Conflict of Laws
states which recognize and enforce them. On the contrary, the very essence of a sovereign stat is that it has no superior. It is one of the fundamental principles of this branch of the law that each sovereign state is supreme within its own l imits. It is, therefore, within the power of such state at any time ti exclude any or all foreign laws from operating within its borders. To the extent that if it cannot do this, it is not sovereign. Hence, when the effect effect is given to a foreign law in any territory, it is only because the municipal law of that state temporarily abdicates its supreme authority in favor of the foregin law, which for the time being, with reference to that particular matter, becomes itself, by will of the state, its municipal law.
PART ONE: INTRODUCTION The division of the world into many territorial units, each imposing its own set of laws, religion, culture, customs, and occurrence of events that contain elements significant to more than one system give rise to problems that conflict of laws or private international law seeks to solve. Conflict of Laws occurs, According to Justice of Arkansas Prof. Robert A. Lefar: “Any case which involves facts occurring in more than o ne state or nation, so that in
deciding the case, it is necessary to make a choice between the laws of the different states and countries, is a conflict of law case”
CONFLICT OF LAWS (OR PRIVATE INTERNATIONAL LAW) Is that part of the municipal law of the state which directs its courts and administrative agencies, when confronted with a legal problem involving a foreign element, whether or not they should apply foreign law or foreign laws. Elements of the Definition: 1) Conflict of Laws is part of municipal law of a state; Since every state has its own municipal law, it follows quite naturally that each state has also its own conflict of laws. 2) The Direction to courts and administrative agencies; agencies;
It is the judicial tribunals of a country that ultimately are called upon to
Importance: 1) To adjust conflicting rights in international, mercantile and corporate transactions; transactions; and 2) To solve personal, family, propeperty and successional contractual problems, possessed of facts or elements operating in 2 or more states. Basic Cause: “Conflict problems” come into being through variance in the municipal laws of the countries involved Nature:
Municipal Law or private law of each state which regulates relations of individuals among themselves or with their state It is the law of the forum that furnishes the yardstick for the presence or absence absence of jurisdiction
decide or resolve “conflicts” problems. Various administrative agencies of the state,
such as the DFA, Bureau of Immigration, SEC and the like also decide PRELIMINARY a given controversy involving a foreign factor. 3) A legal problem involving involving a foreign element; element; and A “foreign element” has to be present before the matter matter can be considered a “conflict” problem. Eliminate the “foreign element” and the problem is obviously
Objective: Is to provide rational and valid rules or guidelines in deciding cases not only by courts but also by administrative agencies and public officers who are called upon to act on a given situation where either or all the parties, event or transaction are linked to more than one jurisdiction
NOT a question calling for Private International Law. 4) Application or Non-application Non-application of Foreign Foreign law or laws. laws. When our courts are confronted with a “conflicts” problem over which they
may have jurisdiction (and are willing to assume jurisdiction), the solution will have to be found in the application of either the LOCAL law or Foreign law. According to Prof. Raleigh C. Minor, it is to be observed that the rules of Private International Law do not derive force from a power superior to sovereign
Functions: According to Paras 1. the determination of which country has jurisdiction 2. the applicability to a particular case of either the local or the foreign law 3. the determination of the force, validity and effectiveness of a foreign judgment
According to Coquia Coquia
1. to proscribe the conditions under which a court or agency is competent to entertain a suit or proceeding involving facts containing a foreign element; 2. to determine the extent, validity and enforceability of foreign judgment; 3. to determine for each class of cases the particular system if law by reference to which the rights of the parties must be ascertained Conflict of Laws (Private International Law) vis-à-vis The Laws of Nations (Public International Law) According to the Monist School of Thought, Private and Public International Law are in essence identical for both of them manifest a single concept of law, ultimately addressed to the same individual. States, the adherents of this school maintain, can act only through individuals: what can bind individuals must necessarily bind also the respective states to which they belong. [On several topics, it cannot be denied that the two subject overlap each other] According to the Dualist School of Thought, the two subject are world apart: Basis Private Internationa Internationall Law Public Internationa Internationall Law Nature Municipal in character International in character Persons Dealt by private individuals The parties involved are sovereign Involved states and other entities possessed of an international personality such as UN Transactions Transactions are private ones Transactions are entered into which Involved between private individuals generally affect the public interest; those which in general are of interest only to sovereign states Remedies or The remedy here is to resort to The remedies may be peaceful or Sanctions municipal tribunals forcible. Peaceful remedies include
diplomatic negotiation, tender and exercise of good offices, mediation, inquiry and conciliation, arbitration, judicial settlement by the International Court of Justice, reference to regional agencies such as the Organization of American States, reference to the UN itself.
Forcible remedies include severance
of dimplomatic relations, retorsions, reprisals, embargo, boycott, nonintercourse, pacific blockades, collective measures under the UN Charter and finally, war. BRIEF HISTORY AND DEVELOPMENT OF CONFLICT OF LAWS (25) In Ancient Rome, it presented a fertile place for the development of “ conflict rules”
because two legal systems were in vogue: Roman citizens were governed by the civil law of Rome; all others were under the jurisdiction of their own provincial legislation -- how easily, therefore, “conflict” theories could have arisen. But the theories did not come for only one law prevailed whenever a Roman citizen was involved, namely, Roman civil law. However, there were two incidental developments – the concept of domicile and the concept of lex situs – ( where the immovable were concerned. ) In 212 A.D., the Edict of Caracalla conferred Roman citizenship on all the people living within the Roman Empire: consequently only one law remained – the civil law of Rome – for any and all acts, events, and transactions within the Empire. Law was, thus, placed on territorial without personal or racial discrimination. In the 5th century, the Roman Empire was overthrown by the so called “barbarian tribe”: personal law replaced territorial law. This simply means that every person, regardless
of residence, was considered subject to the law of his original nation or tribe. If the parties to a contract came from different nations, the law of the debtor prevailed – for it was then believed that his i nterest was paramount. Sources of Conflict of Laws
INDIRECT SOURCES 1) Natural Moral Law; and 2) Works of Writers DIRECT SOURCES 1) Constitutions; 2) Codifications; 3) Special Laws; 4) Treaties and Conventions; 5) Judicial Decisions; and 6) International Customs
PART TWO: JURISDICTION IV: Jurisdiction - Authority of a tribunal to hear and decide a case and possible enforceability in foreign states, subject to the rights of said states (Paras) - In international law, it is often defined as the right of a State to exercise authority over persons and things within its boundaries, subject to certain exceptions - Judicial Jurisdiction is the power or authority of a court or administrative tribunal to try a case, render judgment and execute it in accordance with law while - Legislative Jurisdiction which is the power of the state to promulgate laws and regulations and enforce them on all persons and property within its territory
II.
JURISDICTION OVER THE PROPERTY - is the subject matter of litigation results either from the seizure of the property under a legal process or from the institution of legal proceedings wherein the court’s power over the property is recognized and made effective - this kind of jurisdiction is referred to as in rem jurisdiction in contrast to in personam jurisdiction. Another form of jurisdiction is quasi in rem jurisdiction which affects only the interests of particular persons in the thing NOTE: Summons of publication is effective in the following cases – if the action is in rem quasi in rem involves personal status of plaintiff
FOUR MAJOR QUESTIONS TO BE CONSIDERED IN CONFLICT OF LAWS PROBLEM 1. Has the court jurisdiction over the person of the defendant or over his property?; 2. Has the court jurisdiction over the subject matter, usually referred to as “competency”?; 3. Has the suit been brought in the proper venue in cases where a foreign element is involved?; and 4. Is there a statute or doctrine under which a court otherwise qualified to try the case may or may not refuse to entertain it? A. Basis of Exercise of Jurisdiction I. JURISDICTION OVER THE PERSON - is the power of the court to render judgment that will be binding on the parties involved: the plaintiff and defendant (Paras) - acquired by the voluntary appearance of a party and his submission to authority - Jurisdiction over the person of the plaintiff is acquired from the moment he invokes the aid of the court and voluntarily submits himself by institution of the suit through proper pleadings [institution of action by proper pleading] - Jurisdiction over the person of the defendant is acquired through voluntary appearance or personal or substituted service of summons (Coquia) [ voluntary appearance or by the coercive power of legal process exerted over the person (Paras)]. When the defendant and his lawyer appears in court, he gives o consent to the forum’s exercise of jurisdiction over him except if he appears for the purpose of protesting the jurisdiction of the court May be had thru personal or substituted service of summons o
MINIMUM CONTACTS TEST AND FUNDAMENTAL FAIRNESS TEST
Due process requires only that in order to subject a defendant to a judgment in personam, if he is not present within the territory of the forum, he should have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice In both in rem and quasi-in rem actions, all that due process required is that defendant be given adequate notice and opportunity to be heard which are met by service of summons by publication
LONG-ARM STATUTES
The requirement that a state must show that there are minimum contacts between the nonresident defendant and the forum to justify i ts exercise of jurisdiction has led to many states to legislate long-arm statutes. These statutes specify the contacts which jurisdiction will be asserted over a defendant outside of state territory CLASSIFICATION OF ACTIONS (as to object) 1. Action in personam – any judgment that the court will render in that case binds only the
parties to the action and their privies or their successors-in-interest; 2. Action in rem – any judgment that the court will render in the case binds not only the parties to the case but the whole world 3. Quasi in rem action – quasi in rem is actually in personam because it is directed only against a particular individual but the purpose of the proceeding is to subject his property to the obligation of lien burdening it. The object of the case is the sale or other disposition of property of the defendant which one may have a right or lien over the property
Example: an action to subject certain property of the defendant to payment of a claim. An action between parties where the direct object is to reach and dispose of property owned by them or of some interest therein III.
JURISDICTION OVER THE SUBJECT MATTER/ COMPETENCE is conferred by law and defined as the authority of a court to hear and decide cases of the general class to which the proceedings in question belong acquire through the allegations in the petition or complaint, read together with the proper jurisdictional law, that will confer jurisdiction on the court It is not enough that a court has a power in abstract to try and decide the class of litigation to which a case belongs; it is necessary that said power be properly invoked by filing a petition Cannot be conferred by consent of the parties and a “decision is void and may be set aside either directly or indirectly, where the courts exceeds it jurisdiction and power in rendering it.
B. WAYS OF DEALING WITH A CONFLICT PROBLEM OR WAYS OF DISPOSING CONFLICT CASES 1. DISMISS THE CASE FOR LACK OF JURISDICRION When a court is without jurisdiction, it has no alternative except to dismiss the case for being null and void due to lack of due process
2. IF IT HAS JURISDICTION, IT MAY: a. DISMISS THE CASE ON THE GROUND OF FORUM NON-CONVENIENS Refusal of assume jurisdiction because it would prove inconvenient for the forum a forum may resist imposition upon its jurisdiction even when jurisdiction is authorized by law on the ground that: the forum is inconvenient or the ends of justice would be best served by trial in another forum or the controversy may be more suitably tried elsewhere (Doctrine of Forum Non- Conveniens) ELEMENTS: (a) the forum state is one to which the parties may conveniently resort to; (b) it is in a position to make an intelligent decision as to the law and the facts; and (c) it has or is likely to have power to enforce its decision
MANIFESTATIONS: (WDFIO) (a) the Witnesses and evidence may not be readily available (b) the court Dockets of the forum may already be clogged; to permit additional cases would inevitably hamper the speedy administration of justice (c) the evils of Forum-shopping ought to be curbed (d) the forum has no particular Interest in the case (e) other courts are Open: certainly the case may be better tried in said courts
b. ASSUME JURISDICTION, IT MAY: General Rule: No rule of Private International Law would be violated if the courts should decide to dispose cases, according to the internal law of the forum EXCEPT: where a foreign, sovereign, diplomatic, official or public vessel or property of another state is involved, or where a state has by treaty, accepted limitations upon its jurisdiction over certain persons of things 1.APPLY LEX FORI (INTERNAL LAW OF THE FORUM) INSTANCES WHEN INTERNAL / DOMESTIC LAW SHOULD BE APPLIED: 1. When a specific law of the forum expressly provides or decrees in its conflict rules that internal law should apply Examples: I. Article 16 of the Civil Code – real and personal property subject to the law of the country where they are situated and testamentary succession governed by lex nationalii II. Article 829 of the Civil Code – makes revocation done outside the Philippines valid according the law of the place where will was made or lex domicilii III. Article 819 of the Civil Code – prohibits Filipinos from making joint wills even if valid in foreign country 2. When the proper foreign law has not been properly pleaded and proved
NOTE: General Rule: courts do not take judicial notice of foreign laws must be pleaded and proved
The following actions may be resorted in case of failure to prove and plead the proper foreign law: i. Dismiss the case for inability to establish cause of action ii. Assume that the foreign law of the same as the law of the forum ( Doctrine of Processual presumption, i.e apply the foreign law, it is presumed to be the same as the forum law) iii. Apply the law of the forum 3. when the case involves any of the exceptions to the application of the proper foreign law as when the foreign law is (PGPPFIRE)
1. 2. 3. 4. 5. 6.
contrary to an important Public policy of the forum contrary to Good morals Penal in nature Procedural in nature purely Fiscal and administrative in nature application of the foreign law may work undeniable Injustice to the citizens of the forum 7. the case involves Real or personal property situated in the forum 8. application might Endanger the vital interest of the state
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2.APPLY LEX CAUSAE (PROPER FOREIGN LAW) If the foreign law was not properly pleaded and proved
Proof of Foreign Law: 1. If it is written law (statute/ constitution) a. Official publication b. Copy of official publication attested by the officer having legal custody of the record
2. If it is unwritten (customs/ traditions) a. Oral testimony of expert witness b. Printed and published books of reports of decision of the country involved
V. PROBLEM OF CHARACTERIZATION CHARACTERIZATION - the process by which a court at the beginning of the choice-of-law process assigns a disputed question to an area in substantive law, such as torts, contracts, family law of property (Coquia) - the process of determining under what category a certain set of facts or rules fall, the ultimate purpose of which is enable the forum to select the proper law (Paras) - Factors which give rise to the problem of characterization: Different legal systems – attach to the same legal term with different meanings, that is, an identity of o names covers a difference of nature or content of legal idea; may contain ideas or conceptions completely unknown to one another; o apply difference principles for the solution of problems, which, in general o terms, are of common nature
2 types of Characterization: 1. Subject-matter characterization - Calls for classification by a court of a factual situation into a legal catergory - It is of appreciable significance in a single aspect method because the legal category to which an issue is assigned determines the governing law. 2. Substance-procedure characterization - Directs the court to the extent it will apply foregin law. - If the issue is substantive, the court may apply foregin law but if it procedural, it supposed to follow the law of the forum [why procedural issues governed by lex fori? So as to not unduly burden or complicate the task of the court with uncommon peculiarities and refinements of another legal system] Steps in Characterization 1. Determination of the Facts Involved; 2. Characterization of the Factual Situation; 3. Determination of the Conflict Rule which is to be applied; 4. The characterization of the Point of Contact or the connecting factor; 5. The characterization of the Problem as Procedural/ Substantive; 6. The pleading and proving of the Proper Foreign Law; and 7. Application of the proper foreign law to the Problem
1. The Determination of the facts involved - determine whether or not foreign element is involved - law of the forum must be guided by its own rules of pleading and proof 2. The Characterization of the factual situation - process of assigning facts into their particular category - do the facts constitute a problem of – Suggested Solution – 1. in the absence of an express conflicts rule on the matter, it is suggested that the characterization of the forum should be adhered to unless there would result a clear case of injustice 2. apply Philippine express conflict rules
5. The Characterization of the problem as substantive or procedural - procedural matters are governed by the law of the forum (exception to the application of the proper foreign law) - a law on prescription of actions is sui generic in the sense that it may be viewed either as procedural or substantive, depending on the characterization given to such law - characterization as to substantive or procedural is irrelevant when the country of the forum has borrowing statute, which has the effect of treating the foreign statute of limitation as one substance - Solution: consider prescriptive period or the statute of frauds that the parties had in mind at the time the transaction took place. -
3. The Determination of the conflicts rule which is to be applied - what conflicts rule must be followed? - our own conflicts rule should be followed for the following reasons – (a) purpose of conflict rules (b) we still have to identify or definitely ascertain the precise foreign country that has the nearest or the most intimate connection with the facts that have been brought out 4. The Characterization of the point of contact or the connecting factor – Whose characterization of the point of contact should be adhered to? In case of doubt, the characterization of the forum (lex fori) must certainly prevail Exceptions – a. If problem deals with real or personal property, if the question deals with the validity of their disposition or alienation, or the capacity of the contracting parties – lex situs govern. If property is situated at the boundary of two states, lex situs of the portion of the land directly involved b. If the forum is merely an incidental place of trial, the characterization of the forum has to give way to any common characterization that may exist in the foreign countries involved. If, upon the other hand, there is no common characterization, we are of the belief that we may avail ourselves of the characterization that will uphold the efficacy of the contract. If this may be attained by making use of our own characterization, by all means, we must do.
Totality approach: (a) first get the law intended by the parties to govern the contract; (b) then, proceed to apply that intended law in its totality including its periods of prescription and its statute of frauds, except if subject matter governs property located in the Philippines, our own law on prescription and our own statute of frauds must apply Sec. 48, Rules of Civil Procedure – if barred at the place where the cause of action arose, it is also barred here
STATUTE OF FRAUDS Substantive – if the words of the law relate to forbidding the obligation Procedural – if the law forbids the enforcement of the obligation STATUTE OF LIMITATIONS Substantive – when the limitation was directed to the newly created liability specifically to warrant a qualification of the right Procedural – if it operates to bar the legal remedy without impairing the substantive right involved BORROWING STATUTE Directs the state of the forum to apply the foreign statute of limitations to the pending claims based on a foreign law (treats the statute of limitations as a substantive law)
6. The pleading and proving of the proper foreign law
If a duly proved foreign law has already been given a judicial interpretation in the country of origin, it must generally be given an identical interpretation in the Philippines, unless, we already have similar or identical internal law and said internal law has received a diametrically opposite construction before our own tribunals
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7. The application of the proper foreign law to the problem
3. FOLLOW THE DESISTMENT THEORU (ALSO REFERED TO AS THE MUTUAL DISCLAIMER OF JURISDICTION THEORY) [apply internal law] - Forum court refers to foreign court's law - Foreign law does not have a conflict of law rule which apply to non-nationals so still apply forum law - same as accepting renvoi, but since foreign law not applicable when outside the foreign state, forum court desists in applying foreign law - meaning, we desist or refrain from applying the foreign law because it is inadequate as it is founded on a different basis - the reason for the desistance is that the forum court upon reference to another
VI. THE PROBLEM OF RENVOI RENVOI - procedure whereby a jural matter is presented which the conflict of laws rules of the forum refer to a foreign law, the conflict of law of which in turn, refers the matter back to the law of the forum (remission) or a third state (transmission) - literally means referring back : problem arises when there is doubt as to whether a reference to a foreign law – (a) is a reference to the internal law of said foreign law; or (b) is a reference to the whole of the foreign, including its conflicts rule - When usually employed? Where domiciliary and nationality laws are applied to the same individual in issues involving: succession o domestic relations o real properties o
VARIOUS WAYS OF DEALING WITH THE PROBLEM OF RENVOI/ SOLUTIONS TO RENVOI 1. REJECT RENVOI: FORUM COURT REFER TO THE "INTERNAL LAW" OF ANOTHER STATE [apply intenal law] - Internal law - law that would be applied to a domestic case that has no conflict-oflaws complications - forum: conflicts of law refer to foreign forum's INTERNAL LAW - so it would itself resolve the conflict, just apply substantial internal law of the other country without referring the case to another forum - meaning, we do not want the problem to be sent back to us; that we do not want the matter to be referred back to us (Paras) - If the conflicts rules of the forum refer the case to the law of another state, it is deemed to mean only the internal law of the state. Thus, the court will apply the foreign law (Coquia) 2. ACCEPT RENVOI: FORUM COURT REFER TO THE "WHOLE LAW" OF ANOTHER STATE [apply foreign law] - apply or accept it by reference to the whole law, including the conflicts rule of the foreign law (Paras)
if the conflicts rules of the forum refer the case to the law of another state, it is deemed to include the totality of the foreign law (internal law and conflicts of laws rule). Thus, the court will recognize the referral back and apply local law. (Coquia)
state‟s law sees that such law is limited in application to its own national and has no
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provision for application to a non-national(Paras) the forum court upon reference to another state‟s law sees that such law is limited in application to its own nationals domiciled in its territory and has no provision for application to nationals domiciled outside of the territory. Hence, the local court will apply local law. This has the same result as the acceptance of the renvoi but the process used by the forum court is to desist applying the foreign law. (Coquia)
4. USE “FOREIGN COURT THEORY” - Forum court would assume position of the foreign court, i.e. forum court would apply the law that the foreign court would apply if it had assumed jurisdiction. - meaning, the local forum, in deciding the case, will put itself in the position of the foreign court and whatever it does respecting the case, the Philippine court will likewise do. (Paras) - foreign court assumes the same position that the foreign court would take if the case is litigated in the foreign state: Hence – (a) if the foreign court would accept the renvoi, the local court shall apply the foreign law. (b) if the foreign law would reject the renvoi, the local court shall apply lex fori (c) if the foreign court would apply the desistment theory, the local court shall apply the foreign law (d) if the foreign court would use the foreign court theory, then international pingpong would ensue (Coquia)
Note: In all the explanation given in the book, it appears that in Renvoi, there is no actual transfer of the case to another court. The forum court still exercises jurisdiction over the dispute but just use renvoi to use other law or to desist from using foreign law. DOUBLE RENVOI It is that which occurs when the local court, in adopting the foreign court theory, discovers that the foreign court accepts the renvoi TRANSMISSION The process of applying the law of a foreign state thru the law of a second foreign state DOUBLE RENVOI versus TRANSMISSION Double renvoi deals with 2 countries while transmission deals with three or more countries Double renvoi deals with referring back while transmission with a transmitting SUGGESTED CONCLUSION The theory to be adopted must consider the circumstances of a given situation that will best result in fairness, equity and justice C. USEFULLNESS OF RENVOI to avoid unjust results
Disadvantages of Renvoi If both courts follow the same renvoi theory, no end to the case (Resembles revolving doors, a game of lawn tennis, logical cabinet of mirrors, or circulus inextricabilis) OBJECTIONS TO RENVOI CON: place the court in a perpetually enclosed circle from which it would never emerge and that it would never find a suitable body of substantive rules to apply to a particular case only workable if 2 states does not have same renvoi theory and if only 1 rejects renvoi PRO: Dean Griswold >False premise: the "chain" would stop if remission is to the state's INTERNAL LAW ALONE >Allowed for necessity and expediency CON: Courts may be unnecessarily burdened w/ the task of identifying the choice-of-law rules of another state PRO: forum court would not use renvoi if it cannot ascertain what the conflict-of-law rules of the foreign state in the first place…
INAPPLICABILITY OF RENVOI IN A FALSE CONFLICT False conflict: where only 1 state is interested in applying its law, the other state has no issue in its law not being applied -Renvoi was held inappropriate in Pfau v . Trent Aluminum Co.: NJ and Connecticut have identical substantive laws, Iowa has no interest in ensuring that its law be applied -so false conflict, no need to resort to renvoi as the application of NJ law is like applying also Connecticut law VII. NOTICE AND PROOF OF FOREGIN LAW (RULE 132 & 130, RULES OF COURT) A. EXTENT OF JUDICIAL NOTICE When the court is called upon to decide a case based on a foreign law the common law practice, which has been adopted in the Philippines, is that the party whose cause of action or defense depended upon the foreign law has the burden of proving the foreign law. [Foreign law is treated as QUESTION OF FACT to be properly pleaded and proved] [Rationale: Judge is not authorized to take judicial notice of a foregin law and is presumed to know only domestic law] In Delgado vs Republic, the court held that judicial notice may be taken of a foreign law with which the court is “eveidently familiar”. Familiarity with foregin law may be because the law is generally known such as a Spanish or American Law from which the Philippine law was derived or the judge had previously ruled upon it in other cases.
Rule 129 Section 1. A court shall take judicial notice with the introduction of evidence: (a) of the existence and territorial extent of nationality; (b) their political history; (c) forms of government and symbols of nationality; (d) laws of nations; (e) admiralty and maritime courts of the world and their seals; (f) the political constitution and history of the Philippines; (g) official acts of the legislative, executive and judicial departments of the Philippines; (h) laws of nature; (i) measure of time; and (j) geographical divisions Section 2. A court may takejudicial notice of matters: - which are of public knowledge, or - are capable of unquestionable demonstration, or - ought to be known to judges because of their judicial functions
B. PROOF OF FOREGIN LAW 1. Written Law (Constitution, Statute) - Official publication thereof or - By a copy attested by the officer having the legal custody of the record, or by his deputy and accompanied with a certificate that such officer has custody (with seal) 2. Unwritten Law (Constitution, Statute) - Oral testimony of expert witnesses or - By printed and published books of reports of decisions of the country involved, if proved to be commonly admitted in such courts;
If actionable document executed abroad comprise the COA: (a) public document: duly authenticated by Philippine consul attaching his consular seal to be admissible before RP Courts (b) depositions (R23.11): list of persons before whom depositions may be taken in foreign countries (a) On NOTICE: secretary of embassy/legation consul general consul vice consul consular agent of RP (b) Person/officer appointed by COMMISSION or under letters rogatory; (c) Person which parties have stipulated IN WRITING RECOGNITION AND ENFORCEMENT OF FOREIGN JUDMENTS - a foreign judgment is recognized when it is given the same effect that it has in the state where it was rendered with respect to the parties, the subject matter of the action and the issued involved. Where the foreign judgment is being presented as a defense to the claim of the plaintiff, what is involved is the recognition of a foreign judgment - a foreign judgment is enforced when, in addition to being recognized, a party is given affirmative relief to which the judgment entitles him. When a plaintiff asks the court of one state to carry out and make effective a judgment obtained by him in another state, what is involved is the enforcement of a foreign judgment. Requisites: 1. foreign judgment was rendered by a judicial or a quasi-judicial tribunal which had competent jurisdiction over the parties and the case in the proper judicial proceedings in which the defendant shall have been given reasonable notice and the opportunity to be heard; 2. it must be a judgment on civil and commercial matters;
3. the judgment must be valid according to the court that delivered it; 4. judgment must be final and executory to constitute res judicata in another action Elements of res judicata: a. Final b. Rendered by a competent court c. On the merits d. Involve the same parties, subject matter and cause of action 5. foreign judgment must not be contrary to the public policy or the good morals of the state where it is to be enforced 6. judgment must not have been obtained by fraud, collusion, mistake of fact or mistake of law 7. the foreign judgment must not be barred by prescription under the law of the state in which it was promulgated or under the law of the state i n which its recognition/enforcement is sought DISTINCTION BETWEEN RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENT RECOGNITION OF FOREIGN JUDGMENT ENFORCEMENT OF FOREIGN JUDGMENT Courts will allow the foreign judgment Plaintiff wants courts to positively carry out to be presented as a defense to a local and make effective in the state a foreign litigation judgment Involves merely the sense of justice Virtually implies a direct act of sovereignty Does not require either an action of a Necessitates a separate action or special proceeding proceeding brought precisely to make the foreign judgment effective May exist without enforcement Necessarily carries with it recognition For both recognition and enforcement, proof of the foreign judgment has to be presented. Moreover, the requisites or conditions for the recognition or enforcement of foreign judgments must be present. EFFECTS OF FOREIGN JUDGMENTS - Under the Rules of Court, in case of judgment against a specific thing, the judgment is conclusive upon the title of the thing. - In case of judgment against a person, the judgment is presumptive evidence of a right as between the parties and their successors-in-interest by a subsequent title; but the judgment may be repelled by evidence of want of jurisdiction, want of notice to the party, collusion or clear mistake of law of fact
EFFECTS OF FAILURE TO PLEAD AND PROVE FOREIGN LAW: Forums have 3 alternatives: 1. To dismiss the case for inability to establish a cause of action [failure to prove its content results results in failure to establish prima facie case]; 2. To assume that the foreign law is the same as the law of the forum (presumeidentity approach); or 3. To apply the law of the forum [the basic law is the law of the forum and when the claimed applicable foregin law is not proved] FACTORS TO CONSIDER IN DECIDING EITHER TO APPLY DOMESTIC LAW OR TO DECIDE CASE AGAINST PARTY WHO FAILED TO PROVE FOREIGN LAW FROM WHICH HIS CLAIM ARISES: (a) Degree of public interest involved in the dispute (b) Accessibility of foreign law materials to the parties (c) Possibility that plaintiff is merely forum shopping (d) Similarities between forum laws and foreign law on the issue in point (usually forum law only applied when issue involves marriage and family relations) C. PHILIPPINE COURTS NOT AUTHORIZED TO TAKE JUDICIAL NOTICE OF FOREGIN LAWS Under the principleas of comity and reciprocity, the court or administrative agency should look into the application of foreign law and apply it EXCEPTIONS to the application of the proper foreign law – 3 main categories: a. When the local law expressly so provides; b. When there is failure to plead and prove the foreign law or judgment; and c. When the case falls under any of the exception of the rule of comity.
Some exceptions under Article 17 Par 3 NCC 1. The foreign law is contrary to an important policy of the forum 2. The foreign law is procedural in nature 3. Issues are related to Property (Lex Situs) 4. The issue involved in the enforecement of foregin claim is fiscal or administrative 5. The foreign law or judgment is contrary to Good morals 6. The application of foreign law will work undeniably injustice to the citizens of the forum 7. The foreign law is penal in nature 8. The application of the foreign law might endager the vital interests of the State.
PART THREE: PERSONAL LAW
NOTE: Nationality may be acquired by birth or by naturalization
Importance of Personal Law: An individual’s nationality or domicile serves as permanent connection between the individual and the state. His personal law follows him wherever he is and governs those transactions which affect him most closely such as marriage, divorce, legitimacy and capacity to contract.
The three kinds of citizens of the Philippines are – 1. Natural Born Citizens 2. Naturalized Citizens or Citizens by Naturalization 3. Citizens by election 1. NATURAL BORN CITIZEN Those who are citizens of the Philippines from birth without having to o perform any act to acquire or perfect their Philippine citizenship. Native born citizen is one born in the country of which he is a citizen, hence, a child born to a Filipino mother in Germany is a natural born, but not native born citizen.
VIII. NATIONALITY Refers to membership in a political community. The Philippines adheres to the nationality law theory
Nationality Law Theory is a conflict of law theory by virtue of which jurisdiction over the particular subject matter affecting a person such as status of a natural person, is determined by the
Article IV of the Philippine Constitution (1987), The following are citizens of the Philippines – (a) Those who are citizens of the Philippines at the time of the adoption of the Constitution; (b) Those whose fathers and mothers are citizens of the Philippines; (c) Those born before January 17. 1973 of Filipino mothers, who elect Philppine citizenship upon reaching the age of majority (within three years) (d) Those who are naturalized in accordance with law
latter’s nationality (Coquia)
it is national law of the individual that regulates his civil status, capacity, condition, his family rights and duties, laws on succession and capacity to succeed NATIONALITY CONFLICT RULE Article 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. (9a) ADVANTAGE: Good if you are domiciled in the Philippines Easy to define who are the citizen Protected regardless if you are abroad binding upon citizens of the Phils DISADVANTAGE: Bad if you are living i n another country It is not confined with domiciled or residence, it is hard for the State to protect its nationals - when its nationals went abroad, beyond its territory hands of Phil law are holding law
A. DETERMINATION OF NATIONALITY Each State has the prerogative and authority to determine by its own o municipal law who are its nationals or citizens o The Hague Convention on Conflict of National Laws provides “it is for each state to determine who are its nationals. This law shall be recognized by other states insofar as it is consistent with international convention, international customs, and the principles of law generally recognized with regard to nationality.
TWO THEORIES on whether place or ancestry determines citizenship 1. JUS SOLI PRINCIPLE – the law of the place of one’s birth determine one’s nationality 2. JUS SANGUINIS PRINCIPLE – one follows the citizenship of his parents; this is citizenship by blood The Philippine Constitution applies the Jus Sanguinis principle which means the rule of descent or blood. 2. CITIZENS BY NATURALIZATION – those who are not natural-born citizens; those who become such through judicial proceedings
NATURALIZATION is the process of acquiring citizenship of another country; (a) In the strict sense, it is a judicial process, where formalities of the law have to be complied with including a judicial hearing and approval of the petition (b) In the loose and broad sense, it may mean not only the judicial process but also the acquisition of another citizenship by such acts as marriage to a citizen, and the exercise of the option to elect a particular citizenship (Paras) NATURALIZATION confers to an alien a nationality after birth by any means provided by the law. In the Philippines, naturalization is by judicial method under Commonwealth Act No. 473 as amended by republic Act 530. (Coquia)
QUALIFICATIONS OF NATURALIZATION (a) The petitioner must not be less than 21 years of age on the date of the hearing of the petition; (b) He must have, as a rule resided in the Philippines for a continuous period of not less than 10 years; Note: The minimum ten-year residence requirement is to enable the government to observe the applicant‟s conduct and to ensure that he
has imbibed the principles and spirit of our Constitution. However, this period may be reduced to five years in any of the following cases: (1) If the applicant has honorably held office under the Government of the Philippines or under any of the provinces, cities, municipalities, or political subdivisions thereof; (2) If he has established a new industry or introduced a useful invention in the Philippines; (3) If he is married to a Filipino woman (4) If he had been engaged as a teacher in a public or recognized private school not established for the exclusive instruction of children of persons of a particular nationality or race in any of the branches of education or industry for a period of two years; (5) If he was born in the Philippines. (c) He must be of good moral character, and believe in the principles underlying the Philippine Constitution, and must have conducted himself in a proper and irreproachable manner during the entire period
of his residence in the Philippines in his relation with the constituted government as well as with the community in which he is living; (d) He mush own real estate in the Philippines worth not less that Php 5,000.00, or must have some l ucrative trade, profession, or lawful occupation; (e) He must be able to speak and write English or Spanish and any one of the principal Philippine languages (f) He must have enrolled his minor children of school age in any of the public schools or private schools where Philippine history, government, and civics are taught or prescribed as part of the school curriculum during the entire period of the residence required of him, prior to the hearing of his petition for naturalization as citizen (Paras) 3. CITIZENS BY ELECTION – citizens by virtue of certain legal provisions, become such by choosing (or electing) Philippine citizenship after attaining the age of majority or within a reasonable time (within 3 years) B. PROCEDURE FOR NATURALIZATION The following are the steps for naturalization – 1. A declaration of intention to become a Filipino citizen must first be filed, with the Office of the Solicitor General, unless the applicant is exempted from this requirement; Exemptions to the filing of Declaration of Intention – Persons born in the Philippines and who have received their primary and secondary education in public schools or private schools recognized by the government, and not limited to any race or nationality Those who have resided continuously in the Philippines for a period of thirty years or more before filing their application The widow and minor children of an alien who declared his intention to become a citizen of the Philippines and dies before he is actually naturalized 2. The petition for naturalization must then be filed 3. After publication in the official gazette or newspaper of general publication the petition will be heard 4. If the petition is approved, there will be a rehearing two years after the promulgation of the judgment awarding naturalization 5. Taking of the oath of allegiance to support and defend the constitution and the laws of the Philippines (Coquia)
NOTE: The law provides for exemptions to the filing of declaration of intention. They are the following:
(1) Persons born in the Philippines and who have received their primary and secondary education in public schools or private schools recognized by the Government, and not limited to any race or nationality; (2) Those who have resided continuously in the Philippines for a period of thirty years or more before filing their application; (3) The widow and minor children of an alien who declared his intention to become a citizen of the Philippines and dies before he is actually naturalized. C. LOSS OF PHILIPPINE CITIZENSHIP Filipino citizen may lose his citizenship in any of the following ways (Pursuant to Commonwealth Act No. 63, as amended by Republic Act No 106) by – 1. Naturalization in foreign countries 2. Express renunciation of citizenship 3. Subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon attaining 21 years old or more: provided, however, that a Filipino may not divest himself of Philippine citizenship in any manner while the Republic of the Philippines is at war with any country; 4. Rendering service to, or accepting commission in, the armed forces of a foreign country: 5. Cancellation of the Certificate of Naturalization; 6. Having been declared by competent authority, a deserter of the Philippine armed forces in time of war, unless subsequently, a plenary pardon of amnesty has been granted and; 7. In the case of a woman, upon her marriage to a foreigner, if by virtue of the laws in force of her husband’s country, she acquires his nationality
Sec 18 of the Naturalization Law (CA 473 as amended) provides that upon motion made in the proper proceedings by the Solicitor General, the Judge may cancel that naturalization certificate issued and its registration in the Civil Registry for any of the following reasons: a) If it is shown that said naturalization certificate was obtained fraudulently or illegally; b) If the person naturalizaed shall, within the 5 years next following the issuance of said naturalization certificate, return to his native country or to some foreign country and establish his permanent residence therein; c) If the petition was made on an invalid declaration of intention; d) If is shown that the minor children of the person naturalized failed to graduate from public or private high school recognized by the Bureau of Private Schools, where Philippine history, government, and civics are taught or prescribed as part of the school curriculum, through the fault
of their parents either by neglecting to support them or by transferring them to another school or schools. e) If it is shown that the naturalized citizen has allowed himself to be used as a dummy in violation of the Constitution or legal provisions requiring Philippine citenzenship as a requiresite for the exercise, use or enjoyment of a right, franchise or privilege. *a judgment directing the issuance of certificate of naturalization is a mere grant of political privilege, and that neither estopel nor res judicata may be invoked to bar the State from initiating an action for the cancellation or nullification of the certificate of naturalization thus issued D. DUAL ALLEGIANCE AND DUAL CITIZENSHIP Through the application of the jus soli and jus sanguinis principles a child born of parents who are nationals of a country applying the principle of jus sanguinis, in a country applying the jus soli principle has dual nationality. REPUBLIC ACT NO. 9225 – “Citizenship Retention and Re -acquisition Act of 2003." Amending Commonwealth Act No 23 Begun held in Manila: July 28, 2003 Approved: Aug 29, 2003 Section 2. Declaration of Policy - It is hereby declared the policy of the State that all Philippine citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions of this Act. Section 3. Retention of Philippine Citizenship - Any provision of law to the contrary notwithstanding, natural-born citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic: "I _____________________, solemny swear (or affrim) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I imposed this obligation upon myself voluntarily without mental reservation or purpose of evasion."
Natural born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath.
Section 4. Derivative Citizenship - The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizenship of the Philippines. Section 5. Civil and Political Rights and Liabilities - Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: 1. Those intending to exercise their right of suffrage must Meet the requirements under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws; 2. Those seeking elective public in the Philippines shall meet the qualification for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath; 3. Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the country where they took that oath; 4. Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice; and 5. That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who: (a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or (b) are in active service as commissioned or non-commissioned officers in the armed forces of the country which they are naturalized citizens. E. PROBLEMS IN APPLYING THE NATIONALITY PRINCIPLE 1. DUAL OR MULTIPLE CITIZENSHIP In matters of status, he is usually considered by the forum as exclusively his own national, his additional foreign nationality is disregarded In case the litigation arises in a third country, the law most consistently applied is at that of the country of which the person is not only a national but where he has his domicile or habitual residence, or in the absence thereof, his residence In view of the rule set in the Hague Convention on Conflict of National Laws, each state determines who its own nationals are. Article 5 thereof provides “a third state shall, of the nationalities which such a person possesses, recognized exclusively in its territory either the nationality of the country of which he is habitually and
principally resident, or the nationality of the county with which in the circumstances he appears to be closely connected”. Any question as to whether or not a person possesses the nationality of a particular state shall be determined in accordance with the state‟s internal law. Hence it is possible that an individual can be claimed as a national of two or more states. Application of the jus soli and jus sanguinis – A child born of parents who are nationals of a country applying the principle of jus sanguinis, in a country applying the jus soli has dual nationality. Thus: A Filipino citizen who marries an alien may acquire the citizenship of his or her spouse if the spouse‟s national law so allows. A Filipino citizen however, who marries an alien shall retain Philippine citizenship, unless by his act or omission, he is deemed under the law, to have renounced it by taking an oath of allegiance to the spouse‟s country or by express renunciation. Another instance of dual or multiple nationalities is the case of an individual who is naturalized citizen of another state but has not effectively renounced his former nationality. In the determination of the rights of an individual who may claim multiple nationalities in the third state, the International Court of Justice applied the principle of effective nationality.”
MULTIPLE CITIZENSHIP ARISES DUE TO: (a) through a naturalized citizen‟s failure to comply with certain legal requirements in the country of origin (b) from a combined application of jus soli and jus sanguinis principle (c) by the legislative act of states (d) by the voluntary act of individual concerned
2. STATELESSNESS refers to an individual who has been stripped of his nationality by his own former government without having an opportunity to acquire another. Stateless persons are generally subject to the law of their domicile or habitual residence, or in default thereof, to the law of their temporary residence
STATELESSNESS ARISES DUE TO: 1. Deprivation of his citizenship for any cause such as commission of a crime; 2. Renunciation of one’s nationality by certain acts, express or implied; 3. Voluntary release from his original state;
4. He may have been born in a country which recognizes only the principle of jus sanguinis -- or citizenship by blood, of parents whose law recognizes only the principle of jus soli -- citizenship by birth in a certain place. Thus he is neither a citizen of the country of his parents.
However, the Hague Conference of 1928 on International Private Law suggested that personal law of stateless individuals shall be the law of the domicile or the law of the place of temporary residence. NOTE: The Convention on the Adoption on the Reduction of Statelessness (1961) mandates that the jus sanguinis country grants its nationality to person born within its territory if he would be otherwise stateless, and the jus soli country to extend its nationality to a person who would otherwise be considered stateless when any of his parents is a citizen of the contracting state.
IX. DOMICILE Municipal Law concept is stated in the Civil Code : Article 50. For the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence. For juridical persons, domicile is determined by the law creating or recognizing it A. DOMICILE - DEFINITION One’s true, fixed permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning To acquire a domicile, there must be concurrence of intention to make it one’s domicile and physical presence, while “residence” simply requires bodily presence of an inhabitant in a given place (Coquia) That place where a person has settled, fixed and legal relations That place with which a person has settled connection for certain legal purposes, either because his home is there or because that place is assigned to him by law.
Distinctions between residence and domicile 1. Residence is an act; while domicile is an act coupled with an intent; 2. Residence involves the intent to leave when the purpose for which he has taken up his abode ceases; while domicile has no such intent, the abiding is animo manendi. Domiciliary Theory
Is the theory that in general the status, condition, rights, obligations and capacity of a person should be governed by the law of his domicile (Paras)
Domicile vs. Citizenship or Nationality
Domicile speaks of one‟s permanent place of abode, in general: while , citizenship
and nationality indicate ties of allegiance and loyalty. A person may be a citizen or national of one state, without being a domiciliary thereof; conversely, one may possess his domicile in one state without necessarily being a citizen or national thereof B. MERITS AND DEMERITS OF DOMICILE MERITS – 1. In cases where the i ndividual who belongs to a country following the domiciliary theory is involved in a case before the Philippine courts, his personal status, capacity, condition, and family rights will be governed by the law of his domicile; 2. In cases of stateless persons who may claim dual or multiple nationality, in which case the court will have to refer to their domicile; 3. When an alien domiciled in the Philippines executes a will abroad DEMERITS – 1. One‟s domicile is not ascertainable without first resorting to the courts to establish whether or not there is animo manendi 2. The notion of domicile differs widely with some states distinguishing between residence and domicile or attributing different meanings of domicile for different purposes; 3. If the law of the domicile of origin is given utmost significance, then it will give rise to the same problem as in nationality 4. In cases where the i ndividual who belongs to a country following the
Defects of Domiciliary Theory: 1. Various countries have various concept of the real meaning of domicile 2. Domicile is comparatively easier to change than nationality 3. Persons may pretend to be domiciliaries of one state when in truth they are not C. GENERAL RULES ON DOMICILE 1. No person shall be without a domicile; 2. A person cannot have two simultaneous domicile since the very purpose for identifying one’s domicile is to establish a connection between the person and a definite legal system; 3. Domicile establishes a connection between a person and a particular territorial unit. 4. Once acquired, it remains the domicile unless a new one is obtained: a. by capacitated persons b. with freedom of choice c. with actual physical presence
d. and provable intent that it should be one‟s fixed and permanent place of abode, there should be animus manendi (intent to remain) or animus nonrevertendi (intent not to remain) 5. The presumption is in favor of the continuance of domicile. The burden of proving a change of domicile is upon whoever alleges that a change has been secured. D. KINDS OF DOMICILE 1. Domicile of origin refers to a person‟s domicile at birth. Acquired at birth Applies only to infants It never changes Legitimate child – choice of the father Illegitimate child – choice of the mother Legitimated child – domicile of father (effect of legitimation: retroact to the child birth) Adopted child – domicile of real parents or parents by consanguinities Foundling – country where it was found 2. Domicile of choice, which is also called voluntary domicile, is the place freely chosen by a person sui juris. Is a result of the voluntary will + action of the person concerned It may change from time to time That we whenever he is absent, he intends to return 3. Constructive domicile or domicile by operation of law - that which is assigned to a person after birth on account of legal disability caused for instance by minority, insanity or marriage in the case of a woman Legitimate – choice of either father or mother Illegitimate – mother Adopter – choice of adopter Ward - guardian
X. PRINCIPLES ON PERSONAL STATUS AND CAPACITY A. DEFINITION STATUS Status, is the place of an individual i n a society and consists of personal qualities and relationships, more or less permanent, with which the state and the community are concerned Personal status is the general term that includes both condition and capacity, and more specifically embraces such matters as the beginning and end of human personality, capacity to have rights in general, capacity to engage in legal transactions, protection of personal interests, family relations, particularly the relations between husband and wife, parent and child, guardian and ward, also transactions of family law, especially marriage, divorce, separation, adoption, legitimation and emancipation, and finally succession both testate and intestate. CHARACTERISTICS OF STATUS 1. Status is conferred principally by the state not by the individual; 2. Status is a matter of public or social interest 3. Status being a concept of social order, it cannot easily be terminated at the mere will of desire of the parties concerned; 4. Status is generally supposed to have a universal character, when a certain status is created by law of one country, it is generally judicially recognized all over the world. CAPACITY Capacity more often referred as Juridical capacity, is the fitness of a man to be the subject of legal relations while capacity to act is the power to do acts with juridical effects. Capacity is merely a part of status and may be defined as the sum total of his rights and obligations: 2 kinds: a)Capacity to act – active capacity – power to do acts with legal effects b) Judicial capacity – passive capacity – fitness to be subject of legal relations B. LEGISLATIVE JURISDICTION VS JUDICIAL JURISDICTION Judicial Jurisdiction is the power or authority of a court or administrative tribunal to try a case, render judgment and execute it in accordance with law while Legislative Jurisdiction which is the power of the state to promulgate laws and regulations and enforce them on all persons and property within its territory (Coquia)
C. BEGINNING AND END OF PERSONALITY The determination of the exact moment personality begins is referred to the individual‟s personal law. Articles 40 and 41 of our Civil Code give our internal rules on the beginning of human personality. Article 40. Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article. (29a)
D. ABSENCE The domestic law of different countries do not treat absentees alike and this has given rise to difficult problems in conflict of laws. There are three suggested ways of dealing with the problem: first, there is a rebuttable presumption that a person is dead when he has been absent for a number of years; second, a person‟s unexplained absence is judicially investigated and established which results in legal effects similar to those of death; and third, a judicial decree shall have to be issued declaring the person dead before legal effects of death take place. Philippine laws follow the rebuttable presumption of the common law. Our Civil Code states: Article 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. [ordinary absence – death presumed at the last day of period]
Article 41. For civil purposes, the foetus is considered born if it is alive at the time it is completely delivered from the mother's womb. However, if the foetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb.
As civil personality is commenced at birth, it is extinguished by death. Under the principle of personal law, a declaration of death issued by a competent court is considered valid for all purposes. Upon the death of a person, some of his rights and obligations are totally extinguished while others are passed on to his successors. Article 42 CC. Civil personality is extinguished by Death. The effect of death upon the rights and obligations of the deceased is determined by law, by contract and by will. Civil death – civil interdiction – restricts the capacity to act
Article 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs: i. 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; ii. A person in the armed forces who has taken part in war, and has been missing for four years; iii. A person who has been in danger of death under other circumstances and his existence has not been known for four years. [Qualified or extraordinary absence – death presumed at the beginning of the period] However, for specific purposes, our laws require that a declaration of death be issued before certain legal effects of death arise. For instance, article 41 of the Family Code requires that for the purpose of contracting a subsequent marriage, the spouse presnt must first institute a summary proceeding for the declaration of presumptive death of the absentee spouse without which the subsequent marriage is void ab initio.
Article 348 of CC: 2 years having elapsed without any news about the absentee or since the receipt of the last news and 5 years in case the absence has left a person in charge of administration of his property, his absence may be declared Article 386 of CC: the judicial declaration of absence shall not take effect until 6 months after its publication in a newspaper of general circulations
E. NAME
The law expressly states that “no person can change his name or surname without judicial authority.” Case law shows the courts have allowed
petitions on grounds that the name 1) is ridiculous or tainted with dishonour or extremely difficult to pronounce; or 2) when the change is necessary to avoid confusion; 3) when the right to a new name is a consequence of a change in status; 4) a sincere desire to adopt a Filipino name to erase signs of a former alien nationality which unduly hamper social and business life.
Article 176 FC: A married woman may use (woman’s exclusive choice): a)Maiden 1st name + surname + husband’s surname b) Maiden 1st name + husband’s surname c) “Mrs” husband’s full name Father’s surname: Legitimate Child, legitimated Child, children before
annulment
Adopter’s surname – adopted child Mother’s surname – illegitimate children (unless recognized by father)
F. AGE OF MAJORITY The legal disability attached to minority and rights recognized upn attainment of the age of majority are aspects of personal status. It is the individual’s personal law which determines whether he has reached the age of majority. Once emancipated, parental authority over the person and property of the child is terminated and he is qualified and responsible all acts of civil life save the exceptions established by existing laws in special cases, such as the parent’s continued observance of their responsibilities under article 46 of P.D. 603. Likewise, although Republic Act No. 6809 lowered the age of majority to 18 years from 21 years, it expressly stated that parental consent for contracting marriage is required until the age of twenty-one.
Article 234 of FC, as amended by RA 6809: Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of 18 years.
G. CAPACITY A person’s ability to act with legal effects is governed by his personal law. One’s personal law is viewed as best qualified to decide what restrictions should be imposed on the individual. Rules on capacity of an individual to bind himself
PART FOUR: CHOICE OF LAW PROBLEMS XI. CHOICE OF LAW IN FAMILY RELATIONS A. MARRIAGE 1. EXTRINSIC VALIDITY OF MARRIAGE 2. INTRINSIC VALIDITY OF MARRIAGE 3. EFFECTS OF MARRIAGE i. PERSONAL RELATIONS BETWEEN THE SPOUSES ii. PROPERTY RELATIONS OF SPOUSES B. DIVORCE AND ANNULMENT 1. DIVORCE DECREES OBTAINED BY FILIPINOS 2. VALIDITY OF FOREGIN DIVORCE BETWEEN FOREIGNERS C. ANNULMENT AND DECLARATION OF NULLITY D. PARENTAL RELATIONS 1. DETERMINATION OF LEGITIMACY OF A CHILD 2. COMMON LAW PRINCIPLES OF LEGITIMACY 3. PARENTAL AUTHORITY OVER THE CHILD E. ADOPTION XII. CHOICE OF LAW IN PROPERTY A. THE CONTROLLING LAW B. CAPACITY TO TRANSFER OR ACQUIRE PROPERTY C. EXTRINSIC AND INTRISIC VALIDITY OF CONVEYANCE D. EXCEPTIONS TO LEX SITUS RULE E. SITUS OF CERTAIN PROPERTIES i. PERSONAL PROPERTY FOR TAX PURPOSES ii. MONEY iii. DEBTS iv. CORPORATE SHARES OF STOCKS F. PATENTS, TRADEMARKS, TRADE NAME, COPYRIGHT
XIII. CHOICE OF LAW IN CONTRACTS SYNOPSIS OF CONFLICT OF RULES FACTUAL SITUATION 1) Formal or extrinsic validity Exceptions: (a) Alienation and encumbrance of property (b) Consular contracts 2) Capacity of contracting parties
Exceptions Alienation and encumbrance of the property 3) Intrinsic Validity (including interpretation of instruments, and amount of damages for breach
POINT OF CONTACT Lex loci celebrationis (Art `7, par 1,NCC)
Lex situs (Art 16, NCC) Law of the Philippines National law (Art 15 NCC) without prejudice to the case of Insular Government vs Frank, 13 Phil 236, where the SC adhered to the theory of lex loci celebrationis Lex situs (Art 16, NCC) the proper law of the contract – lex contractus meaning the lex loci voluntatis or the lex loci intentionis Other theories: (a) lex loci celebrationis – defect: this makes possible the invasion of the national law (b) lex nationalii – defect: this may impede commercial transactions (c) lex loci solutionis – law of the place of performance – defect: there may be several places of performance (d) Prof. Minor‟s solution: 1) perfection – lex loci celebrationis 2) cause or consideration – lex loci
considerations 3) performance – lex loci solutionis (this theory combines the defects of the others)
FACTUAL SITUATION 1) Sales and Barter (a) Extrinsic validity (b) Capacity of Parties (c) Intrinsic Validity 2) Lease of Property (a) Extrinsic validity (b) Capacity of Parties (c) Intrinsic Validity 3) Lease of Services (a) Extrinsic validity (b) Capacity of Parties (c) Intrinsic Validity 4) Contract of Common Carriage of Goods (a) Extrinsic validity
(b) (c) (d)
Capacity of Parties Intrinsic Validity Liability for loss, destruction or deterioration of goods in transitu 5) Contract of Agency (a) Extrinsic validity
(b) Capacity of Parties to be principal or agent
(c) Intrinsic Validity
6) Simple Loan (Mutuum) (a) Extrinsic validity (b) Capacity of Parties (c) Intrinsic Validity
POINT OF CONTACT
Lex situs Lex situs Lex situs Lex situs Lex situs Lex situs
7) Commodatum (Real Property) (a) Extrinsic validity (b) Capacity of Parties (c) Intrinsic Validity 8) Pledge, Chattel Mortgage, Real Mortgage, and Antichresis (a) Extrinsic validity (b) Capacity of Parties (c) Intrinsic Validity
Lex loci celebrationis National law Loci volutatis or lex loci intentionis
Fixed situs of the carrier (depot/ resting place) Fixed situs of the carrier Fixed situs of the carrier Law of Destination(Art 1753 NCC)
Lex loci celebrationis (unless the agency deals with conveyance or encumbering of property - lex situs of property applies) National law of the parties (Unless the agency deals with conveyance or encumbering of property - lex situs of property applies) Lex loci voluntatis or lex loci intentionis (Unless the agency deals with conveyance or encumbering of property - lex situs of property applies) Lex loci celebrationis National law Lex loci voluntatis or lex loxi intentionis
9) Gurantee and Suretyship (a) Extrinsic validity (b) Capacity of Parties (c) Intrinsic Validity
Lex situs Lex Situs Lex Situs
Lex situs Lex situs Lex situs Note: These are accessory contracts only, therefore, if the principal contract (generally the contract of loan) is defective, the accessory contract must also be deemed defective Lex loci celebrationis National law Lex loci voluntatis or lex loci intentionis Note:These are also accessory contracts; if the principal contract is defective, the accessory contract is also generally defective.
*money deposit – laws of the place where the bank instituted is located *Air transportation – destination Obligation - Is a juridical relation whereby a person (creditor) may demand from another (debtor) the observance of a determined conduct (the giving, doing and not doing) and in case of breach, may demand satisfaction from the assets of the latter. - Art 1156: as juridical necessity to give, to do or not to do. Contract - A contract is a meeting of minds between 2 persons whereby one binds himself, with respect of the other, to give something or to render some service - Perfected by mere consent and from that moment the parties are bound not only yo the fulfillment of what has been expressly stipulated but also to all the consequences which, according to nature, may be in keeping with good faith, usage of law
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Generally, a contract is obligatory in whatever form it may have been entered into provided that all the essential requisites for its validity is present
A. CONTRACTS INVOLVING A FOREIGN ELEMENT By reason of these differing rules, the forum court presented with a contracts case involving a foreign element must be aware that the parties may have entered into a contract with a particular state law in mind, expecting it to govern questions that may arise from the contract. To do otherwise would defeat the parties’ reasonable expectations. B. EXTRINSIC VALIDITY OF CONTRACT Lex loci celebrationis governs the formal or extrinsic validity of contracts. Art. 17 “The forms and solemnties of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed”. These principles are derived from a broader proposition that the place governs the act (locus regit actum). Query: How about contracts entered into by cablegram, telex or fax messages between persons from different countries? What is deemed to be the place of execution of the contract? Answer: Art. 1319 of the civil code states that “Acceptance made by letter or telegram does not bind the offeror except from the time it came to his knowledge”. The contract in su ch case is presumed to have been entered into the place where the offer was made. Example: A Chinese sold in Chile to a Filipino a parcel of land in the Phils. The Philippine formalities of such a sale should be followed. (Art. 16 par 1 of the civil code) Bar Q: Suppose our law provides that certain instrument shall be void and unenforceable unless they beat documentary stamps, and a written contract is enters into in the Phils. to be performed in France. The contract was not stamped in the Philippines as required by its l aw. The placing of stamp on written contract is not however required by the laws of France. In an action brought on the contract in France, may the defendant avail himself of the invalidity of contract? AnSwer: Since the forum of the problem is France, the answer will depend not on Philippine Conflict of laws but on French conflict of laws. On the assumption that the French conflicts rule on the matter is identical with ours, it i s believed that the contract should be considered valid, and the defense of invalidity cannot be sustained. The rule to apply is evidently lex loci voluntatis or the lex loci intentionis – that which was voluntarily agreed upon or intended by the parties. C. INTRINSIC VALIDITY OF CONTRACT
The intrinsic validity of contracts including the considerations or cause thereof, the interpretation of the instruments, and the nature or amount of damages for breach or non-performance must be governed by the proper law of the contract (lex contractus). This is the law voluntarily agreed upon by the parties (lex loci voluntatis) or the law intended by them expressly or implicitly (lex lcoci intentionis) 1. LEX LOCI CONTRACTUS The law of the place of the making or lex loci contractus refers to the place where the contract is made. 2. LEX LOCI SOLUTIONIS The law of the place of performance calls for the reference to a law other than the place where the acts of offer and acceptance took place. All matters relating to the time, place and manner of performance, sufficiency of performance and valid excuses for non-performance are determined by lex loci solutionis which is useful because it is undoubtedly always connected to the contract in a significant way. *where the contractual obligation is performed 3. LEX LOCI INTENTIONIS The intrinsic validity of contracts should be governed by the law intended by the parties or lex loci intentionis. This intention may be expressed in the choice-of-law provision in the contract Art. 1306 of the civil code “The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient provided they are not contrary to law, morals, good customs, public order or public policy” D. CAPACITY TO ENTER INTO CONTRACTS The capacity of the parties to enter into contract is generally governed by the national law (Art. 15, civil code) Except in the case of alienation or encumbering of properties, both real and personal, for here the capacity is governed by the lex situs (Art, 16 par 1) Another exception. is that case of Insular Gov’t v. Frank which disregarded the nationality law principle. Frank had the capacity to enter into a contract whether in the US or in the Phils. since he was of majority age as determined by his national law. The SC held that in a case not involving property that instead of national law, what should determine capacity to enter into a contract is the lex loci celebrationis.
Bar Q: X and Y entered into a contract in Madrid, Spain wherein it was agreed that X would construct for Y an apartment in Manila, in consideration being Y’s house and lot in San Francisco California. The laws of what country would govern the: (a)validity of the contract; (b) its performance and (c) its consideration? Answer: (a) The validity of the contract would depend on the lex situ s namely the Philippine law since the contract deals with a building to be constructed in Manila. Philippine law should govern everything about the contract. (Art. 16, par 1 civil code) (b)Prof. Minor however would say that the validity of the contract would be governed by the lex loci celebrationis – Spanish law; performance and damages in case of breach would depend on the lex loci intentionis Philippine law; and the sufficiency of consideration would depend on lex loci considerationis – California law.
refused and filed a case placing the value of the l ost attache case and its contents at $42,403.90. In its answer, Pan Am acknowledged responsibility for the loss but
E. CHOICE OF LAW ISSUES IN CONFLICT CONTRACTS CASES Under the principle of freedom of contract, the parties may stipulate on the law to govern their contract agreement.
Contracts for International Air-Transportation Convention for the Unification of Certain Rules Relating to International Transportation by Air or known as Warsaw Convention. The Convention which applies to all international transportation of persons, baggage or goods performed by aircraft for hire, enumerate instances when the carrier is liable, fixing the maximum amount of damages to be included in each case. However, the limits of liability shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents done with intent to cause damage or recklessly and with knowledge that damage would probably result provided in such case, it is proved that the servant or agent was acting within the scope of his employment.
Contracts with Arbitration Clause A multinational contract that contains an arbitration clause gives rise to the issue of whether one of the parties may compel the other to submit to arbitration. CONTRACTS OF ADHESION It is one that is not negotiated by the parties, having been drafted by the dominant party and usually embodied in a standardized form. It is called a contract of adhesion because the only participation of the other party is in affixing her signature or adhering thereto. Likewise known as a “take it or leave it contract”
PAN AM WORLD AIRWAYS v. RAPADAS 209 SCRA 567 FACTS : Jose Rapadas while standing in line to board the flight from Guam to Manila was ordered by a Pan Am Control agent to check in his samsonite attaché case. He instead went to the tail end of the line trying to get through without having to cheack in his attache case. He was again spotted and for fear that he would miss the plane, he checked it in without declaring its contents or value. Unfortunately, it never arrived in Manila and Pan Am offered to settle the claim for $160.00. Rapadas
asserted that the claim was subject to the “Notice of Baggage Liability Limitations“ forming part of the passenger‟s ticket.
ISSUE : Whether or not the said notice (a contract of adhesion) be considered adequate under the circumstances of the case. HELD : Yes. There is no dispute that there was such a Notice appearing on page 2 of the airline ticket stating that the Warsaw Convention governs in case of death or injury to passenger of the loss, damage or destruction to passenger’s luggage. The
plane ticket is what is known as a contract of adhesion and these contracts are not entirely prohibited. The Court, finds the provisions in the plane ticket sufficient to govern the limitations of liabilities of the airline for loss of luggage. If the passenger fails to adhere evidence to oversome the stipulaions, he cannot avoid that application of the liability limitations.
