Conflicts Sempio Diy Book Reviewer

Conflict of Laws

Comprehensive reviewer of Sempio-Diy book 

Chapter 1 In General Conflict of Laws That part of the municipal law of a state which directs its courts and administrative agencies, when confronted with a legal problem involving a foreign element, whether whether or not they should apply a foreign law or foreign laws

Chapter 2 Jurisdiction and choice of law How one deals with a problem in Conflict of Laws

1.

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 the laws of different states or countries Note: Note: Conflict of laws is NOT part of international law. Although it is sometimes thought of as part of international law because of the presence of a foreign element in a given problem, it is not international law in character but is part of the municipal law of each state. By municipal law in Conflict of Laws is meant the internal or local law of each state. Conflict of laws vs. public international law Public Conflict of laws International Law As to persons Governs Governs private involved sovereign states individuals or and entities that corporations are internationally recognized or possessed of international personality As to nature International International in Municipal in character character As to Applies only to Deals with transactions transactions in transactions involved which only strictly private in sovereign states nature in which or entities with the country as international such has personality are generally no concerned and interest which generally affect public interest As to remedies The concerned Recourse is had to applied states may first judicial or resort to peaceful administrative remedies. If these tribunals in remedies fail, the accordance with states concerned the rules of may resort to procedure of the forcible remedies country where they sit Sources of Conflict of Laws

1.

Direct Dire ct sources sour ces Treaties   International conventions  Constitutions  Codifications and statutes Judicial decisions  International customs 

2.

Indirect Indi rect sources sour ces  Natural moral law

Lesley Claudio (A 2012)

Writings and treaties of thinkers and famous writers

First, determine whether the court has jurisdiction over the case.  If it has no jurisdiction, the case should be dismissed  If it has jurisdiction, the court will determine whether it should assume jurisdiction over the the case or dismiss it on the ground of forum non conveniens

 It is the law of the forum that determines whether the court has jurisdiction over the case

2.

It will next determine whether to apply the internal law of the forum or the proper foreign law

Three kinds of jurisdiction 1. Jurisd Jurisdict iction ion over over the the subj subject ect matt matter er 2. Juri Jurisd sdic icti tion on over over the the per perso son n 3. Juri Jurisd sdic icti tion on ove overr the the res res Jurisdiction over the subject matter Conferred by law   Defined as the power to hear and determine cases of the general class to which the proceedings in question belong Cannot be conferred by consent of the  parties or by their voluntary submission



Must be invoked by filing the proper complaint or petition with the court.

Note: Note: In the r ealm of Conflict of Laws, however, there is another element which the court must consider in determining the matter of jurisdiction  the possible enforceability of its decision in foreign states, subject to the rights of said states. Jurisdiction over the person The competence or power of a court to render a  judgment that that will bind the parties involved involved

 Jurisdiction over the plaintiff : Acquired the moment he invokes the power of the court by instituting the action by the proper pleading

 Jurisdiction over the defendant: defendant: Acquired when he enters his appearance or by the coercive power of legal process exerted by the court over him  personal or substituted service of summons o

EX: EX: If appearance is for the sole purpose of questioning the jurisdiction of the court.

Note: Note: Question of erroneous service of summons must be raised before judgment is rendered, or this would be a case of waiver. Defective service may be cured by actual receipt of summons or if in any other manner, knowledge of the existence of the case

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Conflict of Laws

Comprehensive reviewer of Sempio-Diy book

Jurisdiction over the Res

 Jurisdiction over the particular subject matter in 



controversy, regardless of the persons who may be interested therein The basis of the exercise of this jurisdiction is the presence of the property within the territorial jurisdiction of the the forum even though though the court court may not have personal jurisdiction over the persons whose interests in the property are affected The purpose of the suit is not to impose a persona liability on anyone but it is to affect the interests of all persons in a thing.

Juri Jurisd sdic icti tion on in per perso sona nam m Binds only the parties and their successors in interest

Juri Jurisd sdic icti tion on over over the the res res Binds the whole world

Actions quasi in rem The purpose is neither to impose a personal liability  in a thing nor to affect the interests of all persons in a thing, but to affect the interests of particular persons in a thing. An action affecting the personal status of the  plaintiff is also classified as an action quasi in rem Service of summons, how effected 1. In acti action ons s in pers person onam am (1) Person Personal al servic service e (2) Substi Substitut tuted ed service service Note: Note: Service by publication would NOT be sufficient 2.

3.

Serv Servic ice e by by pub publi lica cati tion on (1) (1) Acti Action on in in rem rem (2) Action Action quasi quasi in rem (3) Action Action involves involves the the personal personal status status of plaintiff Extra Extrater territ ritori orial al servi service ce of summ summons ons (1) When the the defenda defendant nt does does not reside reside and and is not found in the Philippines, and the action affects the personal status of the plaintiff (2) When the the defenda defendant nt does does not reside reside and and is not found in the Philippines, and the action relates to or the subject of which is, property within the Philippines (real or personal), in which the defendant has a claim, a lien or interest, actual or contingent (3) When the the defendant defendant is a non-res non-resident ident but but the subject of the action is property located in the Philippines in which the relief demanded consists in excluding the defendant from any interest therein (4) When the the property property of a non-re non-reside sident nt defendant has been attached in the Philippines  While a writ of attachment attachment may be issued by the court, said writ cannot be implemented until the court has acquired jurisdiction over the the nonresident defendant


Extraterritorial Extraterritorial service, how effected By leave of court: 1. By per perso sona nall ser servi vice ce 2. By public publication ation,, but but copy copy of the the summ summons ons and and the the order of the court must be sent by registered mail to the defendant’s last known address 3. In any any other other manne mannerr that that the the court court may may deem deem sufficient, e.g., by registered mail

Instances when court may refuse to exercise jurisdiction over a case case on the basis of forum non conveniens 1. The evidence evidence and the witnesse witnesses s may not be readi readily ly available in the forum 2. The cour courtt docket dockets s of the the forum forum may may alread already y be clogged so that to permit additional cases would hamper the speedy administration of justice 3. The belie belieff that that the matter matter can be better better tried tried and decided in another jurisdiction, either because the main aspects of the case transpired there or the material witnesses have their residence there

4.

To curb the evils of “forum shopping”  the nonresident plaintiff might have filed the case in the forum merely to secure procedural advantages or to annoy or harass the defendant

5.

The forum has no particular interest in the case  the parties not being citizens of the forum or are residents elsewhere, or the subject matter of the case evolved somewhere else Other Other courts courts are are open open and and the the case case may be bette betterr tried in said courts The inadequa inadequacy cy of the local judicial judicial machin machinery ery for for effectuating effectuating the right sought to be enforced by the plaintiff The difficulty difficulty of ascert ascertaini aining ng the the foreig foreign n law law applicable

6. 7.

8.

Note: Note: The doctrine should generally apply only if the defendant is a corporation. For if the defendant is an individual, the proper forum may not be able to acquire jurisdiction over him, him, thus leaving leaving the plaintiff plaintiff without any remedy. Three instances when the forum has to apply the internal or domestic law (lex fori) in deciding a case in conflicts of law 1. When the law of the the forum forum expre expressly ssly so so provides provides in its conflicts rules 2. When the proper proper foreign foreign law has has not not been been proper properly ly pleaded and proved 3. When the case involves involves any any of the exception exceptions s to the application of the proper foreign law (i.e. exceptions to comity) Why foreign law cannot be applied if it has not been pleaded and proved Our courts cannot take judicial notice of foreign laws How a foreign law is proved under our Rules of Court 1. Written la law (1) An officia officiall publicati publication on thereof thereof (2) A copy of the the law attest attested ed by the the officer officer having legal custody of the record or by his deputy, accompanied by a certificate of any Philippine embassy, consular, or foreign service officer in the foreign

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Conflict of Laws

2.


country where the record is kept, and authenticated authenticated by the seal of his office Unw Unwrit ritten ten la law (1) The oral oral testimony testimony of exper expertt witnesse witnesses s (2) By printed printed and publish published ed books books of reports reports of decisions of the country involved if proved to be commonly admitted in its courts

Processual presumption of law This rule means that when the proper foreign law has not been properly proved, the court of the forum may presume that said foreign law is the same as its local or domestic law, which it can now apply Exceptions to the applications of a foreign law 1. When When the applicati application on of the foreign foreign law law would would run run counter to a sound and established public policy of the forum 2. When When the the foreig foreign n law law is is contrary contrary to the the almost almost universally conceded principles of morality (contra bonos mores) 3. When When the the foreig foreign n law law involv involves es proced procedural ural matters matters

 EX: EX: When the law is both procedural and 4.

substantive When When the fore foreign ign law law is pena penall in chara characte cterr

 EX: EX: A penal clause in a contract may

5. 6. 7. 8.

however be enforced here because such clause is not criminal in nature but provides only for liquidated damages When When the law law is pure purely ly fisca fiscall (i.e., (i.e., reve revenue nue producing) or administrative in nature When When the the foreign foreign law might might work work undeniab undeniable le injustice to the citizens or residents of the forum When When the the appli application cation of the the foreign foreign law law would would endanger the vital interests of the State When When the the case case involves involves real or person personal al proper property ty located in our country Chapter 3

Theories that justify the application of the foreign law Theories that justify the application of the foreign law instead of domestic or internal law 1. Theor heory y of of co comity mity 2. Vest Vested ed rig right ht the theor ory y 3. Theo Theory ry of loca locall law law 4. Theo Theory ry of of har harmo mony ny of of law laws s 5. Theo Theory ry of just justic ice e Theory of comity According to this theory, no foreign law would be allowed to operate in another state except by the comity of nations Comity The recognition which one state allows within its territory, to the legislative, executive, or judicial acts of another nation Two principles upon which the theory of comity rests 1. The The comi comity ty based based on recipr reciproci ocity ty 2. The The comity comity base based d on the the persua persuasiv sivene eness ss of a foreign judgment Our Civil Procedure still follows the  principle of reciprocity because in


Sec. 48, Rule 39, a foreign final judgment or order order “is presumptive evidence of a right as between the parties and their successors in interest The vested-rights theory Under this theory, our 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 should be enforced regardless  of where the suit for its enforcement was filed.

Theory of local law Under this theory, we apply a foreign law not because it is foreign, but because our own law by applying a similar rule requires us to do so, hence it is as if the foreign law has become part of our own internal or domestic law. Theory of harmony of laws Under this theory, identical or similar problems should be given identical or similar solutions thus resulting in harmony of laws Theory of justice Since the purpose of all laws, including Conflict of Laws, is the dispensation of justice, the proper foreign law should be applied in order to attain this objective  The defect of this theory, however, is that different persons may have different ideas of what is just Note: No single theory contains the whole truth; no one approach is completely valid. All of the theories have validity. This suggests that they are not entirely exclusive. Chapter 4 Nature and composition of conflicts rules Purely internal provision of law vs. conflicts rule Purely internal provision Conflicts rule/ A of law provision in conflict of laws Governs a domestic A provision found in our own problem, i.e., one without a law which governs a factual foreign element situation possessed of a foreign element Example: Art. 796  All Example: Art. 16  Real persons who are not property as well as personal expressly prohibited by law property is subject to the may make a will law of the country where it is situated Two kinds of conflicts rules 1. One-s ne-sid ide ed rule rule Indicates when Philippine law will apply 

 Example : Article Artic le 15 of the CC

2.

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 All-si All-side ded d or multil multilate ateral ral rule rule  Indicates whether to apply the local law o r the proper foreign law 

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 Example Exam ple : Art. Ar t. 16

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







2.

Parts of every conflicts rule

1.

2.

The factual situation – the set of facts or situation presenting a conflicts problem because there is a foreign element involved The point of contact or connecting factor – The law of the country with which the factual situation is most intimately connected connected

Note: The first part raises while the second part answers a legal question

Chapter 5 Characterization Characterization of conflict rules Characterization Otherwise known as “classification” or “qualification” is the process of assigning a certain set of facts or factual situation to its proper or correct legal category. By characterizing the legal problem, the court of the parties involved reach the proper solution whether to apply the local law or the proper foreign law  Most writers hold that on the grounds of practical necessity and convenience, it is the forum or the lex fori that should determine the problem’s characterization characterization unless the result would be a clear injustice Note: Note: Modern trend is to consider prescriptive periods or Statute of Frauds that the parties had in mind at the time the transaction took place

Chapter 6 Persona law – Theories in determining one’s personal law 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 actuations. It may be: 1. National la law 2. Law Law of of his his domi domici cile le 3. Law Law of of th the si situs tus Status vs. capacity Status Place of an individual in society and consists of personal qualities and relationships more or less permanent, with which the state and the community are concerned

Capacity Only part of one’s status and may be defined as the sum total of his rights and obligations

Juridical capacity


Capacity to act Active capacity  The power to do acts with legal effects 

Characteristics of status 1. It is conferred conferred principall principally y by the the State State,, no nott by the individual 2. It is a matter matter of public public interest interest or social social inter interest est 3. Being Being a conce concept pt of social social order, order, it cannot cannot easil easily y be terminated at the mere will or desire of the parties concerned 4. It is is genera generally lly suppos supposed ed to to have have a universa universall character

Different theories on how the personal law of an individual is determined 1. The The nat natio iona nali lity ty theo theory ry Personal theory  The status and capacity of a person are  determined by the law of his nationality or his national law 2. The The dom domic icil ilia iary ry theo theory ry  By virtue of which the status and capacity of a person is determined by the law of his domicile  Territorial theory 3. The situs situs or eclect eclectic ic theory theory  Views the law of a particular place or situs of an event or transaction as generally the controlling law Note: Note: The Philippines follows the nationality theory. Nationality v. citizenship Nationality Refers to membership in a political community, one that is personal and more or less permanent, not temporary. In the field of Conflict of Laws, are the same

Citizenship A citizen is one who owes allegiance to and is entitled to the protection of the State nationality and citizenship

Chapter 7 The Nationality Theory Different kinds of citizenship in the Philippines 1. Natu Natura rall bor born n cit citiz izen ens s Those who are citizens from birth without  having to perform any act to acquire or perfect their Philippine citizenship Native-born Filipinos Those born in the Philippines. Natural-born citizens may not be native-born if they were born abroad

Two kinds of capacity

1.

Passive capacity The fitness to be the subject of legal relations

2.

Citize Citizens ns by natura naturaliz lizat ation ion

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Conflict of Laws 

Comprehensive reviewer of Sempio-Diy book Those who were formerly aliens but by judicial, legislative, legislative, or administrative administrative process, have become Filipino citizens

Jus soli v. jus sanguinis Jus soli A person is a citizen of the country where he was born or of the country of his birth

Jus sanguinis It is citizenship by blood This is the rule that we follow in the Philippines



Note: Note: Each country or state has the sole power and authority to determine under its internal or municipal law who are its citizens or nationals Dual allegiance under Sec. 5, Article IV of the Constitution The provision in the Constitution (dual allegiance of citizens is inimical to national interest and shall be dealt with by law) is concerned not with dual citizenship per se but with naturalized citizens of the Philippines who still maintain their allegiance to the countries of their origin. Effective nationality theory Within a third state, a person having more than one nationality shall be treated as if he had only one. Without prejudice to the application of its law in personal matters and of any conventions in force, a third state shall apply the nationalities nationalities which any such person possesses, recognize exclusively in its territory either the nationality of the country in which he is habitually and principally a resident, or the nationality of the country with which in the circumstances he appears to be in fact mostly connected



The law of the country of which the deceased was both a citizen and a domiciliary at the time of her death is considered more effectively connected to her than her other national law.

Note: Note: An alien woman married to an alien husband who (the husband) is subsequently subsequently naturalized also follows the Philippine citizenship of her husband, provided she does not suffer from any of the disqualifications under Sec. 4 of the same Revised Naturalization Naturalization Law. This is a case of derivative naturalization (similar to the minor children of a naturalized Filipino citizen) Naturalization The process of conferring on an alien the citizenship of another country by any of the means provided by law. Modes of acquiring Philippine citizenship by naturalization 1. Judicial process Com. Act No. 475 as amended by RA 530  2. Legisl Legislati ative ve proces process s When Philippine citizenship is conferred by  a special act of Congress on deserving aliens 3. Admini Administr strati ative ve proces process s RA 9139 or the Administrative  Naturalization Law of 2000 Under this law, a Special Committee on  Naturalization is created, with the power to approve, deny, or reject applications for naturalization filed with said Committee Derivative naturalization Philippine citizenship conferred on: 1. The wife wife of of a natu natural ralize ized d husba husband nd 2. The mino minorr childr children en of a nat natura uraliz lized ed fathe fatherr 3. The alien alien wife wife of a natur natural al born born or natur naturalize alized d citizen, in the latter case, the marriage having taken place after the husband’s naturalization

Citizens of the Philippines under the 1987 Constitution 1. Those Those who who are citizens citizens of the the Philipp Philippines ines at the the time of the adoption of this Constitution 2. Those Those whose whose fathe fathers rs or mothers mothers are are citizen citizens s of the Philippines 3. Those Those born born before before January January 17, 1973, 1973, of Filipino Filipino mothers, who elect Philippine citizenship upon reaching the age of majority and 4. Those Those who who are naturaliz naturalized ed in accordanc accordance e with with law law Citizenship of a Filipino woman who marries a foreigner 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 (Article 4, Sec. 4, 1987 Constitution) Citizenship of an alien woman who marries a Filipino husband Under Sec. 15 of the Revised Naturalization Law (Com. Act No. 475), an alien woman marrying a Filipino, native-born or naturalized, becomes ipso facto a Filipino, provided she is not disqualified to be a citizen of the Philippines under Sec. 4 of the same law.  It is enough that an alien wife proves that she is not disqualified to be a Filipino citizen not necessarily in court but even before an agency like the Immigration Commission


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Conflict of Laws

Qualifications

Disqualifications



Naturalization Judicial naturalization under Com. Act. 475, as amended 1. The The petiti petitione onerr must must not not e less less than than 21 years of age on the date of the hearing of the petition 2. He must must have have,, as a rule rule,, resid resided ed in in the the Philippines for a continuous period of not less than 10 years 3. He must must be be of good good moral moral char charact acter, er, and 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 4. He must must own real real estat estate e in the Philippines worth not less than 5,000, Philippine currency, or must have some lucrative trade, profession, or occupation 5. He must must be able able to spe speak ak and and writ write e English or Spanish and any one of the principal languages and 6. He must must have have enro enrolle lled d his mino minorr childr children en of school in any of the public or private schools recognized by the Bureau of 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

Administrative naturalization under RA 9139 or the Administrative Naturalization Law of 2000 1. The The appli applican cantt must must be be born born in in the the Philippines and residing therein since birth 2. The The appli applican cantt must must not not be be less less than than 18 years of age, at the time of filing of his/her petition 3. The The appli applican cantt must must be be of good good mora morall character and believes in the underlying principles of the Constitution and must have conducted himself/herself himself/herself in a proper and irreproachable manner during his/her entire period of residence in the Philippines in relation with the duly constituted government as well as with the community in which he/she is living 4. The The applic applicant ant mus mustt have have receiv received ed his/h his/her er primary and secondary education in any public school or private education institution duly recognized by the DECS, where Philippine history, government, and civics are taught and prescribed as part of the school curriculum and where enrollment is not limited to any race or nationality: Provided, that should he/she have minor children of school age, he/she must have enrolled them in similar schools. 5. The The applic applicant ant mus mustt have have a known known trad trade, e, business, profession, or lawful occupation, from which he/she derives income sufficient for his/her support and if he/she is married and/or has dependents, also that of his/her family: Provided, however, that this shall not apply to applicants who are college degree holders but are unable to practice their profession because they are disqualified to do so by reason of their citizenship 6. The applicant applicant must be able able to read, read, write, write, and speak Filipino or any of the dialects of the Philippines, and 7. The The applic applicant ant mus mustt have have mingle mingled d with with the Filipinos and evinced a sincere desire to learn and embrace the customs, traditions, and ideals of the Filipino people 1. Those Those oppose opposed d to to orga organiz nized ed govern governmen mentt or or affi affilia liated ted with with any any asso associa ciatio tion n of group group of pers person on who uphold and teach doctrines opposing all organized governments 2. Those Those defend defending ing or tea teachi ching ng the neces necessit sity y of or prop proprie riety ty of of viol violenc ence, e, person personal al assa assault ult or assassination for the success or predominance of their ideas 3. Poly Polyga gami mist sts s or or bel belie ieve vers rs in the the pra pract ctic ice e of of pol polyg ygam amy y 4. Thos Those e con convi vict cted ed of crim crimes es invo involv lvin ing g mor moral al turp turpit itu ude 5. Thos Those e suf suffe feri ring ng fro from m men menta tall alie aliena nati tion on or or incu incura rabl ble e cont contag agio ious us dis disea ease se 6. Those Those who, who, duri during ng the the period period of the their ir resi residen dence ce in in the the Phil Philipp ippine ines, s, have have not mingle mingled d socia socially lly with Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions, and ideals of the Filipinos 7. Citi Citize zens ns or subj subjec ects ts of nati nation ons s wit with h who whom m the the Phil Philip ippin pines es is at war war 8. Citize Citizens ns or subj subject ects s of a fore foreign ign countr country y whos whose e law laws s do not grant grant Filipi Filipinos nos the right right to be naturalized citizens or subjects thereof

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Loss of citizenship Under Com. Act 63, as amended, a Filipino citizen may lose his citizenship in any of the following ways: 1. By natu natural raliza izatio tion n in a fore foreign ign count country ry 2. By expre express ss renun renuncia ciatio tion n of citize citizensh nship ip 3. By subscri subscribing bing an oath oath of allegianc allegiance e to support support the the constitution or laws of a foreign country upon attaining twenty-one twenty-one years of age or more 4. By accept accepting ing commi commission ssion in the the milita military, ry, naval, naval, or air service of a foreign country 5. By cancell cancellation ation of the the certi certificat ficate e of natura naturalizat lization ion 6. By having having been declared declared by compet competent ent authorit authority, y, a deserter of the Philippine armed forces in time of war, unless subsequently a plenary pardon or amnesty has been granted; and 7. In case case of a woman woman,, upon upon her her marri marriage age to to a foreigner, if, by virtue of the laws in force in her husband’s country, she acquires his nationality  Under the 1987 Constitution, however, the woman retains her Philippine citizenship unless by her act or omission she is deemed under the law to have renounced her Philippine citizenship Philippine citizenship, how reacquired Under C.A. 63, as amended, Philippine citizenship may be reacquired as follows: 1. By natura naturalizat lization, ion, provided provided the the applic applicant ant possesses possesses none of the disqualifications 2. By repatri repatriatio ation n of deser deserters ters of the the Army, Army, Navy, Navy, or Air Corps, Provided, that a woman who lost her citizenship by reason of her marriage to an alien may be repatriated in accordance with the provisions of this Act after the termination of the marital status 3. By dir direc ectt act act of Con Congr gres ess s RA 9225 – Citizenship Retention and Reacquisition Act of 2003 Under this law, natural born Filipino citizens who had been naturalized in foreign countries are deemed to have reacquired Philippine citizenship by taking an oath of allegiance to the Philippine Constitution and laws. Those who become naturalized in foreign countries after the effectivity of the Act retain their Philippine citizenship upon taking the same oath Chapter 8 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 or the lex domicilii Domicile 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.

 Art. 50 of the CC: CC: For the exercise of civil rights

Domicile v. residence Domicile Residence Denotes a fixed, permanent Used to indicate a place of residence to which, when abode, whether permanent absent, one has the or temporary intention of returning Residence is not domicile, but domicile is residence coupled with intention to remain for an unlimited time Domicile v. citizenship Domicile Citizenship Speaks of one’s permanent Indicates ties of allegiance place of abode and loyalty A person may be a citizen or national of one sate and a domiciliary of another Note: Note: The forum applies its own concept of domicile in determining the domicile of a litigant before its courts (law of the forum/lex fori, NOT national law, is the law that determines one’s domicile) Different kinds of domicile

1.

Domicile of origin: origin: The domicile assigned by law to a person at the moment of his birth

2.

Constructive domicile or domicile by operation of law: law: The domicile assigned by law to a person after birth on account of a legal disability, like minority, insanity, imprisonment, etc.

3.

Domicile of choice: choice: The domicile of a person sui juris because he he has his home there and to to which, whenever absent, he intends to return

Principles regarding one’s domicile of choice 1. No person person can ever be withou withoutt a domicile domicile or or every every natural person must have a domicile 2. A person person canno cannott have have two two simulta simultaneou neous s domicil domiciles es 3. A natura naturall person, person, free (not a prisoner prisoner)) and and sui juris juris (one of age and under no disability), can change his domicile at pleasure 4. A domicile domicile,, once once acquir acquired, ed, is is retaine retained d until until a new one is gained 5. The presumpt presumption ion being being in favor favor of of the continua continuance nce of an existing domicile, the burden of proof is on the one who alleges that a change of domicile has taken place

6.

To acquire a new domicile of choice, the following must concur: (1) Residence Residence or or bodily bodily presence presence in the the new locality (2) An intenti intention on to remain remain there there (animus (animus manendi) and (3) An intenti intention on not to return return to the the former former abode (animus non revertendi)

Rules determining one’s domicile of origin If the child is legitimate His domicile of origin is that of his parents at the time of his birth

and fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence If the child is illegitimate

If the child is legitimated Lesley Claudio (A 2012)

If parents are separated, the domicile of the custodial parent His domicile of origin is that of the mother at the time of his birth The domicile of his father at Page 7 of 22

Conflict of Laws


If the child is adopted

If a foundling

the time of his birth controls The domicile of origin is the domicile of his real parents at the time of his birth, NOT the domicile of the adopters The domicile of origin is the country where it was found

Public officials or employees abroad (diplomats, etc)

Chapter 9 The situs or eclectic theory

Rules determining one’s constructive domicile MINORS

1.

If legitimate, the domicile of both parents In case of disagreement, that of the  father, unless there is a judicial order to the contrary

2.

If illegitimate, the domicile of the mother

3.

In case of absence or death of either parent, the domicile of the present parent.

 Even in case of remarriage of the surviving parent, still his/her domicile determines determines the constructive domicile of the minor child

4.

If the child is adopted, the domicile of choice of the adopter is the child’s constructive domicile INSANES, IDIOTS, IMBECILES The law assigns their domicile to them:

1.

If they are below the age of majority, the rules on minors apply to them

2.

If they are of age and have guardians, they follow the domicile of choice of their guardians

Situs or eclectic theory The capacity, 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 (situs) where an important element of the problem occurs or is situated Two kinds of participation of an individual under the situs or eclectic theory

1.

If participation is active – When he does an act voluntarily, the governing law is the law of the actual situs of the transaction or event

2.

If the participation is passive – When the effects of the act are set forth or determined by law, the governing law is the law of the legal situs, situs, i.e., the domicile of the individual concerned Chapter 10 The problem of the “renvoi”

Renvoi  A French word which means “refer back” or “return”  In Anglo-American countries, the term used is “remission,” which means to refer a matter for consideration or judgment

3.

If they are of age and have no guardian guar dians s, their thei r constructive domicile is their domicile of choice before they became insane MARRIED WOMEN 1. The con const stru ruct ctiv ive e domicile of the wife is the domicile of both spouses, unless the law allows the wife to have a separate domicile for valid and compelling If the marriage is valid reasons 2. If there here is legal gal separation between the spouses, the wife can have her own domicile of choice 3. If there is a separation de facto, the wife can also have a separate domicile Apply the same rules when If the marriage is the marriage is valid. voidable However, after annulment, the wife can freely select her own domicile of choice If the marriage is void The wife can have a domicile separate from the husband OTHER PERSONS Convict or prisoner His domicile is the one he had possessed prior to his incarceration Soldiers Their domicile is their domicile before their enlistment


Their domicile is the one they had before they were assigned elsewhere, unless they voluntarily adopt their place of employment as their permanent residence

When does the problem of renvoi arise? The problem of renvoi arises when there is doubt as to whether the reference by the lex fori (the law of the country where the problem arises) to the foreign law involves: 1. A referen reference ce to the internal internal law law of the foreign foreign law law or 2. A referen reference ce to to the the entiret entirety y of the foreign foreign law law including its conflicts rules  In such case, if the first state follows the nationality theory, and the second state follows the domiciliary theory, the problem of renvoi will most probably arise Four solutions the court can adopt when confronted with a renvoi problem 1. Reje Reject ct the the ren renvo voii This means that the court does not want  the problem to be sent back to us. As in the case of the testate or intestate  succession of a foreigner but domiciled in our country, we would simply apply his national law or the internal law of his country 2. Acce Accept pt the the ren renvo voii Accept the referral or transmission of the  case back to us, so that instead of applying the foreign internal law, Philippine law is applied  Single renvoi or single transmission

3.

Follow the theory of desistment or the mutual disclaimer of jurisdiction theory Page 8 of 22

Conflict of Laws 



4.

Comprehensive reviewer of Sempio-Diy book Refrain from applying the national law of the deceased foreigner, although our law tells us to do so. If said law follows the domiciliary theory and directs that we apply the law of the domicile of the deceased, so in the end, we still apply Philippine law

Apply the foreign court theory We would simply do what the foreign  court would do if confronted with the same case  Advantage of this theory is that regardless of the forum, the applicable law will be the same Can also result in international international ping pong 

Double renvoi This occurs when the local court, in adopting the foreign court theory, discovers that the foreign court accepts the “renvoi.” But since since the foreign law remits the case to Philippine law, being the law of the deceased’s domicile, the foreign court may discover that Philippine law does not accept the remission (as it applies the national law of the deceased) so the foreign court, sitting as a Philippine court, would still apply its own internal law. This is then what our court will apply. Theory of transmission v. renvoi Theory of of tr transmission Renvoi Transmission is the process Renvoi means to refer a of applying the law of a matter for consideration or foreign state thru the law of judgment a second foreign state Transmission involves three Renvoi involves two laws laws Chapter 11 Conflict rules on status and capacity

Note: Note: In Conflict of Laws, personal law determines the beginning of one’s personality. Civil personality, when extinguished Art. 42 of the NCC: NCC: Civil personality is extinguished by death

 Refers to physical death not civil death 

Absence, defined A special legal status pertaining to a person who has disappeared from his domicile, his whereabouts being unknown, without leaving an agent to administer his property or even if he had left an agent, the power conferred by the absentee on the agent has expired  One status of being absent is determined in accordance with his personal law  Our own courts also have jurisdiction to declare an alien domiciliary in the Philippines as absent Judicial declaration of absence under Philippine law After the lapse of two of two years without any news about the absentee or since the receipt of the last news, and five years if the absentee has left an administrator of his property, his absence may be declared Instances when an absentee may be presumed dead and for what purposes

1.

For purposes of remarriage remarriage – the absentee may be presumed dead after four years of absence, the present spouses having a well-founded belief that the absentee is already dead  However, in case of disappearance where there is danger of death, an absence of 2 years is enough

2.

For all other purposes EXCEPT succession – an absence of seven years, it being unknown whether or not the absentee still lives

3.

For the purpose of succession – an absence of 10 years is required, except if the absentee disappeared after the age of 75 years, in which case an absence of 5 years is enough to open his succession

When human personality begins under our law

 Art. 40, NCC: NCC: Birth determines 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

 Art. 41, NCC: NCC: For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother’s womb. However, if the fetus had an intra-uterine life of less than 7 months, it is not deemed born if it dies within 24 hours after its complete delivery from the maternal womb Personality really begins at conception, subject to the following conditions: 1. The purpos purpose e is favora favorable ble to the the fetu fetus s 2. If it is is born born alive alive unde underr Art. Art. 41 of of the the NCC NCC Two kinds of children

1.

Ordinary – With an intra uterine life of at least 7 months

2.

Extraordinary Extraord inary – With an intra-uterine intra-uter ine life of less than 7 months, in which case it must live for at least 24 hours after complete delivery from the mother’s womb


A declaration of death in accordance with one’s personal law (whether his national law or the law of his domicile) by a court of competent jurisdict jurisdiction ion is considered valid for all purposes

What determines the age of majority in Conflict of Laws? It is the personal law of the person that determines whether he has reached the age of majority or not. Our conflicts rules on capacity to contract A person’s capacity to contract is governed by his personal law, whether it is the lex nationalii or the lex domicilii EX: Contracts involving real or personal property in  EX: which cases the lex situs or lex rei sitae applies including the capacity of the contracting parties Note: Note: It is suggested that Article 15 of the CC applying the nationality theory be limited to strictly family and domestic transactions, while the law governing the contract should govern ordinary day-to-day business contracts.

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Conflict of Laws Change of names and surnames A change of name is a special proceeding to establish the status of a person involving his relation with others. Aliens can ask for change of name in the Philippines, provided they are domiciled here.  But an alien whose citizenship is either controverted or doubtful cannot ask for a change of name Legislative jurisdiction vs. judicial jurisdiction over one’s status Legi Legisl slat ativ ive e juri jurisd sdic icti tion on Judi Judici cial al juri jurisd sdic icti tion on Legislative jurisdiction over Judicial jurisdiction over one’s status is the power of one’s status is the power of his personal law to govern the courts to decide his status wherever he goes questions or controversies concerning one’s status Note: Note: Thus, our courts can decide cases involving the status and capacity of foreigners brought before them, but in doing so, our courts will apply the personal law of the foreigner, whether whether it be his national law or the law of his domicile, depending on what theory the country of his citizenship follows.

 Example: Example : Even if the personal law of the foreigner allows divorce, he cannot apply for divorce from his spouse before a Philippine court because we do not recognize divorce and our courts have no jurisdiction to grant grant divorces. However, However, a foreigner who applies for legal separation in our country on a ground available under his national law but not under our law, may obtain a favorable judgment from our courts, because it is his national law on legal separation that our courts will apply, but subject to our procedural law. Chapter 12 Conflicts rules on marriage

Comprehensive reviewer of Sempio-Diy book Common law marriages of foreigners As to common law marriages of foreigners who come to the Philippines as husband and wife, it would seem that we should consider the marriage valid if valid under their national law or the law of the place where the relationship began. But the marriage must not be contra bonos mores or universally considered incestuous Foreign marriages of Filipinos GR : Under Art. 26 of the Family Code, all marriages 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.  In other words, we follow the rule of lex loci celebrationis EX: EX: A foreign marriage of Filipinos in a foreign country will still be void in the Philippines if: 1. Either Either or both parties parties did not not have have legal legal capacity capacity to get married (Art. 35 (1)) 2. The marr marriag iage e is immor immoral al for for being being bigam bigamous ous or or polygamous (Art. 35 (4)) 3. Consent Consent of one one party party is is lacking, lacking, because because of of mistake mistake as to the identity of the other (Art. 35 (5)) 4. One of the the parti parties es was was psych psycholo ologic gicall ally y incapacitated at the time of the marriage to comply with the essential marital obligations (Art. 36) 5. The marria marriage ge is is inces incestu tuous ous (Art. (Art. 37) 37) 6. The marr marriag iage e is void void by reaso reason n of publi public c policy policy (Art. 38) Note: Note: Consular marriages of Filipinos abroad are valid (Art. 10, Family Code) Conflicts rules on marriages between between foreigners solemnized abroad

1.

We still apply the rule of lex loci celebrationis, but not the exceptions in the first par. of Art. 26 of the Family Code which apply only to Filipinos  But universally considered incestuous marriages and marriages that are highly immoral are excepted

2.

Proxy marriages – Not allowed under Philippine Philippi ne internal law

Philippine internal law on the formal validity of marriages or the validity of marriage as a contract

1.

2.

Essential requisites (1) Legal Legal capacity capacity of the contrac contracting ting parties parties who must be male and female (2) Consent Consent freely freely given given in the the presence presence of a solemnizing officer Formal requisites (1) Authority Authority of the the solemnizi solemnizing ng officer officer (2) A valid valid marriag marriage e license license (3) A marriage marriage ceremon ceremony y takes place place with with the the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age

Note: Note: The above formal requisites apply to foreigners who get married in the Philippines. If one or both of the parties are foreigners, the foreigner must submit a certificate of legal capacity to contract marriage issued by the diplomatic or consular officials of his/her country in the Philippines before he/she can be issued a marriage license. Stateless persons or refugees need only to submit an affidavit stating the circumstances showing such capacity to contract marriage


 Rule in the US – if permitted by the law of the place where the proxy participates in the marriage ceremony, proxy marriages are entitled to recognition insofar as the formal validity of the marriage is concerned

3.

Marriages Marriage s on board a vessel on the high seas – Since the country whose flag the ship is flying has jurisdiction over the the ship, the rule is that compliance with the law of the said country is required for the marriage to be valid

4.

If the parties or at least the husband is a Muslim – it is believed that we would recognize up to four marriages of the same husband (Philippine Muslim Code on Personal Laws)

Mixed Marriages Marriage between a Filipino and foreigner ABROAD

If the marriage is valid under the law of one of the spouses while void under the law of the other, we should uphold the validity of the Page 10 of 22

Conflict of Laws

Marriage between a Filipino and a foreigner in the PHILIPPINES

Comprehensive reviewer of Sempio-Diy book marriage, unless the marriage is universally incestuous or highly immoral (the same rule as to foreigners who get married abroad) The national law of the Filipino – Philippine law should be followed – otherwise our public policy would be violated

Conflict rules on the law governing personal personal relations of spouses who change nationalities General Rules

1.

If the spouses have the same nationality but they acquire a new nationality by their common act – their new national law will govern their personal relations

2.

If the husband alone changes his nationality after the marriage – the law of the last common nationality of the spouses would govern

3.

If the spouses retain their different nationalities after the marriage – National law of both spouses should govern

Two aspects of marriage as a status 1. Aspect Aspect of persona personall rights rights and obligati obligations ons of the spouses Purely personal and are not ordinarily  interfered with by the courts

2.

Aspec Aspectt of thei theirr prope property rty rela relatio tions ns The law lays down rules and judicial  sanctions as they may affect public interest

Law governing personal relations of spouses in Conflict of Laws

1.

Countries that follow the nationality theory (e.g. Philippines) – apply the spouses’ national law in determining their personal relations with each other

2.

Countries that follow the domiciliary theory – the personal relations of the spouses are governed by the law of their domicile

Spouses of different nationalities: law governing their personal relations GR : The personal relations of the spouses are governed by the national law of the husband Alien woman who marries a Filipino husband

A Filipina who marries an alien husband

Ipso facto becomes a Filipino citizen if she does not suffer under any disqualification for naturalization as a Filipino citizen Personal relations: relations: national law of the husband shall govern (GR) Constitution provides that she “shall retain her Philippine citizenship, unless by her act or omission, she is deemed, under our law, to have renounced her citizenship” Personal relations: relations: Art. 80 of the Family Code provides that the national law of the wife or Philippine law would govern the spouses’ personal relations (rule was intended to protect the Filipino wife)

solution: apply the national  RE: 3 Better solution: law of the husband at the time of the marriage EXCEPTIONS 1. If the the nationa nationall law of the the husband husband violates violates public public policy of the forum 2. The nati national onal law law of the the wife wife happe happens ns to be the the law of the forum

Conflicts rules on the property relations of husband and wife GR : Property relations of the spouses are governed by Philippine law, regardless of the place of the celebration of marriage and their residence (nationality theory) If one spouse is a Filipino (wife or husband) and  the other is an alien, Philippine law would still govern EX: 1. 2.

If both both spouse spouses s are aliens aliens – general general rule rule in Conflict Conflict of Laws will apply With respect respect to extrin extrinsic sic validi validity ty of contracts contracts affecting real property – the lex situs will govern the formalities to be observed for the contract’s validity

Doctrine of immutability of matrimonial (property) regime of the spouses Regardless of the change of nationality by the husband or the wife or both, the original property regime that prevailed at the start of their marriage prevails Immutability of the property regime v. immutability of the law governing the property regime Immutability of the Immutability of the law property regime governing the property regime A subsequent change of The law that creates and nationality by the husband governs the property regime or wife or both does NOT may change change the original property regime Annulment v. Declaration of nullity of marriage Annulment Declaration of nullity Remedy if the marriage is Remedy if the marriage is voidable or annullable (valid void ab initio until annulled) Voidable v. void marriage – legal effects Voidable marriage Void marriage It can be convalidated either It cannot be convalidated by free cohabitation or


Page 11 of 22

Conflict of Laws prescription The same property regime as in a valid marriage is established between the spouses The children are legitimate if conceived before the decree of annulment

Comprehensive reviewer of Sempio-Diy book 3. The only property relationship between the parties is a co-ownership The children are illegitimate, except children of void marriages under Art. 36 and 53 of FC Art. 36 – children born under marriage that is void on the ground of psy. Incapacity

The marriage cannot be attacked collaterally The marriage can no longer be impugned after the death of the spouses

Art. 53 – children born of the first marriage of parties before said first marriage had been annulled or declared void, and those who marry a second time without delivering the presumptive legitime of the children of their first marriage The marriage may be attacked directly or collaterally The marriage can still be impugned even after the death of the spouses

Conflicts rules on annulment and declaration of nullity of marriage 1. In Confli Conflict ct of Laws, the grounds grounds for for annulm annulment ent of marriage and for declaration of nullity of marriage are the grounds provided for by the law alleged to have been violated  lex loci celebrationis or the law of the place where the marriage was celebrated Reason: Reason : Considering that it is the lex loci  celebrationis that is usually applied to determine whether whether a marriage is valid or not, it is the same law that also determines whether whether a marriage is voidable or void 2. As for for decla declarati ration on of nullity nullity of of marriag marriage e betwee between n two Filipinos abroad, the grounds are the exceptions to the lex loci celebrationis in Article 26 of the Family Code: (1) Either or both parties did not have legal capacity to get married (Art. 35 (1)) (2) The marriage is immoral for being bigamous or polygamous (Art. 35 (4)) (3) Consent of one party is lacking, because of mistake as to the identity of the other (Art. 35 (5)) (4) One of the parties was psychologically incapacitated at the time of the marriage to comply with the essential marital obligations (Art. 36) (5) The marriage is incestuous (Art. 37) (6) The marriage is void by reason of public policy (Art. 38)


4.

As to fore foreign igners ers who who get get marrie married d abroad abroad – the the exceptions to the lex loci celebrationis would be the same as those in marriages as a contract: (1) Marriages that are highly immoral (2) Universally incestuous marriages Consular Consular marriages marriages – either either the national national law law or the law of the domicile of the parties applies

Courts that have jurisdiction over cases for annulment or declaration of nullity of marriage 1. In the the Philippi Philippines nes – since since we follow follow the the nation nationalit ality y theory, our courts have jurisdiction  Citizens and domiciliaries can file in the Philippines, even if the defendant is a nonresident 2. In other other countr countries ies – it is usually usually the courts of the parties’ domicile who have jurisdiction over such cases since that is the place which has the greatest interest in the domestic relations of the spouses Rules on the validity of foreign divorces by foreigners abroad 1. Hague Hague Conven Convention tion state states s that that a foreign foreign divorce divorce will will be recognized in the contracting states if, at the date of the filing of the proceedings: (1) The pe petitioner or or re respondent had his or her habitual residence in the state where the divorce was obtained (2) If both spouses were nationals of said state (3) Although the petitioner was a national of another country, he or she had his or her residence in the place where the divorce was obtained 2. In the the US, US, a state state has a duty to recogni recognize ze a divorce divorce obtained in a sister state if the spouses were domiciled in the latter state 3. A divorce divorce obtained obtained in a foreign foreign country country would would be recognized under the same circumstances that a divorce obtained from a sister state is given recognition 4. in the the Philipp Philippines ines,, if both both spouses spouses are are aliens, aliens, we recognize a decree of divorce obtained by them abroad if valid under their national law 5. If one one of the spouses spouses is a Filipino Filipino and the other other an alien, we also recognize the divorce obtained by the alien spouse abroad Legal separation v. divorce Legal separation Relative divorce, only a separation from bed and board but the parties remain married

Divorce Absolute divorce, dissolves the marriage and the parties can marry again

Legal separation v. annulment of marriage Legal separation Annulment Marr Marria iage ge is not not defect fectiv ive e Marr Marria iage ge is de defec fective tive Grounds arise after the Grounds must exist at the marriage time of or before the celebration of the marriage Parties are still married to Marriage is set aside each other Grounds are those given by Grounds are those given by the national law or the the lex loci celebrationis domiciliary law – question is subject to certain exceptions one of status – questions the very Page 12 of 22

Conflict of Laws

Comprehensive reviewer of Sempio-Diy book existence of status

Conflict rules on legal separation 1. If the the parties parties are of the same nationali nationality ty – grounds grounds for legal separation are those given by their personal law (national law or domiciliary law) 2. If the the parties parties are of differe different nt nati nationali onalities ties – grounds for legal separation are those under both the personal law of the husband and wife Courts that may grant legal separation 1. Jurisdict Jurisdiction ion in the case of alien aliens s is not not assume assumed d by the forum unless the national law of the parties is willing to recognize its jurisdiction 2. In the the Philip Philippine pines, s, foreig foreigners ners may ask for legal legal separation here, even if they did not get married in this country. What is important is that the court has jurisdiction over both parties 3. Most countries countries assume assume jurisdict jurisdiction ion over over case for legal separation on the basis of the domicile of one of the parties or the matrimonial domicile Note: Note: It is NOT necessary that the cause for legal separation take place in the country for our courts to have jurisdiction over the case. Grounds for legal separation under Philippine internal law (Article 55, FC) 1. Repeated Repeated physical physical violence violence or grossl grossly y abusi abusive ve conduct against the petitioner, a common child, or a child of the petitioner 2. Physical Physical violence violence or moral moral pressure pressure to compel compel the petitioner to change religious or political affiliation 3. Attempt Attempt to corrup corruptt or induce induce the the petition petitioner, er, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement 4. Final Final judgme judgment nt sente sentencin ncing g the the respond respondent ent to imprisonment of more than 6 years, even if pardoned 5. Drug Drug addict addiction ion or or habitu habitual al alcoh alcoholi olism sm of the the respondent 6. Contract Contracting ing by the the responden respondentt of a subseq subsequent uent bigamous marriage, whether in the Philippines or abroad 7. Lesbianis Lesbianism m or homosexua homosexuality lity of the the responden respondentt 8. Sexual Sexual infide infidelit lity y or or perv pervers ersion ion 9. Attempt Attempt by the the respond respondent ent against against the the life life of of the the petitioner 10. Abandonment Abandonment of petitioner by respondent respondent without without justifiable cause cause for more than than one year Defenses to legal separation under Philippine internal law (Article 56, FC) 1. Condonat Condonation ion of of the the offens offense e or the act complaine complained d of 2. Consent Consent of the the aggrie aggrieved ved party party to the the commis commission sion of the act or offense complained of 3. Connivan Connivance ce betwee between n the the parties parties in the the commi commission ssion of the offense or act constituting the ground for legal separation 4. Where Where both both parties parties have given given ground ground for legal separation 5. Collusion Collusion between between the parties parties to obtain obtain legal legal separation 6. Presc rescri ript ptiion


Note: Note: The prescriptive period for filing of an action for legal separation in the Philippines is 5 years from the time of the occurrence of the case (Art. 57, FC) Chapter 13 Status of Children Conflict rules in determining legitimacy of children 1. If the the parent parents s are of the the same same natio nationali nality ty – their their common personal law (national law or law of domicile) will be applied 2. If the the parent parents s are of differ different ent natio nationalit nalities ies – personal law of the father governs Legitimate and illegitimate children under Philippine internal law 1. Legitima Legitimate te child children ren – children children conce conceived ived or born born during the marriage of the parents 2. Illegitim Illegitimate ate childr children en – children children concei conceived ved and and born born outside a valid marriage EX: EX: Children born of void marriages under  Article 36 (psychological incapacity) and Article 53 (those born of the first marriage of parties before said first marriage had been annulled or declared void, and who marry a second time without delivering the presumptive legitime of the children of their first marriage are considered LEGITIMATE CHILDREN

Law governing the rights and duties between parent and child 1. If the the child is legit legitimat imate e – either either the the common common personal law of the parents or the personal law of the father if the parents are of different nationalities governs 2. If the the child child is illegi illegitimat timate e – The The persona personall law of of the mother is decisive, UNLESS the child is subsequently subsequently recognized by the father, in which case the rules on legitimate children will be applied Doctrine of immutability of status The status of a child (whether legitimate legitimate or illegitimate) is not affected by a subsequent change of nationality of the parents But the rights an duties of parent and child would  after the parents’ change of nationality, be governed by the new national law of the parents Legitimation, defined A process whereby children who in fact were not born in lawful wedlock and should therefore be ordinarily considered illegitimate children are by fiction of law and upon compliance with certain legal requirements, regarded by law as “legitimate,” it being supposed that they were born after their parents had already been validly married. Conflicts rules on legitimation of children 1. The requisite requisites s of legitima legitimation tion are generally generally considered those prescribed by the national law of the parents, and if the latter have different national laws, the national law of the father 2. In countr countries ies following following the domiciliary domiciliary theory, theory, law law of the domicile of the parents, or in proper cases, the law of the domicile of the father should govern

Page 13 of 22

Conflict of Laws Philippine internal law on legitimation of children (Articles 177-182, FC) Requisites for legitimated children 1. The child child was was concei conceived ved AND born outside outside lawfu lawfull wedlock 2. The parents parents at the the time time of the the child’ child’s s concepti conception, on, were not disqualified by any impediment to marry each other Note: Note: Legitimation creates a permanent (immutable) (immutable) status of the child Adoption An act, which establishes a relationship of paternity and filiation and in so doing, endows the child with legitimate status Law which determines whether the relationship of adoption has been created or not 1. The The chi child ld’s ’s per perso sona nall law law 2. If the the child child does does not not reside reside in the the count country ry of his citizenship – the personal law of the adopter will govern, or the personal law of the adopter and that of the child will be applied concurrently Law which determines the legal effects of adoption The legal effects of adoption are determined by the same law that created the relationship of adoption

Adoption by aliens in the Philippines Under RA 8552 or the Domestic Adoption Act of 1998, aliens (who are not even former Filipino citizens) can adopt in our country, provided: 1. The have the same qualifica qualifications tions as those those required required of Filipino citizens 2. Their Their countri countries es have have diplom diplomatic atic relations relations with our country 3. They have been living living in the the Philip Philippines pines for at at least least 3 years prior to the filing of the petition for adoption, and maintain such residence until the adoption decree is entered 4. The have been certified certified by their their diplomati diplomatic c or consular offices or by any appropriate government agency that they have the legal capacity to adopt in their own countries and 5. Their Their governme government nt allows allows the adopted adopted child to enter enter their own country as their adopted child Special aliens who can adopt under RA 8552 1. A former former Fili Filipin pino o citize citizen n who seek seeks s to adopt adopt a relative within the 4 th degree of consanguinity or affinity 2. One who who seeks seeks to to adopt adopt the the legiti legitima mate te son son or daughter of his or her Filipino spouse 3. One who is married married to a Filipino Filipino citize citizen n and seeks seeks to adopt jointly with his or her spouse a relative within the 4 th degree of consanguinity or affinity of the Filipino spouse  These aliens need not comply with the residency in the Philippines and they also need not submit a certification that they have the capacity to adopt from the diplomatic or consular office of their country in the Philippines or any other government agency


Comprehensive reviewer of Sempio-Diy book Note: Note: RA 8552 still requires that the (alien) husband and wife must jointly adopt. However in cases where the spouses are legally separated, the husband or the wife can adopt alone, and the consent of the other spouse to an adoption filed by one spouse is not necessary Nature of adoption in Philippine law 1. Adoption Adoption proceedin proceedings gs are are alwa always ys judicia judiciall an din rem, i.e., publication is required 2. A mere mere agreem agreemen entt of adopt adoption ion betw betwee een n the adopters and the parents of the child is not a valid adoption, nor the fact that the child had been adopted de facto (ampon) by the alleged adopting parents 3. Neither Neither is is mere registrat registration ion of the child child in in the civil registry as the child of the adopter a valid adoption. This even amounts to the crime of simulation of birth 4. The capa capacit city y and righ rightt of the the adopte adopterr to file file a petition for adoption are governed by the law in force at the time the petition is filed , and cannot be impaired by a new law disqualifying him or her for adoption Recognition of a foreign decree of adoption While there is no provision of law nor jurisprudence expressly requiring the Philippines to recognize a foreign decree of adoption, it is believed that under Sec. 48 of Rule 39 of the Rules on Civil Procedure, we can recognize such foreign decree of adoption provided the foreign court had jurisdiction to render render said decree, and that there there is no want want of notice, collusion, extrinsic fraud, or clear mistake of law or fact leading to the foreign decree of adoption Does adoption confer on the adopted child the citizenship of the adopter? No. Adoption does not confer on the adopted child the citizenship of the adopter. Adoption is a matter political and not civil in nature, and the ways in which it should be conferred are outside the ambit of the Civil Code. Chapter 14 Wills, succession, and administration of the estate of deceased persons Two theories or systems in determining the proper law for the transmissions of successional rights 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 the lex situs, while succession to movable or personal property is governed by the law of the domicile of the deceased at the time of his death Note: Note: In the Philippines, we follow the unitary or single system, in that Article 16 of the NCC applies the national law of the deceased, whatever may be the nature of the property and regardless of the country where the property is found Extrinsic v. intrinsic validity of wills Extrinsic va validity Intrinsic va validity Forms and solemnities of Substance of wills wills Deals with the forms and Concerns itself with: solemnities in the making of 1. Orde Orderr of succ succes essi sion on

Page 14 of 22

Conflict of Laws wills which include: 1. Age and testamentary capacity of the testator 2. Form Form of th the wil willl (notarial or holographic) etc

Comprehensive reviewer of Sempio-Diy book 2.

Amount of of successional rights, and other matters of substance

Conflicts rules in the Philippines on extrinsic validity of wills 1. If a Filipino Filipino makes makes a will will abroad abroad - he may comply comply with the formalities of Philippine law (lex nationalii) or the lex loci celebrationis (the law of the place where he was at the time of the execution of the will) – Art. 815, NCC 2. If an alien alien makes makes a will abroad abroad - he he may may comply comply with the formalities of his lex nationalii (law of the country of which he is a citizen, the lex domicilii (law of his domicile0, or the lex loci celebrationis 3. If an alien alien makes makes a will in the the Phili Philippine ppines s – he he may may comply with the formalities of his own country (lex nationalii) or of Philippine law (lex loci celebrationis) 4. Holographi Holographic c wills wills – must be entire entirely ly writte written, n, dated, dated, and signed by the hand of the testator. It is subject to no other form and may be made in or out of the Philippines and need not be witnessed (Art. 810, NCC) Conflicts rules on joint wills 1. Filipinos Filipinos canno cannott make make joint joint wills wills wheth whether er he he or or abroad 2. Joint wills made by alien aliens s shall shall be considered considered valid valid in the Philippines if valid according to their lex nationalii or lex domicilii or if valid under lex loci celebrationis 3. Joint wills made by alien aliens s in the Philippin Philippines es are are void even if valid under their lex nationalii or lex domicilii in order that our public policy on joint wills may not be militated against 4. A joint joint will will execu executed ted by by an alien alien and and a Filip Filipino ino citizen abroad will be valid even as to the alien (if his national law or law of his domicile or lex loci celebrationis allows it) but void as to the Filipino Conflicts rules on intrinsic validity of wills 1. lex nati nationa onalii lii – in in countr countries ies tha thatt follow follow the the nationality theory 2. lex domi domicil cilii ii – in coun countri tries es that that follo follow w the domiciliary theory What governs the intrinsic validity of wills in the Philippines The NCC applies the lex nationalii of the decedent Note: in case of conflict between the nationality  theory and the domiciliary theory, we can treat the case as one of “renvoi” so that we can still apply Philippine law even if the deceased was a citizen of another country

Conflicts rules if a person dies intestate 1. In civil civil law law countri countries es – the national national law of of the the decased applies 2. In common common law countr countries ies – the the lex lex domicilii domicilii of of the deceased at the time of death applies with respect to personalty, while the lex situs applies with respect to real property Lesley Claudio (A 2012)

Conflicts rules on revocation of wills 1. Under Under Art. Art. 829 829 of the the NCC, NCC, a revoc revocati ation on done done outside the Philippines by a person who does not have his domicile here is valid if done according to: (1) The law law of the place place where where the the will was was made (lex loci celecbrationis) or (2) The law law of his domicil domicile e at the the time of revocation (lex domicilii) Note: ignores the law of the place of revocation 2. If the the revocat revocation ion is done in the the Philip Philippine pines, s, it is valid if made in accordance with the provisions of our CC 3. If the the revocat revocation ion is done outside outside the the Phili Philippine ppines s by a person who is domiciled here, it is valid if made in accordance with our law (lex domicilii) or lex loci actus of the revocation (the place where the revocation was made) Probate, defined Probate is the process of proving before a competent court the due execution of a will, that the testator was possessed of testamentary capacity, and the approval by said court of the will Conflict rules on probate of wills 1. The allowa allowance nce of of disall disallowa owance nce of of a will will is essentially procedural, so that the law of the forum applies to all procedural matters 2. Art. 838, 1st par: par: “now will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court” 3. There There is no period period of prescript prescription ion for for the the probat probate e of a will 4. Wills Wills proved proved and and allow allowed ed in a forei foreign gn countr country y according to the laws of each country may be allowed, filed, and recorded by the proper court in the Philippines 5. Although Although a foreign foreign will had had alread already y been been probat probated ed in a foreign country, it still has to be reprobated in the Philippines in accordance with our procedural law  it is sufficient to ask for the enforcement of the foreign judgment of the probate abroad 6. The evid evidenc ence e necess necessary ary for for the the proba probate te or allowance of wills which have been probated outside the Philippines are: (1) The due due execut execution ion of the will in accordance with the foreign law because we cannot take judicial notice of foreign laws (2) The testat testator or had his his domicile domicile in in the foreign country where the will was probated (3) The will will had been been admitted admitted to to probate probate in said country (4) The foreign foreign tribun tribunal al is a probate probate court court (5) The laws laws of the the foreign foreign countr country y on procedure and allowance of wills were followed Administration of estate of deceased persons Administration is 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 Conflicts rules on administration of estate of deceased by persons Page 15 of 22

Conflict of Laws 1.

2.


Administr Administration ation is proced procedural ural in nature. nature. It is the lex fori that governs not the law that determines how the estate of the deceased is to be distributed In charge charge of the the admini administrat stration ion is is the executor executor or an administrator with a will annexed or an administrator Executor

Appointed by testator in his will

Administrator with a will annexed Appointed by the court if there is a will but no executed is designated therein

Administrator

Appointed by the court if there is no will

3.

The executor executor is qualifi qualified, ed, and and the the admin administra istrator tor of the estate is appointed, by the court of the country where the deceased was domiciled at the time of his death, or if he was a non-domiciliary, the country where his properties are found 4. The rights, rights, powers powers,, and and duties duties of the the execu executor tor or administrator are coextensive with the territorial jurisdiction of the the court that qualified qualified or appointed appointed him 5. Principal Principal domiciliar domiciliary y adminis administrati tration on v. v. ancill ancillary ary administration Principal domiciliary administration Administration granted in the country of the deceased’s last domicile

6.

Ancillary administration Administration Administration in other countries where the deceased also left properties

The domicilia domiciliary ry admini administrat strator or of the estate estate of of a deceased American citizen in the US has no power over and is not entitled to the possession of the stock certificates of shares of stock by the deceased in a Philippine corporation, which certificates must be delivered to the ancillary administrator

Caduciary rights of state in Conflict of Laws There are two theories adopted by different states so that they may claim the properties left by a deceased who left no heirs and no will: 1. Some Some countr countries ies adop adoptt the the theory ory that that such such properties have become ownerless (bona vacantia) hence they should revert to the State where they are situated by escheat  properties pass to the State as an incident of sovereignty, not as an heir 2. In the the Philip Philippine pines s and some civil civil law countrie countries s– the theory adopted is that the State is the last heir of a deceased person. Hence, the State succeeds to the properties left by said deceased as an heir.

Chapter 15 PROPERTY Conflict rules on real property and personal property GR : lex situs/ lex re sitae  law of the place where the property is located


Old rule on law on personal property/movables Mobilia sequuntur personam Personal effects or belongings of owner carried with him wherever he went.  Given artificial status since did not have fixed status – personal law of the owner Philippine rule on personal properties properties Art. 15 of the CC  real property as well as personal property is subject to the law of the country where it is situated Matters governed by lex situs with respect to real property 1. Extr Extrin insi sic c vali validi dity ty 2. Intr Intrin insi sic c vali validi dity ty 3. Capaci Capacity ty of of cont contrac ractin ting g parti parties es 4. Interp Interpret retati ation on of docum documen ents ts 5. Effe Effect cts s of owne owners rshi hip p 6. Co-ow o-own nershi rship p 7. Accession 8. Usufruct 9. Lease 10. 10. Ease Easeme ment nt 11. Quieti Quieting ng of titl title e 12. Regis Registra tratio tion n 13. Prescr Prescript iption ion 14. Police Police power power 15. Eminen Eminentt domai domain n 16. 16. Taxa Taxati tion on Exceptions to the rule on lex situs with respect to real properties 1. Succession  governed by national law (in Philippines) not lex situs 2. Contract Contracts s involvi involving ng real real proper property ty but but do do not not deal deal with title or real rights over the property, the issue being the contractual rights and liabilities of parties  governed by the proper law of the contract (lex loci voluntatis or lex loci intentionis) 3. In cont contrac racts ts where where real real prop propert erty y is given given as as security by way of mortgage to secure a principle contract (i.e. loan)  loan is governed by the proper law of the contract which the mortgage is governed by the lex situs 4. While While the validity validity of of the the transf transfer er of land must be determined by the lex situs, the validity of the contract to transfer is determined by the proper law of the contract Rules in giving constructive situs to choses in possession that are usually in motion VESSELS Public vessel Law of the flag Private or commercial Law of the country or vessel place of registry If vessel is docked at a Said port is deemed as its foreign port temporary situs GOODS IN TRANSIT As to liability for loss, Law of destination (Art. destruction, or 1734, CC) deterioration of goods in transit The validity and effect Law of the place where of seizure of goods in the goods were seized transit (temporary situs) Disposition or Proper law of the contract alienation of goods in (lex loci voluntatis or lex

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Conflict of Laws transit

Comprehensive reviewer of Sempio-Diy book loci intentionis)

Rules in giving constructive situs to intangible personal properties or choses in action CREDITS OR DEBTS Involuntary transfer of The situs of the place assignment of a debt where the debtor may be (garnishment) served (usually his domicile) The proper law of the contract (the proper law of the original transaction out of which the chose in action or credit arose)

Voluntary assignment or transfer of credit

Situs of a debt for taxation purposes Administering debts

Other theories: 1. The la law of of th the place where the assignment is executed 2. The la law of of th the place where performance or payment is normally expected 3. The The nati nation onal al law law of the parties Domicile of creditor

Situs is the place where the assets of the debtor are situated NEGOTIABLE INSTRUMENTS The law that Law governing rights determines whether embodied in the the instrument is instrument negotiable or not Note: American Restatement claims that the situs is the place where the instrument was executed The law that The law of the situs of the determines the validity instrument at the time of of the transfer, transfer, delivery, or delivery, or negotiation negotiation of the negotiable instrument SHARES OF STOCKS OF CORPORATIONS Sale of shares of stocks Law of the place of incorporation since transfer is recorded in the books of the corporation Sale of corporate Governed by the proper shares as between the law of the contract (lex parties loci voluntatis or lex loci intentionis) Taxation on dividends Law of the place of received by corporate incorporation shares FRANCHISES Franchises Law of the state that - special privileges granted them conferred by the government on an individual or corporation Goodwill of a business Lesley Claudio (A 2012)

Goodwill of business -Art. 521, NCC: property and may be transferred together with the right to use the name under which the business is conducted

Good will of business and taxation thereon are governed by the law of the place where the business is carried on

“Goodwill” -The patronage of any established trade or business Patents, copyrights, trademarks, trade names, and service marks Patents, copyrights, GR : in the absence of a trade marks, trade treaty, protected only by names the state that granted or recognized them Art. 520, NCC: NCC: a trade mark or a trade name duly registered in the proper government bureau or office is owned by and pertains to the person, corporation, or firm registering the same, subject to the provisions of special laws Intellectual property Code: Code: Any foreign corporation being a national or domiciliary o a country which is a party to a convention, treaty, or agreement related to intellectual property rights to which the Philippines is also a party or which extends reciprocal rights to our nationals by law, “shall be entitled entitled to the benefits to the extent necessary to give effect to any provision of such convention.” - Foreign corporation even if not engaged in business in the Philippines may nevertheless nevertheless bring a civil or administrative action, for opposition, cancellation, cancellation, infringement, or unfair competition.

Chapter 16 CONTRACTS Contract, defined Art. 1305, NCC: Meeting of minds between two persons whereby one binds himself, with respect to the other, to give something or to render some service. ♥ The specific subject of contract in Conflict of Laws is limited to purely civil or commercial transactions. transactions.

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Conflict of Laws Conflicts rules in determining determining extrinsic validity validity of contracts GR : the extrinsic validity of contracts is governed by the lex loci celebrationis/ lex loci contractus Variations to the rule of lex loci intentions in determining extrinsic validity of contracts 1. A contra contract ct entere entered d into into by parties parties in in two different different countries by cablegram, telex, or fax ♥ Art. 1319 par. 2: Acceptance made by letter or telegram does not bind the offeror except from the time it came to his knowledge. The contract in such a case is presumed to have been entered in the place where the offer was made ♥ American law: contract is deemed entered into in the place where the acceptance of the offer is posted or mailed 2. Place Place of executio execution n was was merely merely casua casuall or accide accidental ntal ♥ The law which has the most significant relationship to the transaction should be applied 3. (EX) When the lex loci contractus/lex contractus/lex loci celebrationis contravenes an established and important policy of the forum, or to apply it would work gross injustice to the people of the forum, or if the transaction is contra bonos mores Conflict rules in determining capacity of parties to a contract GR : Capacity to enter into contracts is generally governed by the personal law of the parties ♥ In Phil., Art. 15 NCC: Capacity of a Filipino is governed by Philippine law (nationality theory)

Comprehensive reviewer of Sempio-Diy book Limitations to the court’s choice of law in determining the intrinsic validity of contracts 1. Generally Generally,, the parties parties cannot cannot select select a law law that that has has no connection at all with the transaction 2. If the the law selected selected shoul should d change, change, it it is the the new law that should be applied ♥ EX: EX: Change of new law is so revolutionary that it could never have been contemplated by parties 3. Several Several laws laws may may be selected selected,, ea each ch of which which will will govern the different elements of the transaction 4. If under under the the selecte selected d law, law, the contract contract is is legal legal but in the place of performance, it is illegal, the selected law should prevail (valid contract) 5. Questions Questions of subst substanti antial al and and essen essential tial validity validity (void, valid, voidable) of the contracts should be governed by the proper law of the contracts ♥ Minor details: time of payment, etc. should be governed by the law of performance 6. Parties Parties cannot cannot stipulat stipulate e on the jurisdict jurisdiction ion of the courts our oust or court’s jurisdiction 7. The parties parties cannot cannot contract contract away applicabl applicable e provisions of law 8. American American law recognize recognizes s cognovit cognovit clauses clauses if the the parties were of equal bargaining power and debtor and the debtor voluntarily agreed to said clause ♥ Cognovit clauses: clauses: specify which courts would have jurisdiction in case of breach or default in payment, or it may waive debtor’s right to notice (confession of judgment)

EX: EX: Contracts involving alienation or encumbrance of property both real and personal  capacity is governed by the lex situs Conflict rules in determining intrinsic validity of contracts 1. GR : Intrinsic Validity of contracts is governed by the proper law of the contract – lex loci voluntatis or lex loci intentionis 2. Ameri American can Law Law (Secon (Second d Resta Restate temen ment): t): (1) law to be applied applied should should be be the law law chosen by the parties (2) If none, none, the law law of the state state which which has has the most significant relationship to the parties or to the transaction 3. Prof. Raleigh Raleigh Minor – advoca advocates tes applicati application on of of different laws: (1) As to the the perfection perfection of contra contract: ct: lex loci loci celebrationis (2) As to the the validity validity of the consi considerat deration ion – lex loci considerationis (3) As to question questions s of performan performance ce – lex loci loci solutionis Philippine conflict rules on intrinsic validity of contracts 1. We have have no speci specific fic provisi provision on of law applicable applicable to conflict rules on the intrinsic validity of contracts ♥ However the policy of our law is to give effect to the intention of the parties 2. We shoul should d apply apply the the proper proper law of of the contract contract (lex loci voluntatis (express) or lex loci intentionis (implied)

Extrinsic validity Barter, sale, donation Lease of property: creates real rights Lease of property: does not create real rights Pledge, chattel mortgage, real estate mortgage, antichresis Contract of loan: mutuum

Contract of loan: commodatum Lease of service, agency, guaranty, suretyship

Lex situs

Capacity of parties Lex situs

Lex situs

Lex situs

Lex situs

Lex situs

Lex loci celebrationis

Personal law of the parties

Lex voluntatis or lex loci intentionis

Lex situs

Lex situs

Lex situs


Personal law of the parties Lex stius

Lex loci voluntatis or lex loci intentionis Lex situs

Personal law of parties

Lex loci volntatis or lex loci intentionis

Lex situs


Intrinsic validity

Note: Agency Lesley Claudio (A 2012)

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Conflict of Laws


to alienate or encumber real property is governed by lex situs

♥


Personal Lex loci law of voluntatis parties Liability for loss, destruction, deterioration of goods in transit: law of destination of goods (Art. 1753, NCC) If COGSA applies, limiation on liability applies, unless the shipper declares value of goods and inserts such declaration in the bill of lading Contract of transportation or carriage (render services)

Contract for air transportation transportation (Warsaw Convention) 1. The The liabi liabilit lity y of the the airli airline ne in in case of death, injury to passengers, or loss or damage to cargo is governed by Warsaw Convention 2. If the there re was was mali malice, ce, gross gross negligence, or bad faith, or improper discrimination, carrier is liable for damages beyond those limited by Warsaw Convention

Three theories in determining locus delicti 1. Civil law theory – The locus delicti is the place where the act began 2. Common law theory – The locus delicti is the place where the wrongful act became effective 3. Theory of Dr. Rabel – The locus delicti is the place which has the most substantial connection with the wrongful act Modern theories in determining liability for torts 1. State of the most significant relationship – the rights and obligations of parties in a case of tort is determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the occurrence and the parties 2.

The interest-analysis approach – This approach considers the relevant concerns that two or more states may have in the case and their respective interests in applying their laws to it ♥ If however, the case poses a real conflict between two or more States, if the interested forum finds that he other State has a greater claim in the application of its law to a given case, the forum should yield and apply the law of the other state. ♥ If the forum is disinterested disinterested in the case, it can dismiss the same on the ground of forum non conveniens ♥ In short, the state which has the more relevant and weighty interests in the case should be considered the locus delicti

3.

Qavers principle of preference preference – Under this theory, a higher standard of conduct and financial protection given to the injured party by one state is applied by the State where the injury happened, if the latter state adopts a lower standard of conduct and financial protection to the injured

Note: if contracts involve encumbrances of property, real or personal, apply lex situs. If personal contracts, law on contracts will apply Chapter 17 TORTS Tort, defined Legal wrong committed upon person or property independent independent of contract ♥ Spanish law: quasi delict/culpa aquiliana  fault or negligence ♥ American law: broader  fault or negligence and also those committed with malice or willful intent

To compensate victim for the damage or injury suffered

Concept of tort in the Philippines Blending of both Spanish and American laws ♥ Art. 20 NCC: NCC: Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same. ♥ Art. 2176 NCC: NCC: Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

Conflict rules on maritime torts 1. If the the tort tort is committe committed d abroad abroad a public public vessel vessel,, whether on the high seas or in foreign territorial waters, the law of the flag is the lex loci delicti commissii 2. If the the tort tort is commi committ tted ed aboar aboard d a privat private e or merchant vessel on the high seas, the law of the registry is the lex loci delicti commissii 3. If two two vessels vessels collide collide and and are from the same state, state, the law of registry is the lex loci delicti commissii 4. If the the vessel vessels s come come from from differen differentt states states with identical laws, apply said identical laws 5. If the the vessel vessels s come come from from differen differentt states states with different laws, the lex loci delicti commissii is the general maritime law as understood and applied by the forum where the cas eis filed

Law governing liability for torts in Conflict of Laws Liability for torts in general is governed by the lex loci delicti commissi (law of the place where the delict or wrong was committed) ♥ State where the social disturbance occurred has the primary duty to redress the wrong and determine the effects of the injury; and

Foreign tort to be actionable/subject of an action for damages in the Philippines – Requisites/Conditions 1. Must acquire acquire jurisd jurisdicti iction on over over the the defend defendant ant (action (action for damages is action in personam) 2. Foreig Foreign n tort tort must must not be be penal penal in char charact acter er 3. The enforc enforcemen ementt of the the tortuous tortuous liability liability should should not contravene our public policy


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Conflict of Laws 4.


Our judic judicial ial machine machinery ry must must be adequate adequate for such such enforcement ♥ Note: all procedural matters are governed by the lex fori Phil law). ♥ Substantive matters are governed by the lex loci delicti commissii, thus: (1) Period Period of prescript prescription ion of of the the action is governed by lex loci delecti commissii because in Philippine law, prescription is substantive not procedural (2) Proper Proper parties parties,, measu measure re of of damages, and the question whether the acts complained of is considered the proximate cause of the injury are governed by the lex loci delicti commissii (3) The burd burden en of proo prooff and defenses that may be interposed by defendant are also governed by lex loci delicti commissii

completed in another state

Nationality or personal theory

Protective theory

Real or eclectic theory Chapter 18 CRIMES Tort v. Crime Tort

Crime Both are wrongs Violates pr private ri rights Committed ag against st state Instituted by injured person Prosecuted in the name of against wrongdoer in civil the State against the case, the purpose of which offender in criminal actions is indemnification for for the purpose which are damages suffered protection and vindication of interests of the public as a whole, punishment of the offender, the reformation of offender, or to deter others from committing the same act Transitory in character – Local in character and can tortfeasor can be made be prosecuted only in the liable for his wrongful act in place or states where the any jurisdiction where he crimes are committed may be found Note: The determination of whether a wrongful act is a tort or crime depends on the characterization of the act in the state where said act is committed Different theories that determine whether whether a state or a legal system has jurisdiction to take cognizance of criminal cases Under this theory, the state where the crime was Territorial Territorial theory committed has jurisdiction to try the case, and its penal code and the penalties described therein will apply Subjective territorial principle The state where the crime was begun may prosecute the same, even if it was


Cosmopolitan or universality theory

Passive personality or passive nationality theory

Objective territorial principle The state can prosecute crimes began abroad but completed within its territory The country of which the criminal is a citizen or subject has jurisdiction to try him for crimes allegedly committed by him, whether inside or outside its territory, provided it is a crime under said country’s penal law Any state whose national interests may be jeopardized has jurisdiction over criminal offenses, even if it is committed outside its territory and even if committed by an alien Any state whose penal code has been transgressed upon has jurisdiction, whether the crime was committed inside or outside its own territory Any state where the criminal is found or which has obtained custody over him can try him, unless extradition applies The state of which the victim is a victim or subject has jurisdiction to prosecute prosecute the offense

Note: In the Philippines, we follow as a GENERAL RULE the territorial theory, and by way o f EXCEPTION, the protective theory Cases where we follow the protective theory Art. 2, RPC: Except as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who: 1. Should Should commit commit an offen offense se while while on a Philippine Philippine ship or airship; 2. Should Should forge forge or counte counterfei rfeitt any any coin coin or currency currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands; 3. Should Should be be liable liable for for acts acts conn connect ected ed with with the the introduction into these islands of the obligations and securities mentioned in the preceding number; 4. While While being being public public officers officers or employ employees, ees, should should commit an offense in the exercise of their functions; or 5. Should Should commit commit any of the the crimes crimes against against nati national onal security and the law of nations Jurisdiction over crimes committed on board a foreign vessel if said vessel is within territorial waters English Rule French Rule Emphasizes territorial Emphasizes nationality principle theory

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Conflict of Laws The territory where the crime was committed will have jurisdiction EXCEPT: 1. In mat matte ters rs rel relat atin ing g to internal order and disciple of the vessel and 2. Thos Those e whi which ch affe affect ct solely the ship and its occupants such as minor or petty criminal offenses committed

Comprehensive reviewer of Sempio-Diy book The State whose flag is flown by the vessel has jurisdiction EXCEPT EXCEPT  if the crime affects the peace, order, security, and safety of the territory

Note: Under Art. 27 of UNCLOS, Philippine courts do not acquire jurisdiction over crimes committed on board a vessel even if it is within our territorial waters as long as the effect of such crime does not disturb our peace and order. This is similar to the French rule.

Chapter 19 BUSINESS ASSOCIATIONS Corporation, Corporation, defined Sec. 2 of Corporation Code: An artificial being created by operation of law, having the right of succession and the powers, attributes, and properties expressly authorized by law or incident to its existence Foreign corporation, defined Sec. 123 of Corporation Code: One formed, organized, or existing under any laws other than those of the Philippines and whose laws allow Filipino citizens and corporations to do business in its own country or state

Theories in determining the personal law or governing law of a corporation corporation 1. The theory theory that that the the personal personal law is the the law law of the the place of incorporation 2. The theory theory of the place place or center center of managem management ent 3. The theor theory y of the the plac place e of expl exploit oitati ation on Note: In the Philippines, we follow the theory of the place of incorporation Domicile of a corporation corporation Art. 51 of NCC: When the law creating or recognizing them, or any other provision does not fix the domicile of judicial persons, the same shall be understood to be the place where their legal representation is established or where they exercise their legal functions ♥ Under Corporation Code, the place of incorporation of a Philippine corporation is also its domicile ♥ As for a foreign corporation that has been granted a license to operate or to do business in the Philippines, it acquires domicile in this country by virtue of said license Exceptions to the theory that the personal law or the nationality of a corporation follows the place of its incorporation 1. For consti constituti tutional onal purposes purposes – even even if if a corpora corporation tion was incorporated in the Philippines, it cannot exploit or develop our natural resources nor


2.

operate public utilities unless 60% of the capital is Filipino owned (Constitution) (Constitution) For warti wartime me purpose purposes s – We We adopt adopt the the contro controll test test  we pierce the veil of corporate identity and go into the nationality of the controlling stockholders to determine whether a corporation is an enemy corporation

Matters that are governed by the personal law of the corporation 1. Requisit Requisites es for for the the format formation ion of the the corporatio corporation n 2. Requi Required red numb number er of incor incorpor porat ators ors and and the the members of the board of directors 3. The kinds kinds of of share shares s of stoc stock k allow allowed ed 4. The The tra trans nsfe ferr of of sto stock cks s 5. The issuance, issuance, amount, amount, and legality legality of divid dividends ends 6. The powers powers and and duties duties of the the office officers, rs, stockh stockholder olders, s, and members Law that determines the validity of corporate acts and contracts Determined by the place of incorporation AND by the law of the place of performance May a foreign corporation sue and be sued in the Philippines? Yes, if it has the necessary license to do business in the Philippines. The license is required not to forbid the foreign corporation from performing single acts but to prevent it from acquiring a domicile for purposes of business without taking the steps necessary to render it amenable to suit in the local courts Jurisdiction over foreign corporations doing business in the Philippines, how acquired By service of summons on: 1. Its Its res resid iden entt age agen nt 2. If no no such such agent agent,, on the governme government nt offici official al designated by law to that effect; or 3. On any any of its its offic officers ers or or agent agents s withi within n the the Philippines (Rules of Court) Status of a contract of a foreign corporation corporation who transacts business here without the necessary license Unenforceable, Unenforceable, but the person who contracted with the corporation may be in estoppel if he had received benefits from contract Instances when a foreign corporation corporation not doing business in the Philippines can sue in Philippine courts 1. Isol Isolat ated ed tran transa sact ctio ions ns 2. To prote protect ct its its reputa reputation tion,, corpora corporate te name name,, and and goodwill 3. For infri infringe ngemen mentt of tradem trademark ark or trad trade e name name Law that applies to multinational or transnational corporations These are actual branches of big mother corporations. The branches having incorporated in the states where they are established are governed by the internal law of said states, and their personal laws are the local laws of host states

Partnership A partnership exists when two or more persons bind themselves themselves to contribute to money, property, or industry to a common fund, with the intention of dividing the profits among themselves (Art. 1767, NCC) Page 21 of 22

Conflict of Laws ♥


A partnership, like a corporation, has a juridical personality separate and distinct from that of each of the partners

Personal or governing law of a partnership Law of the country where it is created Domicile of a partnership Art. 51 of NCC: The place where their legal representation is established or where they exercise their principal functions

Chapter 20 RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS Enforcement v. recognition Enforcement of foreign judgment Means that the plaintiff or petitioner wants the court to positively carry out and make effective the foreign judgment Implies an act of sovereignty Requires separate action or proceeding brought precisely to make foreign judgment effective

Enforcement cannot exist without recognition

Recognition of foreign judgment Means that eh defendant or respondent is presenting the foreign judgment on the basis of res judicata

(2) Foreign Foreign court must must have jurisdi jurisdiction ction over over subject matter and parties (3) The judgme judgment nt must must be on the merit merits; s; and (4) There was was identity identity of of parties, parties, subject subject matter, and cause of action Effects of foreign judgments in the Philippines under Rules of Court Sec. 48, Rule 39, 1997 Rules on Civil Procedure provides: The effect of foreign judgment or final order of a foreign country, having jurisdiction to render the judgment or final order is as follows: (a) In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title to the thing and (b) In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.

Involves merely a sense of justice Being a matter of defense, recognition needs no action or proceeding but implies that an action or proceeding has already been filed against the defendant who is invoking the foreign judgment Recognition does not need or does not require enforcement

Reasons why a local court in the Philippines may refuse to recognize or enforce a foreign judgment 1. The requisit requisite e proof proof of the foreign foreign judgment judgment may not have been presented ♥ The manner of proving a foreign judgment is the same as proving a foreign law 2. The foreign foreign judgme judgment nt may may contrav contravene ene a recogni recognized zed and established policy in our country 3. The administ administratio ration n of justice justice in the the country country where where the judgment came from may be shockingly corrupt or not beyond reproach Conditions or requirements before a local court in the Philippines can enforce or recognize a foreign judgment 1. There There must must be adeq adequa uate te proof proof of of the fore foreign ign judgment 2. The judgment judgment must must be on a civil or comme commercial rcial matter, not on a criminal, revenue, or administrative matter 3. Ther There e must must be NO: NO: (1) Lack Lack of juris jurisdic dictio tion n (2) (2) Want Want of of noti notice ce (3) (3) Coll Collus usio ion n (4) Clear Clear mistake mistake of law law or fact fact 4. The foreign foreign judgme judgment nt must must not not contra contravene vene a sound sound and established public policy of the forum 5. The judgm judgment ent must must be be res res judic judicata ata:: (1) The judgm judgment ent must must be be final final


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