Conflict of Laws
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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 urisdiction and choice of law !ow 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 !"T 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 international law in character but is part of the municipal law of each state# $y 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 %overns %overns private involved sovereign states individuals or and entities that corporations are internationally recogni&ed or possessed of international personality As to nature 'nternational 'nternational in (unicipal 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 )ecourse is had to applied states may first *udicial or resort to peaceful administrative remedies# 'f 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 'nternational conventions Constitutions Codifications and statutes +udicial decisions 'nternational customs
2.
'ndirect 'ndi rect sources sour ces !atural moral law
ritings and treaties of thinkers and famous writers
irst, determine whether the court has *urisdiction over the case# 'f it has no *urisdiction, the case should be dismissed 'f it has *urisdiction, the court will determine whether it should assume *urisdiction over the the case or dismiss it on the ground of forum non conveniens
't is the law of the forum that determines whether the court has *urisdiction over the case
2.
't will ne.t determine whether to apply the internal law of the forum or the proper foreign law
"hree #inds of $urisdiction /# +urisd +urisdict iction ion over over the the sub* sub*ect ect matt matter er 0# +urisd +urisdict iction ion over over the the perso person n 1# +uri +urisd sdic icti tion on ove overr the the res res urisdiction over the sub$ect matter Conferred by law Defined as the power to hear and determine cases of the general class to which the proceedings in 2uestion belong Cannot be conferred by consent of the parties or by their voluntary submission
(ust be invoked by filing the proper complaint or petition with the court#
Note Note 'n the r ealm of Conflict of Laws, however, there is another element which the court must consider in determining the matter of *urisdiction the possible enforceability of its decision in foreign states, sub*ect to the rights of said states# urisdiction over the person The competence or power of a court to render a *udgment that that will bind the parties involved involved
urisdiction over the plaintiff Ac2uired the moment he invokes the power of the court by instituting the action by the proper pleading
urisdiction over the defendant defendant Ac2uired when he enters his appearance or by the coercive power of legal process e.erted by the court over him personal or substituted service of summons o
%& %& 'f appearance is for the sole purpose of 2uestioning the *urisdiction of the court#
Note Note 3uestion of erroneous service of summons must be raised before *udgment 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 e.istence of the case
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urisdiction over the 'es
+urisdiction over the particular sub*ect matter in
controversy, regardless of the persons who may be interested therein The basis of the e.ercise of this *urisdiction is the presence of the property within the territorial *urisdiction of the the forum even though though the court court may not have personal *urisdiction 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#
uri urisd sdic icti tion on in per perso sona nam m $inds only the parties and their successors in interest
uri urisd sdic icti tion on over over the the res res $inds the whole world
Actions (uasi 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 2uasi in rem Service of summons) how effected /# 'n acti action ons s in in per perso sona nam m 4/6 7erson 7ersonal al s serv ervice ice 406 Substi Substitut tuted ed service service Note Note Service by publication would !"T be sufficient 0#
1#
Serv Servic ice e by by pub publi lica cati tion on 4/6 4/6 Acti Action on in in rem rem 406 Action Action 2uasi 2uasi in rem rem 416 Action Action involves involves the the personal personal status status of plaintiff 8.tra 8.trater territ ritori orial al servi service ce of summ summons ons 4/6 hen the the defendant defendant does does not reside reside and is not found in the 7hilippines, and the action affects the personal status of the plaintiff 406 hen the the defendant defendant does does not reside reside and is not found in the 7hilippines, and the action relates to or the sub*ect of which is, property within the 7hilippines 4real or personal6, in which the defendant has a claim, a lien or interest, actual or contingent 416 hen the the defendant defendant is a non-res non-resident ident but but the sub*ect of the action is property located in the 7hilippines in which the relief demanded consists in e.cluding the defendant from any interest therein 496 hen the the property property of a non-re non-reside sident nt defendant has been attached in the 7hilippines hile a writ of attachment may be issued by the court, said writ cannot be implemented until the court has ac2uired *urisdiction over the the nonresident defendant
%*traterritorial %*traterritorial service) how effected $y leave of court /# $y pers person onal al serv servic ice e 0# $y 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 1# 'n any any other other manner manner that the court may deem sufficient, e#g#, by registered mail
Instances when court ma+ refuse to e*ercise $urisdiction over a case case on the basis of forum non conveniens /# The eviden evidence ce and and the witnesse witnesses s may not not be readily readily available in the forum 0# 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 *ustice 1# The belie belieff that that the matter matter can be better better tried tried and decided in another *urisdiction, 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 citi&ens of the forum or are residents elsewhere, or the sub*ect matter of the case evolved somewhere else "ther "ther courts courts are are open open and and the the case case may be bette betterr tried in said courts The inade2ua inade2uacy cy of the local *udicial *udicial 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
=# >#
?#
Note Note The doctrine should generally apply only if the defendant is a corporation# or if the defendant is an individual, the proper forum may not be able to ac2uire *urisdiction over him, him, thus leaving leaving the plaintiff plaintiff without any remedy# "hree instances when the forum has to appl+ the internal or domestic law ,le* fori- in decidin a case in conflicts of law /# hen the law of the the forum forum e.pre e.pressly ssly so so provides provides in its conflicts rules 0# hen the proper proper foreign foreign law has has not not been been proper properly ly pleaded and proved 1# hen the case involves involves any any of the e.ception e.ceptions s to the application of the proper foreign law 4i#e# e.ceptions to comity6 /h+ forein law cannot be applied if it has not been pleaded and proved "ur courts cannot take *udicial notice of foreign laws !ow a forein law is proved under our 'ules of Court 1. /ritten l aw aw 4/6 An officia officiall publicati publication on thereof thereof 406 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 7hilippine embassy, consular, or foreign service officer in the foreign
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country where the record is kept, and authenticated by the seal of his office 0nwritten law 4/6 The oral testimony of e.pert witnesses 406 $y printed and published books of 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 %*ceptions to the applications of a forein law /# hen the application of the foreign law would run counter to a sound and established public policy of the forum 0# hen the foreign law is contrary to the almost universally conceded principles of morality 4contra bonos mores6 1# hen the foreign law involves procedural matters
%& hen the law is both procedural and 9#
substantive hen the foreign law is penal in character
%& A penal clause in a contract may
@# =# ># ?#
however be enforced here because such clause is not criminal in nature but provides only for li2uidated damages hen the law is purely fiscal 4i#e#, revenue producing6 or administrative in nature hen the foreign law might work undeniable in*ustice to the citi&ens or residents of the forum hen the application of the foreign law would endanger the vital interests of the State hen the case involves real or personal property located in our country Chapter
"heories that $ustif+ the application of the forein law "heories that $ustif+ the application of the forein law instead of domestic or internal law /# Theory of comity 0# ested right theory 1# Theory of local law 9# Theory of harmony of laws @# Theory of *ustice "heor+ of comit+ According to this theory, no foreign law would be allowed to operate in another state e.cept by the comity of nations Comit+ The recognition which one state allows within its territory, to the legislative, e.ecutive, or *udicial acts of another nation "wo principles upon which the theor+ of comit+ rests /# The comity based on reciprocity 0# The comity based on the persuasiveness of a foreign *udgment "ur Civil 7rocedure still follows the principle of reciprocity because in
Sec# 9?, )ule 1B, a foreign final *udgment or order ;is presumptive evidence of a right as between the parties and their successors in interest "he vestedrihts theor+ nder this theory, our courts enforce not the foreign law or foreign *udgment but the right or rights that have been vested under such law or *udgment# )ights once ac2uired should be enforced regardless of where the suit for its enforcement was filed#
"heor+ of local law nder this theory, we apply a foreign law not because it is foreign, but because our own law by applying a similar rule re2uires us to do so, hence it is as if the foreign law has become part of our own internal or domestic law# "heor+ of harmon+ of laws nder this theory, identical or similar problems should be given identical or similar solutions thus resulting in harmony of laws "heor+ of $ustice Since the purpose of all laws, including Conflict of Laws, is the dispensation of *ustice, the proper foreign law should be applied in order to attain this ob*ective The defect of this theory, however, is that different persons may have different ideas of what is *ust !ote !o 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 e.clusive# Chapter 3 Nature and composition of conflicts rules Purel+ internal provision of law vs. conflicts rule Purel+ internal provision Conflicts rule4 A of law provision in conflict of laws %overns 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 8.ample Art# >B= All 8.ample Art# /= )eal persons who are not property as well as personal e.pressly prohibited by law property is sub*ect to the may make a will law of the country where it is situated "wo #inds of conflicts rules 1. 5nesided rule 'ndicates when 7hilippine law will apply
8.ample Article /@ of the CC
2.
Laws relating to family rights and duties, or to the status, condition, and legal capacity of persons, are binding upon citi&ens of the 7hilippines even though living abroad Allsided or multilateral rule 'ndicates whether to apply the local law o r the proper foreign law
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8.ample Art# /=
property as well as personal property is sub*ect to the law of the country where it is situated
)eal
2.
Parts of ever+ conflicts rule
1.
2.
"he factual situation E the set of facts or situation presenting a conflicts problem because there is a foreign element involved "he point of contact or connectin factor E The law of the country with which the factual situation is most intimately connected
Note6 The first part raises while the second part answers a legal 2uestion
Chapter 7 Characteri8ation of conflict rules Characteri8ation "therwise known as ;classification< or ;2ualification< is the process of assigning a certain set of facts or factual situation to its proper or correct legal category# $y characteri&ing the legal problem, the court of the parties involved reach the proper solution whether to apply the local law or the proper foreign law (ost writers hold that on the grounds of practical necessity and convenience, it is the forum or the le. fori that should determine the problem:s characteri&ation unless the result would be a clear in*ustice Note (odern trend is to consider prescriptive periods or Statute of rauds that the parties had in mind at the time the transaction took place
Chapter 9 Persona law : "heories in determinin 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 conse2uences of his actuations# 't may be /# !ational law 0# Law of his domicile 1# Law of the situs Status vs. capacit+ Status 7lace of an individual in society and consists of personal 2ualities and relationships more or less permanent, with which the state and the community are concerned
Capacit+ "nly part of one:s status and may be defined as the sum total of his rights and obligations
+uridical capacity
Capacity to act Active capacity The power to do acts with legal effects
Characteristics of status /# 't is conferred principally by the State, not by the individual 0# 't is a matter of public interest or social interest 1# $eing a concept of social order, it cannot easily be terminated at the mere will or desire of the parties concerned 9# 't is generally supposed to have a universal character
Citi8enship A citi&en is one who owes allegiance to and is entitled to the protection of the State nationality and citi&enship
Chapter = "he Nationalit+ "heor+ ilipinos Those born in the 7hilippines# !atural-born citi&ens may not be native-born if they were born abroad
"wo #inds of capacit+
1.
7assive capacity The fitness to be the sub*ect of legal relations
2.
Citi8ens b+ naturali8ation
Conflict of Laws
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us soli v. $us sanuinis us soli A person is a citi&en of the country where he was born or of the country of his birth
us sanuinis 't is citi&enship by blood This
is the rule that we follow in the 7hilippines
Note 8ach country or state has the sole power and authority to determine under its internal or municipal law who are its citi&ens or nationals
The law of the country of which the deceased was both a citi&en and a domiciliary at the time of her death is considered more effectively connected to her than her other national law# Citi8ens of the Philippines under the 1@= Constitution /# Those who are citi&ens of the 7hilippines at the time of the adoption of this Constitution 0# Those whose fathers or mothers are citi&ens of the 7hilippines 1# Those born before +anuary />, /B>1, of ilipino mothers, who elect 7hilippine citi&enship upon reaching the age of ma*ority and 9# Those who are naturali&ed in accordance with law Citi8enship of a >ilipino woman who marries a foreiner Citi&ens of the 7hilippines who marry aliens shall retain their citi&enship unless by their act or omission they are deemed, under the law, to have renounced their 7hilippine citi&enship 4Article 9, Sec# 9, /B?> Constitution6 Citi8enship of an alien woman who marries a >ilipino husband nder Sec# /@ of the )evised !aturali&ation Law 4Com# Act !o# 9>@6, an alien woman marrying a ilipino, native-born or naturali&ed, becomes ipso facto a ilipino, provided she is not dis2ualified to be a citi&en of the 7hilippines under Sec# 9 of the same law# 't is enough that an alien wife proves that she is not dis2ualified to be a ilipino citi&en not necessarily in court but even before an agency like the 'mmigration Commission
Note An alien woman married to an alien husband who 4the husband6 is subse2uently naturali&ed also follows the 7hilippine citi&enship of her husband, provided she does not suffer from any of the dis2ualifications under Sec# 9 of the same )evised !aturali&ation Law# This is a case of derivative naturali&ation 4similar to the minor children of a naturali&ed ilipino citi&en6 Naturali8ation The process of conferring on an alien the citi&enship of another country by any of the means provided by law# Bodes of ac(uirin Philippine citi8enship b+ naturali8ation /# +udicial process Com# Act !o# 9>@ as amended by )A @15 0# Legislative process hen 7hilippine citi&enship is conferred by a special act of Congress on deserving aliens 1# Administrative process )A B/1B or the Administrative !aturali&ation Law of 0555 nder this law, a Special Committee on !aturali&ation is created, with the power to approve, deny, or re*ect applications for naturali&ation filed with said Committee
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Naturali8ation udicial naturali8ation under Com. Act. 3=7) as amended /# The petitioner must not e less than 0/ years of age on the date of the hearing of the petition 0# Fe must have, as a rule, resided in the 7hilippines for a continuous period of not less than /5 years 1# Fe must be of good moral character, and believe in the principles underlying the 7hilippine Constitution, and must have conducted himself in a proper and irreproachable manner during the entire period of his residence in the 7hilippines in his relation with the constituted government as well as with the community in which he is living 9# Fe must own real estate in the 7hilippines worth not less than @,555, 7hilippine currency, or must have some lucrative trade, profession, or occupation @# Fe must be able to speak and write 8nglish or Spanish and any one of the principal languages and =# Fe must have enrolled his minor children of school in any of the public or private schools recogni&ed by the $ureau of 7rivate Schools where 7hilippine history, government, and civics are taught or prescribed as part of the school curriculum during the entire period of the residence re2uired of him, prior to the hearing of his petition for naturali&ation as citi&en
Administrative naturali8ation under 'A @1@ or the Administrative Naturali8ation Law of 2 /# The applicant must be born in the 7hilippines and residing therein since birth 0# The applicant must not be less than /? years of age, at the time of filing of hisGher petition 1# The applicant must be of good moral character and believes in the underlying principles of the Constitution and must have conducted himselfGherself in a proper and irreproachable manner during hisGher entire period of residence in the 7hilippines in relation with the duly constituted government as well as with the community in which heGshe is living 9# The applicant must have received hisGher primary and secondary education in any public school or private education institution duly recogni&ed by the D8CS, where 7hilippine 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 7rovided, that should heGshe have minor children of school age, heGshe must have enrolled them in similar schools# @# The applicant must have a known trade, business, profession, or lawful occupation, from which heGshe derives income sufficient for hisGher support and if heGshe is married andGor has dependents, also that of hisGher family 7rovided, however, that this shall not apply to applicants who are college degree holders but are unable to practice their profession because they are dis2ualified to do so by reason of their citi&enship =# The applicant must be able to read, write, and speak ilipino or any of the dialects of the 7hilippines, and ># The applicant must have mingled with the ilipinos and evinced a sincere desire to learn and embrace the customs, traditions, and ideals of the ilipino people /# Those opposed to organi&ed government or affiliated with any association of group of person who uphold and teach doctrines opposing all organi&ed governments 0# Those defending or teaching the necessity of or propriety of violence, personal assault or assassination for the success or predominance of their ideas 1# 7olygamists or believers in the practice of polygamy 9# Those convicted of crimes involving moral turpitude @# Those suffering from mental alienation or incurable contagious disease =# Those who, during the period of their residence in the 7hilippines, have not mingled socially with ilipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions, and ideals of the ilipinos ># Citi&ens or sub*ects of nations with whom the 7hilippines is at war ?# Citi&ens or sub*ects of a foreign country whose laws do not grant ilipinos the right to be naturali&ed citi&ens or sub*ects thereof
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Loss of citi8enship nder Com# Act =1, as amended, a ilipino citi&en may lose his citi&enship in any of the following ways /# $y naturali&ation in a foreign country 0# $y e.press renunciation of citi&enship 1# $y subscribing an oath of allegiance to support the constitution or laws of a foreign country upon attaining twenty-one years of age or more 9# $y accepting commission in the military, naval, or air service of a foreign country @# $y cancellation of the certificate of naturali&ation =# $y having been declared by competent authority, a deserter of the 7hilippine armed forces in time of war, unless subse2uently a plenary pardon or amnesty has been granted and ># 'n case of a woman, upon her marriage to a foreigner, if, by virtue of the laws in force in her husband:s country, she ac2uires his nationality nder the /B?> Constitution, however, the woman retains her 7hilippine citi&enship unless by her act or omission she is deemed under the law to have renounced her 7hilippine citi&enship Philippine citi8enship) how reac(uired nder C#A# =1, as amended, 7hilippine citi&enship may be reac2uired as follows /# $y naturali&ation, provided the applicant possesses none of the dis2ualifications 0# $y repatriation of deserters of the Army, !avy, or Air Corps, 7rovided, that a woman who lost her citi&enship 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 1# $y direct act of Congress 'A @227 : Citi8enship 'etention and 'eac(uisition Act of 2 nder this law, natural born ilipino citi&ens who had been naturali&ed in foreign countries are deemed to have reac2uired 7hilippine citi&enship by taking an oath of allegiance to the 7hilippine Constitution and laws# Those who become naturali&ed in foreign countries after the effectivity of the Act retain their 7hilippine citi&enship upon taking the same oath Chapter
Art. 7 of the CC or the e.ercise of civil rights
1.
2.
Constructive domicile or domicile b+ operation of law The domicile assigned by law to a person after birth on account of a legal disability, like minority, insanity, imprisonment, etc#
3.
Principles reardin one;s domicile of choice /# !o person can ever be without a domicile or every natural person must have a domicile 0# A person cannot have two simultaneous domiciles 1# A natural person, free 4not a prisoner6 and sui *uris 4one of age and under no disability6, can change his domicile at pleasure 9# A domicile, once ac2uired, is retained until a new one is gained @# The presumption being in favor of the continuance of an e.isting domicile, the burden of proof is on the one who alleges that a change of domicile has taken place
6.
To ac2uire a new domicile of choice, the following must concur 4/6 )esidence or bodily presence in the new locality 406 An intention to remain there 4animus manendi6 and 416 An intention not to return to the former abode 4animus non revertendi6
'ules determinin one;s domicile of oriin If the child is leitimate Fis 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 illeitimate
If the child is leitimated
'f parents are separated, the domicile of the custodial parent Fis domicile of origin is that of the mother at the time of his birth The domicile of his father at
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If the child is adopted
If a foundlin
the time of his birth controls The domicile of origin is the domicile of his real parents at the time of his birth, !"T the domicile of the adopters The domicile of origin is the country where it was found
Public officials or emplo+ees abroad ,diplomats) etc-
Chapter @ "he situs or eclectic theor+
'ules determinin one;s constructive domicile BIN5'S
1.
'f legitimate, the domicile of both parents 'n case of disagreement, that of the father, unless there is a *udicial order to the contrary
2.
'f illegitimate, the domicile of the mother
3.
'n case of absence or death of either parent, the domicile of the present parent#
8ven in case of remarriage of the surviving parent, still hisGher domicile determines the constructive domicile of the minor child
4.
'f the child is adopted, the domicile of choice of the adopter is the child:s constructive domicile INSAN%S) I
1.
'f they are below the age of ma*ority, the rules on minors apply to them
2.
'f they are of age and have guardians, they follow the domicile of choice of their guardians
Situs or eclectic theor+ 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 4situs6 where an important element of the problem occurs or is situated "wo #inds of participation of an individual under the situs or eclectic theor+
1.
If participation is active E hen 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 E hen the effects of the act are set forth or determined by law, the governing law is the law of the leal situs, i#e#, the domicile of the individual concerned Chapter 1 "he problem of the Frenvoi
'envoi A rench word which means ;refer back< or ;return< 'n Anglo-American countries, the term used is ;remission,< which means to refer a matter for consideration or *udgment
3.
'f they are of age and have no guardians, their constructive domicile is their domicile of choice before they became insane BA''I%< /5B%N /# The constructive 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 marriae is valid reasons 0# 'f there is legal separation between the spouses, the wife can have her own domicile of choice 1# 'f there is a separation de facto, the wife can also have a separate domicile Apply the same rules when If the marriae is the marriage is valid# voidable Fowever, after annulment, the wife can freely select her own domicile of choice If the marriae is void The wife can have a domicile separate from the husband 5"!%' P%'S5NS Convict or prisoner Fis 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
/hen does the problem of renvoi ariseH The problem of renvoi arises when there is doubt as to whether the reference by the le. fori 4the law of the country where the problem arises6 to the foreign law involves /# A reference to the internal law of the foreign law or 0# A reference to the entirety of the foreign law including its conflicts rules 'n 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 >our solutions the court can adopt when confronted with a renvoi problem /# )e*ect the renvoi 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 0# Accept the renvoi Accept the referral or transmission of the case back to us, so that instead of applying the foreign internal law, 7hilippine law is applied Single renvoi or single transmission
3.
ollow the theory of desistment or the mutual disclaimer of *urisdiction theory
Conflict of Laws
4.
Comprehensive reviewer of Sempio-Diy book )efrain from applying the national law of the deceased foreigner, although our law tells us to do so# 'f 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 7hilippine law
Apply the foreign court theory e 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 ping pong
Note 'n Conflict of Laws, personal law determines the beginning of one:s personality# Civil personalit+) when e*tinuished Art. 32 of the NCC Civil personality is e.tinguished by death
)efers 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 e.pired "ne status of being absent is determined in accordance with his personal law "ur own courts also have *urisdiction to declare an alien domiciliary in the 7hilippines as absent udicial declaration of absence under Philippine law After the lapse of two +ears without any news about the absentee or since the receipt of the last news, and five +ears if the absentee has left an administrator of his property, his absence may be declared Instances when an absentee ma+ be presumed dead and for what purposes
1.
>or purposes of remarriae E the absentee may be presumed dead after four +ears of absence, the present spouses having a well-founded belief that the absentee is already dead Fowever, in case of disappearance where there is danger of death, an absence of 0 years is enough
2.
>or all other purposes %&C%P" succession E an absence of seven years, it being unknown whether or not the absentee still lives
3.
>or the purpose of succession E an absence of /5 years is re2uired, e.cept if the absentee disappeared after the age of >@ years, in which case an absence of @ years is enough to open his succession
/hen human personalit+ beins under our law
Art. 3) NCC $irth determines personality, but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article
Art. 31) NCC or civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother:s womb# Fowever, if the fetus had an intra-uterine life of less than > months, it is not deemed born if it dies within 09 hours after its complete delivery from the maternal womb Personalit+ reall+ beins at conception) sub$ect to the followin conditions6 /# The purpose is favorable to the fetus 0# 'f it is born alive under Art# 9/ of the !CC "wo #inds of children
1.
"rdinary E ith an intra uterine life of at least > months
2.
8.traordinary E ith an intra-uterine life of less than > months, in which case it must live for at least 09 hours after complete delivery from the mother:s womb
A declaration of death in accordance with one:s personal law 4whether his national law or the law of his domicile6 by a court of competent *urisdiction is considered valid for all purposes
/hat determines the ae of ma$orit+ in Conflict of LawsH 't is the personal law of the person that determines whether he has reached the age of ma*ority or not# 5ur conflicts rules on capacit+ to contract A person:s capacity to contract is governed by his personal law, whether it is the le. nationalii or the le. domicilii
%& Contracts involving real or personal property in which cases the le. situs or le. rei sitae applies including the capacity of the contracting parties Note 't is suggested that Article /@ 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#
Conflict of Laws Chane 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 7hilippines, provided they are domiciled here# $ut an alien whose citi&enship is either controverted or doubtful cannot ask for a change of name Leislative $urisdiction vs. $udicial $urisdiction over one;s status Leislative $urisdiction udicial $urisdiction Legislative *urisdiction over +udicial *urisdiction 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 2uestions or controversies concerning one:s status 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 it be his national law or the law of his domicile, depending on what theory the country of his citi&enship follows#
%*ample 8ven if the personal law of the foreigner allows divorce, he cannot apply for divorce from his spouse before a 7hilippine court because we do not recogni&e divorce and our courts have no *urisdiction to grant divorces# Fowever, 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 *udgment from our courts, because it is his national law on legal separation that our courts will apply, but sub*ect to our procedural law# Chapter 12 Conflicts rules on marriae
Comprehensive reviewer of Sempio-Diy book Common law marriaes of foreiners As to common law marriages of foreigners who come to the 7hilippines 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# $ut the marriage must not be contra bonos mores or universally considered incestuous >orein marriaes of >ilipinos G' nder Art# 0= of the amily Code, all marriages outside the 7hilippines in accordance with the laws in force in the country where they were solemni&ed and valid there as such, shall also be valid in this country, e.cept those prohibited under Articles 1@4/6, 496, 4@6, and 4=6, 1=, 1>, and 1?# 'n other words, we follow the rule of le. loci celebrationis %& A foreign marriage of ilipinos in a foreign country will still be void in the 7hilippines if /# 8ither or both parties did not have legal capacity to get married 4Art# 1@ 4/66 0# The marriage is immoral for being bigamous or polygamous 4Art# 1@ 4966 1# Consent of one party is lacking, because of mistake as to the identity of the other 4Art# 1@ 4@66 9# "ne of the parties was psychologically incapacitated at the time of the marriage to comply with the essential marital obligations 4Art# 1=6 @# The marriage is incestuous 4Art# 1>6 =# The marriage is void by reason of public policy 4Art# 1?6 Note Consular marriages of ilipinos abroad are valid 4Art# /5, amily Code6 Conflicts rules on marriaes between foreiners solemni8ed abroad
1.
e still apply the rule of le. loci celebrationis, but not the e.ceptions in the first par# of Art# 0= of the amily Code which apply only to ilipinos $ut universally considered incestuous marriages and marriages that are highly immoral are e.cepted
2.
7ro.y marriages E !ot allowed under 7hilippine internal law
Philippine internal law on the formal validit+ of marriaes or the validit+ of marriae as a contract
1.
2.
8ssential re2uisites 4/6 Legal capacity of the contracting parties who must be male and female 406 Consent freely given in the presence of a solemni&ing officer ormal re2uisites 4/6 Authority of the solemni&ing officer 406 A valid marriage license 416 A marriage ceremony takes place with the appearance of the contracting parties before the solemni&ing 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 The above formal re2uisites apply to foreigners who get married in the 7hilippines# 'f 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 hisGher country in the 7hilippines before heGshe 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
)ule in the S E if permitted by the law of the place where the pro.y participates in the marriage ceremony, pro.y marriages are entitled to recognition insofar as the formal validity of the marriage is concerned
3.
(arriages on board a vessel on the high seas E Since the country whose flag the ship is flying has *urisdiction over the ship, the rule is that compliance with the law of the said country is re2uired for the marriage to be valid
4.
'f the parties or at least the husband is a (uslim E it is believed that we would recogni&e up to four marriages of the same husband 47hilippine (uslim Code on 7ersonal Laws6
Bi*ed Barriaes Barriae between a >ilipino and foreiner AE'5A<
'f 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
Conflict of Laws
Barriae between a >ilipino and a foreiner in the P!ILIPPIN%S
Comprehensive reviewer of Sempio-Diy book marriage, unless the marriage is universally incestuous or highly immoral 4the same rule as to foreigners who get married abroad6 The national law of the ilipino E 7hilippine law should be followed E otherwise our public policy would be violated
Conflict rules on the law overnin personal relations of spouses who change nationalities General 'ules
1.
'f the spouses have the same nationality but they ac2uire a new nationality by their common act E their new national law will govern their personal relations
2.
'f the husband alone changes his nationality after the marriage E the law of the last common nationality of the spouses would govern
3.
'f the spouses retain their different nationalities after the marriage E !ational law of both spouses should govern
"wo aspects of marriae as a status /# Aspect of personal rights and obligations of the spouses 7urely personal and are not ordinarily interfered with by the courts
0#
Aspect of their property relations The law lays down rules and *udicial sanctions as they may affect public interest
Law overnin personal relations of spouses in Conflict of Laws
1.
Countries that follow the nationality theory 4e#g# 7hilippines6 E apply the spouses: national law in determining their personal relations with each other
2.
Countries that follow the domiciliary theory E the personal relations of the spouses are governed by the law of their domicile
Spouses of different nationalities6 law overnin their personal relations G' The personal relations of the spouses are governed by the national law of the husband Alien woman who marries a >ilipino husband
A >ilipina who marries an alien husband
'pso facto becomes a ilipino citi&en if she does not suffer under any dis2ualification for naturali&ation as a ilipino citi&en Personal relations national law of the husband shall govern 4%)6 Constitution provides that she ;shall retain her 7hilippine citi&enship, unless by her act or omission, she is deemed, under our law, to have renounced her citi&enship< Personal relations Art# ?5 of the amily Code provides that the national law of the wife or 7hilippine law would govern the spouses: personal relations 4rule was intended to protect the ilipino wife6
'%6 Eetter solution apply the national law of the husband at the time of the marriage %&C%P"I5NS /# 'f the national law of the husband violates public policy of the forum 0# The national law of the wife happens to be the law of the forum
Conflicts rules on the propert+ relations of husband and wife G' 7roperty relations of the spouses are governed by 7hilippine law, regardless of the place of the celebration of marriage and their residence 4nationality theory6 'f one spouse is a ilipino 4wife or husband6 and the other is an alien, 7hilippine law would still govern %&6 /# 0#
'f both spouses are aliens E general rule in Conflict of Laws will apply ith respect to e.trinsic validity of contracts affecting real property E the le. situs will govern the formalities to be observed for the contract:s validity
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 1# The only property relationship between the parties is a co-ownership The children are illegitimate, e.cept children of void marriages under Art# 1= and @1 of C Art# 1= E children born under marriage that is void on the ground of psy# 'ncapacity
The marriage cannot be attacked collaterally The marriage can no longer be impugned after the death of the spouses
Art# @1 E 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 nullit+ of marriae /# 'n Conflict of Laws, the grounds for annulment of marriage and for declaration of nullity of marriage are the grounds provided for by the law alleged to have been violated le. loci celebrationis or the law of the place where the marriage was celebrated 'eason Considering that it is the le. loci celebrationis that is usually applied to determine whether a marriage is valid or not, it is the same law that also determines whether a marriage is voidable or void 0# As for declaration of nullity of marriage between two ilipinos abroad, the grounds are the e.ceptions to the le. loci celebrationis in Article 0= of the amily Code 4/6 8ither or both parties did not have legal capacity to get married 4Art# 1@ 4/66 406 The marriage is immoral for being bigamous or polygamous 4Art# 1@ 4966 416 Consent of one party is lacking, because of mistake as to the identity of the other 4Art# 1@ 4@66 496 "ne of the parties was psychologically incapacitated at the time of the marriage to comply with the essential marital obligations 4Art# 1=6 4@6 The marriage is incestuous 4Art# 1>6 4=6 The marriage is void by reason of public policy 4Art# 1?6
9#
As to foreigners who get married abroad E the e.ceptions to the le. loci celebrationis would be the same as those in marriages as a contract 4/6 (arriages that are highly immoral 406 niversally incestuous marriages Consular marriages E either the national law or the law of the domicile of the parties applies
Courts that have $urisdiction over cases for annulment or declaration of nullit+ of marriae /# 'n the 7hilippines E since we follow the nationality theory, our courts have *urisdiction Citi&ens and domiciliaries can file in the 7hilippines, even if the defendant is a nonresident 0# 'n other countries E it is usually the courts of the parties’ domicile who have *urisdiction over such cases since that is the place which has the greatest interest in the domestic relations of the spouses 'ules on the validit+ of forein divorces b+ foreiners abroad /# Fague Convention states that a foreign divorce will be recogni&ed in the contracting states if, at the date of the filing of the proceedings 4/6 The petitioner or respondent had his or her habitual residence in the state where the divorce was obtained 406 'f both spouses were nationals of said state 416 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 0# 'n the S, a state has a duty to recogni&e a divorce obtained in a sister state if the spouses were domiciled in the latter state 1# A divorce obtained in a foreign country would be recogni&ed under the same circumstances that a divorce obtained from a sister state is given recognition 9# in the 7hilippines, if both spouses are aliens, we recogni&e a decree of divorce obtained by them abroad if valid under their national law @# 'f one of the spouses is a ilipino and the other an alien, we also recogni&e the divorce obtained by the alien spouse abroad Leal separation v. divorce Leal separation )elative divorce, only a separation from bed and board but the parties remain married
Leal separation v. annulment of marriae Leal separation Annulment (arriage is not defective (arriage is defective %rounds arise after the %rounds must e.ist at the marriage time of or before the celebration of the marriage 7arties are still married to (arriage is set aside each other %rounds are those given by %rounds are those given by the national law or the the le. loci celebrationis domiciliary law E 2uestion is sub*ect to certain e.ceptions one of status E 2uestions the very
Conflict of Laws
Comprehensive reviewer of Sempio-Diy book e.istence of status
Conflict rules on leal separation /# 'f the parties are of the same nationality E grounds for legal separation are those given by their personal law 4national law or domiciliary law6 0# 'f the parties are of different nationalities E grounds for legal separation are those under both the personal law of the husband and wife Courts that ma+ rant leal separation /# +urisdiction in the case of aliens is not assumed by the forum unless the national law of the parties is willing to recogni&e its *urisdiction 0# 'n the 7hilippines, foreigners may ask for legal separation here, even if they did not get married in this country# hat is important is that the court has *urisdiction over both parties 1# (ost countries assume *urisdiction over case for legal separation on the basis of the domicile of one of the parties or the matrimonial domicile Note 't is !"T necessary that the cause for legal separation take place in the country for our courts to have *urisdiction over the case# Grounds for leal separation under Philippine internal law ,Article 77) >C/# )epeated physical violence or grossly abusive conduct against the petitioner, a common child, or a child of the petitioner 0# 7hysical violence or moral pressure to compel the petitioner to change religious or political affiliation 1# Attempt to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement 9# inal *udgment sentencing the respondent to imprisonment of more than = years, even if pardoned @# Drug addiction or habitual alcoholism of the respondent =# Contracting by the respondent of a subse2uent bigamous marriage, whether in the 7hilippines or abroad ># Lesbianism or homose.uality of the respondent ?# Se.ual infidelity or perversion B# Attempt by the respondent against the life of the petitioner /5# Abandonment of petitioner by respondent without *ustifiable cause for more than one year C/# Condonation of the offense or the act complained of 0# Consent of the aggrieved party to the commission of the act or offense complained of 1# Connivance between the parties in the commission of the offense or act constituting the ground for legal separation 9# here both parties have given ground for legal separation @# Collusion between the parties to obtain legal separation =# 7rescription
Note The prescriptive period for filing of an action for legal separation in the 7hilippines is @ years from the time of the occurrence of the case 4Art# @>, C6 Chapter 1 Status of Children Conflict rules in determinin leitimac+ of children /# 'f the parents are of the same nationality E their common personal law 4national law or law of domicile6 will be applied 0# 'f the parents are of different nationalities E personal law of the father governs Leitimate and illeitimate children under Philippine internal law /# Legitimate children E children conceived or born during the marriage of the parents 0# 'llegitimate children E children conceived and born outside a valid marriage %& Children born of void marriages under Article 1= 4psychological incapacity6 and Article @1 4those 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 L8%'T'(AT8 CF'LD)8!
Law overnin the rihts and duties between parent and child /# 'f the child is legitimate E either the common personal law of the parents or the personal law of the father if the parents are of different nationalities governs 0# 'f the child is illegitimate E The personal law of the mother is decisive, !L8SS the child is subse2uently recogni&ed by the father, in which case the rules on legitimate children will be applied
Conflict of Laws Philippine internal law on leitimation of children ,Articles 1==12) >C'e(uisites for leitimated children /# The child was conceived A!D born outside lawful wedlock 0# The parents at the time of the child:s conception, were not dis2ualified by any impediment to marry each other Note Legitimation creates a permanent 4immutable6 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 /# The child:s personal law 0# 'f the child does not reside in the country of his citi&enship E 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 leal effects of adoption The legal effects of adoption are determined by the same law that created the relationship of adoption
Adoption b+ aliens in the Philippines nder )A ?@@0 or the Domestic Adoption Act of /BB?, aliens 4who are not even former ilipino citi&ens6 can adopt in our country, provided /# The have the same 2ualifications as those re2uired of ilipino citi&ens 0# Their countries have diplomatic relations with our country 1# They have been living in the 7hilippines for at least 1 years prior to the filing of the petition for adoption, and maintain such residence until the adoption decree is entered 9# The have been certified by their diplomatic or consular offices or by any appropriate government agency that they have the legal capacity to adopt in their own countries and @# Their government allows the adopted child to enter their own country as their adopted child Special aliens who can adopt under 'A 772 /# A former ilipino citi&en who seeks to adopt a relative within the 9 th degree of consanguinity or affinity 0# "ne who seeks to adopt the legitimate son or daughter of his or her ilipino spouse 1# "ne who is married to a ilipino citi&en and seeks to adopt *ointly with his or her spouse a relative within the 9 th degree of consanguinity or affinity of the ilipino spouse These aliens need not comply with the residency in the 7hilippines 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 7hilippines or any other government agency
Comprehensive reviewer of Sempio-Diy book Note )A ?@@0 still re2uires that the 4alien6 husband and wife must *ointly adopt# Fowever 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 /# Adoption proceedings are always *udicial an din rem, i#e#, publication is re2uired 0# A mere agreement of adoption between the adopters and the parents of the child is not a valid adoption, nor the fact that the child had been adopted de facto 4ampon6 by the alleged adopting parents 1# !either is mere registration of the child in the civil registry as the child of the adopter a valid adoption# This even amounts to the crime of simulation of birth 9# The capacity and right of the adopter to 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 dis2ualifying him or her for adoption 'econition of a forein decree of adoption hile there is no provision of law nor *urisprudence e.pressly re2uiring the 7hilippines to recogni&e a foreign decree of adoption, it is believed that under Sec# 9? of )ule 1B of the )ules on Civil 7rocedure, we can recogni&e such foreign decree of adoption provided the foreign court had *urisdiction to render said decree, and that there is no want of notice, collusion, e.trinsic fraud, or clear mistake of law or fact leading to the foreign decree of adoption
Conflict of Laws wills which include /# Age and testamentary capacity of the testator 0# orm of the will 4notarial or holographic6 etc
Comprehensive reviewer of Sempio-Diy book 0#
Amount of successional rights, and other matters of substance
Conflicts rules in the Philippines on e*trinsic validit+ of wills /# 'f a ilipino makes a will abroad - he may comply with the formalities of 7hilippine law 4le. nationalii6 or the le. loci celebrationis 4the law of the place where he was at the time of the e.ecution of the will6 E Art# ?/@, !CC 0# 'f an alien makes a will abroad - he may comply with the formalities of his le. nationalii 4law of the country of which he is a citi&en, the le. domicilii 4law of his domicile5, or the le. loci celebrationis 1# 'f an alien makes a will in the 7hilippines E he may comply with the formalities of his own country 4le. nationalii6 or of 7hilippine law 4le. loci celebrationis6 9# Folographic wills E must be entirely written, dated, and signed by the hand of the testator# 't is sub*ect to no other form and may be made in or out of the 7hilippines and need not be witnessed 4Art# ?/5, !CC6 Conflicts rules on $oint wills /# ilipinos cannot make *oint wills whether he or abroad 0# +oint wills made by aliens shall be considered valid in the 7hilippines if valid according to their le. nationalii or le. domicilii or if valid under le. loci celebrationis 1# +oint wills made by aliens in the 7hilippines are void even if valid under their le. nationalii or le. domicilii in order that our public policy on *oint wills may not be militated against 9# A *oint will e.ecuted by an alien and a ilipino citi&en abroad will be valid even as to the alien 4if his national law or law of his domicile or le. loci celebrationis allows it6 but void as to the ilipino Conflicts rules on intrinsic validit+ of wills /# le. nationalii E in countries that follow the nationality theory 0# le. domicilii E in countries that follow the domiciliary theory /hat overns the intrinsic validit+ of wills in the Philippines The !CC applies the le. nationalii of the decedent !ote 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 7hilippine law even if the deceased was a citi&en of another country
Conflicts rules if a person dies intestate /# 'n civil law countries E the national law of the decased applies 0# 'n common law countries E the le. domicilii of the deceased at the time of death applies with respect to personalty, while the le. situs applies with respect to real property
Conflicts rules on revocation of wills /# nder Art# ?0B of the !CC, a revocation done outside the 7hilippines by a person who does not have his domicile here is valid if done according to 4/6 The law of the place where the will was made 4le. loci celecbrationis6 or 406 The law of his domicile at the time of revocation 4le. domicilii6 !ote ignores the law of the place of revocation 0# 'f the revocation is done in the 7hilippines, it is valid if made in accordance with the provisions of our CC 1# 'f the revocation is done outside the 7hilippines by a person who is domiciled here, it is valid if made in accordance with our law 4le. domicilii6 or le. loci actus of the revocation 4the place where the revocation was made6 Probate) defined 7robate is the process of proving before a competent court the due e.ecution 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 /# The allowance of disallowance of a will is essentially procedural, so that the law of the forum applies to all procedural matters 0# Art. ) 1st par ;now will shall pass either real or personal property unless it is proved and allowed in accordance with the )ules of Court< 1# There is no period of prescription for the probate of a will 9# ills proved and allowed in a foreign country according to the laws of each country may be allowed, filed, and recorded by the proper court in the 7hilippines @# Although a foreign will had already been probated in a foreign country, it still has to be reprobated in the 7hilippines in accordance with our procedural law it is sufficient to ask for the enforcement of the foreign *udgment of the probate abroad =# The evidence necessary for the probate or allowance of wills which have been probated outside the 7hilippines are 4/6 The due e.ecution of the will in accordance with the foreign law because we cannot take *udicial notice of foreign laws 406 The testator had his domicile in the foreign country where the will was probated 416 The will had been admitted to probate in said country 496 The foreign tribunal is a probate court 4@6 The laws of the foreign country on procedure and allowance of wills were followed Administration of estate of deceased persons Administration is the process of determining and reali&ing 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 b+ persons
Conflict of Laws /#
0#
Comprehensive reviewer of Sempio-Diy book
Administration is procedural in nature# 't is the le. fori that governs not the law that determines how the estate of the deceased is to be distributed 'n charge of the administration is the e.ecutor or an administrator with a will anne.ed or an administrator %*ecutor
Appointed by testator in his will
Administrator with a will anne*ed Appointed by the court if there is a will but no e.ecuted is designated therein
Administrator
Appointed by the court if there is no will
1#
The e.ecutor is 2ualified, and the administrator 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 9# The rights, powers, and duties of the e.ecutor or administrator are coe.tensive with the territorial *urisdiction of the court that 2ualified or appointed him @# 7rincipal domiciliary administration v# ancillary administration Principal domiciliar+ administration Administration granted in the country of the deceased:s last domicile
=#
Ancillar+ administration Administration in other countries where the deceased also left properties
The domiciliary administrator of the estate of a deceased American citi&en in the S has no power over and is not entitled to the possession of the stock certificates of shares of stock by the deceased in a 7hilippine corporation, which certificates must be delivered to the ancillary administrator
Caduciar+ rihts 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 /# Some countries adopt the theory that such properties have become ownerless 4bona vacantia6 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 0# 'n the 7hilippines and some civil law countries E the theory adopted is that the State is the last heir of a deceased person# Fence, the State succeeds to the properties left by said deceased as an heir#
Chapter 17 P'5P%'" Conflict rules on real propert+ and personal propert+ G' le. situsG le. re sitae law of the place where the property is located
5ld rule on law on personal propert+4movables Bobilia se(uuntur personam 7ersonal effects or belongings of owner carried with him wherever he went# %iven artificial status since did not have fi.ed status E personal law of the owner Philippine rule on personal properties Art# /@ of the CC real property as well as personal property is sub*ect to the law of the country where it is situated Batters overned b+ le* situs with respect to real propert+ /# 8.trinsic validity 0# 'ntrinsic validity 1# Capacity of contracting parties 9# 'nterpretation of documents @# 8ffects of ownership =# Co-ownership ># Accession ?# sufruct B# Lease /5# 8asement //# 3uieting of title /0# )egistration /1# 7rescription /9# 7olice power /@# 8minent domain /=# Ta.ation %*ceptions to the rule on le* situs with respect to real properties /# Succession governed by national law 4in 7hilippines6 not le. situs 0# Contracts involving real property but do not 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 4le. loci voluntatis or le. loci intentionis6 1# 'n contracts where real property is given as security by way of mortgage to secure a principle contract 4i#e# loan6 loan is governed by the proper law of the contract which the mortgage is governed by the le. situs 9# hile the validity of the transfer of land must be determined by the le. situs, the validity of the contract to transfer is determined by the proper law of the contract 'ules in ivin constructive situs to choses in possession that are usuall+ in motion ?%SS%LS Public vessel Law of the flag Private or commercial Law of the country or vessel place of registry If vessel is doc#ed at a Said port is deemed as its forein port temporary situs G55
Conflict of Laws transit
Comprehensive reviewer of Sempio-Diy book loci intentionis6
'ules in ivin constructive situs to intanible personal properties or choses in action C'%
?oluntar+ assinment or transfer of credit
Situs of a debt for ta*ation purposes Administerin debts
5ther theories6 /# The law of the place where the assignment is e.ecuted 0# The law of the place where performance or payment is normally e.pected 1# The national law of the parties Domicile of creditor
Situs is the place where the assets of the debtor are situated N%G5"IAEL% INS"'0B%N"S "he law that Law governing rights determines whether embodied in the the instrument is instrument neotiable or not !ote American )estatement claims that the situs is the place where the instrument was e.ecuted "he law that The law of the situs of the determines the validit+ instrument at the time of of the transfer) transfer, delivery, or deliver+) or neotiation negotiation of the neotiable instrument S!A'%S 5> S"5CJS 5> C5'P5'A"I5NS Sale of shares of stoc#s Law of the place of incorporation since transfer is recorded in the books of the corporation Sale of corporate %overned by the proper shares as between the law of the contract 4le. parties loci voluntatis or le. loci intentionis6 "a*ation on dividends Law of the place of received b+ corporate incorporation shares >'ANC!IS%S >ranchises Law of the state that - special privileges granted them conferred by the government on an individual or corporation Goodwill of a business
Goodwill of business -Art# @0/, !CC property and may be transferred together with the right to use the name under which the business is conducted
%ood will of business and ta.ation thereon are governed by the law of the place where the business is carried on
FGoodwill -The patronage of any established trade or business Patents) cop+rihts) trademar#s) trade names) and service mar#s Patents) cop+rihts) G' in the absence of a trade mar#s) trade treaty, protected only by names the state that granted or recogni&ed them Art. 72) 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, sub*ect to the provisions of special laws Intellectual propert+ 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 7hilippines is also a party or which e.tends reciprocal rights to our nationals by law, ;shall be entitled to the benefits to the e.tent necessary to give effect to any provision of such convention#< - oreign corporation even if not engaged in business in the 7hilippines may nevertheless bring a civil or administrative action, for opposition, cancellation, infringement, or unfair competition#
Chapter 19 C5N"'AC"S Contract) defined Art# /15@, !CC (eeting of minds between two persons whereby one binds himself, with respect to the other, to give something or to render some service# ♥ The specific sub*ect of contract in Conflict of Laws is limited to purely civil or commercial transactions#
Conflict of Laws Conflicts rules in determinin e*trinsic validit+ of contracts G' the e.trinsic validity of contracts is governed by the le. loci celebrationisG le. loci contractus ?ariations to the rule of le* loci intentions in determinin e*trinsic validit+ of contracts /# A contract entered into by parties in two different countries by cablegram, tele., or fa. ♥ Art. 11@ par. 26 Acceptance made by letter or telegram does not bind the offeror e.cept 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 law6 contract is deemed entered into in the place where the acceptance of the offer is posted or mailed 0# 7lace of e.ecution was merely casual or accidental ♥ The law which has the most significant relationship to the transaction should be applied 1# ,%&- hen the le. loci contractusGle. loci celebrationis contravenes an established and important policy of the forum, or to apply it would work gross in*ustice to the people of the forum, or if the transaction is contra bonos mores Conflict rules in determinin capacit+ of parties to a contract G' Capacity to enter into contracts is generally governed by the personal law of the parties ♥ 'n 7hil#, Art# /@ !CC Capacity of a ilipino is governed by 7hilippine law 4nationality theory6
Comprehensive reviewer of Sempio-Diy book Limitations to the court;s choice of law in determinin the intrinsic validit+ of contracts /# %enerally, the parties cannot select a law that has no connection at all with the transaction 0# 'f the law selected should change, it is the new law that should be applied ♥ %& Change of new law is so revolutionary that it could never have been contemplated by parties 1# Several laws may be selected, each of which will govern the different elements of the transaction 9# 'f under the selected law, the contract is legal but in the place of performance, it is illegal, the selected law should prevail 4valid contract6 @# 3uestions of substantial and essential validity 4void, valid, voidable6 of the contracts should be governed by the proper law of the contracts ♥ (inor details time of payment, etc# should be governed by the law of performance =# 7arties cannot stipulate on the *urisdiction of the courts our oust or court:s *urisdiction ># The parties cannot contract away applicable provisions of law ?# American law recogni&es cognovit clauses if the parties were of e2ual bargaining power and debtor and the debtor voluntarily agreed to said clause ♥ Conovit clauses specify which courts would have *urisdiction in case of breach or default in payment, or it may waive debtor:s right to notice 4confession of *udgment6
%& Contracts involving alienation or encumbrance of property both real and personal capacity is governed by the le. situs Conflict rules in determinin intrinsic validit+ of contracts /# G' 'ntrinsic alidity of contracts is governed by the proper law of the contract E le. loci voluntatis or le. loci intentionis 0# American Law 4Second )estatement6 4/6 law to be applied should be the law chosen by the parties 406 'f none, the law of the state which has the most significant relationship to the parties or to the transaction 1# 7rof# )aleigh (inor E advocates application of different laws 4/6 As to the perfection of contract le. loci celebrationis 406 As to the validity of the consideration E le. loci considerationis 416 As to 2uestions of performance E le. loci solutionis Philippine conflict rules on intrinsic validit+ of contracts /# e have no specific provision of law applicable to conflict rules on the intrinsic validity of contracts ♥ Fowever the policy of our law is to give effect to the intention of the parties 0# e should apply the proper law of the contract 4le. loci voluntatis 4e.press6 or le. loci intentionis 4implied6
%*trinsic validit+ Earter) sale) donation Lease of propert+6 creates real rihts Lease of propert+6 does not create real rihts Plede) chattel mortae) real estate mortae) antichresis Contract of loan6 mutuum
Le. situs
Capacit+ of parties Le. situs
Le. situs
Le. situs
Le. situs
Le. loci celebrationis
7ersonal law of the parties
Le. voluntatis or le. loci intentionis
Le. situs
Le. situs
Le. situs
Le. loci celebrationis
Contract of loan6 commodatum Lease of service) aenc+) uarant+) suret+ship
Le. situs
7ersonal law of the parties Le. stius
Le. loci voluntatis or le. loci intentionis Le. situs
7ersonal law of parties
Le. loci volntatis or le. loci intentionis
Note6 Agency
Le. loci celebrationis
Intrinsic validit+ Le. situs
Conflict of Laws
Comprehensive reviewer of Sempio-Diy book
to alienate or encumber real property is governed by le. situs
♥
Le. loci celebrationis
7ersonal Le. loci law of voluntatis parties Liability for loss, destruction, deterioration of goods in transit law of destination of goods 4Art# />@1, !CC6 'f C"%SA 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 carriae ,render services-
Contract for air transportation ,/arsaw Convention/# The liability of the airline in case of death, in*ury to passengers, or loss or damage to cargo is governed by arsaw Convention 0# 'f there was malice, gross negligence, or bad faith, or improper discrimination, carrier is liable for damages beyond those limited by arsaw Convention
"hree theories in determinin locus delicti /# Civil law theor+ E The locus delicti is the place where the act began 0# Common law theor+ E The locus delicti is the place where the wrongful act became effective 1# "heor+ of
"he interestanal+sis approach E 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 ♥ 'f 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# ♥ 'f the forum is disinterested in the case, it can dismiss the same on the ground of forum non conveniens ♥ 'n short, the state which has the more relevant and weighty interests in the case should be considered the locus delicti
1#
Davers principle of preference E nder this theory, a higher standard of conduct and financial protection given to the in*ured party by one state is applied by the State where the in*ury happened, if the latter state adopts a lower standard of conduct and financial protection to the in*ured
!ote if contracts involve encumbrances of property, real or personal, apply le. situs# 'f personal contracts, law on contracts will apply Chapter 1= "5'"S "ort) defined Legal wrong committed upon person or property independent of contract ♥ Spanish law 2uasi delictGculpa a2uiliana 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 in*ury suffered
Concept of tort in the Philippines $lending of both Spanish and American laws ♥ Art. 2 NCC 8very person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same# ♥ Art. 21=9 NCC hoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done# Such fault or negligence, if there is no pre-e.isting contractual relation between the parties, is called a 2uasi-delict and is governed by the provisions of this Chapter#
Conflict rules on maritime torts /# 'f the tort is committed abroad a public vessel, whether on the high seas or in foreign territorial waters, the law of the flag is the le. loci delicti commissii 0# 'f the tort is committed aboard a private or merchant vessel on the high seas, the law of the registry is the le. loci delicti commissii 1# 'f two vessels collide and are from the same state, the law of registry is the le. loci delicti commissii 9# 'f the vessels come from different states with identical laws, apply said identical laws @# 'f the vessels come from different states with different laws, the le. loci delicti commissii is the general maritime law as understood and applied by the forum where the cas eis filed
Law overnin liabilit+ for torts in Conflict of Laws Liability for torts in general is governed by the le. loci delicti commissi 4law of the place where the delict or wrong was committed6 ♥ State where the social disturbance occurred has the primary duty to redress the wrong and determine the effects of the in*ury and
>orein tort to be actionable4sub$ect of an action for damaes in the Philippines : 'e(uisites4Conditions /# (ust ac2uire *urisdiction over the defendant 4action for damages is action in personam6 0# oreign tort must not be penal in character 1# The enforcement of the tortuous liability should not contravene our public policy
Conflict of Laws 9#
Comprehensive reviewer of Sempio-Diy book
"ur *udicial machinery must be ade2uate for such enforcement ♥ !ote all procedural matters are governed by the le. fori 7hil law6# ♥ Substantive matters are governed by the le. loci delicti commissii, thus 4/6 7eriod of prescription of the action is governed by le. loci delecti commissii because in 7hilippine law, prescription is substantive not procedural 406 7roper parties, measure of damages, and the 2uestion whether the acts complained of is considered the pro.imate cause of the in*ury are governed by the le. loci delicti commissii 416 The burden of proof and defenses that may be interposed by defendant are also governed by le. loci delicti commissii
completed in another state
Nationalit+ or personal theor+
Protective theor+
'eal or eclectic theor+ Chapter 1 C'IB%S "ort v. Crime "ort
Crime $oth are wrongs iolates private rights Committed against state 'nstituted by in*ured person 7rosecuted in the name of against wrongdoer in civil the State against the case, the purpose of which offender in criminal actions is indemnification for for the purpose which are damages suffered protection and vindication of interests of the public as a whole, punishment of the offender, the reformation of offender, or to deter others from committing the same act Transitory in character E Local in character and can tortfeasor can be made be prosecuted only in the liable for his wrongful act in place or states where the any *urisdiction where he crimes are committed may be found !ote The determination of whether a wrongful act is a tort or crime depends on the characteri&ation of the act in the state where said act is committed
Cosmopolitan or universalit+ theor+
Passive personalit+ or passive nationalit+ theor+
5b$ective territorial principle The state can prosecute crimes began abroad but completed within its territory The country of which the criminal is a citi&en or sub*ect has *urisdiction 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 *eopardi&ed has *urisdiction 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 *urisdiction, 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 e.tradition applies The state of which the victim is a victim or sub*ect has *urisdiction to prosecute the offense
!ote 'n the 7hilippines, we follow as a %8!8)AL )L8 the territorial theory, and by way o f 8HC87T'"!, the protective theory Cases where we follow the protective theor+ Art# 0, )7C 8.cept as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not only within the 7hilippine Archipelago, including its atmosphere, its interior waters and maritime &one, but also outside of its *urisdiction, against those who /# Should commit an offense while on a 7hilippine ship or airship 0# Should forge or counterfeit any coin or currency note of the 7hilippine 'slands or obligations and securities issued by the %overnment of the 7hilippine 'slands 1# Should be liable for acts connected with the introduction into these islands of the obligations and securities mentioned in the preceding number 9# hile being public officers or employees, should commit an offense in the e.ercise of their functions or @# Should commit any of the crimes against national security and the law of nations urisdiction over crimes committed on board a forein vessel if said vessel is within territorial waters %nlish 'ule >rench 'ule 8mphasi&es territorial 8mphasi&es nationality principle theory
Conflict of Laws The territory where the crime was committed will have *urisdiction 8HC87T /# 'n matters relating to internal order and disciple of the vessel and 0# Those which affect 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 *urisdiction 8HC87T if the crime affects the peace, order, security, and safety of the territory
!ote nder Art# 0> of !CL"S, 7hilippine courts do not ac2uire *urisdiction 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 rench rule#
Chapter 1@ E0SIN%SS ASS5CIA"I5NS Corporation) defined Sec# 0 of Corporation Code An artificial being created by operation of law, having the right of succession and the powers, attributes, and properties e.pressly authori&ed by law or incident to its e.istence >orein corporation) defined Sec# /01 of Corporation Code "ne formed, organi&ed, or e.isting under any laws other than those of the 7hilippines and whose laws allow ilipino citi&ens and corporations to do business in its own country or state
"heories in determinin the personal law or overnin law of a corporation /# The theory that the personal law is the law of the place of incorporation 0# The theory of the place or center of management 1# The theory of the place of e.ploitation !ote 'n the 7hilippines, we follow the theory of the place of incorporation
0#
operate public utilities unless =5I of the capital is ilipino owned 4Constitution6 or wartime purposes E e adopt the control 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
Batters that are overned b+ the personal law of the corporation /# )e2uisites for the formation of the corporation 0# )e2uired number of incorporators and the members of the board of directors 1# The kinds of shares of stock allowed 9# The transfer of stocks @# The issuance, amount, and legality of dividends =# The powers and duties of the officers, stockholders, and members Law that determines the validit+ of corporate acts and contracts Determined by the place of incorporation A!D by the law of the place of performance Ba+ a forein corporation sue and be sued in the PhilippinesH Jes, if it has the necessary license to do business in the 7hilippines# The license is re2uired not to forbid the foreign corporation from performing single acts but to prevent it from ac2uiring a domicile for purposes of business without taking the steps necessary to render it amenable to suit in the local courts urisdiction over forein corporations doin business in the Philippines) how ac(uired $y service of summons on /# 'ts resident agent 0# 'f no such agent, on the government official designated by law to that effect or 1# "n any of its officers or agents within the 7hilippines 4)ules of Court6 Status of a contract of a forein corporation who transacts business here without the necessar+ license nenforceable, but the person who contracted with the corporation may be in estoppel if he had received benefits from contract Instances when a forein corporation not doin business in the Philippines can sue in Philippine courts /# 'solated transactions 0# To protect its reputation, corporate name, and goodwill 1# or infringement of trademark or trade 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 e.ists when two or more persons bind themselves to contribute to money, property, or industry to a common fund, with the intention of dividing the profits among themselves 4Art# />=>, !CC6
Conflict of Laws ♥
Comprehensive reviewer of Sempio-Diy book
A partnership, like a corporation, has a *uridical personality separate and distinct from that of each of the partners
Personal or overnin law of a partnership Law of the country where it is created
Chapter 2 '%C5GNI"I5N AN< %N>5'C%B%N" 5> >5'%IGN 0
8nforcement cannot e.ist without recognition
'econition of forein $udment (eans that eh defendant or respondent is presenting the foreign *udgment on the basis of res *udicata 'nvolves merely a sense of *ustice $eing 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 *udgment )ecognition does not need or does not re2uire enforcement
'easons wh+ a local court in the Philippines ma+ refuse to reconi8e or enforce a forein $udment /# The re2uisite proof of the foreign *udgment may not have been presented ♥ The manner of proving a foreign *udgment is the same as proving a foreign law 0# The foreign *udgment may contravene a recogni&ed and established policy in our country 1# The administration of *ustice in the country where the *udgment came from may be shockingly corrupt or not beyond reproach Conditions or re(uirements before a local court in the Philippines can enforce or reconi8e a forein $udment /# There must be ade2uate proof of the foreign *udgment 0# The *udgment must be on a civil or commercial matter, not on a criminal, revenue, or administrative matter 1# There must be !" 4/6 Lack of *urisdiction 406 ant of notice 416 Collusion 496 Clear mistake of law or fact 9# The foreign *udgment must not contravene a sound and established public policy of the forum @# The *udgment must be res *udicata 4/6 The *udgment must be final
406 oreign court must have *urisdiction over sub*ect matter and parties 416 The *udgment must be on the merits and 496 There was identity of parties, sub*ect matter, and cause of action %ffects of forein $udments in the Philippines under 'ules of Court Sec# 9?, )ule 1B, /BB> )ules on Civil 7rocedure provides The effect of foreign *udgment or final order of a foreign country, having *urisdiction to render the *udgment or final order is as follows 4a6 'n case of a *udgment or final order upon a specific thing, the *udgment or final order is conclusive upon the title to the thing and 4b6 'n case of a *udgment or final order against a person, the *udgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subse2uent title 'n either case, the *udgment or final order may be repelled by evidence of a want of *urisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact#
