NATURE TRANSACTION

JURISDICTION is conferred by law. SUBJECT - Defined as the power to hear and MATTER determine the cases of the general class to which the proceedings in question belong. - Must be invoked by filing the appropriate COMPLAINT or PETITION [C/P]. - Generally, the court needs only to look at the face of the C/P to determine w.o.n. it has jurisdiction. - If there is prima facie showing of jurisdiction TRIAL. If evidence shows that it has no jurisdiction DISMISS. - BUT, in Conflict, the POSSIBLE ENFORCEABILITY of its Decision in foreign states must also be considered. PERSON - The competence/power of the court to render a judgment that will bind the parties involved. - Plaintiff acquired the moment action is instituted. - Defendant when appearance is entered voluntarily OR by the coercive power of legal process (summons). *personal appearance = consent, but not when it is for the sole purpose of questioning the jurisdiction of the court. SUMMONS [when in Pesonam] a. Personal Service i. To the defendant in person; or ii. Tendering it to him b. Substituted Service i. With some person of suitable age and discretion in defendants residence ii. With some competent person in charge of defendants office - Over the thing/particular subject-matter in controversy. - The purpose of the suit in this case is to affect interests of all persons in a thing [binds the whole world]. *quasi in rem affects the interest of particular persons in a thing. SUMMONS [when in Rem] a. Personal Service b. Substituted Service c. By Publication Only in rem, quasi in rem, involves personal status of the Plaintiff. d. Extra-territorial Service

REMEDIES

CONFLICT OF LAWS CASE any case which involves facts occurring in more than one state or nation, so that in deciding the case, it is necessary to make a choice between laws of different states or countries. *States here do not only mean foreign sovereign countries but also political subdivisions of states (i.e. State of Texas, New York, etc.).

RES

PAT: The case involves foreign element when some of its events, facts or transactions occurred in more than one state and affected by the diverse laws of the states involved.

JURISDICTION & CHOICE OF LAW

HOW TO DEAL WITH CONFLICT PROBLEM 1. Determine if the court has JURISDICTION If YES It should then determine whether it should assume jurisdiction or dismiss case based on forum non conveniens.

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE. Based on Sempio-Diy Book

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i. By Personal Service ii. By Publication [but copy of summons and order must be sent by reg. mail to last known address] iii. In Any Other Manner that the Court may deem Sufficient Grounds: D does not reside and is not found in the Phils. and the action affects personal status of the P D does not reside and is not found in the Phils. and action relates to property w/in Phils. w/c D has a claim, lien, or interest (actual or contingent). D is a non-resident but the subject of the action is property located in the Phils., in w/c the relief demanded consists, wholly/in part, in excluding the D from any interest therein. When prop. of a non-resident defendant has been attached in the Phils. SERVICE OF SUMMONS IN EXCCEPTIONAL CASES ENTITY W/OUT Service to any one (1) of them. JURIDICAL Service to person in charge of the PERSONALITY place of business. PRISONER Serve to the jail warden (automatically considered deputized). MINORS AND MINOR: To minor and his INCOMPETENTS parents/guardian INCOMPETENT: the incompetent and the guardian DOMESTIC President PRIVATE Managing Partner JURIDICAL General Manager ENTITY Corporate Secretary Treasurer In-House Counsel *enumeration is exclusive; substantial compliance argument is no longer compelling FOREIGN Corporation must be doing business PRIVATE in the Philippines. JURIDICAL If with designated resident agent ENTITY++ serve to the designated agent (15D to file Answer). If w/out designated agent serve to the appropriate Phil govt. officer (30D to file Answer). *When foreign corp. not doing business in the Phils. cannot be sued. *if not doing business in the Phils. but agrees to be sued apply Sec. 15

PUBLIC CORPORATIONS

(extraterritorial service). Republic of the Phils. Solicitor General Provinces/Cities/Municipalities Executive Heads/Legal Officer

++Dissolved Corporation serve to the last set of officers. ++Doing Business in the Phils. there must be a continuity of conduct and intention to establish continuous business. FORUM NON CONVENIENS court may refuse to exercise or assume jurisdiction, in view of the ff. practical reasons: a. Evidence and witnesses not readily available b. Court docket is already clogged c. Matter can be better tried and decided in another jurisdiction (main aspects of the case transpired there or witnesses are there). d. Curb evils of forum shopping e. Forum has no particular interest in the case f. Other courts are open and the case may be better tried in said courts g. Inadequacy of the local judicial machinery for effectuating right sought to be enforced h. Difficulty of ascertaining foreign law available. INSTANCES WHEN INTERNAL/DOMESTIC LAW HAS TO BE APPLIED 1. Law of the FORUM EXPRESSLY SO PROVIDES in its conflicts rules 2. When the PROPER FOREIGN LAW has NOT BEEN PROPERLY PLEADED AND PROVED *the court assumes that the foreign law is the same as the internal law [aka PROCESSUAL PRESUMPTION]. To Prove Foreign Law: Written a. Official Publication b. COPY OF THE LAW ATTESTED by the OFFICER HAVING LEGAL CUSTODY of the record or his deputy, accompanied by a CERTIFICATE of any Phil. embassy, consular, or foreign service officer in the foreign country where the record is kept and AUTHENTICATED BY THE SEAL of his office. Unwritten a. Oral testimony of EXPERT WITNESS b. Printed and published books of reports of DECISIONS of the country involved (if proved to be commonly admitted in its courts). 3. Case involves any of the EXCEPTIONS to the application of the proper foreign law. *Foreign law is to be interpreted in the same way as the courts of the country where it comes from interprets it. EXC: when we have a statute worded identically we can apply the interpretation of our courts.

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE. Based on Sempio-Diy Book

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WHEN FOREIGN LAW CANNOT BE APPLIED a. It runs counter to sound and established public policy of the forum. b. Foreign law is contrary to the almost universally conceded principles of morality. c. Foreign law involves procedural matters d. It is penal in character e. It is purely fiscal/administrative in nature f. Will work undeniable injustice to the citizens or residents of the forum g. Application would endanger the vital interests of the State. h. Case involves real or personal property located in our country.

For the forum court to proceed, try and decide the case involving foreign element, is asked to satisfy itself that local judicial machineries are adequate. Requisites: a. Phil court is the CONVENIENT FORUM where the parties to the case will resort b. Phil court is in the position to INTELLIGENTLY DECIDE on the facts and laws involve in the case c. Phil court has the POWER or likely to have the power to ENFORCE ITS DECISION. Before these requisites are complied with, the forum may proceed to assume jurisdiction, try the case and render judgment. Otherwise, the forum court may decide to dismiss the case on ground of forum non-convenience. MANILA HOTEL V. NLRC QF: Filipino works in the State of Oman as a printer. While in Oman, the Filipino got an employment offer from a Chinese Palace Hotel based on Beijing, China. Attracted of the offer, the Filipino resigned from his employment in Oman and accepted the employment and eventually worked in Beijing. Before the expiration of his term, the Filipino was terminated on the ground retrenchment. He went home and filed an action against the ER as well as another corporation before the NLRC. HELD: SC ruled against Filipino and cited the ff: 1. Phil court is NOT THE CONVENIENT FORUM. Why? All the essential components of the contract, negotiation, perfection, termination, place of employment, employer being a foreign corporation, main witnesses are nonresidents of the Philippines, all these pertains to foreign countries , either Oman or China. The only link there is that the complainant is a Filipino. 2. Phil court is NOT IN THE POSITION TO INTELLIGENTLY DECIDE ON THE FACTS AND LAWS OF THE CASE. It also considered that the contract was executed abroad. And under the law on lex loci celebracionis should be determined by the laws where the contract was entered into. Similarly, the Phil court not in the position to intelligently decide on the facts of the case because the alleged termination of the contract and the circumstances surrounding and leading to termination, all of them took place abroad. All these factual issues are to be decided on the basis of evidence available outside. 3. Phil court has NO AUTHORITY TO ENFORCE THE JUDGMENT. Even if were to be assumed that the court is in the position to decide on the factual and legal issues of the case, nevertheless there has doubts if it can enforce the judgment. Why? Principal employer was not even impleaded and served summons. The requisites for the

PAT: THREE STEPS IN DEALING WITH CASES WITH FOREIGN ELEMENT 1. DETERMINE JURISDICTION (refer to discussion above). Take Note: in the Rules of Court, while we have specific rules on serving of summons insofar as foreign private juridical entity is concerned officers, these only apply when foreign private entity is doing business in the Philippines. The service of summons maybe effected upon the resident agent designated by the foreign corporation, or in the absence of such resident agent, by appropriate government officer designated for that purpose, or by any of the corporations officers or agents within the Philippines. Who are these officers authorized to receive summon for foreign private juridical entity. It depends on the nature of the business that a foreign corporation is engaged in. Banking summons should be served to superintendent of the bank Insurance service is effected upon insurance commissioner Other business - through SEC Take Note: Theres no provision in our rules which provides for service of summons insofar as foreign private juridical corporations not doing business in the Philippines. But doesnt follow that jurisdiction over them cannot be acquired. How? Reserved when we discuss foreign corporations later. Only jurisprudence. 2. ADEQUACY OF JUDICIAL MACHINERY [FORUM NON CONVENIENS] The court is not compulsorily obliged to assume jurisdiction, proceed to trial and decide the case. In cases involving foreign element, the Court is given discretion to desist from assuming jurisdiction when it finds that local judicial machineries are not adequate to decide the case.

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE. Based on Sempio-Diy Book

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Phil courts, the forum court, to assume jurisdiction are not present, therefore, Phil court is not the convenient forum. PHIL SEC INVESTMENT V. CA QF: The defendant in the case filed in the Philippines filed a motion to dismiss in a civil case pending in the Philippine courts on the ground of forum non-convenience, because the transaction happened there and most of the parties are in the States. HELD: The propriety of dismissing a case on the ground of forum non-convenience REQUIRES FACTUAL DETERMINATION. Forum non-convenience is more properly a matter of defense. WHILE COURT MAY DISMISS ON BASIS OF FORUM NON-CONVENIENCE, IT MAY DO SO ONLY AFTER VITAL FACTS ARE ESTABLISHED WHERE SPECIAL CIRCUMSTANCES ARE SHOWN TO JUSTIFY THE COURTS DESISTANCE FROM ASSUMING JURISDICTION. Forum nonconvenience cannot be used as a ground for a motion to dismiss. It is improper for a party to file MTD only on the ground of forum non-convenience implying that you go to trial, prove the facts, only then that the court can determine if forum non-convenience warrants the dismissal. RAYTHEON V. ROZY QF: Defendant alleged forum non convenience by way of affirmative defense in an answer. And, to go around the PhilSec Investment ruling, the defendant in Raytheon filed a motion for hearing of affirmative defenses on forum nonconvenience. No MTD since it was prohibited so he moved for a motion for hearing of affirmative defenses instead. HELD: Still Not allowed! FACTUAL determination is required. Although the SC did not categorically say that you go to trial [no other inference can be made]. 3. CHOICE OF LAW - essentially, COL is a choice of law problem. Guidelines available designed to aid the court in making the proper choice of law in deciding cases involving foreign element: FIRST GUIDELINE: Not all cases involving foreign element requires the choice of law. There are instances which although involving facts, occurrence or transactions affected by foreign laws, there are instances when the forum court has no other choice but to apply the internal law. Instances: FIRST INSTANCE: WHEN THE APPROPRIATE FOREIGN LAW HAS NOT BEEN ALLEGED AND PROVED OR HAS BEEN ALLEGED BUT NOT PROVED, this situation calls for the application of the internal law. Even if the foreign law is the law applicable, therefore should have been applied in the

case, the forum court is helpless but to apply Philippine law. The Principle of Processual Presumption takes place. Processual Presumption foreign laws courts cannot take judicial notice of foreign laws; should be proved as a fact. Failure to prove the foreign law obliges the court to presume that the foreign law is the same as our laws. YAO KEE V. GONZALES QF: Case involving a dispute over the estate of Mr. Sy Kiat (decedent). After his death Aida Gonzales, et al filed an action to settle the estate of Sy Kiat and Aida prays that she be appointed as administratix of her father. This petition was opposed by Yao Kee claiming that she is the lawful wife of Sy Kiat. During trial, her effort to prove that indeed she is the lawful wife unfortunately, Yao kee failed to prove the Chinese laws and customs on marriage. HELD: From these facts, SC applied the processual presumption. It is now presumed that Chinese laws on marriage are the same as our laws on marriage. And in our laws, one of the formal requisites on marriage is a valid marriage ceremony which requires the presence of solemnizing officer. Since there was no solemnizing officer in the marriage of Yao Kee and Sy Kiat, there was no valid marriage to speak of. SECOND INSTANCE: When the case falls under any of the EXCEPTIONS to the application of a foreign law. The forum court is helpless or has no other choice but to apply the Philippine law instead. 1. CONTRARY TO UNIVERSALLY RECOGNIZED PRINCIPLE OF MORALITY. E.g. law legalizes prostitution, law legalizes corruption or incestuous marriage. Even if valid there, cannot be applied in the Philippines. Basis: Art. 17 (3) Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. 2. FOREIGN LAW INVOLVES PROCEDURAL MATTERS. Governed by lex fori or where the court sits. E.g. ROC of the US cannot be applied in the Phils. 3. WHEN THE FOREIGN IS PENAL IN NATURE. Cannot be applied here because we adhere to the principle of territoriality; crimes are governed by the place where crime is committed. 4. FOREIGN LAW IS PURELY FISCAL OR ADMINISTRATIVE IN NATURE. Refers to revenue laws or tax laws. E.g. tax laws in the US cannot be enforced in the Phils. Same also with administrative laws or internal laws cannot be applied in the Phils. 5. WHEN THE FOREIGN LAW MIGHT WORK UNDENIABLE INJUSTICE TO THE CITIZENS OR

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE. Based on Sempio-Diy Book

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RESIDENTS OF THE FORUM. Case at bar: Saudia Arabia Airline v. Milagros 6. WHEN THE APPLICATION OF THE FOREIGN LAW WOULD ENDANGER THE VITAL INTERESTS OF THE STATE. 7. WHEN THE CASE INVOLVES REAL OR PERSONAL PROPERTY LOCATED IN OUR COUNTRY. 8. AMERICAN BANK V. AMERICAN REALTY CORPORATION QF: Three (3) borrowers got American Realty (a domestic corporation) to execute a REM to guaranty the loans involving properties located in the Philippines. Borrowers failed to pay the loan as restructured, American bank filed cases abroad to collect the balance. 1 case filed in HK, 2 cases were filed in England. While cases were pending, American Bank instituted an action for foreclosure against American Realty. Eventually, properties were foreclosed ad bought by a third party during the foreclosure sale. American Realty went to court against American Bank questioning the validity of foreclosure proceedings contending that by filing cases abroad to collect loan obligations, American bank waived its right to avail of foreclosure as a remedy. American Bank argued that the parties expressly stipulated that any dispute arising from the transaction should be resolved by laws England. The parties had stipulated a choice of law clause specifying the laws of England. According to American Bank, under the laws on England, theres no problem with a creditor pursuing both remedies (collect the loan and foreclose the mortgage). HELD: SC ruled otherwise and said that the law to apply here is the law of Philippines which prohibits the creditor to avail of the two remedies. Availment of one remedy amounts to a waiver of the other. On the basis of Philippine laws, the filing for collection abroad amounts to waiver of the American Bank to institute foreclosure proceedings. On the question of choice of law clause, SC said even if the laws in England do not prohibit the institution of foreclosure proceeding during pendency of an action for collection, this foreign law cannot be applied in the Philippines. One the exceptions to the application of foreign law, when it contravenes the sound and established public policy of the forum. Public policy proscribes the splitting of a single cause of action. CADALIN V. POEA QF: A class suit filed by less than a hundred complainants who were OFWs, some worked in Bahrain. Alleging violation of the employment contract returned to the Phil and filed an action against the foreign ER and local recruitment agency. Crucial issue raised in this case dwells on the matter of prescription. The case calls for 3 conflicting rules on prescription. 1144 of the NCC an action to enforce a written agreement prescribes in 10 years; 291 LC action arising from

ER-EE relationship prescribes in 3 yrs; Amiri Decree in Bahrain where employment took place, prescription is 1 yr. HELD: SC ruled it is 3 yrs. It cannot be 10 year-prescription in Art. 1144 because that applies only in contracts other than employment contracts. Not also 1 year under the Amihri Decree although it is deemed incorporated in the contract; it cannot be applied because to do so is contrary to sound and established public policy of the forum PROTECTION TO LABOR. SECOND GUIDELINE. CHARACTERIZATION - process of assigning these factual situations to its proper legal categories. The court can easily determine the proper solution or the point of contact. By Characterization it makes the job of the court in making the choice of law much easier. TWO COMPONENTS of every Conflict of Law situation: 1. FACTUAL SITUATION essentially the problem; refers to the facts, events, or transactions that occurred in various states and affected by various laws. These factual situations are classified into various categories depending on the nature of the problem: status and capacity, validity of contracts, of marriage, properties, torts, crimes, etc. 2. Each category corresponds to a POINT OF CONTACT/SOLUTION.
FACTUAL SITUATION A PROBLEM INVOLVING CAPACITY, CONDITION OR STATUS POINT OF CONTACT Art. 15 status, condition and capacity should be determined by the laws where that person concerned is a national Art. 17 lex loci celebrationis the form and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. Art. 26 lex loci celebrationis all marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country except those prohibited under Article 35(1), (4), (5) and (6), 36, 37 and 38.

EXTRINSIC VALIDITY CONTRACT

OF

VALIDITY OF MARRIAGE

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE. Based on Sempio-Diy Book

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SAUDIA AIRLINES V. MILAGROS QF: Mila worked as a flight attendant. There was attempted rape. There were investigations. Then, ER deceived her to go to the head office, and there she learned that she was under trial for adultery, etc. She was convicted but pardoned. She was terminated by her employer. Mila returned to the Phil and made her last stand; filed a case for damages against her ER based on Art. 19 and 21 of the CC. In their defense, ER raises two essential issues: jurisdiction and choice of law. HELD: On jurisdiction, ER argued that Milas purported cause of action Art. 19 and 21 on human relations, abuse of rights. Based on the allegations in the complaint. These abuses were committed in Saudi Arabia, therefore, jurisdiction over the case should be lodged before the Arab courts. SC rejected this and held that jurisdiction should be determined on the basis of the allegations in the Complaint and existing applicable laws. The basis of the complaint of Mila is the human relations provision in the NCC which is within the jurisdiction of RTC. On the issue of choice of law. Saudia Arabia argued that the factual situation is of TORT, therefore, the corresponding connecting factor is the lex loci delicti commisi, the place where the tortuous act was committed. It appears that most of the acts were committed in Saudi Arabia therefore it should be governed by the laws of Saudi, not Philippine laws. SC disagreed and held that while it is true that the factual situation is of TORT, therefore the connecting factor is lex loci delicti commisi, it doesnt follow that Saudi law is the lex loci delicti commisi. Judging from the allegations in the Complaint, there were various facts, events and transactions involved in the case which occurred either in the Philippines, Saudi Arabia or Jakarta. This case involves SERIES of alleged tortuous acts. Its not accurate to say that lex loci delicti commisi is the Saudi Arabia. SC applied the STATE OF THE MOST SIGNIFICANT RELATIONSHIP RULE which states that when the tortuous acts consists of various acts, what determines is the totality of the injury sustained by the complainant. THE COUNTRY OF THE MOST SIGNIFICANT RELATIONSHIP OCCURRED IS THE LEX LOCI DELICTI COMMISI. It is the Philippines because: ONE, THE COMPLAINANT IS A FILIPINA, SECOND, THE ER ALTHOUGH FOREIGN BUT DOES BUSINESS IN THE PHILIPPINES; THIRD, THE DECEIT WAS EMPLOYED WHILE MILA WAS IN THE PHILIPPINES enticing Mila to go to Saudi Arabia in the guise of helping the investigation but it was the intention really to charge, try, prosecute and convict Mila. SECOND GUIDELINE. Involves the RENVOI. (please see page 9).

PAT: So there are basically three guidelines in making the proper choice of law in order to resolve a case involving a foreign element. Using the guidelines, it may happen that the court will decide to apply the appropriate foreign law allowing the foreign law to operate in the Philippines. Is it derogation or violation of sovereignty of the state? No, as justified by the following theories:
THEORY OF COMITY No foreign law would be allowed to operate in another state except by the comity of nations i.e. the reciprocal courtesy w/c members of the family of nations owe to one another. 2 Principles (Based on): Reciprocity Persuasiveness of a Foreign Judgment Vested rights should be protected. Courts enforce not the foreign law or foreign judgment but the right or rights that have been vested under such law or judgment. Rights once acquired under foreign law or judgment should be enforced regardless of where the suit for its enforcement is filed. EXC when foreign law is against public policy of the forum. We apply the foreign law not because it is foreign, but because our own law, by applying a similar rule, requires us to do so. Identical or similar problems should be given identical or similar solutions. The proper foreign law should be applied to attain the dispensation of justice

VESTED-RIGHT

LOCAL LAW

HARMONY LAWS JUSTICE

OF

*NOT EXCLUSIVE in the absence of an applicable provision in the code or statute, the various theories should be examined and weighed as the bear on a given conflicts problem.NO SINGLE THEORY contains the whole truth, no one approach is completely valid.

NATURE & COMPOSITION OF CONFLICT RULES

A conflicts rule or provision of law is a provision found in our own law which governs a factual situation possessed of a foreign element.

THEORIES THAT JUSTIFY APPLICATION OF FOREIGN LAW

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE. Based on Sempio-Diy Book

CONFLICT OF LAWS
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2 KINDS 1. ONE-SIDED RULE indicates when Philippine law may apply. i.e.
Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. (669)

the community are concerned. i.e.: Civil status of a person, paternity and filiation

DIFFERENT THEORIES ON HOW THE PERSONAL LAW OF AN INDIVIDUAL IS DETERMINED: a. The NATIONALITY THEORY(aka personal theory) status and capacity of a person is determined by the law of his nationality or his national law The DOMICILIARY THEORY (aka territorial theory) status and capacity of a person is determined by the law of his domicile The SITUS or ECLECTIC THEORY the law of the particular place or situs of an event or transaction as generally the controlling law.

2. ALL-SIDED/MULTILATERAL RULE indicates whether to apply local law or the proper foreign law. i.e.
Art. 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.

b.

c.

PARTS OF EVERY CONFLICTS RULE 1. FACTUAL SITUATION 2. POINT OF CONTACT OR CONNECTING FACTOR The 1st states certain operative facts, the legal consequences of which are determined in the 2nd part (the 1st part raises while the 2nd part answers). Characterization process of assigning a certain set of facts or factual situation to its proper or correct legal category. By categorizing the legal problem (i.e. tort, contract, succession, etc.) the court or the parties involved reach the proper solution whether to apply the local law or the proper foreign law. a.k.a. classification or qualification LEX FORI determines the problems characterization [on the ground of necessity and convenience]. *unless the result would be a clear injustice.

*In the Philippines, we follow the NATIONALITY THEORY.

THE NATIONALITY THEORY

The NATIONALITY THEORY (aka personal theory) status and capacity of a person is determined by the LAW OF HIS NATIONALITY OR HIS NATIONAL LAW. In the field of conflict of laws, nationality and citizenship are the same [nationality=citizenship]. DIFFERENT KINDS OF CITIZENS IN THE PHILIPPINES: 1. NATURAL-BORN CITIZENS who are citizens from birth without having to perform any act to acquire or perfect their Philippine citizenship 2. Citizens BY NATURALIZATION formerly aliens but by judicial, legislative or administrative process, they have become Filipino citizens. Each country or state has the sole power and authority to determine under its internal or municipal law who are its citizens or nationals (Art. 2 of the Hague Convention on Conflict of Nationality Laws). Therefore, as long as he is a Filipino citizen, our country is not concerned if he has any other citizenship. In case of a STATELESS PERSON he has NO NATIONAL LAW! Therefore the nationality theory cannot be applied. In this case, the court shall apply the law of his domicile or if he has none, the law of the country of his temporary domicile. CITIZENSHIP OF A FILIPINO WOMAN WHO MARRIES A FOREIGNER

PERSONAL LAW- THEORIES ON DETERMINING PERSONAL LAW

PERSONS PERSONAL LAW that which attaches to him wherever he may go; the law that generally governs his status, capacity, condition, family relations and the consequences of his action. STATUS Consists of personal qualities and relationships, more or less permanent, with which the state and CAPACITY Only part of ones status.

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE. Based on Sempio-Diy Book

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Under the 1987 Constitution, citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission, they are deemed, under the law, to have renounced their Philippine citizenship. (This provision now applies to both males and females who marry aliens) CITIZENSHIP OF AN ALIEN WOMAN WHO MARRIES A FILIPINO HUSBAND An alien woman marrying a Filipino, native-born or naturalized, becomes ipso fact a Filipino provided that she is not disqualified to be a citizen of the Philippines under Sec. 4 of the same law. Note: an alien woman married to an alien husband who (the husband) subsequently naturalized also follows the Philippine citizenship of her husband provided that she does not suffer any of the disqualifications.

DOMICILE defined It is the place where a person has his true, fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning (Story, Conflict of Laws, Sec. 41) For the exercise of civil rights and fulfillment of civil obligation, the domicile of natural persons is the place if their habitual residence (Art. 50, NCC) No person can ever be without a domicile A person cannot have two simultaneous domiciles A natural person, free, and one of age and under no disability can change his domicile at pleasure DOMICILE Relatively more permanent abode of a person Fixed, permanent residence to which, when absent, one has the intention of returning RESIDENCE Temporary stay of a person in a given place A place of abode, whether permanent or temporary

PAT: This is the theory adhered to by the Phils. Art. 15 of the CC laws relating to family rights and duties.shall be binding upon citizens of the Phils, although living abroad. It is clear that it makes reference only to Filipino citizens. Theres no doubt as to a Filipino citizen because he is to be governed by Phil. Law. But what about foreigners? If a case is filed in our court, and the issue involves status, legal capacity of the individual who is a foreigner. How is the court supposed to determine his personal law? This was settled in the case of: RECTO V. HARDEN QF: Mrs. Harden is applying for divorce abroad. Recto was engaged by Mss. Harden to protect her interest here. In the retainership agreement, Harden obliged to pay Rectostipulated attorneys fees. However, Harden refused to pay. According to Harden agreement is void-since divorce is against public policy in the Philippines therefore it is void. A void contract creates no right. Therefore, Atty. Recto cannot enforce the contract. HELD: It is not true that the professional services were in connection to divorce; while related, the real purpose is to protect Mrs. Hardens rights in the conjugal partnership. it should be noted both Spouses Harden are Americans. Hence, they are governed by their national law---under US laws, divorce is valid. Hence, contract is valid even if assumed that contract is predicated on divorce. So in short, Article 15 equally applies to foreigners.

*Residence is not domicile but domicile is residence DOMICILE Ones permanent place of abode CITIZENSHIP Ties of allegiance and loyalty

IMPORTANCE OF KNOWING THE DOMICILIARY THEORY (although our country follows the nationality theory) a. In some cases, our own law makes the law of the domicile of a person the controlling factor in the solution of conflict cases b. Sometimes, our law makes either the law of ones nationality or that of his domicile as the controlling factor c. In cases of stateless individuals, or those with dual or multiple nationalities, the domiciliary theory runs to the rescue of the nationality theory d. Citizens of countries like the US or Great Britain, which follow the domiciliary theory, may become involved in litigation in our country which follows the nationality theory. DIFFERENT KINDS OF DOMICILE a. Domicile of ORIGIN domicile assigned by law to a person at the moment of his birth. This never changes for a person is born only once. b. CONSTRUCTIVE Domicile/Domicile by operation of Law the domicile assigned by law to a person after birth on account of a legal disability, like minority, insanity, imprisonment, etc. This may change from time to time. c. Domicile of CHOICE domicile of a person sui juris because he has his home there and to which, whenever absent, he intends to return.

THE DOMICILIARY THEORY

DOMICILIARY THEORY It is the theory whereby the status, condition, family rights and obligations, and capacity of a person are governed by the law of his domicile.

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RULES IN DETERMINING ONES DOMICILE OF ORIGIN A. LEGITIMATE CHILD His domicile of origin is that of his parents at the time of this birth If parents are separated, the domicile of the custodial parents B. ILLEGITIMATE CHILD The domicile of origin is that of the mother at the time of his birth C. LEGITIMATED The domicile of his father at the time of his birth D. ADOPTED CHILD The domicile of his real parents at the time of his birth E. FOUNDLING His domicile of origin is the country where he was found. RULES ON DETERMINING ONES CONSTRUCTIVE DOMICILE 1. MINORS a. Legitimate- domicile of both parents. In case of disagreement, that of the father unless there is judicial order to the contrary. b. Illegitimate- domicile of the mother c. In case of absence or death of either parent, the domicile of the present parent. d. Adopted- domicile of choice of the adopter. 2. INSANE, IDIOTS, IMBECILE They cannot select their own domicile, the law assigns their domicile to them. a. If they are below the age of majority, the rules on minors apply to them b. If they are of age and have guardians, they follow the domicile of choice of their guardians. If they have no guardians, their constructive domicile is their domicile of choice before they became insane. MARRIED WOMEN A. VALID MARRIAGE i. The constructive domicile of the wife is the domicile of both spouses unless the law allows the wife to have a separate domicile. ii. If there is legal separation between the spouses, the wife can have her own domicile of choice

If there is a separation de facto, the wife can also have a separate domicile. B. VOIDABLE MARRIAGE Apply the same rules as when the marriage was valid After annulment, the wife can freely select her own domicile of choice C. VOID MARRIAGE Wife can have a domicile separate from the husband. 4. OTHER PERSONS a. CONVICT OR PRISONER his domicile is the one he had possessed prior to his incarceration. b. SOLDIERS domicile before their enlistment c. PUBLIC OFFICIALS OR EMPLOYEES ABROAD like diplomats, consular officials, etc. domicile is the one they had before they were assigned elsewhere, unless they voluntarily adopt their place of employment as their permanent residence.

iii.

THE SITUS OR ECLECTIC THEORY

The capacity, condition, status and family relations of a person are governed not necessarily by the law of his nationality, or the law of his domicile, but by the law of the place where an important element of the problem occurs or situated. 2 KINDS OF PARTICIPATION OF INDIVIDUAL CONCERNED A. Active Participation when the act is done voluntarily, the governing law is the actual situs of the transaction or event. i.e.: in the act of getting married is voluntarily, the validity of the marriage is governed by its actual situs or lex loci celebrationis B. Passive Participation the effects of the act are set forth or determined by law, the governing law is the law of the legal situs; i.e., the domicile of the individual concerned. i.e.: with respect to the rights and obligations, and property relations, of the Filipino couple, however, they are governed by the national law of the spouses, which regulates or fixes such matters between them.

3.

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*If the transaction involves property, real or personal, the law that determines the validity of transaction is lex situs or lex rei sitae (law of the country where it is situated)

THE PROBLEM OF THE RENVOI

RENVOI means refer back RENVOI PROBLEM arises when there is doubt as to whether the reference by the lex fori to the foreign law involves a reference to the INTERNAL LAW of the foreign law or a reference to the ENTIRETY of the foreign law [including its conflicts rules]. Note: 2 PARTS OF EVERY MUNICIPAL LAW 1. Purely internal or DOMESTIC LAW 2. Rules in CONFLICT OF LAWS

PAT: The problem of renvoi arises when theres doubt as to whether a reference by the forum to a foreign law is a reference to the internal law of a foreign state or whether it is a reference to the entire body of laws including conflict of law rules. Lets say our own conflict of law rule in succession particularly Article 16 2nd paragraph of the Civil code which says that intestate and testamentary succession, 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. meaning the national law of the decedent. You will realize that Article 16 makes reference to a foreign law which is the national law of the decedent. But you will realize that 16 does not specify whether that law being referred to as the law of the decedent refers to the internal law of the state of which the decedent is a citizen or whether that law being referred to is the entire body of laws including its own conflict rules. Art. 16 simply states the national law of the decedent. Hence it is couched in general terms. So how does a problem of renvoi arise? This is illustrated in the case of INTESTATE ESTATE OF CHRISTENSEN V. AZNAR. Christensen is an American citizen but domiciled in the Philippines. Before he died he executed a will and left an estate located in the Philippines. In his will, he bequeathed the bulk of his estate to his legit daughter while leaving a portion to a Filipino, a certain Helen who turned out to be his illegitimate child. Helen objected because her legitime is impaired. Under phil. Laws the internal law involving succession particularly in this case is about share of the illegitimate daughter. On the other hand, the conflict of laws rule of

Succession is Art. 16 2nd par. So we have here a situation of an internal law on succession particularly on the amount of successional rights of an illegitimate child and conflict law rule Art. 16. In making now the choice of law, the forum court naturally apply Art. 16. There is now an issue whether or not to apply the internal law of the US or the internal law of the Philippines. In the US there is no system of legitime, every person has the right to dispose of his estate in any manner as he wishes. No legitime. So thats the internal law of the US particularly on the distribution of the estate. So the forum court was confronted with this whether or not to apply the internal law of the US or the internal law of the Phils. xxx Art. 16 refers to the NATIONAL LAW of the decedent. Since Christensen is an American Citizen, the law referred to by the Court is the law of the US in so far as succession is concerned. But as I said earlier, that law did not specify whether it refers to the internal law or the entire laws including the conflict law rules. What is the conflict law rule on Succession in US? According to a case, it is the law of the place where the decedent is DOMICILED. So while in the Phils, our conflict law rule is National Law. In the US, the conflict law rule is law of decedents Domicile at the time of death. Should the court interpret the law being referred to in 16 as the internal law of the US or is it national law of the decedent- including the conflict of law rules which adheres to the domiciliary theory ? So thats the renvoi now.
4 SOLUTIONS COURT CAN ADOPT WHEN CONFRONTED WITH RENVOI 1. REJECT the court does not want the case to be sent back to us.

PAT: Forum court will consider the law being referred to as internal law of the foreign country and therefore applying it in the case of Aznar, the opposition of Helen is w/o basis.
2. ACCEPT accepts the referral back of the case [Philippine law will therefore be applied]. *single renvoi/transmission

PAT: This is the solution in the Philippines. So far, we have the case of Christensen v. Aznarthe forum court should accept the referral of the issue and ultimately apply the internal law of the Philippines. Rule in the case of Aznar that foreign law being referred to should be understood as the entire body of laws including the conflict of laws rule
3. THEORY OF DESISTMENT i.e. we refrain from applying national law if said law follows the domiciliary theory [in the end, we still apply Philippine law]. 4. FOREIGN COURT THEORY simply do what the foreign court would do if confronted with the same problem (gaya-gaya, puto maya).

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DOUBLE RENVOI when the local court, in adopting the foreign court theory, discovers that the foreign court accepts the renvoi. But since the foreign law remits the case to Philippine law, being the law of the deceaseds domicile, the foreign court may discover that Philippine law does not accept the remission, so the foreign court, sitting as a Philippine court, would still apply its own internal law. This is then what our court will apply. TRANSMISSION process of applying the law of a foreign state thru the law ofr a second foreign state. i.e. chinese citizen domiciled in the Philippines but died with properties in England. English law [following domiciliary thoey] will refer to Philippine law. Philippine law [following National theory] will refer to Chinese law. Chinese law will then be ultimately applied. Fairness, equity, and justice are to be considered in determining the course of action with renvoi problems.

relative, or a friend, may appoint a person to represent him in all that may be necessary. This same rule shall be observed when under similar circumstances the power conferred by the absentee has expired. (181a) Art. 384. Two years having elapsed without any news about the absentee or since the receipt of the last news, and five years in case the absentee has left a person in charge of the administration of his property, his absence may be declared. (184) Art. 385. The following may ask for the declaration of absence: (1) The spouse present; (2) The heirs instituted in a will, who may present an authentic copy of the same; (3) The relatives who may succeed by the law of intestacy; (4) Those who may have over the property of the absentee some right subordinated to the condition of his death. (185)

CONFLICT RULES ON STATUS AND CAPACITY

BIRTH determines PERSONALITY. BUT, it may be considered to begin at CONCEPTION. Subject to the following conditions: For purposes favorable to the fetus [i.e. given donation, acknowledged by the father, etc.] If it is born alive in accordance with Art. 41. ORDINARY if intra-uterine life of 7 MOS. OR MORE it is alive at the time it is completely delivered from the mother's womb; OR EXTRAORDINARY if the fetus had an intra-uterine life of less than 7 mos., it should live for AT LEAST twenty-four hours after its complete delivery from the maternal womb. BEGINNING OF PERSONALITY governed by PERSONAL LAW [Nationality or Domiciliary Theory]. DEATH extinguishes personality [physical death is contemplated here]. ABSENCE status of a person who has disappeared from his domicile, his whereabouts being unknown, without leaving an agent to administer his property, or evn if he had left an agent, the power conferred on the agent has expired. Governed by PERSONAL LAW
Art. 381. When a person disappears from his domicile, his whereabouts being unknown, and without leaving an agent to administer his property, the judge, at the instance of an interested party, a

PRESUMPTION OF ABSENTEES DEATH REMARRIAGE 4 YRS of absence (ordinary) 2 YRS if disappearance is with danger of death** Declaration of Presumptive Death is necessary to remarry (FC). ALL OTHER PURPOSES 7 YRS of absence EXCEPT SUCCESSION SUCCESSION 10 YRS of absence 5 YRS if absentee disappeared after the age of 75. BUT TAKE NOTE OF. . .
Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. (n)

**Note: For Remarriage, 2 years only. AGE OF MAJORITY determined by PERSONAL LAW.

CAPACITY TO CONTRACT determined by PERSONAL LAW. EXC: when real or personal property is involved [lex rei sitae] TITLE OF NOBILITY determined by NATIONAL LAW.

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Persons with titles may continue using them in our country. BUT, our Constitution does not allow titles of nobility, so if theyre naturalized must be renounced. LEGISLATIVE JURISDICTION power of personal law to govern ones status wherever he goes. JUDICIAL JURISDICTION power of the courts to decide questions or controversies concerning ones status. i.e. our courts decide the status and capacity of a person [if it has jurisdiction or if it has the power to do so] BUT using his/her personal law [because of the jurisdiction of his personal law/legislative jurisdiction].

that they take each other as husband and wife in the presence of not less than two witnesses of legal age. (53a, 55a)

PAT: TRANSGENDERS: Theoretically, its possible that some countries recognized sex transplant as a mode of changing gender. Suppose a country recognizes this, a man becoming woman, and under his law he is legally a woman. Married to man, husband and wife according to their laws. Visited the Philippines, who are we to say they are not husband and wife? The condition of whether married or not is a question of STATUS. Art. 15 Status is governed by national law. Exceptions as to recognition of foreign law: when it is contrary to the sound and established policy of the forum. Thats you fallback position there.

Absence of any formal or essential requisite will render the marriage VOID AB INITIO. EXC: Art. 35 (2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so. BUT an irregularity in the formal requisite shall not affect the validity of the marriage (only party liable for irregularity will be liable). Art. 2 and 3 also applies to FOREIGNERS who get married in the Phils. *if one or both of the parties are FOREIGNERS Certificate of Legal Capacity to Contract Marriage must be issued by the diplomatic or consular officials of her country in the Phils. **if STATELESS person only an Affidavit stating capacity to marry (capacity is based on law of domicile). COMMON LAW MARRIAGES IN THE PHILS. Between Filipinos VOID Between Foreigners who came to the country as husband and wife as a result of such a union VALID. *but must not be contra bonus mores or universally considered incestuous. WHEN 2 FILIPINOS MARRY EACH OTHER ABROAD
Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and 38. (17a)

CONFLICT RULES ON MARRIAGE

Arise due to the different public policies, cultures, or codes of morality of countries thereby leading to different laws in determining the validity of marriage as a contract. To deny validity to marriages that do not conform to our idea or concept of marriage would create a very serious problem in, among other things: a. Status of children b. Property relations bet. spouses c. Parental authority d. Rights of succession bet. spouses and members of their family PHILIPPINE INTERNAL LAW ON VALIDITY OF MARRIAGES
Art. 2. No marriage shall be valid, unless these essential requisites are present: (1) Legal capacity of the contracting parties who must be a male and a female; and (2) Consent freely given in the presence of the solemnizing officer. (53a) Art. 3. The formal requisites of marriage are: (1) Authority of the solemnizing officer; (2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and (3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration

We follow LEX LOCI CELEBRATIONIS valid there, valid here! EXC: 1 or both did not have CAPACITY BIGAMOUS or POLYGAMOUS No CONSENT (Mistaken Identity) PSYCHOLOGICAL INCAPACITY INCESTUOUS Void by reason of PUBLIC POLICY Marriage by 2 Filipinos abroad may be conducted by a COUNSUL-GENERAL, CONSUL or VICE-CONSUL (Consular official performs the duties of the civil registrar and the solemnizing officer). WHEN 2 FOREIGNERS MARRY EACH OTHER ABROAD

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We still apply LEX LOCI CELEBRATIONIS BUT, we do not apply ALL the exceptions in Art. 26 INCESTUOS marriages are the only EXCEPTION. *or those marriages highly immoral i.e. bigamous or polygamous in Christian countries. WHEN FILIPINO & FOREIGNER MARRY EACH OTHER ABROAD (Mixed Marriage Abroad) If the marriage is VOID AS TO ONE AND VALID AS TO THE OTHER VALID! EXCEPT: universally incestuous or highly immoral. WHEN FILIPINO & FOREIGNER MARRY EACH OTHER IN THE PHILS. (Mixed Marriage Here) Our LAW should be followed otherwise, our public policy would be violated (both as to the intrinsic and extrinsic). MARRIAGE AS A STATUS 2 ASPECTS 1. Personal Rights and Obligations of the Spouses (Personal Relations) purely personal to the spouses. 2. Property Relations law lays down rules and judicial sanctions. PERSONAL RELATIONS 1. BOTH FILIPINOS Philippine Law (Nationality Theory) 2. SAME NATIONALITIES (Other than Filipino) Depends if they are governed by the Nationality Theory or Domiciliary Theory. 3. SPOUSES OF DIFFERENT NATIONALITIES Depends on the national law of the husband (w.o.n. it adheres to Nationality or Domiciliary Theory). EXC: National Law of the husband violates the public policy of the forum or the national law of the wife happens to be the law of the forum. *Filipina who Marries a Foreigner she shall retain her Filipino citizenship unless by her acts she is deemed to have renounced her citizenship this means she is still protected by her national law (Philippine Law) and their personal relations will be governed by it. WHEN THERE IS ACQUISITION OF NEW NATIONALITY 1. IF BOTH ACQUIRE NEW ONE BY THEIR COMMON ACT new national law will govern 2. IF HUSBAND ALONE CHANGES last common nationality of the spouses (to avoid prejudice to the wife who would suffer a change in her rights without any free exercise of choice on her part).

PERSONAL RIGHTS AND DUTIES OF HUSBAND AND WIFE UNDER PHILIPPINE LAW a. To live together, observe mutual love, respect, and fidelity, and render mutual help and support. b. To fix together the family domicile (in case of disagreement the court shall decide). c. Jointly responsible for support of the family d. Management of the household e. Aggrieved spouse may apply to the court for relief in case one spouse neglects his or her duties, etc. f. To exercise a legitimate profession without consent of the other (EXC when objections are raised on valid, serious, and moral grounds). PROPERTY RELATIONS BOTH FILIPINOS Philippine Law. SAME NATIONALITIES (Both Foreigners) Depends if they are governed by the Nationality Theory or the Domiciliary Theory. DIFFERENT NATIONALITIES (Filipino and Foreigner) *Filipina who Marries a Foreigner she shall retain her Filipino citizenship unless by her acts she is deemed to have renounced her citizenship this means she is still protected by her national law (PHILIPPINE LAW) and their property relations will be governed by it as well. DIFFERENT NATIONALITIES (Both Foreigners) law of the husband. **with respect to the EXTRINSIC VALIDITY of contracts affecting real property LEX SITUS governs. WHEN THERE IS ACQUISITION OF NEW NATIONALITY Apply the DOCTRINE OF IMMUTABILITY OF MATRIMONIAL REGIME Regardless of the change of nationality of the husband or the wife or both, the original property regime that prevailed at the start of their marriage prevails. Reasons for the Rule: a. Marital Peace b. Avoid Prejudice to Creditors c. For spouses to protect themselves from each other **Immutability of Property Regime is different from Immutability of the law governing said regime. ANNULMENT AND DECLARATION OF NULLITY OF MARRIAGE PRELIMINARY MATTERS

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ANNULMENT remedy if the marriage is voidable or annullable. DECLARATION OF NULLITY remedy if the marriage is void ab initio. VOIDABLE MARRIAGE Can be validated either by free cohabitation or prescription. Same property regime as in a valid marriage. Children are legitimate if conceived before the decree of annulment. Marriage attacked attacked. cannot be collaterally VOID MARRIAGE Cannot be convalidated. The only property relationship between the parties is a co-ownership (Art. 147-148). Children are illegitimate (EXC those children of void marriages under Art. 36 and 53). Marriage may be attacked directly or collaterally. Marriage can still be impugned even after the death of the spouses.

EXC: that which is validly obtained by a Foreigner from his or her Filipino spouse capacitating him or her to remarry.
Art. 26, par. 2. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.

This is meant to avoid the absurd situation where a Filipino is still married to his or her alien spouse although the latter is no longer married to the former and may already have another spouse. *This does not apply when the divorce was obtained abroad by a Filipino spouse because they are governed by Phil. laws and our laws do not allow divorce. **BUT, Divorce obtained by Filipino citizens after they have been naturalized is recognized. Dissent of Sempio-Diy: Divorce obtained by Filipinos who have been naturalized are recognized not under Art. 26, par. 2 which should apply only to mixed marriages but by applying the rules on Conflict of Laws (p. 119). In the Phils., a Decree of DIVORCE obtained abroad by alien spouses is recognized IF VALID UNDER THEIR NATIONAL LAW. LEGAL SEPARATION OR RELATIVE DIVORCE ABSOLUTE DIVORCE dissolves the marriage and the parties can marry again. LEGAL SEPARATION only separation from bed and board but the parties remain married. LEGAL SEPARATION Marriage is not defective. Grounds arise marriage. after the ANNULMENT Marriage is defective. Grounds must exist at the time or before the celebration of the marriage. Marriage is set aside and the parties can marry again. Grounds for annulment are those given by the lex loci celebrationis (subj. to certain execptions).

Marriage can no longer be impugned after the death of the spouses.

*JUDICIAL DECLARATION OF NULLITY MUST BE SOUGHT The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void (in other words, you cannot assume!). Otherwise, the subsequent marriage will be considered BIGAMOUS and VOID! CONFLICT RULES GR: The LEX LOCI CELEBRATIONIS is applied. The law that determines validity should also be the law that determines invalidity. EXCEPTIONS: 1. When 2 FILIPINOS marry abroad the grounds are the exceptions to in Art. 26, namely: a. 1 or both did not have CAPACITY b. BIGAMOUS or POLYGAMOUS c. No CONSENT (Mistaken Identity) d. PSYCHOLOGICAL INCAPACITY E. INCESTUOUS f. Void by reason of PUBLIC POLICY 2. As to FOREIGNERS who marry abroad exceptions are: a. Highly immoral marriages b. Universally incestuous marriages ABSOLUTE DIVORCE GR: Family Code does not allow DIVORCE.

Parties are still married to each other and cannot remarry. Grounds are those given by the national law or the domiciliary law of the parties concerned (question is one of status). CONFLICT RULES

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1. SAME NATIONALITY grounds are those given by their personal law (whether national or domiciliary). 2. DIFFERENT NATIONALITIES personal law of the husband and the wife are both available (Hague Convention). JURISDICTION In case of aliens, we do not assume jurisdiction unless the national law of the parties is willing to recognize its jurisdiction. Foreigners may ask for legal separation here even if they did not get married in this country what is important is jurisdiction over both parties (and the procedural requirements are complied with). *it is enough that the petitioner foreigner has resided in the Phils. for 6 mos.
Art. 55. A petition for legal separation may be filed on any of the following grounds: (1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; (2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; (3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; (4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; (5) Drug addiction or habitual alcoholism of the respondent; (6) Lesbianism or homosexuality of the respondent; (7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad; (8) Sexual infidelity or perversion; (9) Attempt by the respondent against the life of the petitioner; or (10) Abandonment of petitioner by respondent without justifiable cause for more than one year. For purposes of this Article, the term "child" shall include a child by nature or by adoption. (9a) Art. 56. The petition for legal separation shall be denied on any of the following grounds: (1) Where the aggrieved party has condoned the offense or act complained of; (2) Where the aggrieved party has consented to the commission of the offense or act complained of; (3) Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation; (4) Where both parties have given ground for legal separation; (5) Where there is collusion between the parties to obtain decree of legal separation; or

(6) Where the prescription. (100a)

action

is

barred

by

Prescriptive period is 5 years from the time of the occurrence of the cause. Wife cannot drop the name of the husband, whether she is the guilty party or not.

PAT: Our Conflict of Law rules in marriage is spell out in Art. 26 of FC all marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country except those prohibited under Article 35(1), (4), (5) and (6), 36, 37 and 38. General Rule: valid there abroad, valid in the Philippines. Application of Art. 26 depend on various circumstances. It contemplates different situations. SITUATION 1. Marriage between foreigners celebrated abroad. Both parties are aliens and solemnized abroad. By virtue of Art. 26, if valid at the place of solemnization, it should be valid in the Philippines. Exception: if marriage is considered as universally incestuous (parent-child; brother-sister). The exceptions provided in Art. 26(1) does not apply insofar as marriages between foreigners abroad. Why? 35, 36, 37, 38 all pertains to status. And status is governed by nationality under Art. 15. SITUATION 2. Marriage between Filipinos abroad. Art. 26 if valid at the place of solemnization, valid in the Philippines except: Art. 35(1), (4), (5) and (6) Cases falling under Art. 35(1), (4), (5) and (6) are void even if valid in the country where the marriage was solemnized. Art. 36 psychological incapacity Art. 37 incestuous (parent-child; brother-sister) Art. 38 void marriages by reason of public policy The exceptions provided under Art. 26(1) applies in this case because the parties are Filipinos. SITUATION 3. Marriage between foreigners in the Philippines. It is valid if it complies with Philippine laws but their capacity to contract marriage is determine by their own national law pursuant to Art. 21 of the FC. What is required is for the applicant should submit to LCR a duly authenticated certificate of legal capacity to contract marriage issued by their respective consular office. This is enough for the LCR to issue the marriage license; once issued, he can now contract marriage anywhere in the Philippines. Valid if it should comply with Philippines laws on marriage but their capacity is determined by their own national law.

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Midterm Reviewer

SITUATION 4. Marriage between Filipinos in the Philippines. Obviously, everything should be governed by Philippine laws. SITUATION 5. Marriage between a Filipino and a foreigner in the Philippines. Mixed marriage but solemnized in the Philippines. Rule: it is valid if it complies with Philippine laws on marriage but the legal capacity of the foreigner is determined by his own national law. SITUATION 6. Mixed marriage between a Filipino and a foreigner solemnized abroad. Rule: if valid there, valid here but if that marriage falls under any of the exceptions enumerated in Art 26(1), the marriage is VOID insofar as the Filipino spouse is concerned. Result here is a hybrid marriage. VALID insofar as the foreigner; VOID insofar as the Filipino. Theoretically, this is possible. This is now the dilemma. No provision in the FC or any existing law which specifically addresses this concerned. Opinion of Paras: In a situation like this, we should consider the marriage if valid there and falls under any of the exceptions insofar as Filipino spouse is concerned, should be considered valid to be consistent with our policy that every doubt should be resolved in favor of validity marriage. We are pro-marriage. No specific provision on this issue but theres legal sense and logic in the opinion of Paras. Question: What happens if a foreign spouse who is married to a Filipino obtains a divorce decree abroad? This is addressed in Art. 26(2) Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse is likewise have capacity to remarry under the Philippine law. Art. 26(2) is the only positive law in our jurisdiction which clearly acknowledges the validity of divorce insofar as Filipino is concerned by declaring that the Filipino spouse is likewise capacitated to remarry, the law in effect acknowledges the validity of divorce, although as a matter of policy we do not recognize divorce. Rationale: To remedy the unfair situation where a Filipino spouse remains married to an alien spouse who is no longer married to the Filipino spouse. To promote fairness on the part of Filipino spouse, Art. 26(2) which expressly afford the Filipino spouse to remarry as well. Take note that this capacity to remarry is not automatic. While the law recognizes the capacity of the Filipino spouse to

remarry, this is only a consuelo de bobo. Why? Theres still something to do. The law still wants her/him to engage the services of a lawyer which comes with handsome fees and go to the rigors of trial with the risk of case be dismissed before he/she can remarry. REPUBLIC. V. ORBECIDO SC made this provision applicable to a situation where the marriage is between two Filipinos but subsequently one of them became a citizen of a foreign country and while being a foreign national, obtained a divorce decree. SC said the requirement of mixed marriage is determined not at the time of marriage but at the time the divorce decree is obtained. It doesnt matter that if at the time of marriage both are Filipinos so long at the time the divorce decree is obtained one is already a foreigner. But insofar as the Filipino spouse is concerned, contracting a subsequent marriage does not come easy. Still required the filing of a petition for declaratory relief for him/her to remarry. What must be proved in the Petition for Declaratory Relief proceedings? Orbecido Case. SC said the Filipino spouse should prove: (1) the EXISTENCE OF THE DIVORCE DECREE OBTAINED ABROAD. How? Sec. 24, 25 of Rule 132 on Rules of Evidence. A certified true copy of the divorce decree, certified by the custodian, accompanied by a certification of the consular office that the custodian has the legal custody of the document. Authenticated copy of divorce decree should be submitted in court. (2) that the DIVORCE IS IN ACCORDANCE WITH LAWS ALLOWING IT. The laws of the place where the divorce decree was obtained should be proved, take note our courts do not take judicial notice, these foreign laws should be prove as a fact. (3) that the DIVORCE DECREE OBTAINED ABROAD CAPACITATES THE FOREIGN SPOUSE TO REMARRY. Divorce is of two kinds: absolute and relative. Absolute capacitates one to remarry; relative/restricted does not. Its relevant to prove the kind of divorce obtained. If absolute, capacitates the foreign spouse to remarry. IMPORTANT (4) Recio v. Recio. A divorce decree obtained abroad by an alien may be recognized valid here IF VALID IN ACCORDANCE WITH NATIONAL LAW OF THE ANY SPOUSE. It is not enough to prove the law of the place where the divorce decree was obtained, but just as important it is to prove that the divorce decree is valid in accordance with the national law of the party who obtained the divorce. It is possible that an alien spouse is a citizen of another country and obtained the divorce in another country. (see also Recio Case)

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AS TO REQUIREMENT TO BE ABLE TO REMARRY Filipino Spouse By virtue of Obrecido, the Filipino spouse before he/she can remarry has to file petition for declaratory relief. Alien Spouse SC said, for an alien spouse to remarry in the Philippines, all he needs is to submit certificate of legal capacity issued by his/her consular official. This certificate of legal capacity is prima facie evidence of his legal capacity to contract marriage. The alien spouse does not have to prove the divorce decree and it validity, unlike the case of a Filipino spouse. What is now the status? the only purpose of declaratory relief is to remarry but to avoid absurd situation when there is a hiatus between the finality of the divorce decree and the finality of declaratory relief petition, I inclined to believe that the status should severed at the time the divorce decree was obtained. Otherwise, it would be absurd when there is no more marriage to speak of yet he remains married. STATUS: DIVORCED WITHOUT D.R. BUT REMARRIES If the Filipino spouse subsequently contracts marriage without declaratory relief I dont think there is bigamy there since we recognized divorce decree insofar as the alien spouse is concerned,. Again, the only purpose of declaratory relief is for purposes of remarriage. But for prosecution for bigamy, I doubt it. Filipino, naturalized in another country, then divorced the moment the Filipino spouse becomes an alien, he ceased to be governed by Philippine laws. Only certificate of legal capacity if he/she intends to remarry here. A STATELESS PERSON in the high seas, what are the requirements? Art. 21 if a foreigner wants to marry here, the requirement for marriage license is the certificate of legal capacity issued by his consular office. If the applicant is a stateless individual, one who has no country, the only requirement is an affidavit setting forth the circumstances of his legal capacity. The question there is by whose law should the legal capacity be determined? Legal capacity is a matter of law. Obviously, it cannot be national law because he is not a national of any country. Principle in international law, its possible for a person to have no country, one who is stateless (not a citizen of any country) but it is impossible for one to have no domicile. Domicile is of two kinds: permanent and temporary. If you come here in the Philippines to apply for a marriage license, thats temporary domicile. High seas, theoretically, but in reality its not possible for one to have no domicile for purposes of marriage. Sometime, somewhere, you need to go to the LCR. Philippine law is the basis for his legal capacity to marry. Philippines is deemed to be his temporary domicile.

PROPERTY RELATIONS When at least one of the spouse is a Filipino, Philippine laws apply on matters involving property relations. conjugal partnership, absolute community, etc. Exceptions: if both spouses are aliens extrinsic validity of contracts involving properties located outside the Philippines whether executed abroad or in the Philippines. Rationale: involves property so Lex Rei Sitae

CONFLICT RULES ON STATUS OF CHILDREN

LEGITIMACY IF THE PARENTS HAVE THE SAME NATIONALITY common national law of the parents. IF DIFFERENT NATIONALITIES national law of the father. LEGITIMATE CHILDREN conceived or born during the marriage of the parents. *children born of void marriages under Art. 36 (psychological incapacity) and Art. 53 (born before parent delivers the presumptive legitime). **children conceived as a result of artificial insemination are considered legitimate. ILLEGITIMATE CHILDREN children conceived and born outside a valid marriage xxx unless otherwise provided in the Code. LEGITIMATE/D Bear surname of the father and the mother To receive support from their parents, ascendants, brothers and sisters Entitled to legitime and other successional rights. ILLEGITIMATE Use surname of the mother (or the father if recognized). Under parental authority of the mother Support Legitime (equal to of the legitimate child)

DETERMINING RIGHTS AND DUTIES BETWEEN PARENT AND CHILD If LEGITIMATE PARENTS HAVE SAME NATIONALITIES their common personal law. DIFFERENT NATIONALITIES personal law of the father. If ILLEGITIMATE

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Personal law of the MOTHER. BUT, personal law of the father applies if the child is subsequently recognized. DOCTRINE OF IMMUTABILITY OF STATUS Status of a child is not affected by a subsequent change of nationality of the parents. BUT, the rights and duties of parent and child would, after the parents change of nationality, be governed by the new national law of the parents. LEGITIMATION Legitimization a process whereby children who in fact were born in lawful wedlock and should therefore be ordinarily considered illegitimate children are regarded as legitimate. *Legitimated children have the same rights as legitimate children (Art. 179, FC). The common national law of the parents governs. IF the parents have different nationalities, the national law of the father governs. *in countries following the domiciliary theory, the law of the domicile of the parents govern or the law of the domicile of the father. REQUISITES IN ORDER FOR A CHILD TO BE LEGITIMATED:
Art. 177. Only children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated. (269a)

Determined by the same relationship of adoption.

law

that

created

the

LEGAL EFFECTS OF ADOPTION (GENERAL) 1. Successional rights of the adopted child 2. Parental authority 3. Use of the surname of the adopter WHO MAY ADOPT Sec. 7, RA 8552 (this is the one discussed by Sempio-Diy) a. FILIPINO CITIZEN of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his/her children in keeping with the means of the family. *sixteen (16) year difference between the age of the adopter and adoptee may be waived when: i. adopter is the biological parent of the adoptee ii. Adopter is the spouse of the adoptee's parent. b. ALIEN possessing the same qualifications as above stated for Filipino nationals. Provided: his/her country has diplomatic relations with the Philippines he/she has been living in the Philippines for at least three (3) continuous years prior to the filing of the application and maintains such residence until the adoption decree is entered he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter. Provided, Further, That the requirements on residency and certification of the alien's qualification to adopt in his/her country may be waived for the following: i. a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or ii. one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or iii. one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse. c. GUARDIAN with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities.

DOCTRINE OF IMMUTABILITY OF STATUS applies. Therefore, despite the change of citizenship/personal laws of the parents/father status as legitimated child remains. **this is the same as in a legitimate child because. . .
Art. 180. The effects of legitimation shall retroact to the time of the child's birth. (273a)

ADOPTION Current Applicable Laws 1. RA 8043 Inter-Country Adoption 2. RA 8552 Domestic Adoption LAW THAT DETERMINES RELATIONSHIP CREATED The childs personal law (to protect his well-being). BUT, if the child does not reside in the country of his citizenship personal law of the adopter OR personal law of the child and the adopter concurrently. LAW THAT DETERMINES THE LEGAL EFFECTS

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RA 8552 requires HUSBAND and WIFE to adopt jointly. EXC: a. When one spouse seeks to adopt his/her own illegitimate child b. When one spouse seeks to adopt the illegitimate child of the other c. Where spouses are legally separated other spouse can adopt alone without the consent of the other. LEGAL EFFECTS OF ADOPTION (UNDER PHILIPPINE LAW) 1. All legal ties between the biological parent/s and the adopted child are severed and the same shall be vested in the adopter/s (EXC where the biological parent is the spouse of the adopter). 2. The adopted child shall be considered for all intents and purposes to be the legitimate child of the adopter/s (same rights as legitimate child). 3. Adopter/s and the adopted child shall have reciprocal rights of succession. Adoption proceedings are IN REM (Publication is required). Mere agreement of adoption is not a valid adoption COURT DECREE is required. Mere registration of the child in the civil registry as the child of the adopter is not a valid adoption. Capacity and right of the adopter is determined by the law enforced at the time petition is filed. RECOGNITION OF FOREIGN DECREE OF ADOPTION Under Sec. 48 of Rule 39 we can recognize the foreign decree of adoption provided the foreign court had jurisdiction to render the said decree. Also there should not have been: a. Want of notice b. Collusion c. Extrinsic Fraud d. Clear mistake of law and fact

VALIDITY OF WILLS 1. EXTRINSIC VALIDITY a. FILIPINO Abroad he may comply with the formalities of Philippine law or the lex loci celebrationis. B. ALIEN Abroad lex nationalii, lex domicilii, lex loci celebrationis. c. ALIEN in the Phils. lex nationalii or lex loci celebrationis (Phil. law). d. For HOLOGRAPHIC Wills only requirements are: it must be entirely written, dated, and signed by the hand of the testator himself (no other req.). 2. INTRINSIC VALIDITY GR: Determined by LEX NATIONALII or LEX DOMICILII. Philippines applies lex nationalii. *JOINT WILLS Filipinos cannot make joint wills whether here or abroad notwithstanding lex loci celebrationis. Joint wills made by aliens abroad shall be considered valid in the Phils. if valid according to lex nationalii, lex domicilii, or lex loci celebrationis. Joint wills made by an alien and a Filipino are valid only as to the alien if his lex nationalii, lex domicilii, or lex loci celebrationis allows it. Joint wills made by aliens in the Philippines are void as a matter of public policy. INTESTATE SUCCESSION Law of the country where one is a citizen or law of the country where he is domiciled. In the Phils., we apply lex nationalii. REVOCATION OF WILLS
Art. 829. A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code. (n)

CONFLICT RULES ON WILLS, SUCCESSION, and ADMINISTRATION OF THE ESTATE OF DECEASED PERSONS
2 THEORIES IN DETERMINING PROPER TRANSMISSION OF SUCCESSIONAL RIGHTS LAW FOR

1. UNITARY OR SINGLE SYSTEM only one law determines transmission of real as well as personal properties. 2. SPLIT OR SCISSION SYSTEM succession to real property is governed by lex situs while succession to movable or personal property is governed by law of the domicile of the deceased at the time of his death.

If the REVOCATION is done outside the Philippines by a person who is domiciled here VALID if made in accordance with our law or the place where the revocation was made (lex loci actus).

PAT: Revocation of Wills depends where it was revoked: Revocation is made outside by someone who is not domicile of the Philippines. Two governing laws:

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Revocation is valid if it was made in accordance with the law of the place where the will was executed; or if made in accordance with the law of the domicile at the time of revocation. N.B. law of the domicile or law of the place of the person who revokes the will is domiciled at the time of revocation. Because a person may change his domicile form time to time. DOMICILE AT THE TIME OF REVOCATION. Revocation made outside of the Philippines by a person who is a domicile in the Philippines. Note: DOMICILE not citizen. He may be a foreigner. He can make revoke a will abroad. How do you determine the validity of that revocation? Two governing laws: PHILIPPINE LAW the one who revokes the will is a domicile of the Philippines; or if it complies or observes the LAWS OF THE PLACE WHERE THE REVOCATION WAS MADE. Either of these two laws, revocation done outside by a person domiciled in the Philippines is valid. REVOCATION DONE IN THE PHILIPPINES should be done in accordance with Philippine laws
INTERPRETATION OF WILLS a. Literal meaning shall control if the terms are clear and unambiguous. *Contemporaneous and subsequent acts of the testator may also be considered. b. If testators intention cannot be ascertained by the preceding rules ambiguous words are to be interpreted in accordance with the law which was most probably in the mind of testator when he used those words and with which he is presumed to be most familiar. c. If the will admits of different interpretations that which will make the disposition operative shall be preferred. d. Every effort should be made to prevent intestacy. PROBATE Probate process of providing before a competent court the: Due execution of a will That testator was possessed of testamentary capacity The approval by said court of the will Allowance/disallowance essentially procedural in nature law of the forum applies.

Wills proved and allowed in a foreign country according to the laws of such country may be allowed, filed, and recorded by the proper court in the Phils. BUT, it still has to be REPROBATED in the Phils. in accordance with out procedural law. Evidence necessary for the probate of will probated outside the Phils. a. Due execution of the will in accordance with foreign law. b. Testator had his domicile in the foreign country where the will was probated c. The will had been admitted to probate in said country d. The foreign tribunal is a probate court. e. Laws of the foreign country on procedure and allowance of wills were followed.

PAT: Question: Will probated abroad maybe re-probated here in the Philippines. How to re-probate? Probate proceedings concern with genuineness and due execution of the will. The facts sought to be established in the probate proceeding is the will genuine and duly executed by the testator. In proving the genuineness and due execution of the will, requirement you present witnesses to establish that the testator is of sound and disposing mind at the time the execution, that he executed the will on his own free will free form any vices of consent, etc. A tedious process because you have to prove all the formal requirements and the fact that it was genuinely executed. In case of a will already probated abroad and brought to the Philippines for re-probate, the rule is you dont need to prove all over again the genuineness and due execution of the will. No need to bring in witnesses from abroad and testify before the court where the re-probate is pending. Only requirement is to submit to the Philippine court a copy of the judgment of the court approving the will and a copy of the will itself duly authenticated by the consular office in the place where these documents are kept. Only a summary proceeding; no need to re-try it all over unlike in a first probate where proceeding is extensive
ADMINISTRATION OF ESTATE OF DECEASED PERSONS ADMINISTRATION the process of determining and realizing the assets of a deceased person, the payment of the debts of the estate and the actual distribution of the residue to the heirs. Procedural in nature therefore lex fori governs. EXECUTOR appointed in a will and qualified by the court to be in charge of the distribution. ADMINISTRATOR appointed by the court to take charge of the distribution (there is no will).

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*Appointed by the court where the deceased was domiciled at the time of his death or where his properties are found. The rights, powers, and duties of the executor or administrator are coextensive with the territorial jurisdiction of the court that qualified or appointed him. PRINCIPAL DOMICILIAR ADMINISTRATION administration granted in the country of the deceaseds last domicile. ANCILLARY ADMINISTRATION administration in other countries where the deceased also left properties. *the domiciliary administrator has no power over and is not entitled to the possession of properties of the deceased in another country which must be delivered to the ancillary administrator of the deceaseds estate in that country to be administered by the latter. CADUCIARY RIGHTS in cases where the deceased left no heirs, the State shall have the right to consider his properties as bona vacantia and seize all property of the deceased lying within its borders. *it may also mean that a State is considered as the last heir of the deceased person and therefore succeeds to his properties as such.

a. b. c. d. e. f. g. h. i. j.

Disposition, conveyance or encumbrance of property Forms and solemnities of contracts involving properties their conveyance, encumbrance disposition Ownership Co-ownership Lease Mortgage Registration Easement Prescription Capacity of the contracting parties

In other words, if it involves personal or real property, all three components of a contract are governed by lex rae sitae. Unlike in ordinary contract where each component is governed by different rules. LIMITATIONS: 1. PROPERTY IS INVOLVED IN SUCCESSION Succession is a mode of acquisition of ownership. It involves transfer of ownership from the decedent to the heir. While these may involve transfer of ownership, title to property, this is not however governed by lex rae sitae because the factual situation now is no longer a matter of property. Strictly, the factual situation now is on succession, whether intestate or testamentary succession because under second paragraph of Article 16 [National Law of the decedent]. 2. THE PROPERTY IS ONLY INCIDENTAL TO THE MAIN CONTRACT.

CONFLICT RULES ON PROPERTY

Art. 15. Real property as well as personal property is subject to the law of the country where it is situated.

LEX REI SITAE/LEX SITUS is therefore adopted for both real property and even personal property. *due to the growing complexity and variety of personal property no longer making them immediately connected with the person of the owner. LEX SITUS AS TO REAL PROPERTY Covers the extrinsic and intrinsic validity of transactions over real property (alienations, transfers, mortgages, capacity of the parties, effects of ownership, etc.) EXC (when lex situs does not apply): SUCCESSION national law of the decedent is followed. CONTRACTS proper law of the contract is followed: Lex loci voluntatis; or Lex loci intentionis

The main contract being the rights and obligations of the parties. In other words, lex rae sitae, does not apply in an ordinary contract although that ordinary contract may involve a property incidentally. A typical example of this case is a contract of design. Example Mr. Tibon is an architect. His expertise is engaged by Miss Corollo to design a multi-million residential house that Mr. Tibon offers to Miss Corollo as a consideration for future marriage. This is a contract which involves property but if you look at it, its an ordinary contract of service involving the services of Mr. Tibon. The presence of the property there is only incidental. If the contract partakes of this nature where the property is only incidental to the main contract, you dont apply lex rae sitae but the law on ordinary contract. Now, as pointed out earlier, all aspects pertaining to property are governed by lex rae sitae. But the question is, to what extent? LAUREL VS. GARCIA

PAT: The rule is LEX RAE SITAE---the law of the place where the property is located. These matters may include the following:

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QF: Involves the planned sale of the Roponggi property in Japan which the Philippine government acquired from Japan by virtue of a certain treaty because of the war there was that Reparation Agreement where the government of Japan conveyed to the Philippines, by way of damage that Japan caused during the World War. This was opposed and one of the arguments put forward by those who oppose the disposition of the Roponggi property was that Roponggi property is a property of public dominion defined under Article 420 of the Civil Code as a property intended for some public service. And therefore being a property of public dominion, its beyond the commerce of man, beyond appropriation by any individual even the government. For those who advocated for the disposition of Roponggi argued that its not proper to invoke Article 420 of the Civil Code because the property is located in Japan and therefore it is governed by the law of Japan although they did not prove the exact law of Japan for that matter but they said that Japan law allows disposition of the property. HELD: The Supreme Court said there was no conflict of laws in this case. While lex rae sitae provides that real or personal property is governed by the law of the place where they are situated, this principle of lex rae sitae applies only when there is issue as to the title of the property involved. In this case of Roponggi, according to the Supreme Court, there is no issue at all insofar as the title of the property because all along all parties to the case are one that the property belongs to the government of the Philippines. There are no conflicting claims over the ownership of the property. With this the Supreme Court said you dont apply lex rae sitae. Its not even relevant for purposes of resolving the issue of whether or not the property may be disposed. If you look at the decision it would appear that lex rae sitae is limited only in a situation where the ownership of the property is disputed. I have serious reservation on this ruling because if you read the literature on conflict of laws, you have the Salonga, you have the Agpalo, you have the book of Sempio-Diy, all of them are saying that all aspects---the conveyance, formality, the capacity of the contracting parties, all these matters are governed by lex rae sitae. Now the issue of whether or not the property may be sold is obviously an issue which pertains to the intrinsic aspect of the contract whether the subject matter may be the subject of a sale transaction. Or the issue on whether or not there is authority to sell that relates to capacity of the contracting parties which, according to the writers, is one of the matters which are governed by lex rae sitae. For the Supreme Court to say that the lex rae sitae does not apply because the problem does not involve an issue of title over the property, I really have a serious reservation with that ruling because as I said, you look at all the literatures of

conflict of laws, lex rae sitae does not only cover a situation where there is a dispute over title of a property involved. Instead, all aspects---conveyance, encumbrance, forms and solemnities, intrinsic aspect, capacity of the parties, all these. (For intangible and movables, see rules below from SempioDy discussed in passing only).
LEX SITUS AS TO PERSONAL PROPERTY There is no problem when the movable is tangible and has a fixed situs. Problem arises when the movable is mobile or usually in motion. CONSTRUCTIVE SITUS is therefore given to these movables. VESSELS 3. Law of the Flag if a public vessel. 4. Law of the Country or Place of Registry private or commercial vessel. *if vessel is temporarily docked at a foreign port said port is considered its temporary situs. GOODS IN TRANSIT 1. Liability for LOSS DESTINATION. 2. Validity and Effect of Seizure place where the goods were seized. 3. Disposition or Alienation proper law of contract between the parties. INTANGIBLE PERSONAL PROPERTIES A. CREDITS Involuntary Transfer/Assignment of Debt place where the debtor may be served with summons (usually his domicile). Voluntary proper law of the contract. B. NEGOTIABLE INSTRUMENTS Negotiability LAW GOVERNING THE RIGHTS EMBODIED IN THE INSTRUMENT. Transferability law at the TIME of transfer, delivery, or negotiation. C. SHARES OF STOCK Corporation + Another Person law of the place of INCORPORATION. Between Parties PROPER LAW OF THE CONTRACT. D. FRANCHISES Law of the STATE GRANTING THE FRANCHISE. E. GOODWILL Law of the place WHERE THE BUSINESS IS CARRIED ON.

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*Goodwill the patronage of any established trade or business; the benefit acquired by an establishment beyond the value of its capital stocks, funds, or property in consequence of the general public patronage and encouragement that it receives from its customers. F. INTELLECTUAL PROPERTY RIGHTS GR: protected by the State that granted or recognized them. But, according to RA 8293
Section 3. International Conventions and Reciprocity. - Any person who is a national or who is domiciled or has a real and effective industrial establishment in a country which is a party to any convention, treaty or agreement relating to intellectual property rights or the repression of unfair competition, to which the Philippines is also a party, or extends reciprocal rights to nationals of the Philippines by law, shall be entitled to benefits to the extent necessary to give effect to any provision of such convention, treaty or reciprocal law, in addition to the rights to which any owner of an intellectual property right is otherwise entitled by this Act. (n)

b. c. d.

When lex loci celebrationis contravenes an established policy in the forum Applying it would result to gross injustice to the people of the forum Transaction is contra bonos mores

PAT: Our Conflic of Laws on the matter is Article 17 of the Civil Code which says that: forms and solemnities of contracts, wills and other public instruments shall be governed by the law of the place where these contracts are executed. By the way the extrinsic aspect of contracts refers to forms and solemnities---only the extrinsic, the outside, the form, the physical requirements of a contract. So these matters may include whether a contract is oral, whether a contract is in writing, whether the contract requires notarization, whether the contract requires instrumental witnesses and if so, how many instrumental witnesses are required. So the governing law is the place of execution. There is no problem if the contract is executed in one place because that place is the governing law, the law of that place is the governing law. The problem arises when the contract, as you will know- a contract may undergo several stages. The problem arises when a part, an important aspect of the contract took place in one state and the other important aspect or component of the contract took place in another state as when the offer was made in one state, the acceptance of the offer was made in another state. So in this case, what should be the place of execution, for purposes of conflict of laws rule? We have Article 1319 of the Civil Code which says that contract is perfected by the meeting between the offer and the acceptance of the offer. But if the offer was made through writing or through telegram or similar means, the acceptance shall not be binding unless it is communicated to the offeror in which case the contract is presumed to have been perfected in the place where the offer was made. So perfection, the contract is perfected the moment the acceptance is made known to the offeror. So thats the last stage of the contract, that is the last step that perfects the contract, the moment the acceptance is known by the offeror. And since the offeror is presumed to be in the place where the offer is made, for purposes of lex loci celebrationis, the place where the offer was made is deemed to be the place of execution. Take note however that lex loci celebrationis, insofar as the extrinsic aspect of a contract is concerned, has its limitation. This does not apply when the place of execution is obviously casual or incidental only to the contract as when all the important components of the contract took place in or pertain to one state and the contract was executed in another state.

In other words, Philippines must be a co-party in a treaty/convention of the country where the foreigner is domiciled or is a national AND there must be reciprocity of rights.

CONFLICT RULES ON CONTRACTS

CONTRACT a meeting of the minds between two persons whereby one binds himself, with respect to the other to give something or to render some service. EXTRINSIC VALIDITY GR: governed by LEX LOCI CELEBRATIONIS If via LETTER/TELEGRAM
Acceptance made by letter or telegram does not bind the offerer except from the time it came to his knowledge. The contract, in such a case, is presumed to have been entered into in the place where the offer was made. (1262a)

EXC to lex loci celebrationis a. When place of execution is merely casual/incidental apply MOST SIGNIFICANT RELATIONSHIP (the law of the place with the MSR to the transaction).

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RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE. Based on Sempio-Diy Book

CONFLICT OF LAWS
Midterm Reviewer

Casually and incidentally, in which case, you dont consider that place of execution as the lex loci celebrationis for purposes of the conflict rules. What is the governing law insofar as the extrinsic aspect of the contract if the place of execution appears only as incidental to the contract? When this happens, you now apply the appropriate law of the contract. Meaning to say, you have to determine the law of the contract impliedly or presumed to have been impliedly agreed upon by the parties using the most significant relationship principle. So you will now determine the law of the contract by determining the various aspects or components of the contracts. If most of the important components of the contract take place or pertain to a particular state and that state claims to have the most significant relationship insofar as the contract is concerned, that state is deemed to be the place where the contract has been executed although in reality the contract may have been executed somewhere else. So you apply now the most significant relationship principle. You review the case of Saudi Arabian Airlines, where the Supreme Court applied this principle although in relation to a tort case but the principle is exactly the same.
CAPACITY TO ENTER INTO CONTRACTS GR: governed by PERSONAL LAW of the parties (National Law or Domiciliary Law). EXC: contracts involving alienation or encumberance of properties (real and personal) LEX SITUS i.e. a Filipino (18 y.o.) who enters into a contract in a country where age of majority is 21 cannot later on plead his incapacity HE IS GOVERNED BY PHIL. LAW (Art. 15, NCC). BUT, if an alien (18 y.o.) enters into a contract in the Philippines, he cannot later on plead his incapacity just bec. age of majority based on his national law is 21 it would greatly IMPEDE BUSINESS TRANSACTIONS. To Reconcile: Nationality Theory should be limited to family and domestic relations. Proper Law of the Contract business/commercial transactions

So issues pertaining to the validity of the contract insofar as the capacity of the contracting parties is concerned, you refer to Article 15---the national law of the parties involved. Limitation is when again the contract involves property, real or personal because if it does capacity of the contracting parties should now be determined again by lex rae sitae. In short, capacity of the contracting parties is governed by nationality theory only if the contract is an ordinary contract that does not involve property. So you have to distinguish these three different components. The contract may be extrinsically valid but may not be valid intrinsically. Or it may be intrinsically valid but not valid insofar as the capacities of the contracting parties because these components are governed by different rules.
INTRINSIC VALIDITY GR: proper law of the VOLUNTATIS/INTENTIONIS). contract (i.e. lex loci

In the Phils. There is no specific provision of law, BUT our policy is to give effect to the intention of the parties (the expressed intention or the implied intention). *aka Choice of Law *as determined by many factors i.e. law with the most substantial connection with the transaction or the law that may be presumed to be intended by the parties to bind their transactions. Some Limitations to Choice of Law a. Law must have connection with the transaction. b. If the law selected should change, the new law shall be applied (EXC where the change is so revolutionary that it could not have been foreseen by the parties). c. Cannot stipulate on jurisdiction of courts or oust the courts of their jurisdiction. d. Cannot contract away applicable provisions of law that are impressed with public interest or involve public policy (i.e. labor) e. Several laws may be selected (each of which may govern certain elements of the transaction).

PAT: Capacity of the contracting parties is a matter of personal law and therefore we apply the nationality theory under Article 15.

Intrinsic validity refers to the essence or the substantive aspect of the contract, specifically this refers to the nature of the contract, whether the contract by its very nature is valid like a contract of lingam massage service. Is it valid by its nature? So this question as to the validity of the contract by its very nature concerns the intrinsic aspect of the contract. Other matters falling under intrinsic may refer to the terms and conditions of the contract, whether the terms stipulated or embodied in the contract are valid or not. Or the subject matter of the contract. Anything which relates to the

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CONFLICT OF LAWS
Midterm Reviewer

substance as contradistinguished from form falls under intrinsic validity. You will know that there is no specific provision in our laws which govern the intrinsic aspect of the contract insofar as conflict of laws rule is concerned. However, most writers suggest that for this purpose, the forum court should be consistent with the policy adopted in our jurisdiction that parties are free to stipulate. The contracting parties to a contract are free to stipulate anything in the contract. This is the so-called liberality of contract principle consistent with Article 1306 of the Civil Code which says that parties to the contract may establish such stipulations, clauses, terms and conditions as they may deem convenient provided these do not or these are not contrary to law, public policy or good morals or customs. So this espouses the liberality of contract principle. Having said this, most writers suggest that for purposes of conflict of laws rule insofar as intrinsic validity of contract is concerned, what matters is the intention of the parties. So the governing law that determines the intrinsic validity of a contract, according to most writers are the following: Lex loci voluntatis or the law expressly agreed upon by the parties. So you see the intention, the express avowed intention of the parties. Now how do you determine the lex voluntatis or the law expressly agreed upon by the parties? This is commonly manifested by the so-called choice of law clause in a contract, this is a standard clause or provision in a contract especially foreign contracts; the stipulation on the choice of law where the parties expressly agree that any dispute arising from the contract shall be governed by the law of that particular state. There is however a limitation to this rule because (1) the parties may not stipulate on a particular law which has nothing to do at all with the contract. So this is governed by the rule on reasonable connection. While the parties are free to stipulate on a specific law that they want their contract to be governed, this should be analyzed with the reasonable connection with the contract so the parties cannot stipulate on the law of Pakistan for example if all the other important components of the contract are to be performed or take place or pertain to other states. So while the parties may stipulate as to specific law, make sure that this law is reasonably connected to the contract, otherwise that choice of law clause can never be enforced. What happens if a contract does not contain a choice of law clause? Meaning, there is nothing in that contract where the intention of the parties can be ascertained as to the specific law that governs their contract insofar as intrinsic aspect of the contract.

Apply the lex loci intentionis or the law impliedly or presumed to have been agreed upon by the parties. So not expressly stipulated upon by the parties, but under the circumstances, it can be reasonably inferred that the parties agree that this particular law should govern their contract insofar as the intrinsic aspect. To determine this, use the most significant relationship principle. How? By determining the various components of the contracts: the place of negotiation, the place where the contract was actually executed by the parties, the place where the subject matter may be found, the place of performance, so all these various components of the contract should be taken into consideration to determine if these or most of these components pertain to one state. If it does, then that state, the law of that state should be deemed to be the lex intentionis and apply that law accordingly. Apply the law of the country or he state where the validity of the contract is likely to be sustained. If under the circumstances it cannot be reasonably inferred that one state claims to have the most significant relationship because all the important components of the contract took place or pertain to various states evenly distributed, in other words, no single state can claim most significant relationship the forum court, to resolve the issue, will now apply the law of the country or the state where the validity of the contract is likely to be sustained. Again this is consistent with the policy in our jurisdiction that the intention of the parties as much as possible should be observed. THERE IS HOWEVER LIMITATION TO ALL THESE PRINCIPLES. The principle of lex loci celebrationis and these principles we discussed in relation thereto, do not apply when the contract involves property. Take note! Lex loci celebrationis applies only in ordinary contracts. The moment a contract involves a property whether real or personal, lex loci celebrationis is taken out of the equation, what applies now is lex rae sitae under Article 16, first paragraph, it says: real property as well as personal shall be governed by the law of the place where they are located.
SPECIAL CONTRACTS 1. BARTER, SALE, DONATIONS Extrinsic lex situs Intrinsic- lex situs Capacity of Parties lex situs

2. LEASE OF PROPERTY If it creates REAL rights (period of more/registered) lex situs If month-to-month, week-to-week, etc.

yr

or

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RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE. Based on Sempio-Diy Book

CONFLICT OF LAWS
Midterm Reviewer

Extrinsic lex loci celebrationis Intrinsic- lex loci voluntatis/intentionis Capacity of Parties personal law of the parties 3. PLEDGE, CHATTEL MORT., REM, ANTICHRESIS Extrinsic lex situs Intrinsic- lex situs Capacity of Parties lex situs 4. LOAN Extrinsic lex loci celebrationis Intrinsic- lex voluntatis/intentionis Capacity of Parties personal law of the parties 5. LEASE OF SERVICE Extrinsic lex loci celebrationis Intrinsic- lex loci voluntatis/intentionis Capacity of Parties personal law of the parties 6. TRANSPORTATION/CARRIAGE This is a contract to render service, so: Extrinsic lex loci celebrationis Intrinsic- lex loci voluntatis/intentionis Capacity of Parties personal law of the parties *LIABILITY FOR LOSS/DESTRUCTION/DETERIORATION OF GOODS IN TRANSIT law of the DESTINATION of the goods. COGSA liability may be limited unless value is declared by the shipper and such declaration is in the BOL. AIR liability for death/injury/damage to passenger or cargo is governed by the WARSAW Convention. liability if there is malice, gross negligence, bad faith, improper discrimination the carrier is liable for damages beyond those limited in Warsaw Convention. IN SUMMARY (More or Less) If REAL CONTRACT lex situs. If PERSONAL CONTRACT law on contracts will apply, hence: Extrinsic lex loci celebrationis Intrinsic- lex loci voluntatis/intentionis Capacity of Parties personal law of the parties

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The good of the people is the greatest law. - Marcus Tullius Cicero

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RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE. Based on Sempio-Diy Book