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CONFLICT OF I-AWS
ARAULLO Uil!\TER SITY
LAW L'BRARY
CABAI{AI UAN

ITY

LLB., LL.M

ALICIAV. SE
Retired

Jattie-of the Court

Fortter Astistdat

of Appeals

olitvto*Guera/

Ci4'
FornerJDKC.ldge ol Calooun
Citl'
For*rr.Tortgr' F(TC o.f Caloocan

BorE*oiiori in GailLzw'

999 and 2003

in
Pmfetsor and Bar Reuieuer

Gai I l-znt

Menbe", Cnp of Ciuil l-av Profesorl

J adiaal

Acatieml

ol' the P hilippixu

PREFACE
Repcatedl'urped and requested

CoPvrrght 200'l
by

ALICIA V. SEMPIO-DIY

TRAULTD LIUIVFRSITY
LAW I .BRAR T
CAEA}IAIUAN

ITY

number and
Any copy of this book not bearing a
be
,ig"","r. .f.he author on this page shall denounced
u. pro.""dt.tg from an illegal source
'

t".,

N" /43L

ALL RIGHTS RESERVED

Bv the Author

W'i

br, her srucienrs

a.ci bar re'lewe c.

to writc a textbooli in confhct oi Larvs rvhrci.r ther. claim is a difhcull

subject and that no srmple and handv book rs available to help them
study tire same, the undersrgned finallr, buckled dou,n and .wrote this
"Handbooli on Conflrct of Laws" rn a sunphFred, quesuon-answer form.
gurded bv her long experience for the past nvenn'-five or llore )/ears ln

ti

teaching the slrblect. and emphasizing and explainine with exampies tl-re
fundamentals and irnportant aspects of the subiect that students and bar.
reviewees seem to Frnd difficult and burdensonre. This irumble rvork rs
thus dedrcated to aii the larv srudents takrng the subject this vear and in the
vears to come, as well as the author's tl'rousands of former students whc,
are either rcvieu'ing for the bar or are now successfu] l2s,' practiuoner-s. It
is likewise hoped that larr"'professors teaciring the srrbiect, and larr^u'ers

and judges conftontcd with confucts problerns, can find thrs humblc
handbook useful and heipful, especraily as rve do not have enougb laws
nor jurisprudence to guide them in all }lnds of conflicts problems. indeed,
wrth dre fast advance of modem technology rn dre means

of communication

between and arnong tire natrons of the '"vorld, the raprd growth and
expansion of internattonal trade and commerce, the influx of tourists
and foreign traders to out countn as well as the massi\re migration of
our countn'rnen to v,'ork and hve rn forergn shotes, and the great increase
in busir.ress uansactions of foreign corporauons rn d-re Philippines. nrore
and more confhcts problems crytng for solutions will undoubtedll'ause.
The i.nr,aluabie help of her fotmer students Atn. Edr.vard Ong
and bar reviewees Clarence Evangelista and Russei N'liraflor in encoding
her manuscript and preparing it for prtnung ts herebv gratefullr- and
sincerclv acknorvledged.

Pdnted'SY'

MPC Printers

ALICIA V. SEMPIO.DIY

8-F Pahutan St. Veterans Village

Proiect 7, Quezon Ciw

Quezor Ciry
lvlav 2t)04

TABLE OF CONTENTS
i

In

Page

General

Junsdrcdon and Choice of La'*'

3 Theories that Justi$' the Applicauon of the Foreign Law
4 Nature and Composition of Conflicts Rules
5 Charactenzaaon of Conflicts Rules
6 Personal Law - Theories in Determining One's Personal Law
7 The Nationaiiq' Theory
g The Domrcrliary Theory
9 The Situs or Eclectic Theory
10 The Problem of "Renvoi"
11 Conflicts Ruies on Starus and Capaciry
,).2 Confltcts Rules on Marriage
A. Matriage as a Conffact
B. Marriage as a Starus
C. Annulment and Declaration of Nulliry of Mariage
D. Absolute Divorce

h
la-

13

E. Legal Separation or Reiative Divorce

Status of Cirrldren
A. Legumacy and Illegrtimacy

Legrtimauon
C. Adoption

B.

14

4
1,7

22
26
29
33
51

57
59
65

74
78
83
86

90
94
97

98

Wilis, Succession. and Administration of the

Estate of Deceased Persons

105

15 Property
16 Contracts

i13

Contracts
B. Capacity of Parties
C. Intrinsic Validity of Contracts
D. Special l{nds of Contracts
17 Torts
18 Crimes

123
124
725
128

122

A. Extrinsic Validiq' of

19

137

Busrness Assooation

A.
B.

20

13t)

Corporauons
Partnerships

Recognition and Enforcement

143
149

of Foretgn.Judgments

151

CONFLICT OT LAWS

CHAPTER

IN GENERAL
L"Defrne Conflict

of

Laws.

It is that part of law rvhich comes inro plav

rvhen the issuc

before the court affects some fact, event or transaction that is so clearlr'
connectedwith a foretgn svstem of Ia$'as to necessttate recou.rse ro that
svstem (Clieshire, Private lnternauonal Ll ', 194i ed., p. (r).

Conflrct of Lau's embraces those universal pnnciples of ngbt

and jusuce whicl'r govern the courts of one state l-raving bcfore tirem
cases involvrng the operation arid et-fect of tl-re iarvs of anotirer state or
coul-rtrv (lr{rnor. Conflict of Las's. 19t)1. p .{).
Conflict of l,aws is that parr r,i the munrcrpal lau, oi zr starc
whtch directs its courts and adnlnistrative agencres, rvhetr confrontecl

with

a legal problem rnvolving a foreign element. rvhether or

should apply a foreign law or foretgn lnu's. fParas. Phil. Confhct
1996 ed.. p. 2).

not ther
of Lalvs.

ZJ\lhat is a Conflict of Laws case?

Anl

c^"e which invoh'es facts occuning ur rnore than onc statr'

or nauon, so that in deciding thc case. ir rs neccssan' to make a choicc

berween the laws of drtterent srxrcs or coLrnrrles. is l C.onluct of Lau-s

CONFLICTOF LAWS

IN GENERAL

..state" is used in
3. when the rvord

conflict of Laws, what does it

CONFLICTOF LAWS

7. Distinguish Conflict

mean?

(a) As

ir inclucies nor oniy ioreign s()\'cretgn cc-runtrics or states but

of states oL countrics v'hich l-rave their
legal sYStems, sr-rch as thc differcnt states

al.so poliUcal subdirrtsrons

ovn

Conflict of Laws governs private individuats or corporations.

(b) As to nature: Public International Law is intetnationa] rn

4. $/hy is this subiect more important in recent times than in the

5. Is Conflict

of

Laws part

lar'r,:,

of International Law?

No. Althougir it is sometirnes tirought of as part of International

Law because of the presence of a foreign elemetrt in a given problem, it
is nor rnternational tn character but is part of the municipai law of each
state. Br' "municipal larv" rn Conftct of l-aws is meaut the intcrnai or
iocai iaw of each state, since everr' state has its orvn iuterual or loczrl
svstern of lavi so each state also has its own confltct o[ Iaws.

of Laws is rnunicipal in character.

(c) As to transactions involved: Public International Law

past?

of

Laws from Public International Lap'.

to persons involved: Public Internatronal Law governs

character; Confiict

this subject as an important department

of

sovereign states and entities that are intemationally rccognized or possessed of

internationai personality, such as the United Nations Organization; while

constiruting the United States of America, the lederal st^tes of Austfaha,

Canada, lv{ex-tco, llrazil and Germauy, etc

Witir the fast advance of modern tecirnologv in the means of

communicatiou betrveen and among states, the rapid growth and exPansion
of internatronal trade and commerce, the influx of tourists arid f,;reign
traders to our countlv as well as the massive lnregatlon of our countrvmen
to rvorli and live in foreign shores, the great increase of business
transactions of foretgn corPoratiotls n the Philippines, all these bring
about manv ar-rd varied problems tn Conflict of l,aws. Hence, tlre necessitl
nor oulv for iaw]ters and judges but ft-,r: our citizens as a wholc to studv

IN GENERAT

applies onlv to transactions rn wllich only sovereign states or entitie s with

international personality are concerned and which generally affect public
interest; while Conflict of Laws deals with transactions stlictly pnvate in
nature, in which the countrv as such has genetally no interest.

(d) As to remedies applied: In a dispute between sovereign

states or tnternational entities or in cise of a violauon of Internauonal
Law, the concetned states may fitst resort to peaceful remedies iike
diplomatic negotiations, mediation, inquiry and conciliation, arbitratron,
or judicial settlemeflt b,v international tribunals [ke the United Nations. If
these temedies fail, the states concerned may resort to for:cible remedies
like severance of diplomattc relari<-rns, retorsions, reprisais, ernbargo,
bovcott, non-intercourse, pacific blockades, collective measures under
the UN Charter and finallv. war.

ln Conflict of Laws, recourse is had to ;udicral or admrnistratrve

tribunals in accordance with the rules of procedurc .of the country w'bere
rhey sit.

8. What are the sources

of Conflict of

Laws?

6. What is the reason for the diversitv of conflicts rules among the

diffetent states of the wodd?

Direct soutces: Bilateral and multilateral treaties and internatic-,nai

conventions; constitutions; condiltcations and statutes; iudicial decisions;

Thrs is because each group of peoplc havc a lauguage, cr-rlturc,

mores and customs, rehgron, ideals and bc[etl, pecuiiar to sr,rcl.r group.
rvhich or" r:eflc:ctcd or exprcssed in tl'retr 12rr5 nn6i legal strsterns. For
exalnpie, whilc the great rnajorin' of tlrc countr-ies of tirc rvorlci alkr.'v
absolute ciivorce. our coul-Itr\r sttll has not legalized absolute divorce. Anci
rvhile some counlries a,:e verv liberal in grnntlns drvorces. others are not
so libeml.

and internationai customs.

Indirect sources: the samc

as other branches

of jau': among

otirers, the natural moral laui and the rvritrngs and treatrses
and famous writers and jurists on the subiect.

of

thinkers

CONFLICT

OIJ

LAWS

CONFLICT OF LAWS

JURISDICTION AND CHOICE OF LAW

clehned as ti,e ll()wcr to irear anci dctcrrnrnc crses oF ti-rc general class tt,
whrch d-re proceedrngs in cluesuon bclons.
Srnce jr-rrisdicuon over ti're sublect marrer ls conferred bv iau.
be conferred b1' consent oi'tire partres or bv tl'reir voluntart'

1a)

lt clnnot

submission.

(b) In the PhrJrpptnes, prnsdictron o\jer the sr"rbject-marrer is found

and the.)udicrary Reorganizauon Act, as arnended
the
Constitution
in
fludrcrarv Acr of i94ii; Batas Pambansa BIg. 129, as arnended bv Rep.

CHAPTER

Act

JURISDICTION AND CHOICE OF LAW

1..

How does one deal with a problem in Conflict of Larvs?

(a) First. deternine rvhethcl thc courr i-ras jruisdrction ovcr thc
clse. lf it has no iulrsdrctron, thc case sl.rould be drsrnisscd on tirat t:round.

Ii it l"ras jurisdictron. tllc court rvill cle tcrrninc t.hether it should assume

jLrrisdjction o\rer the case or clismiss it on thc ground of .ionrru nln L'ot'tzj(nian.t.
OF course. 1t is thc lat, of thc forunr that cietcrmines rvhctircr thc court
bas juflsdicUon ol'1lot ovcr thc casc.

(b) Once the coult has dctcrmined rvhethcr it has jurisdrcrion

()vcr tire case. itrvili next determine rvhethcr to a1>plv tl-rc internal lal,
<,,f the folurn or the proper forejsn lau', considering thc atrencianr
c1f

cumstances.

2.

Ho*'

the

does the court determine whether

it has jurisdiction over

case?

T'here are threc liinds of jurisdiction: (11 jud.61.ri<xr over thc

sublect-matter:, (b) iurisdrctron over rirc person, and (c) jurisdiction ovel
tlrc

t'es

Jurisdiction over the srrbiect-matrer.. ^

f\e-

'^

ccu''r\,n:l*

lurisdicuon orrcr tirc subjccr-rnattcr is conferrcci

lrl larl arrd is

7691).

(c) Srnce jr-u'rsdtcuon over the subject-matter exists onlr, rn the

abstract. rt mlrst bc invoked bl Frlir-rg the proper cornplaint or peduon
wlth thc court. And it is dre illegauons of the complaint or peutron read
in the hgirt of tl-re proper jurisdrctional laq that confer jr-rrisdtctroll on the

lf the allegations of tl-re complaint show prinu.fttsic a lack of

jurisdiction, tirc cor-rrt must disnliss thc case outtigl.rt. Ntr prchrninalr'
colrrt.

irearing on ti.re cvidence is needed. Il, on tl'rc other hand. thc complatnt or
pctitioll. on rts f-ace , sirrxvs the l)rcscncc oI jLrrisdicti<;n, tria] must bc held.
Should thc cvidcnce shorv that tirc coult rcaiiv has no junsciicti<,rr-r, thc case
rnust bc dismrsscr-|.

ln thc reaim o[ Conflrct of ],arvs, horvevcr. there is anothcr

eicrnenr whrch the coult mLrst consider in detcrmining the mattcr ()f
(d)

lurisdrcuotr;1.e.. the possrble eniorceabilin'of rts clecrsion in loreigr ,ror../

sublect to thc riqhts oi said statcs (sec lticnu'tck, lntcrlratronal J-arv [1948].

312) 'l-hrs rs

rr (-onfiict

t-ri Llrvs. lunsdrction is thc porvcr of

t() rcnclcr a dccrsron thar ri'ill cteatc lcual r:ights
and intcrests rvi'rrch otircl statcs will rccognrze and cniorccbcc;Lr.rsc

tirc court oi thc

ii-rrr-rm

Jurisdiction over the Person;

(a)

()r powcr of r
-lurisdrcuon over thc pers()1r is the competencc

c()rlrl t() rendcr r luclgrnent that rvill brnd thc parues ttrvolvcd: thc
piantrff or pctitloncr, ancl thc dcfcndant or respondent.
(b) .lunsclictrr)n ()ver the piaintrii rs acqutrccl thc tr<xnent ht'
rnvoiics thc pr-rrvcr of the court bt, ilr.t tuttng tirc acttou il tirc prolrct'
picaciing..f unsdicrit,n over thc clcfcndat-rt is acqurlccl rvircti hc eutcrs hts
lul)l)ext,r)cc ot'Lrt ti-rc coercivc pos'cr oi lcgal 1>roccss cxcrtccl bv tht

CONFLICT OF LAWS

JURISDICTION AND CHOICE OF LAW

court ol'er hlm.

uncler tire rule oi subtntsston' mat somettmes b\'
couft
be deemed tu conscrlt t() lts e\e;clse of iunsdrcuon
fiirng surt v'ith t-ire
over his ortalnal cause oi acgon including counter-clarms irled br- the
defendant, and lle wouid tiren be subject r() tilc iudglrlent of the court.
As for the defendant, his personal appearar.rcc ()1. appcirrancc bv couusel

A piantrfi.

is tantamount to his giving consent tt; the c()urt's exetclse of iurisdrctron

over his person, except if his appezrance of ri'rat of counsel is for tire solc
putpose of cluesuoning tire jurisdrctron o[ the court

over the defendant rrrav be acqurred througlr hrs

voiuntarv appearance, as already stated. of bv personal or substlfuted
scrvice of summons on him ulldef the Rules of Court. This is referred to
(c) Jurisdrcuon

as tire coefciye pr()cess

in tire rnnnler

pr<.,r'ided bt, Iaui

7. Substrtuted servicc.-

JURISDICTION AND CHOICE OF LAW

Jurisdiction over the Res:

-lurisdictron over the re.i or thing is jurisdrctron over the
particular subject-matter in controversr', regardless of tl-re persons
who mav be rnterested therein. The basrs of the exercisc of this jurisdiction
is the presence of the propertv wthrn the territorial iurisdicuon of the
forum, even though the court rlav not have personal iurisdicuon over the
persons whose interests in the properw are affected. This is because the
purpose of the suit is not to impose a personal habiiiw on anvone but it
is to affect the interests of ail persons rn a thing. Lxamples are land
reglstration cases and adrniralW cases where the purpose is for the judgment
to bind the whole wodd insofar as the subject land or vessel is concerned
and not just the interests of specific persons. This llnd of jurisdicuon is

referred to as jurisdiction in

Personal setvice: "Sec. 6. Servlcc in person oll defendant Whenever pracdcable, tire summons shall bc served bt'handing a coP)'
thcreof tc_r tirc defendant in person. or, if l.re refuses to receive and sign
for it, bY tendering it to him." (l{uie 14, 1997 Rr"ries on civil Procedute)
substituted service; "Scc.

CONFLICTOTLAWS

If, for justifiable

causes, the dcfendant cannot be serve{ rvidtn lr rcasonablc tune as providecl

in thc prcce<ling section, servtce mal' be e ifccted (a) bv lcaving copies of

the summons at tire <-leFendant's residence with some pefson of suitable

agc and drscreuon then residing therein' or t'b) bv leaving the copies at
clefenclant's ofltcc or rcgLtlar placc of busttless wtth some c()l'tlPetent
persorl ln ch^rge thereof." (id.)

Stflct cornpliance wlrh rllr ab,.)r,c nrles is requirc<j

bef<-rrc thc

c()Llrt can accluire jurisdicUon over thc Pcrsol) of dre dcfendant (Pantuleon
servlce
u. ,'lrundon, 1 05 Phi/. 76 I : .\'eqnttt a. I-,e/ronclo. I 0 5 Phil' I 1 )9)"lbus'

on a \2-year old daughter of the defendarrt is not vahd substituted

(Sequitrt u.
se rvice because of tire child\ lack of suitable age and drscretion
of
summous
scrvtce
t>f
cr(>ncous
tite
quesuon
Itlrondo,,/). Howcver.
tnLlsr l)e raised bcforc judgnent is rcuderccl. or tl-ris woulcl be a clcar casc
r>f rvaiver (J,tranilia u. c)Lniule.s. 96 Pt)i/. j) Nioreover, deiccuvc scn'ice
rnav bc cured bv actr-ral receipt o[ the strnrtrtons bv thc clcfcudant. or if in
anY other lTranner. knowledge of thc exrstcncc of the casc si-tt>uld comt
to iris attenuon (Sequito u Lttrondtt, id )

rezz, as

distinguished from jurrsdrction iz

petonam whtch binds onlv the parues and their succcssc.,rs-in-interest.

What about acuons quai in rcrn? In an action qua.ri iu rem, tlte
purpose is neither to rlTrpose a persoull habi.hn or obhgation uP()n
^nvot]e,
nor to affect the interests ol aii persons in a thrng, but to affcct the
interests of particular persons in a thing. In sucl.r case, the court mav
render vatd judggnent when it has iurisdiction over tl-re particular persons
whose interests are affected. Examples are foreclosltre of a mortgage,

partition of land, or an acuon to qutet tide to propern'. An actron affecting

the personal status ofthe plarnuffrs aiso classiFred as an acdon quati in rem
under Ruie 14. sec. 1 5 of the 1 997 lluies on Civil Procedure. ln actions zz
tem. act:tons quLtti in rem, or'those involving the personal statr'ls of the
plaintifl exlraterritorial service of summous bv pul>llcatron is all<;wecl.

3. How may service

of summons

be effected?

oi

summons mat bc bt llcrsonal

service or subsututed service, as pornted out above. Sen'ice bv publication
would not be sufficient, whether the defendant is in tl.rc i)hilippincs or not
(Pantaleon u. Arundon. 105 Phil 75/).

ln acdons

ifi psfflnam, scrvice

When, then. is setvice by publication allorved? Summons br

pubhcation is authorizcd onit'iu thrce cases:

(a) lf the acrt<>n ts in ran;

(b) if dre acuon rs quati in rum. or
(c) It tl-re action involves thc Pcrsonal

statr-rs of the plarntifi

'(Rule 14. sec. 15. 1997 Rules on Civil i)rocedure i

CONFLICT OT LAWS

IURISDICTION AND CHOICE OF LAW

CONFLICTOFLAWS

AND CHOICE Or LAW

'URISDICTION

When rr-ral extraterritorial service oi sumrnous be effecteci-:

Sec. 15. i{ule i-t. id.. provicies fcrr four rnstanccs wi-rereln exffaterrttortai
servlce

of sumtlons tnat

bc mircie: llamci\':

to the PhiJ-ippines on vacation. while here, he had an affak w,rth and

impregnated Rose. Learnrng of Rose's pregnancy, Mar took the firsi
availabie piane to the L'.S. rf, after the birth of het child, Rose fiies an
action against Mar, who happens to have some properties

(a)

\\hen the dcttnciant does not reside and is not found in

Phihppines. and the action affects the personal status of

the

Philippines, for. recogmuon of her child with supporq would the action

tire

prosper, summons having been served on Mar only by publication,

plarn u ff:
(b) \lhen the defendant does not reside and is not found rn the
Phihppines, and the actlon relatcs to or thc sr-rblect of wirich
is, propern'wrthrn the l)luhppmes treal or pcrsonal). rn which
the defendant has a claim a hen or interest, actual or contingent;
(c) When the defendant is a non-resident but the subject of the
action rs properry located in the Philippines, in whtch tire
reiief demanded consists. whollv or in patt. rn exciudtng tl-re
defendant from any interest therein; and

(d) \X'hcn propertv of a non-resident defer.rdant has been

attached n thc Phiiipprnes.
tl're last case, hower.cr, u4riie a l'rit of attachment
court upon apphcatron, sard v'rit cannot be
lmplemented untll the court iras accluired jurisdictron over thc
non-residcr-rt defendant, for urithout such jurisdtctron, the court
has no porver ancl allthoriq' to acr 111 any manlrcr against the
defendar-rt, and an1' court order to that effect rvill nor bind sard
defendant (.Dn,ao l)3ht and PrnuerC,o., lnc. t'. C.-'1..204 5'Cl\'1 i|)

In

rnav be rssr-red by the

lteel

in

tl're

As to the recogninon of ltose,.s bab1,, ves, beca.se that is an

acrion that affects the srarus of the child. so tirat sumrions bv publicauon
would be sufhcient for the colur to acguire j'risdrcti.n o'et N{ar (scc.
15, llule L1, 1997 Rules on Crvil Procedure).
But the clernand for sr-rpport of thc child agairst l'lar will not
prosper, because it would be a judgmcnt tr puronant, ancl surnmons b.'
pubhcation wouid not give the court jur-iscliction over Mar.
(b) Joe, a Fil-ipino non-residenr, married Susan in tire pl-rilippines
while on a short vacauo'l here,
'"itir.nr re'ealing to susan tl-rat he rs
alreadv a mar'ied rnar. After Joet deparrure for hrs lorergn residence.
Susan filed againsr, ]inr an acuon for thc declaratron of the nulhrv of their
rnatriage and damages, as Joe happe's to h^r,e some properties herc.
Upon the hli^g of her petitro', S'san also asked the court for a v"'rit of

prelir-ninarv attacl-rmenr against some of Joe's properties in this countr\..

would susan's acuon lor declaration of nul[tv and damages against.]oe

prosper, sumfi)ons having been served on thc larfer bv puithcation?

Hov, mav extraterritorial service be effected?

for

cluasi

Such serrice ma},, by leave of court, bc effecred:

(a) By personal selvice as under sec. 6, Rule i.l;
(b) Bv publicatron. but copv oi the summons and the order of
the court must be senr bv registered rnail to the dcfcndant's
last known address:
(d) Irt anv other manner that dre court mav deem sufficient. Irbr
example. bv rcgistered mail
(,N\idge4'

FernandeT.

61 SCK'1

23).

For the declarauon of nullirv oi marriage, \,cs. because that aslis

of the personal statrs of Susan, equrvalent to an action

a declaration

in

rem.

But as to the demand for damages rvith a rvrit of prcliminan.

attacirment, it was held in the recent case of Dauao I ght and power Co.,
Inc. u C..,1., .rupru. that while the court could issue said writ, it cannot bc
implemented unul the court has accprired jurisdrction ovcr the nonresident defendant, which can be done onlv bv personal or subsuruted
service

of summons on

iudgment

the latter, because a judgment for damages is

(c) X. credrtor of

4. Illustrative

cases on the problem of jurisdiction:

(a) Mar, a

Fiirpino permanenr residenr of Cahiornia. USA, carne

in pertonam.

(a residenr

of Spain), filed an acrion agarnst

Y for tire foreclosure of mortgage over a propern- given to hrm br, \' as
securin' for tl-re pavmenr of a dcbt conrracred br' \' while he rvas i. tirc
Pirrirppines. In iris acuon, X l)so pravcd for dehcrencl, juclgrncnt ln casc

10

IURISDICTION AND CHOICE

CONFLICT OF LAWS

OF LAW

CONFLICT OF LAWS

foreciosure of n-rortgagc. \'es. bccatlsc lt is an ncuon

quai in rem.Butas to the detnand for deficiencv judgrnent. no. because it
rs asking

for

tl-re

iudgment in pcnonum agarnst Y

5. Mention othet points to remember on the matter of iurisdiction:

(a) Once the plainuff hies an action before a Pirilippine court,
wl.retl'rer he be a Fihpirro ciuzen or a foreigner, a resident or non-resident
of the Philrppines, he submits hrmself to the iurisdictlon of the court afld
machinerv into actron. Flence, he is now subiect to anv
puts the

iudrcial

counterciaims, cross-clatms, etc' that the defendant nlal' Put up under

Philipprne larv. In choosrng n Paructlllir forum, tl-re plandf[ has acceptcd
the entire judiciai machiuery of ti.re forurn completeil', so that he must
accept not onlv tts benefits but its burdens as well.
iunsdicuon

to all subsecluent matters in the same suit, like appeals. And even if he
leaves the state o[ dre forum prior to tl-re final clcterminatiotr c.'f tire
actron agarnst hrrn, jlrrisdiction of the court over him contintles.
as

6: Explain why the court may refuse to exercise jurisdiction over a

case on the basis of the principle of forum non conveniens.

.lt'icntirrr::
r'e)'firc forura

iras Do lraLuctrlar inrcrcst t. tirc casc,

thc paruc:;
not beillEr ciuze's .f t'e 10rr-r'r or are resrcle'ts elsewhcre;
or
the subject-rnr -ter of trrc casc ertolvecl s.mervhere
elsel
(f) other collrts are ope' and trrc case rra'rre better
triecr
said

'

ceLtrtsl

'I'he rnadcc|.ra., of trre local j*drcial

maci''c^. for effccrr_rafi'.,
ft)
o
thc nght sorrgl-rt tc.r l>e enforced by thc plarntrfL ot
(h) 1'he difficuln. of asccrraining the ibrcign larv apphcablc.
(See Strmson, Co'fhct of Larvs, pp 3ag-352; (.anacla A,laltitt3
Co.
t. Paftenon .Stcanthil>, 28i Lr..f . 1l ). 12 j: Hdre t,. Neu )b* 1n.,,. (0..

15 l;ct/. (2(/)#q

Example: Several Gcrm^n crtize's brought rnsurarcc

against the Nerv
Germanv and

\brii Life lrs. cr. .'

v"'as se-rved.

Issue: Nfat' thc Oregon court. in the exercise t-rf rts discretion.
refusc to taiic cognizance of tlic casc?

m2l'not

be

readtil avarlabie in

c1

of .1orum noft LankntcttL.e becar-rse:

of the forum;
(b) 'fhe courts of Germanv and Net, yor:li arc opcn ancl
iu'crl()lrrng, and sc^'icc ca' bc rlirde .' thc dcfe'dant

'r

(b) The court dockets

of

tl.rc

forun rv.ulcl

in'rpo"^e upon it great and unnecessar-t.lnconvcrlencc ancl

compcl

it to produce records and papers whicir rverc of daill usc in

the forum;
tl.rc forum ma1' alreaclt be clogged s<r
iran-rper the speedr'
cases

that to pennit additional

administrauon of iustice;

"vouid

The belief that the matter can bc better uied and decided rn
another iurisdiction, either bccause the main aspccts of the
case transpircd there or the rnaterial wrtnesses have their
residence therel

(d) To curb the evils

Yes, on the groun

(a) Bodr parrics werc non-rcsidcrrts

(.) 'lb requirc dcfencia'r ro clcfe'cl the acti.n in

(a) The evidence and the witncsses

(c)

resrdc'rs.f

de fendar.rr

crrirer jru'isdrcuon;

following practical reasons:

craims

insnralrcc policies issrecl in

wrs a Ne*'\brk CorPoration, suit was brought

in oregon, u.S.A. rvhcle defendant hacl an agent on .rrl',orn sunrr.,rc-,rr.

Held:
As has been said before, even tf the court has jr"rnsdictioll over a
confltcts case, it ma1,, bv rnvoking the princrple of forun nzn tluuunreni.
rcfuse to exercise cr assttlne that ltrrisdiction, in vies'of an'{ oi the

1I

r-rrgirt h^'e trled the casc rn thc

ir.rlur_' meleh. rc,
secllrc l)focccir,rr.el adlantag.cs 01. t() ;lnlr()\,
or ltrrrass the

Gerrnanr. -\lthougb the plarntifir- were citizcns and

(b) As for the defendant, he becomes subiect to the court''s

LAW

plai.tiff

thc properw tnortgavccl lvor.rld not bc suificicnt to satlsfi'thc debt. ,\gatr-r,

sumlnons was servcd on Y b-r'pubiicauon. \\buid the actton ptosperr

As to

IURISDICTION AND CHOICE OF

o[ "forum

si-ropping";1.e., the non-resident

its current business;

(d) 'fhe case could consume months

of ti.re rirne of rhc cr>urr.

resultiug rri dclay, inconvcnience, ancl expense t() ()the r
Lrrgants rvho are entitlecl to involie thc coult's jurisdiction.
(.Hcint r.

\n,)brk

)t,;. Co.. supr.ti)

Warning: Itemernbcr, however, that the doctrinc shoulci

generalh' appll onlv if the defendant is a corporation. lior if ti.rc

72

IUIIT'DICTION AND CHOICE OF

CONFLICI OF LAWS

L,AW

clefcriclant ts an inciivrdual. thc propcr: forum tnm' not be ablc to '.'tctlultc

ir-rnschctron over

httl ifor

examplc. )'rc rlugirt not bc'resicirue t)-rerc'). thus

leavrng tlrc piarnufi *'itirciut anl

rencdt

s rvl.rerr tire forr'un has to appil

(lex fo..ilrn clcciding a casc in conflicts of lau',

Tl-rere are at lexst three (3) instance

or dorncsltc

lnxv

-This

\\hen the larv of the f<-lrtul exptcssh'so provides tn

rts

conflicts rulcs;
(b) \!hen tl.rc proper forcign lru' has not been ptoperll' pleaded
ancl proved:
(c)

\\,hen thc

casc

1211';

ii.c.. e\ccptions

t,-r courttt-).

8. Give examples of cases rx'hich require the application of

Philippine internal or domestic law' (lex for\.
\lhencver

case rvhercrn the

rntel'ai .r

clor",-,e

sdc iau,

I.1

.i

foreig. iau

i,

thnt ,r,r.

courts cannot take ludicial noucc oi forergn iarvs, So that if thc Droper
forcign lau'is
pleaded (rn tirc cornpiarnt c,r peuu.,n. or in rhe irnsr,,,ct
'ot
or an\r othcr rcsllonsrve pleadint) ancl is not pl'()vcn :Ls a fact, the cor.Lrr
bas the right to presnlDe that tire aPpliclbie forergn iarv is tire sa'rc as thc
internal or dolncstlc law of the t<>rurn a'd should, theref'r-c. app)v tht
latter law (4don.qu. Cheon1ScngCrc, 4J Pl)il. 1);5.1 loc I-.ton3u. ,\'),quza, /6
Phi/. 1)7; Itn y. Collector, 36 Pltti. 172; I'luenr u. I li.c. 5l Pltil. 6/0; ln ra

ol Suntql, 95 P/ti/. 500).

(a) In connection with the foregoing quesrion, lror:r.. is

foteign law proved under our Rules of Court?

If

rhc larv is written ir r-nat' be proved

(1)

,\n official pubhcation rher'cof. or

ofthe larv attestcd bl thc otttcer har-ing iegrl
custodri of rlrc- rccolcl or b',' his clcPr,rt1,, irccr>nrpaniccl
lrl a certiIcatc ol rrrl l)hihppinc cmbassl. c()r)suilr.

b1':

(2) A copv

or forcigr-r sclvicc oft]ccr rrr thc tbrcign c()Llrrrr\'\\ [re'jc

the recc-ird is kcpt, and auther.rticatecl bl rhc scal oi
his offlcc. (lturlc 132, scc. 25. Rer'. Rr.rlcs of (.<;urt)

lencl involved itr+ire suit rs locatecl rn thc I)hilrpptnes,

Philrp1;rne iarr'ol thc

eivrl

sec'nd

LA}\'

invoh'es anl of the exccptions to tire application

of the ploper torctgn

(a)

rs the

tire forum (itx tori) rvill be appiiecl: th:rt is. when tire proper

'l-ettate I'-stutt

t,i:,,

(a)

JURISDICTJON AND CHOICE OF

has not bee' properlv pleaded and proved. 'rirc reason

iJttnt.trtti, .w.bn':.

7. After the court has acquired jurisdiction over n conflicts case

and has decided to assume that jurisdiction, u'hen is it bound to
aPPlv the internal or domestic la'w (lex fotr)?

tl'rc inter nal

CONFLICT OF LA}^'s

lc.>:

silu.t rs

apphcd

(.\rt

i 6.

titst par., New

(-,rdc.,

(b) l{cg;rrtling thc pt'opcrrv rtlaltt>t.ts of thc sPr.,uscs. ;\rt 8() of

tirc lranrh-(,odc provicics tbat tlt-the allsctlcc of .a corltrarl
stipr,riati<-rn ur a tnarriagc scttlcment. the propertt'relatiotrs of
the spotrses sl-rrll bc g<.,r'cmccl bv PLrilipprnc laws, rcsardlcss
oi thc placc of thc cclcll-ation of thc tnirrriagc anci their
rcsicleucc.'fhc onlt,exccPtttlrt ts rvhcu both sllouscls arc alictls.
r Filqlrr<, tathcr t'itlr ,\tncricatr cirrlclrcn (rvho bccrtnc
utrdcl
thc rulc of ./t1., .rr,1, dics, itis sttcccssiou shtll be
such

(c) \X/ircn

soverncd bv Philpprnc lar'" (scc. par:.,

-\rt.

1(r,

Ne*' (,ivil

li

tl-re

las' is rrnu'ritten. it nlav bc 1>rovccl

l-ly:

(1) 'I'hc oflrl tcstrttrol'tr- of c.rpe rt wirncsscs. ,ir'

(2) B,v printccl atrcl publishcd boolis of rcpor,:s rif
dccisions of the c<-lur-rnf inr,oived, if provcrl to bc
commt.rnll aclmittcd

ir.r

irs ccurrs. (RLrle 1 3(), scc. -15,

rd)
(b) What is meant bv the "proccssual" presumption of lar.v?

Cr>de).

(d)

if a rviil cxeclrted bv au alicn abt'oacl is revolictl in otrr couuft\',

the revocntiott urttst crxrplv ri'ith thc fomulitic.- of J)irilippine
iarv (-\rt. El9. Nc*' Civil (-,rcic).

9. Explain rvhv the foreign lau' cannot be applied

becrr pleaded and proved.

if it has not

This rule mcans that rvircn the l)rc)per f<rrcrgn l:rs. hes

noI bccn proprerh ltr<tved. thc c<>Ltrt o1- tirc ft;mnt rnirr'
Plcslurrc that satcl forcipr-r iau i:r tht.salrtc as rrs l,rcai oi
clomcstic lat', rl'iricir it cen norv apnlr',
10. How is a foreign larv that has been duly pleaded and pnn'ed to

.11

IURISDICTION AND CIIOICE OF LAI\

CONFI,ICT OF LAWS

be interpreted bv our courts?

,'\s a gencral ruie. a folergn lx\\,tirnr hls bccn duiv plcadecl lnci

plor.ed should irc ql'en bv

tire sarnc intcrprctatlon as thai

qtven bt the toreign tribr.tnals of thc countn'rvhcrc ti'rc iat,cor-nes frorn.
or-rr cr)ur:ts

A possibie excep[on is a casc t4rcte

sotnes.hcre

in our lav"'s,

thcrc ts ir statute s'orded idenxcallv as thc iorcign iarv. s<; thirt our courts
if thev disregarci thc forcign inter:pretation oi sard
tbrergn lav' and grve it tirc same interprt)tadon prcvlousl,v gl.en bv our

CONFLICT OF I,AIVS

lL. When a case involves any of the exceptions to the application

law-, the rulc is that the foreign law cannot be applied
and the courts should instead applv the domestic or local lau'.
Wltat are these exceptions?

of a foreign

(a) When the application of the foreign law would run

counter to a sound and established public policy of the forurn.

Examples:

(l)

\\,e cilnnot enforcc in this coutrtrv a. dn'orce lau, of a

foreign corlntr\r if the prrttcs arc- Fiiipir"rc,s. If. however.
tire prrtics are a ljiiiprr.r<; and a forcigr-rcl and the latter
vaiidir. obtans a divolce abroad capacitating him or her
to femattl'. the Filipino spouse can also marrtr again (-1f t.

LAW

15

xgreemcnts'ndcr fo'cign iar's ti-rat cor.rupt tire propc'

ldrnttrtstrrttorr rri itisLlcc .)r'tr'wilrcl cl.lrnci: a.rrr,raa,- t.,n'da,
torelgn ial's to cernrl)t publrc offrcrajs: ancr rn gerrcral.
^rl
ntoralrn'
.,r.r,j"rat',rod br. th.
^r
forum anci thosc rncor-rsisrcnt u'itir tj-rc bcsr rlrtcrcsts oi its peoplr.

trallsacttons thitt tnirtngc

(c) When the

'fhere

cannot bc blamecl
coufts.

JURISDICTTON AND CHOICE O}.

paf

n'to

goi-rcl

foreign law involves procedural matters

ar-e

no.r'cstccl nqircs ur n_rlcs of procedurc; hcncc. a

himsclf to drc proceciural fcrrnra.htres

au action n-rrrst submrt

of the fon-rm. e\cept rvhc:n

the lau' is both procedural

ancl

substantn'c, hlic the rules on prescliptlon. and thc Statutc of

l;rar.rds rvhich undcr Phiiipprne larv are substantivc. l-Iencc. an
American cannot insist on a jr.rrt, trial in the 1)hilippines: neitl-rcr
can he insist in the applicatron oi Amcrican procedural lau,s in a
case

in the Phihpprncs rvlrcrc' irc is a parq'.

(d) When the foreign law is penal in characrer:

Crimes committed in foreign countries are violations

ofpenal laws ofthose counfties and cannot be prosecuted here.
especially as we follow the pdnciple of territoriality in crirninal
law:

,\ "pcn:rl clause" Ln a contfact cntc-rccl lnto abroad lrra\.,

horvever, bc enforccd lrcre bccansc such clausc is not crirrinai in
natute bur onh,' provicies for hcpridrtccl dan'rages.

26. scc. par.. Famtlt Coclc).

(2)

exccutcd br. Fiirprnr,s iocaih' ol lr a forcign

countrl is not vaLid (Arts. [118, ti19. Nerv Civil (,ode).

-\ ioint t'ili

(3) Incestuous marnagcs r.urcicr fhc Ijanrih'Codc and those

considered vord bv tl-rc Codc br reas<>n oIpublic policl.

nuil and r-oid. even if thel lre val-id ir-r other counuies
(Arrc. 3?. 3ti. I;amrlv Codc). Horvevet, thcse provisions

are

applv onlv to Filipinos.

(b) When the foreign law is contrary to the almost universallr.
conceded principles of moralitv (contra bonos mores):

Examples: Forergn iarvs recognizing prostitutron;

(e) When thc law is purelv fiscal (i.e., revenue-producing)

or administrative in llature:

\\c are not bour)J t,r cnforcr.tirreign re\'('nu(.,)radministrative lau's. \\'e are llot conccrne cl rvith thc collccrion
oI taxes b1' foreign coulrtries or.r'tth forcign laws rclating tcr
governmt'ntal functrons or m;lttcrs.
(f) When the foreign law might work undeniable injustice
to the citizens or residents nf the forum:
I rrrt'tgn i;rrvs that s'ould result or cau.ie ru;usrict. r,,

16

]uRrsDICTrON AND CHOTCE OF LAW

CONFLICT OF LAWS

CONFLICT OF LAWS

cltizens or rcsidents of our countrv sirouid not be eniorced or

Even effect irere. An exalrlple rs a foreign iaw purung tire age
of n-rajorin'at 21 ancl refusrng ro recr)gnlze conuacrs of fji]rprros
abroad u4ro are abor.e 18 bur beiou'21. consicicnng tirat rhc age
of majonn- in our cour-rtn is 18.
(g) When the application of the fbreign law would endanger
the vital interests of the State:

The natronal interests and secur.itv of our countfi' should

not be jeopardized by forergn larvs, nor sirould rve

enfl.rrce

ioretgn laws that undermrne oLlr govcrnmental Drocesscs.

(h) When the case involves real

or personal propertv

THEORIES THAT JUSTIFY THE

APPLICATION OF THE FOREIGN I.AW

located in our countrv.

Remember that we apply tlie hx ita.r or lex rei ilac to all
properties, witether real o-r personal, iound or locateci in the
Philippines (first par.. Art. 16. Nerv Civil Code).

What are the theories that iustift rhe court, in a conflicts case,
to apply the foreign law instead o[ its own domestic or internal
1.

law?
Sonre o[ the traditional thcorics in cleciding rvhethcr to apply the
local or domestic larv or the foreign iarv ur a conflicts casc are thc follorvurg:

(a) Thc theorv oi comin'

S)

The vestcd-right theorl,

(c) The theorv of local larr'

(d) The theon'of harmonl of
(e) The theon' of

larvs

justice.

2. Please explain each theorv.

(a) The tlreorv of comin'

t\ccording to thls tlrcor\'. no iorcign iau' rvor-rld be allot'ed to opcratc rn anolhcr st:lte e\cept br "the comih' r-,f nntrons"; r-e- thc leci;lrocal crlLlrtcsf s,irrcir thc rucmbcrs ol thc
farnih' of nau()ns o\\re tr) one anothcl. Irr thc old casc oi I li/tun t'.
Guyol. t\e Li.S. Suprcme Cr-rur:t deil.rcd "comtn'" as iollon's:

THEOI{IES THAT JUSTIFYTHE

APPLICATION OF TI{[ FORETGN LAI'\

CONFLICT OF LAWS

"Cornirr. in thc lcgal sense. is neither: a fitatter

obligatron. on the r>nc irancl. nor of mere
absohrtc
oi
courtcst anci goocirvili. r-rpor-r tire othcr. But it is thc
l'ecognlrlon rvhich one statc allos's .r.'ithrn rrs tcr-rrtor\.
ro the legisiarrve, execuuve. or judrcrai acts of anothcr
narlon, having due regard both to international dr-rfi'and
convcnience, and to the rights of its orvr-r citizens, or of
otirer persons rvho are undcl the protecdon of its larvs."
(1se u.s. 113 [18es])

CONFLICT OF LAIVS

THEORIESTHATJUSTIFYTHE

19

APPLICATION OF THE FOREIGN LAN'

comitv based on the persuasiveness of a foreign judgment.

Note: In our 1997 Rules or-r Cir.il llroceclr.ue.
u'c still follou' tire plurcinle of recipr6crrr. hclj rn tire
oici i:iiiton case because ln Sec. 4.9 of ltule 39 on tire
"ctfcct oF foreign 1r_rclgnnenrs or frnal orders',. a forcrgm
final jLrdgmcnt or <-,rder "rs presumpuve cvidcncc of a
right

as

benvecn the parues and dreir successors in rntercst

bl a subseqtrer.rr title" aud "mav be lcpeiled lrv evidence

of a rvant of jurisdicuon! want of nouce to the par:q',
collusion, fraud, or clear mrstake oF law or Fact".

In the above

firench citrzen sued an American in

a French court..luclgmcn! was rcnder:ecl in favor of thc plarnuff
Frcnch. rvho latcr Frled an
i1r an ,\r-nerican c()Lut to cnforcc
^ction
thc judgment. 'I'he An.rcrican colrrr found that the rnal tr.r the
Frcnch court \\?s latr and rmpartial br-rt even in such a casc, I irench
rribunals do not regard .\mcrican decisions r.r,rtir tlnaiin, but thcl
still revict'tirc latter's clccrsions on the merits; i.e., thcv arc
regarde d mcrclv as pirna.lat)e evtd,encc of plaintifl .s claim. Fience,
the satne etfcct should bc givctl bv ^\n-rertcan c()llrts t() Irrench
decisior-rs or-r "the pnncrplc c,,f reciprocitr''.
case, a

Ilorvever, rn a 1926 dccisi<lr. thc U.S. (_oru:t c_,f .\ppeals

Ycrrli rcfuscd to npplr thc abolc casc of l'li/ton y. Gurot.
ln this casc. an -\rlcncan sr-rccl thc clcfendant lrrcnch citizen for
rvrt.,t-rgful cicln'en- of goocls ur an ;\mcrican court. 'fhe defendant
sct r\r tire clcttr-rsc that tl-re same lnfltter rvas alrcarl\'decrded ur
his lavor l-r an carhcr casc Frled 1l' the -\merican in a ]irench
coLut. The lorver court rcfusccl to givc e tfect to thc cadrel lrrcncl-r
dccision or.r the theon o[ rhc o]cl Fliltor case. ltcvcrsing thc lower
crf

lierv

court. the L].S. Suprcme (,otrrr rulccl that surce it rvas the --\mcrican
rviro hled the carlicr casc wrth a .lircnch cr-rurt s,hclcin hc lost, hc
could not laterimpeach smcl juclgmcnt agair.rst irim on thc punciplc
of comrq', t'hich grves conclusiveness to the Frcnch decisrcxr and
bars his subseqr-rent acuou frlcd rvith an ;\merican coutt. 'I'hc basis
o[ corlitv rvas srared as the persuasiveness of the foteign

judgment. not the princrple of reciprocin- as held rn the old

I Iilton case. (lohn.ran u. (ompanit: Generale -[iunta/i,tnliqur,. j42 -\. ).
]8/ , U..l. Ct'urr o/' .'lppcai: o/' N.).. 2+: N)- JSl)

(b) The vested-rights theorl

Llncler tl'ris theorl', our courts enforce not tite forcign
larv ot foreign judgn-rent but thc right or rights ti-rat have bccn
vested uncler such 1a\\ or iudgmenr. Rigirts once accluired undcr

a foteign larv or juclgment slror.rld l>e enfolccd rcgardicss of

rvhere tire suit for its enlorccrlcnt rvas filcd, 'l'l-rus. tl-re ideal of
uniformin'and predictabiln,of results rvould be achreved. II a
foreign lau'givcs a person a rrght, the mert: fact that thc larv ol
the forr-un does r-rot gn'e hinr l similar or the same right is n<r
reason to refuse to help hir-n get what bclonEs ro hrr"n. J'l'rc
cxcepilon is, iI the forcrgn larv is against thc pubhc pol-icv of tl.re
fonrm. It is a pnncrple oi cvcn' civihzcd larv that vestec{ nghts
should bc plore ctcd. 'fhis prir-rcrplc dso discor-u:ases frrrum-shoppino

case

An exarnple of dre applicauor.r of dr-rs drcon'rs tl, c Amcncarr

Cra1.8z-Ar.1-l. 82 (1 9)-+).In this case, N,Irs. Gral

of Grai't

filed an

in Nerv lJarnpshire fol

damaqes against l.rcr

hnsband Nlr, Crav f<rr pctsor.ral injur:ies alleged to have been
caused to her bv the Iattcl rvhile drivrng fron.r their home in Nes'
Harnpshire to N{arne u'hcre tl.re accident irappened. In N{ainc,
the spouses are barrcLl florr rnrirrrrining an ;rcuon against cach
-fhere
other.
is no sr-rch prohibitron in Ncu' I lampshire.
actior-r

f'he ,\mericarr court mled tn the al>ovc cxsc that forcisn

torts should be govcrned bv the /rr" loi tlelitri tommi.r.ri.,{ nght
I-ravinS becn creatccl bl thc appropr:iatc iarl thc r.cosnrtion,'i
its existcncc foiiorvs cr.crr-lvhcrc. (Sce also ,\'['tJ)onuia

J'irus, nvo pflnclples havc bcen given upon rvhiclr the

thcon'of courin: rests: the comitv bxsed on reciprociq, and the

lht3u. Jarria,6,
ol lt,cw \-ork. 225 N.1. 148)
71 X.11. 118:

\.\.

21;L"ouik.i

t'. ]Ltintttt^,.

r'. .\'ranciard

Oi,' (a.

l0

CONFLICT OF LAWS

THEORIES THAT JUSTIFYTHE

APPLICATION OF THE FOREIGN LAW

(c) The theorl-

CONFLICT OF LAWS

THEORIESTHAT'USTIFYTHE

21

APPLICATTON OF THE FOREIGN LAW

3. There being manv theories as to the proper choice of law that

of local lau'

should be applied in each particular case, what, then, should be

of tiris thcon' beijeve tilnt ve rppil a

lau.'not because it rs iorergn, but because our ou.'n iau'
Tl're adirerents

forergn
bv appiving a srmilar rule requires us to do so; hcnce. it is as if tirc
foreign }aw has become par:t oi our o\\n internal or domesuc

law

A good example of this theorv is Art. 16. par. 2, Neu'

Crvil Code. rvhich requires us to appl-v the nattoual larv o[ tl"re
deceased in the mattet of his testate or llttcstate succession lf
the deceased rvas a Chinese aithough thc children are alreacll'
Filipinos, we arc requlred to applt' Chirrese iarr,', not becausc it is
the appropnate foreign lav; but because our

o\\'11

Crvil Code

tells us to do so.

considered the right theorv?

In the v'ords oi tire late Jusuce Edgardo L. Paras:

"It rvill be observed that thc theories hereinabove

adverted ro do not rnutuall1' exclude onc another; perhaps,
the uuth rnav be found in their ccmbinltron. Certain\., it tire
wolld ls to progress in uoderstanding and judgment, it must
recognrze this rmperative postulate: tirat sorneumes, we have ro
apply the proper forergn law because courtesv. conveniencc, and
internationai dury so demandl because there are vested rights rve
cannot conceivably ignorel because a1i too often, tl.re foreign law
has become part and parcel of our law; because idenucal sinrations
should be resolved bv ider.rtical rerncdres, ilrespecdve of dre forr-rm;

(d) The theory

of harmony of

and fir-rall1, because to do otherr.vise mav ultimatelv result rn thc

laws

negatlon

Undcr this theorl', tdentical or stmilar problems should

be given identical or smilxr solutious, thr.rs resulting in harmonv
of laws. Certaintr,- of soiutions to titc same or srmtlar problems
are of particular rmportance in areas where tl-re Pirrties are hkeh'
to think ur advance

of

the leeal coltsequences

of

therr transactiolls.

For example, transactions invoiving tcal properti' should be

governed bv thc /ex iht.s,in the intercst of certaintv and uniformin'
of result. Srn-riiarlr., a pers<.,n'.s civil stltus must bc governed bl a
singie lau, for thc sake oi ccrt^inn'; e.g.. u'hcthcr a pcrson is
sinqle or marricd. The apphcauon oi tl-re samc t)r sl-nilat solttuon
also ptevents the bad pracdce oF forurn-sho1'rpirlg
(e)

The theorv of justice

Sincc thc puryose

oiall

law's.

includlng (,onfhct oil-arvs.

is the dispensation of justrcc. the propcr forcigt-r larv shou]d bc

'I'hc de fect of this theolv,
applied in c>rder t() attain this objcctive.
hovever, rs that different pcrsons tnat'' havc c{ifierent idcas of
wirat is jusc Should we, then. lc;we tirc questlorl to t}.re diFfercnt
notions oI iairness and iustrce?

o[

justrce." (Paras, id.,

p 73)

Liliclvisc, fonncr Scnator Salonga states thus:

"r

x x in the absencr t l an apphcable prt;visron in the

code or statute, the various theorics shouid be examined and

weighed as thev bear on a given conflicts problerrr. No single
theon' contains the whole truth, no one approach is completelv
vahd. .\s one author puts it:

' The policies behind all o[ the theones

have

vahdin. This suggests that thcy are not entirelv exclusive.

lndeed, there mav be a gain in using different theories at
different places to make morc rcadilv apparent the
change in pohcres deemed dominant as the situations
vAf \.."'

(Salonga, Ptivate International l-au',

1995 ed., pp. 9a-95)

CONFLICT OF LAWS

r22

CONFLICT OF LAWS

NATURE AND COMPOSITION 23

OF CONFLICTS OF RULES

2. What are the two kinds

Thev are:

G)

of conflicts

rules?

Tire one-sided rule (wirrcir indrcates when philipprne

Iaw will appl1').

Examples:

An. i5, New Crvil Code: Laws relaung to famrll,

nghts and duties, or to the status, condition, and

legal capaciry ofpersons, are binding upon citrzens

of the Philippines, even though livrng abroad.
Art. 818, id.: Two ot more persons cannot make
a will jorntly, or in dre same instrument, erther for
their reciprocal benefit or for the beneht of a thrrd
pefson.

NATURE AND COMPOSITION

OF CONFLICTS RULES

Distinguish a purelv internal provision of law from a conflicts

rule or a provision in conflict of laws.

1.

A purelv internal pror,'ision of lau' governs a dourestic problem;

i.e., one without a foreign elerncnt. And it authorizes, commands, or
ptohibits a certain act or modc of conduct. Ihe qucstron taised - whether
the partrcuiar act or mode of couduct is allowed. cornmanded, or
prol-ibited - is imrnediatelv solved.

On the other hand, a conflicts rule or pr<>r-ision of lav' is a

provision found in olrr own law rvhtch lt()verns a tactual situation
possesscd of a forcign element. It is usuallv expressed in the form of an
abstract proposition that

given legal cluestron is "governed" bv the "lau'

1aw- or the proper

foreign law). to be ascertained in the manner rndicated bv the provision.

o[ a pardcular country" (rvhich rnal be an internal

of

an internal rule: Art. 796. All persons v,{ro

not expresshr prohibited bv law mal tnake a will. QNew Civil Code)

Example

are

Example of a conflicts rule: Art. 16, Reai proPernr as wcll as

personai propert| is subject to thc larv of thc countrv u,hcre it is situated
(Art. 16, 1" par. . rd.).

Note: The above provisions of lav' appll only

to Fihprnos.

(b) The all-sided or multilateral rule; (which indrcates

whether to applv the local law or tire proper
foreign law).
Examples:

Art

par, Neu'Civd Code: Reai properry

personal propern is.subiect to the lau' of
the countrv where it is siruated.
Art. 17, Ftst par.. rd.;'fhe foms and solemnitres
of contracts, wills, and other pr-rbhc instruments shall
be gc.rverned bv tl-re iaws of the counuy m which
thev are executed.

as

well

16, fu'st

as

Note: The above provrsions tell us when to

appll Philippine larv or the proper foretgn la.ri
In

tl.re

first exampic. Phrhppine lau,is applied rf

Ii it is found in

the properq'is found rn the Philippines.

a lorergn countrt:,

in

likc

apan, japanese iaw apphes.

tire second exan-rple,

ii

the contract was

NATURE AND COMPOSII'ION

CONFLICT OF LAWS

OF CONFLICTS OF RULES

c-\ccr-lred in the Phihpprtlcs, rts form ancl soiernnlucs aLc

gor.crned bt Phihpprnc latr Jf rt \r'rs e\ecurc.l rn r

forersn countrt sav rn l'-ngland. E,ngLslr iau' u'ili appir'.

Observation: \\,'hiic,\rt. 15 of thc Neu'Civil

Codc irtcrally apphes onll to lrihprnos and is actuallv a
one-sidcd rule. tirc Suprcmc (-,ourt iras gir.cn it a rnultiiateral apphcation rn that it has l-reld that t<-rrcigncrs, in
tireir status and lcga) capacrt\', are gor-crned irt thetr
national law (Gibb.r x,. Gzul..:19 Phil. 29J.l\a;to r. I larden,
L-6897. Nou. 29, 195Q. In other words. the na[onahtl'
theon' embodied in Art. 15 of tl-re Ncrv Cir'il Code has
been applied bv the Suprctne Court even to pcrsons
who are citizens oIcountrics follr)wins the domici]ran'
theorl. like Americans.

3, What

are the parts

of every conflicts rule?

Unhke a pureh' internal rulc whicll governs a purelv don'rcstic

problem without a foreign element. a conflicts rulc u'hrch indicatbs
rvhethcr to apph' the internal iarv or the foreiqn iaw. hes tu'o parts s'hich
are readiiy recognlzablc:

(a) the factual situation, or thc set of facts or situation

pre-

senting a conflicts problern because drere is a ioreign element

involved: and

(b) the point of contact or connecting factor, u'irich is the

law oI tl-rc c()untr1: with rvhtch thc iactual situatit-rn is most
intin-ratcil conuected

In other words,

tl-re first part states ccrtain operatrve facts, the

wirich are determined in the second part; that is,
tl.re first part raises, rvhile the second part answers or solves, a legal

legai consequences

<-,f

questlon.

Example: Art. 1763, Neu.Cir.il Code, pror.'idrng d.rat "the law

of the country to which the goods are to be uansported shall govern the
habilirv of the common carrier for ther lo-ss, destrucuon, or deterioratron".

ln

thrs provision, we have tirc pictute of a cargo shrp traveling

on thc higl-r seas bnt for some reasoll ()r anorhel, the cargo clr part of it
is lost, destroved. or deteriorates durns the vovagc.

NATURE AND COMPOSITION

OF CONFLICTS OF RULES

\\'hlt

25

t. irt' apphccl r. clete.rnurc rirc irabrhn oi the slrrPi

co"tn t' rvirrch thc l.st cargocs lr.c t. be rransp()rted.

lau' rs

'fl'rc Ia*, oi tire

or tire larv of tlrerr destrnatron. not thc iarv oF tbe c()unrnr wirere the lost
cargoes were ioaded, or the placc r.lf er-nbarliauon.

Another example: .\Lt. 'l 039. Ner,v (-ivil (.ocle. provrding tl.rat
"capactn to succeeci rs govcmcd bl thc iarv o[ thc natron o[ thc <]ccr.dertt". .l Ierc aqain, wc get the picttrrc ql: a. persc.rn rvlro dics, bur rvh.sc
heirs rnav bc cttizens of another coulrtr\,'. \\'irat Iarv should applv to dctcr-

will succeed the deceased? The la*' savs it is tl-ie larv of the
countrv of rvhich thc deceased rvas a citizcn. and not the lav,, of the

mrne wl-ro

ciuzenship of his heirs.

w
CONFLICT OF LAWS

CONFLICT OF LAWS

CHARACTERIZATION OF CONFLICTS

RULES 2i

Niost wrrters hoid rhat ()n the grounds oI practicai necessrtr. a'd
con\ren1el]ce. rt is the torum. or rire ,e.r 7un. that should cietermrne tire
probiem'.s char;rcrerization. uniess tl-re result would be a. clear rnjusuce.

Tire Suprernc Court appl-rcd thc abovc soludon

the followrng

case:

Cibb.r u. Goul

rll

P. 1.. 59

Pltil.

29): A

Califor.nran wife

dies. I.Ier Cahfornian husband clarms the entire properues ac<1urcd

bl the spor-rses during tl-reir marriage as his alone bv accrerion,

follorvirrg California iaw on propertv relations of spouses.

Undel Phihpprne lar.r'. irou'ever, tiris is a problem rn succession,
so tl.rat ir.rheritance taxcs shoulcl be pard bl the husband as thc
lands in qucstion rvere located in the Phriippine, fhe Supreme

CHARACTERIZATION
OF CONFLICTS RULES

Court ireld that tire propertres l.rhenred bv the irusband rverc

subject to inhcritance ta\cs, catcgoriztng the problerrr as <lne

of

the successior-r.

by the concept of "characterization"

in a given conflicts problem?
law
to
apply
in determining what
1. What do you understand

of characterization involves a determination

3. Suppose the problem

whether the matter pertains to ttsubstantivet' or to tlroceduraPt la*-.

How is the problem to be solved?
as to

"Cirarzcterizauon", odrerwise hrorvn

as

"classification" or "quah6caflon",

is tl-re ptocess c-rf assigniuq a certait't set of facts or facttral situatron to its
proper or correct iegal categort'. Evcr-r' rule rli lau'is bascd on situations
of fact. tcrual or ttlagrnccl. sincc tl-re lclislatol: tnust trl tct solve iactual
situatrons that migl-rt arise in tirc futurc, bascd crn past obscn'irtic-,n and
experience. These legal categoties nrar-bc farnilt, relations. colltracts, torls.
succession, propert\:, etc. Bv charactcrtzing the legal prt.,blem. the court

or the parties invoh'ed reach thc proper solutton whether to applv the
local law or the proper fotergn laur

Vhat makes the problem of "ch,aracterization" or classification

difficult?
2.

The difficultv in chatacteization artses from the fact tirat

are g<x'erned bv
the /c:t fon. 'fhus. matters of sen'rcc oi summons, ioindcr or splittinq ()f
cause of acuon, hox- to appeal. peuocls of appeal. crc. are governed b,r'

the law- of tl.re forum.

llut what abollt prescrtptton of acrit-'n and dre Statute of Frauds?

Are thev substantive (or.rr law considers them such, so tl-lat therr are found
in the Neu'Cn'il Code as rvell as tl.rc llules of Court) or merelv procedural
and, tlretef<-rre, governeci bt the lax.lor?
T'he modcnr trend is to considcr tire prescriptivc periods or thc

conflicts situatron or problem may be charactelized bv thc lr.r'fari differendr

ti'om tlre characterization of the ltx nu.tat (the Iaw of thc state \r'1th whlch
'I'bc ic.:, irnt :mrgilt regard
the act crr transacticur is most closch'cortnccted).
the problem as torl. whrle thc iex r',ttt.,,.tt rcgards tt as coutract. ()t thc /c:'
lon rntght regard the problem as cr11re, rvhiie the llcx tttu:* considers it

onlv as tort. \X'hich charactenzauon should applvi'

'fherc is no question that all procedural matters

Statute o[Frauds tirat ti.rc partres had in rmnd at the time the &ansaction

took place. Thcn, proceed to applv the intended iaw in its "totalitv"
rncludrng its penc,ds of prescnpticin and its Statute ol ljrauds. ,\n cxcepnon
rs if the subject-rnatter is propertv locatcd rn tire Philipptnes, in u'hich
case Plrilrpprne

iaul being

tb,c /ax .ritu.r. apphes.

Example: .\. an ljnghshman. borrowcd mone\- firrm

another i:ngltshnlan.

rr-r

B,

Engiancl. evicicnced bv a pr<>n-issotv t-rote. 1,ct

28

CHARACTENIZATION OF CONFLICTS RULES

CONFLICTOF LAWS

CONFLICT OF LAWS

that under l-nglish lar'"', the perrod to sue ()n tire promissorrfour
i4) r,ears. In thc Phihpoines. thc period .i prescriptrt)n rs ten
nore
(1()t vears. If acuon rs idcd rn rhe i)hihpnrnes bo'ond 4l,.or. irom rhc
issuance ol tl-re note but r'"rthrn 1{) vears, sirould rve hoid the action as
Lrs assurne
1-c

prescribed? \'es, because English

t() govern their transaction.

iarr,.

was evidentl_r' intended b1, the partres

lil

CHAPTER

PERSONAL LAW
THEORIES IN DETERMINING
ONE'S PERSONAL LAW
1.

Vhat is a person's personal

law?

A person's personai larv ntav bc de Frned as tirat whtch attacires to

l-rc rnal gol the Ia1't[at gcneralll sovcrns his status. clp^cln,
conditron, fhmih'rclations, and thc c()nsc(lucnccs ol- his actuatt<;ns.

hj6 whcreyet

It

mar, be his national lav'. tirc iarv

of

hrs domrcile, or ti.re iarv

of

the situs of thc event or cransaction rvhcrcin he was involvcd, dcpendurg

on the theorl' applicd aud enforccd 1n thc forum.

2. Distinguish ttstatustt from ttcapacit\''tt.

in society, and consists of

permanent, with which
more
or
less
personal qualities and reiationships,
the state and the commurury are concerned" (?aras, supfa, p. 100). It
"Status" "is the place

of

an indrvidual

includes the civil status of a Person (wh.ether he is single, married,

widowed, or dlorced); his patemity and Frliauon (whether he is legtimate
or iliegitimate or adopted); whether he is a minor or has reached the age
of majonty; whether he has the capacity to enter into vatious transacLions.
It also includes his name, sex, and his profession in certain cases (whether
he is a lawyer or a doctor, or, a iudge or an appellate iustice, etc')'

. r$'

>..r.lr*Av

30

CONFLICTOFLAWS

CONFLICT OF LAVVS

PERSONAL LA1A

"Capacrn'". on the other hanci. is onlv part of one's status, and

mal be delned as tire sum total oiirrs rtsitts and obirgations {Graveson.

PERSONALIAW 3I

The united States, like other common raw countries, follows the

domiciliarv theorv.

Confuct of i,au's. p.96,.

6. Is petsonal law the 6ame as national law?
Under out Ctr,rl Cr,dc. therc .trc n\'()

(a) juridical capacitl

\:l

h:rnds

of clPacln:

qrassivc capacin-) - rviricl.r ls thc litncss

In countries that follow the nationaliry theory like the philippines,

tc)

yes. In countries that follow the domiciliary or eclectic or situs theoty, no.

bc tl-rc subject of iegai rclartorts: lnd

lactr\-e cxp^crtf, - rvhtcir is thc powcr to do

(b) capaciw to act

acrs

7. Is national law the same as the law of one's citizenship? In

other words , ate a person's nationality and citizenship the same?

rvith legal eff-ects.

iArt. 37, Neu' Civil

.l. babl has jr,rndical capaciq', but it

Code)

l-ras

no crlli1c1.\' t('

"Nationality" refers to membership in a political communiq',

1lct.

one that is personal and more or less permanent, not temporary. A ciuzen,

3. What a(e the characteristics of status?

on the other hand, is one who owes allegiance to, and is entitled to the
ptotection of, the State. In the held of Confhct of Laws, however,
nationality and citizenship are the same; o!, "national" and "citizen" are
the same. When our law refers to one's national law, therefore, the law

itrs cc>nferred prtncipailv bv tl.rc statc. not bl thc ndrvidual.

it rs a ffrattcr of pubhc or sc-,cirl iutercst.
(c) Ileurg a concept of sociai ordcr^ rt cann()t casilt bc tcrr-r-ri
natcci rt thc nrcre u'il] or .lcstrc oI tl'rc partics couccttrecl.
(a)

(b)

(.j

of Filiprnos
an alien is the lav' of his
citizenship (e.g., Art. 16, sec. par., referring to the "national law" of the
means the person's law

a umr-crsal character. \\then a

bv
tl-re
inq'oi ()nc c()urrtr\'. tt rs
ctcated
certain status
get"reraih' rccognized iril ovel tlre rvotld.

It

ts

of citizenship. Thus,

is Philippine law. While the national law

qcnerallv sr,rpposcd t() havc

deceased). Once a Filipino citizen, however, is naturalized in another counrry,

r.s

his national law already becomes the law of his new citizenship; the former

Filipino'citizen. once naturalized

4. State the different theories on horl' the personal laq' of

individual is deternrined.

the national law

of

an

an

American, is now an Amedcan citizen,

and his national la'v is now Amedcan lavr

8. What are the reasons why some countries adopt the nationality

The nationalifi'theor\, tlist, c:irllccl tirc pclsotr:rl tltc()r\:) - b\'

virtue oi rl.hich the status and cePaciti o[ a persotr ts clctcr-

theory, while others adopt the domiciliary theory?

(a)

ntnecl

bl

tl-rc

iau'oi

irts natior-ralttr',.,r hts trattonrl laui

Civil law countries, like the Philippines, follow the nationality

theory. In such countdeq the nationaliry theory has been consideted justified

(b) The

domiciliarv theon-- bt'r,irtr.rc of

on practical considetations of convenience and expediency. The people

of these countries are considered bound by a spint of national unity, by
a coffunon history and mores, so that the identity and legal position of
their otizens are guaflnteed by the consistent application of theu national

rvl.rrch thc status itnd

oi

a 1:crson ts clctct:rntncd bv the larv

(also caliccl ti-re tcrr:ttorial theort).

capacin-

of

hts dornicile

(ci The situs or eclectic theort' - r','hich vicrvs thc particular

place or sitr-rs oi an e\:ent L)r ua1)s:rctlol) as getrcralh thc corrtrolhng

laws on status and familv relations wherever they may go and even when
they migrate to other counfties. Note that manv Filipinos \r'ho have

Iat'.

become naturalized in other countries still want to come back

5. What theorv does the I'}hilippines

follos'? What about the United

to

the

Phihppines and die here because they sull consider themselves as FiJ-ipinos.

States?

\\c ftrlioN

rhc rr:irronaiitr

thr.<,fl.fiftfiUl

tn

!rr

fy

The domrcihary theory, on the other hand, assumes that the

attributes which make up one's status and petsonal relations are intimately

r32

CONFLICT OT LAWS

CONFLICTOF LAWS

connected viith the country where they have made their home. It is
adopted bv the United States and other cornrnon law countries, whose
populations consist of peoples of different nationahucs with vannng tradidons, cuinrre, and ideals, and whose uniw mav be consideted achieved bv
adopting the law of their domrole as the law that govems their status and
family relations. Countries with mixed populauon brought about by the
migation of foreigners to their shores need the dor'niciliary principle to
certain fusion of their populatron and to avoid the necessity of
^ttdn ^
appli4ng a different law to ptactically every case.

THE NATIONAIITY THEORY

1.

What are the weaknesses of the nationalitl theory?

(")

It offers no solution to

the problem

ofa

stateless person or

one rvitl.r dual or rnr-rltrple citizenshrp.

(b) It is unfair to consider a person still bound bv his national
lar.r' i[ he has ]ived in another countrv Fot most of his hfe
and ptacticallv all his t-1es ate with that c()untry.
G) It rs sometimes difficult fcrr persons who rvant to change

their national larvs (lihc

(d)

fugees from Cornmunist

countrtes) to be natr.rralized in other countrics.
It is also somettmes difficult to solve problems reiating to
individuals in countries rvhe;:e most of the peopie, having
re

come from other countries. have different nattonal laws or

legal svstems.

2. Since citizens and nationals are the same in Conflict of Laws,

we should knowwho ate Filipino citizens considering that Philippine

law follows them wherever they go in matters of status, legal

capaciry and family reiations. [t is, therefore, important for us to
teview Philippine law on citizenship.
First of all, what are the different kinds of citizens in the
Philippines?

CONFLICT OF LAWS

NATIONALITY THEORY

Filiprno citizens are either natural-born citizens. or

naturalized citizens
(a) Natural-born cidzens are tilose u'i-io are ciuzens tiom btth
\,.rthout iravrng ro perfonn anY act to acquire oi: perttct therr PhiJrpprne
cruzensl-rtp (Art. I\i sec 2' 1987 Constirution)

Ongrnallv classificd as citizens by election verc tllose born

before rbe 1973 Constrtuuon of Fihptno motl-Iefs blrt of ahen fathers
wlro, upon reaching the age of 27 ot wrthin a reasonable drne thereafter,
electetJ Pl-iihppine citizenship. But rvith the provision

of the 1987

Constitutron aiso considering as natural-born citrzens "those born before

u'ho elect Phrirpprne citrzenshrp
.Januarr' 17, 19i3 o[ Fihprno rnothers.
upon reirchrng the agc t.,f niajorifi'". th<;sc cl'.rsstfied beforc as ctrizens b|
election are now considered narural-born ciuzens.
Note: Nauve-born Fiiipino crozens are drose born in dre Philipprnes.
Natr.rral-born citizens mav not be nattve born if they rvere born abroad.

CONFLICT OF LAWS

NATIONALITY THEORY

who determines whether a person is a citizen of a certain state

or countrv? For example, who detetmines whether a person is a
Filipino citizen or not?
4.

Each countr'or state has the sole porver and authonh ro determrne
under its internal or rnunrcipal ]av' ud-ro are its citrzens or nauonals. r\s
provided in Art. 2 of tire Haguc Conven[on on conflict of Nationa[n.
Laws (April 12,19301:

',{nv question
the nationai:rv

as to .rvhetirer a

of a particular

person possesses

state should be detenruned

in accordance wrth thc larv of

tl-:at state.',

,\rt. JV .i the i987 C.nsuturo' ,f the pbilippines clctcrmincs

who are Fihpino ciuzens. No foreign lari; <_,r.no ];rw oi a torergn countr.\,
can determinc who are F-ilipinos. Smilarir,, our constirutron and laws
cannot deterrunc rvhc.r are, for cxar-nple, chinese ()r.r\rnerican citizens.
onlv the larv of cl,rna, or the larv oi the United States. can determir-re
rvho are its citizens.

(b) Citizens bv naturalization ale those rvho were fbrmerlt

alcns br-rt bv iudicial. lcgislarn'c. or adnrlnrstlatl\'e Process' have become
Irilrprno citrzcns.
Foreign women u,iro are tnauied to itiihpino husbands mav also
bc consiclered ciuzens b)' naturaiization throush said r-narriage if thel I'ravc
no disqualifications ro become Filipino citizens b),natr-rrahzation, and the

ol those rvl'ro had been naturairzcd as Ftliprno

crtlzens arc also considered to be naturalized citizens bl denr''ative

rvives and minor cirildren

lr

aturlltzatiorr.

3. What do you understand by the principles of ius soli and fus

sanguinis in the law on citizenship?

tus soli - ,\

person is a ciuzen of the cout-ltl' $'here he was

'l'hus. the babt'of lirliprno
born, or of thc countrt of his birtir.
Parents
br,rt born rn tire LiS. is not onlv a Filiprno but also an ,\rnerican citizen
undcr "thc princrple oi 1tt.r .roii. s'hich thc U.S. follows.

5. Considering that onlv the Philippines can determine who are

Filipino citizens, mav the problem of the dual or multipre citizenship
of a Filipino arise in the Philippincs?
No, because as alreadl srared, as long as hc is a Filipino citizer.r,
our country is nor concerned if ire iras anl, other citrzenshrp. For example.
if he was born olti'riiprno parenrs. he rs a natural-b.rn citize' under the
rule of .ju.r vn.guini.r. He mav aiso bc a u.S. ciuzen under the prlrcipie of rzr.r
.roh ii hc rvas born rn U.S. soil. But from the pc,rnr of ,,,ieu, of our
Consritutror-r and lav", he is onlr, a Filipnio ciuzen, penod.
6. What about Sec. 5, Art. IV of the 1987 Constitution providing
that "dual allegiance of citizens is inimical to the national interest

and shall be dealt with by law"? Does this provision prohibit

Filipinos from having dual citizenship?

No. Dual

is tire rule that u'e lollow n.r the Pi-rriippines.

Jus sanguinr's It is citizenship bv blood: i.c.. those rvirose lathers or lnotltets' or whose

cruzenshrp cannot be avorded due to the dr,",erse larvs

as to who are their citizens ancl
who are not. So, a Filipino mav have dual citizenship. as shown in
euesuon
5 hereof. But the concero oi the aforesard provision of the constrrution

botl.r parents atc Fiiipino ciuzens. rs a Fihprno cttizen

rs not wrth dual cirizenshtp per te but u'ith naturalized cruzens

of the difierent countries of tire wotid

'l'hrs

oi

the

36

CONFLICT OF LAWS

NATIONALITYTHEORY

Philppines u'ho sull rriaintain therr allegrance to the counrries of their

ongrn. Thus. tor candidates for pubhc oihcc rvrtl-r dual citrzensirrp. suffice
1r tirar upon tire irhnp oi tireu-cerdircate of candiciacr. tirer, elect Phiirpprne
crtrzensl-rip to terminate their status as pcrsons rvtth ciual crrrzenshrp.
considering that tirerr condrnon is thc unavordable consccluence of

conflictrng larvs of different

1999

srares. (Mertutio u. LlanTano.

)07 .taR.1 530

7. Considering, then, that it is the Philippine law that determines

who are Filipino citizens and who are not, so that it does not
determine whether a Filipino is also an American citizen or a
Chinese citizen, etc., when would the problem of dual citizenship
of a Filipino arise?
Such questron would arise onlv from the point of view of a
a gtl rvirose parents ltre Fihprnos but who
rvls bo.rn and has lived all her life in Cahfornia. U.S.,\.. is appiyrng for
scholarship in a French universiq', the French authoriues will regard her
not as a Fihpino but as an American. as hcr (lalift>rnia citizensirip rs the

CONFLICT OF LAWS

connecting factor in determurtng what is her citizenship,

Filiprno or Californian. Tlls is appllnng the theorv of effective nationality
embodied in Art. 5 of tire Hague Convcnuon on Confhct of Natronahq'
Larvs rvirici-r ptx.icles

37

(a) In a case where a Frlipino (because his parents are F-ihpin.s)

was born in Arnerican soil, he rs a Fihpr'o urder the rule of
.jut ,iogoion
wlrile lre is an ;\mericao under the ruie oi.iut toli.

(b) If a Fdrpino \r/oman marries a foreigner wirose natronai iau,

aliows her to becorne a citjzen of her husband's country like China br,
such marriage. she still retains her Phrltpprne citizenship under Art IV ,.i.
4 of the 1987 Consutution, unless bv l-rer act or omission, she is deemed
to have renounced her PhiJrppine ciuzenship. Therefore, she would be
a FiLpino and a Cirrnese citizen, if she does nothing to renounce her
Philippine citizenship.

both

9. Give an example of a problem involving an alien who, ftom the

point of view of the Philippines, has dual citizenship.

third state. For example, if

n:x>re effective

NATIONALITYTHEORY

Example: A woman who is a Japanese citizen bv blood but

Chinese citizen by marriage, dies, leaving some properties in our count]vzhere she did some business before her death. Since Art. 16, pat. 2, of
the Nerv Crvil Code, requires us to appiy her national law in determining
who are her hehs and how much is the share of each, we should know
which iaw a Philipprne court should applv to her succession; whether
Japanese law or Chinese law.

"Witirin a third statc,

10.

as i[ ire had onlv one. \\ithout preludtce

of its iaw tn personal matters and of anv
conventions in force, a third state shail appir, the nationalities
which anr, such person possesses, recognize exclusivelv in rts
territorv either ti.re natiooality of the countrv m rvhich he is
habiruallv and prurcipallv a resident, or the nationahn' of the

nadonaliw shall be treated

to

How should the foregoing problem

a, person having rn()re thalr one

tl-re application

couritrv wrth whrch in the circumstances he appears to be in fact

mosdy connected."
Undoubtedlv', in the above problem, Californra is the more
effective connecdng factor in determining whicl-r of tl-re girl's rwo
nationalities ot citizenships, is irer personal Ia-*.
8. In what case or cases may a Filipino have dual citizenship from
the point of view of a third state?

of dual citizenship be resolved?

W-'e should applv the "effective nationalirv" theory prevrouslv

espiained. lf the deceased woman was a domiciiiary of Japan at tire
time of her death, then the Philipprne court should applv Japanese iavl
li howevet, she was a domiciliarv of China at the time of her death, the
court should apply Chinese law: This is because 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 het other national law. Or, stated otherwise, she was more
closely connected to the country where, being a citizen.thereof,
she and her family also made it their home. Needless to s.ay, rhat
countrv where she and her famtlv had their home was closer to her heart
than her other natronai lavz And so, in ali personal and family matters. it is
tl-rat law that the court should applli
11. Suppose

in the above problem, the deceased woman was residing

at the time

of her death, not in Japan ot China, but in another or a

II

CONFLICT OF LAWS

NATIONALITYTHEORY

lhird countrv, like Singapore? Will the solution to the problem be

tltr riame?
The soluuon rvould nout be drfferent because u/e can no ionger

rrv that she was.more closeiv connected to J apan or Chrr-ra, the countries
rrl wlrich she was a cirizen at the ume of her deatl-r. In this case. then, the
tlomicilian theorl' comes to the rescue and will consider tl-re countr-u- o[
lrcl domicile at tire time o[ her death (Singapore). So, rve sirould Ftrst
applv the nauonaliry theory by taking her rwo natronal laws (]apanese and
()hinese) and applyrng them together insofar as thev are consistent and
harmomous with each other. BLrt if thev are inconsistent and in conflict
witi-r each otirer. then we should alreadv apply the law of Singapore,
which was her domrcile and home at the time of her deadr.
12. Suppose the person whose succession is in question before a
Philippine court is stateless. How should the court decide the case?
Srnce the person tn questron is stateless and, therefore, has no
national law, we cannot apply the nationalitv theory (Art. 16, sec. par.,
New Civil Code) to hrm. ln this case, ,rEain the domrcrhaq' theorv comes
to the rescue, and the court shall appll' the larv of hts domicile or if he has
none, tire law of the country of his temp<,rrar_v domicile.

coNFLlcroFLAws

in

3e

substantiar errors like citizenship cannot

be corrected tirerein.

Hower-er.
tlrs rulrnglras aireadr been supersecieci b'subsecluenr
cases (.Toientin, t.
Para.,. I I'J CR I 16..Rm. z: Lt,en,..t /.i
tJ aR J ;:..R
il,.*,,ir,l)rr,','.' , ,O
/ ii, among odrers)

all pr";;;;;ffi;;r,
'Ck4
of Rure i 0g are foto*'ed and ali persons with
rntercst

to the effect tirat rf

ii

rn the wrong entrv

ifi

longer summary but adversarial, and substantia,

I errors Lke crtizenship
can
arreadv be corrected under Ruje i0g.

iitr

had been notified and a full biown

15'

t'al

is held. ,h.

who are citizens of the philippines under

the

p;;.:J;;il,;:
--*^rbJ (rL r

19g7

iifl
Hf,f

fis

constitution?
$tr

Art I\" Sec. 1 of

the 19g7 constitution enumerares the

ciuzens
of the Phrlippines as follows:
"o rhose wrro a'e ciuze's of rhe phiLppines at the time
of tire
adopuon of rhis ConsuruLion:
(2) Those rvhose fathers ormodrers
are ciuzens of trre prrihpprnes;
(3) Those born beforeJanuarv Ii,1g73,
olFilipino nr;;;;r.
who elect phrhppine crdzenshrp upon reachrng
rt," ng. .f ;;;;;,y,

{s
,Jtr

$#
:3t

iff

and

(4) Those who are naruralized in accordance

with law.,,

Yn.
uoni
19'

13. May a declaration of Philippine citizenship be made

NATIoNALITyTHEoRy

were citizens of the philippines under

the 1923 Consdtu_

petition for naturalization?

In Comn. o/' lmmtgralion u. Carctu, L-28082..|une 28. 1974, the
Supreme Court held that the court. in a petiuon for narureirzation, cannot
make a deciaration that the apphcant is alreadv a Fitliprno ctttzen for the
reason that rn this jurisdiction, there can be do independent actron for the
judrcial declaration of onet ciuzensirip. Courts of jusuce exist onlv for
the settlement of jusuciabie controversres, which rmpi,v a given nght,
legally demandable and enforceabie, an act or omrssion violative of said
nght, and a legal remed)' for the breach of sard right.

Art. IIL Sectron I (l)

"f the 1973 Constrtuuon provides that the
follow:ng are cirizens of the philippines:
"0) Those who ate ciuzens of the philippines
ar the ume of the
adoption of this Constitution;
(2)

T'ose w'ose fathers or motrrcrs

(3) Those who

,.:,.It{OO-e

are ciuzens

of thc pl'lippines:
prousions

cruzenshrp pursuant to the

of the Constirution of 1935; and

(4) Those who are naturalized in accordance
wrth law.,,

r:li:

i!:
,;Lr

rili

i;:
iri

Itl,

ii4

Philippine citizenship be made in a special

proceeding for correction of entrv under Rule 108 of the Rules of
14. May a declaration of

Court?

In a long line of

cases, the Supreme Court fotmerlv heid that

since a petiuon under Ruie 108 contemplates a summa4 ptoceedrng.

17' Since the 1973 constitution considers

as F'ipino citizens those
who were such at the time of the adoption
of said constitution on
Januarv 1711973, who are those refetred to in said provision?

They are those enumerated in Art. I! 1935

Consutu tron, t0 at:
"(1) Those who are citizens of tire philippines
ar the ume of the
adopuon of the Consnrutron of rhe phihpprn.s;

IO

NATTONALITYTHEOR}

CONTLICT OT LAWS

Those born in the Phihpprne Isiar.rds of ioreign parents who.

befcire ti-rc adootron ol tiris Constitutt<-,n. ir:rd been elected to pubirc
office in the Piri)rpprnc Isiands:
(3J Tirosc u'hosc iatl.rers arc cltrzcns of rhe Phrhpptne"^:
(.t) Those v,'hose mothers are citizens oi the i)hthppurcs and.
upon reaching the age of majortq', clect Phiirppine cicizenship;
(5) Those who are naturaLzed rn accordance rvtth lav":"
12)

of children born of Filipino mothers

under
the
1.935
Constitution, from those born of
and alien fathers
Filipino mothers and alien fathers under the 19'73 and 1987 Constitutions.

CONFLICT OF LAWS

NATIONALITYTHEORY 4I

20. where do vou find the lau'providing for election of philippine

citizenship under the 1.935 Constitution?

'fhe lau'is Commonwealth ,\ct No.

625.

2l"v/ho were Filipino citizens at the time of the adoption of the

L935 Constitution on May 14, 1935?

18. Differentiate the citizenship

i1,

(1) Those born in the phil_ippines wjro resrded therein on April

1899 (the date of the ratification of the Treaw of paris b.r-".n

the U.S. and Sparn) and were Spanish subjects on rhar date, unless
thev l.rad lost therr Phihppinc citizcnshrp on Nfar. 14,1935;

V4rile the 1935 C<-,nstitutron consrders as irihprno ciuzcns at brrth

or as natural-born citizer.rs only those whose fathers were Filipinos at the

time of therr brrth. rvhle those born of Filipino mothers and ahen fathers
still had to elect Philippine citizenship upon reaching maloriq' before they
could be Fihpino citrzens, tiris injusuce tc-, children of Filiprno mothers
(wiro are really Fihprnos because Frliprno blood flows through their veins)
was iater corrected b,v the 1973 and 1987 Constitutions, rvl-ricl.r alreadl'
consider as natural-tlorn citizens those born of Fiirpino mothers, even if
the fathers were ahens. ln other words, those born after tire effectivtq' of
the 1973 Constitution on Januan 17,1913 of Fdrpino mothers but of

on April 11 ,1899 and who did rrot declare thcir intentron of

preser'ing their Spanish nationahn'between that date and ()ctober

ahens fathers are alread-r' IrrJrpuros at blrth rvidrout need of elecung Phdtpprne

11, 1900, unless they had lost therr cirizenship

of the Spanish i)eninsula u4ro resrded ln the Philippines

declare tirerr intentron of
preserving their Spanisl-r nauonalN between tl-rat date and Octobcr
11, 1900 (tl're tirnc provided for doing so), unless ther.had losr rherr
(2) Nauvcs

on,'\prrl 11, i899. and rvho did not

citizcnshrp by lltai' 14, 1935;

(3) Narurahzed citizens of Spain who resided in the phrhppines

bl

Mar, 14. 1935;

citizenslup.

In the case of election of Philippine citizenship under the 1935

Constitution, as of what time should the mother be a Filipino? At
the time of her marriage to an alien, at the time of the childts
birth, or at the time of the child's election upon reaching the age
of rnaiority?
19.

At tl're tirne of the mother's marnage to an aiien. F-or if we

require the mother to be a Filiprno at the time of the childt birth, verv
few childlen wtll be benetrted by ths provision because the mother would
have alreadi' become an alien at the time of her marriage (followrng the
irusband's alien citizenship) and before the child's brrth. Likewise, if we
requite that tire mother should be a Irilipino citrzen at the ume of the
child's election, again ven' few children would be able to eiect, because
their mothets would have alreadv become a[ens when tirey got married
to thet ahen husbands and iong before tire birth of the children.

(4) Chiidren born o[ 0). (2).and (3) subse<;uent to April

11,

1899, unless tl'rer,had lost their i)hrhppine ciuzenship bv N,Iav I1.1935;

(5) Persons rvho becamc narurahzed citizens of the phrhpprnes in
accordance rvrtir the procedurc sef forrh in the Naruralization Law
since rts enactment on March 22, '1920. unless tlrey had lost therr
Philippine ciuzenship on or before May 14. 1935;

(6) Childlen of persons embtaccd rn (5), uniess thev had lost

theu'Phrhppine citrzenship on or betbre \.{av 14. 1935;
(7) Fihpino women who. after havrng iost Phijrpprne cruzenship

by matriage to forergners, irad subsequenth' become wrdou,s and

regained Philrpprne cruzensirrp on or before lvlar'14. 1935

of (7) who were stiil under 2i vears of age ar the

ume tlreirmothers regained Phrirppine ciuzcnshtp (Roa t: Collector,2)
(8) Children

CONFLICT OFLAWS

CONFLICT OF LAWS

NATIONALITYTHEORY {3

NATIONALITYTHEORY
Filiprnas who married Chinese husbands legally. Since under
the law of China, they followed their husbands' citizenship,
they all became Chinese. That is why many Filipinas later
opted not to marry their Chrnese husbands legally, so that

25' 195)'
L9i GR L'5t97' Sept'
Phil. i2l;Talarocl'
I

got marned to
who' before Mav 14' 1935'
(9) Forergn women
*i; *nt themseives be lawfuiiv naturalzed
on
citizens of the Phrirpp-t"
n^i fott their Philippine citizenship

they would remain Filipinos and theit children, being

n the Phiiippi"tt, "t'r"l' 'nty

1935;

illegitimate, are also Filipinos.

or before MaY 14'

the strength

Philippures who' on
All other persons born in the
the Roa case'
n of thejut nli docmne in
of the erroneou' "ppht"oo
unless they
cidzens'
tt"tts.";ltrtgino
were mistakenly dtd;;;'tr"
by tvr
citizens
1'g3' These are

(2)

Under the 1973 Constitution: A female citizen of the

Philippines who marries an alien shall retain her Philippine
citizenship, unless by her act or omission, she is deemed,
under the law, to have tenounced her Philippine citizenship
(Art. Ill, Sec.,2, 1973 Constiuion)

(3)

Under the 1987 Constitution: Citizens of the Philippines

who marry aliens shall tetain theu citizenship, unless by their
act or omission, they are deemed, under the laq to have
renounced their Philippine citizenship (Att. ry Sec. 4, 1987
Constitution).

(10)

had lost

thti' titizt"li*it *t

iadicata. (See Tan Ch;;;"1'i' 'J'

Talaroc u. L5l, suPra)

14'

tuit''

GR L47616' Sept' 16' 1947:

122-na)
Paras' suPra' PP'

22.

citizenship under the

\(hy is the law on election of

1935

law?
Constitution a transitorY
Because

it was effective only

Note: Unlike the similar ptovision in the 1973 Constitution, the

above provision of the 1987 Constinrtion now applies to both males
and females who marry aliens.

of
long as there were children
wetJdlo*ed to elect Phihppine

as

FrLpino mothers ""d.'il;;;*'*i'o

from
2l years'.H:*:u"t after 1994 (21 years
otizenshrp ,rpot' "^tn-g
who
those
longer
no
there vrere
the effectivity of th" tS;iot'sutt'tion)'
already
have
itt^ttt ^[ of them would
could elect Philipo-t ';;;;;'
or did not elect at all' in

25. What is the citizenship of an alien woman who marties a

Filipino husband?

elected
of
teached 2l andtl"y ti;;;;iaheady
followrng the citizenship
aliens
be
which latter case they t;;il;
their fathers'

mother
23. Suppose the Filipino

of a child born under the

Constitution-"" "J;;^ti;"'ata
the citizenshiP of the child?

1935

is
to her alien husband' what

the rnother
followed the ciuzenship of
The child, berng ille gttrmate'
from birth'
the chrld is a Filipino
without need of tttJ;""' fit"te'

marries
of a Filipino woman who
24. Vhat is the citizenship

(1) In the case of Zita Ngo Burca u. Repablir, Jan.20, 1967, ir was
held that the ptopet proceeding vuherein an alien'woman married to a
Filipino can herself be declared a Filipino citizen is a naturalization
ptoceeding in a court of justice, and that any such declaration by any
other office or agency is null and void.

Many Filipinos criticized said ruling because it imposed more

stringent requirements on an aLien wife of a Fiiipino husband vrho ordinadly follows the citzenship of the latte4 than an applicant for naturalization.
Fortunately, this ruling was later abandoned.

foreigner?
she acquired the nauonality

If
(1) Prior to the 19?3 Constitution:
her Philippine citizenship'
lost
of her aiien husband' she
the many

O'htt;;' tttt tt*"-ta

Filipino' Examples are

Lin

of Innigration,4l SCk4 292

(1971), the Supreme Court reversed the Burca ruling and held that "under

Q)

Sec. 15

MEa

Ya

Yao a. Comm.

of Commonwedth Act No. 475 [the Revised Naruralization Law]*

44

CONFLICT OF LAWS

NATIONALITYTHEOR\

an aiion wolrran rrnlr\,l11e a I;ihtrino. uailr'c-born oi naturirlized. bccon-tcs

tp.tl.iltiio a irilipino pu'idccl sl-rc is ur-rt ciiscluahired to be a cruzcn oi tirr
'l'his cleciston
PhrJrppu"res undcr Scc..l r;f'thc sarnc iat:"
rn cifecr ruic.i
that rt is not neccssarl ror tirc ai-rclr rvilte oi a .l-ihpr1cl hssband 16 p16;1rg 1n
a courr plocecding that sirc possesses ail thc guahficadons ser tortir rn Scc.

2 and nonc of thc discluaiihcauons unclcl Scc. -1. both of thc Rcvrsccl
\vatulahzation l,at; ]t rs cnougir ther sl'rc 1-rlolcs rhat sl'rc is nor drscluahiiecl
to l:c a Filipin o crilzen not necessarih- in court but even bcf<_,rc an agencr
Llic rlrr' Lnrnirlratron (.orlnrissiorr.

Note also lhat an ahcn woman rnarrrcr-l t() ;tn aiien liusband
rviro (tl-re husbancl) is subsccprentlr.naturalizcd als<.r follt.,l,s the l)hrJ_rppinc
citrzenship c;f her husband, pro'idecl shc d.cs
'ot suiicr f'.m a'r .f
rltt tlrstltrahficluutts tlrtd('r )cc. -l , tlrc s;rrrrt l(t.r rscd \rrLrrairznti.,l l-,ru,

'f

'l'lirs is
a casc of derivative naturalization (slr-rilar ro rhc ninor clrildren

ol

:r uarurali;zcd

ljilipint

citizcn;.

(3) i.{orvevcr:, rn the rccent case ot: l.)lumanton u. I)omtn.qa. 24(t

S(.]t,\ 7+6. ti.rc Sup.rcnrc C,rurt hcicl thar

is no lau,g,r^rinn,i,lg
alicns n-rarr:icd t. Fil4rrnrs thc riEht t. bc acimrttccl lnr.. nruch lcss givcn
l)crlnallcllt rcsiclcrlcc irl. thc l)hLiipltitrcs. l'ltlr oi aircns rtt() rl-lc l)l-rilpprlcs
rflti t]rctr ldrrrtssr,,t) 1ls lltlnllgr;lltts ts j)(,1 :l llt;tttct.,rl r.rqlit. cr.en il tht,r
arc icgallr,marrieci tc, .Fihprnos. i\iarrrrrgc

oi

tircr-e

an alcn w()n-]an to a i-rusbancl

r-rrr tp.ro .fat/a *rakc her a fiiliprn' citrzcn l'd docs

crcuse he::
'.t
fror.n her failure to dcpart lrorn thc PhrLppure Lrpon rhe expiration
.f her
cxteuded sta\- hcrc as an ahcn.
d<.rcs

Note: Unliiic t|'t': i\10):tt Drt rt.;t rvhelc the aLcn lrornan marliccl
to a liiliplro hr.rsba'd drd not appear r. ha'c anl drscluaLtrcation for
traturalization, the ahcn \\'onlan in thc abo'c Df umanton case re fused tc.r
It'ar c tlris coulltf\ r'r't'n aflcl tlrc cxl'rrrari,,n ,,t'ir.ir.cxterrr-lt.ri stei. ltere and
itsteail g()t ll?rrrlccl to a l''ihpino. apparcnth't, avoid ircr d(,portat1on.
26. What is naturalization, and rvhat are the clifferent modes of

CONFLICT OF LAWS

NATIONALITYTHEORY

45

The modes of acq''rngPhilippine citizenship bv naturarizadon are:

(1) By iudicial process in accordance with Commonweaith Act

No. 475, as amended bv Repubiic Act No. 530;
(2) By legislative process; i.e., when Philippine citi.zenship is

confeted by a special act of Congress on deserving aliensi

administrative process, under Rep. Act No. 9139, otherwise
known as "The Adminis&ative Naturalization Law of 2000",
approved in 2001. Under this laq a Special Committee on
Naturaiization is created, with the power to approve, deny or

(3) By

reject applications for naturalization irled with said Committee.

Members of the Committee are the Solicitor Geneml as chairman,
and the Secretary of Forergn Affairs or his representative and the
National Securiw Adviser as members.

Derivative rr"*r.ti""tion is Philippine ciuzenship conferred

on: (l) the rvife of ftar'xaLzed husband; (2) the mrnor children of a

naturalized father; and (3) the a[en wife of a narural-born or nafuralzed

citizen, in the latter case, the mariage having taken place after the husband's
naturalization.

Be it remembered that during the penod of Martral laq Pres.

Marcos issued Letter of Instruction (LOl) No. 270 providing for
naturalization by Presidential Decree. The applicants'were screened by a
Special Committee in a summary manner, which then recommended
those found eligible for natutalization under said LOI to Pres. Marcos,
who would issue a decree declanng as naturalized Filipino citizens those
included in the list recommended by the Special Committee. Said
Committee is similar to the Committee on Naturafization created by the
recently approved Rep. Act No. 9139.

27. What are the qualifications fot iudicial naturalization under

Sec 2, C.A. No. 475, as amended?

naturalization?

Naturalization is tl-rc pr()ccss of conienrng on :rn airen the

citizenship of another coLultr\-, bl anr'of rhc lncans pr-or.idecl bu iar,": It
is cousidered not a rlatrcr oi rigirt bur orrc of pnvilcgc arrcl mar bc
cr.rjoved onh' r-rndcr thc precise conditions prcscriirccl br. l;ru:

(1) The petitioner must not be less than 21 yeats

date of the hearing of the petition;

of

age on the

(2) He must have, as a rule, resided in the Phiiippines for

continuous period of not less than ten years;

16

CONFLICT OF LAWS

NATIONALITYTHEORY

(3) He must be of good moral charactet, and believes in the

principies undetlving the Philippine Consdrution' and must
have conducted himself in a proper and irteproachable
manner during the entrre perlod of his residence in the
Philippines in his relarion rlrth the constituted government
as well as with the cornmuniry in which he is living;
(4) He must orvn real estate in the Pliihppines worth not less than
P5,000, Plllippine currenc\'! or tnust ltave some iucrauve trade,
prr-,fession. or occupauorl:

CONFLICT OF LATVS

NATIONALITY THEOR\

rvho )rave not cvtnced a snccre destrc t<., learn aud etlbract.
the custorrrs, tradrtrons. and ideals of the liilipinos:l
17) Crtrzens or sub jects of naurns rvith rviro' tl-re Phiirppir-rcs rs
at war: and
(8) Ciuzcns or subjecrs of a iorergrr countn,k;ther than the United

States) wlrose lat,s do not grant Frlprnos the nght

bccomc naruralizcd crtizcns or subjccts thercof.

tr.r

29. What are the qualifications for administrative naturalization

under Sec. 3 of Rep. Act 9139?

(5) Fle rnr-rst be able to speali itnd u'r'irc l:nglish or Sparrish and
anv one of the pnncipal Philipprne languages; and

(1) The applicant must bc boln in the Phdrppines and resrding

therein srnce birth;

(6) He must have enrolled ]ris minor children of school age in

(2)'fhe appltcant must not bc lcss than eigl.rtecn (1ii) vear. of .gc
at the ume of the Frhng of hrs/hcr petluon;

ant'ol the pubhc or pnvate schools recognizcd bv the Buteau

of Prtvatc Schools where Phllippine historr'. government,
and civics are taugirt or plescnbcd as part of the school
cutrtculutn ciuriug the elltire pcliod of tire testdence lequu'ed
of hrm. prior to the hearing of his petiuon ti;r naturalization
as

(3) The applicant must be o[good moral character and beiievcs

in the underl,ving principles of thc Constitution, ancl must har,c
conducted ilmself/hcrseliin a proper ancl u'rcproachablc rnanner

during his/hcr enrire pcriod

cigzcn.

28. What are the disqualifications for natutalization under C'A'

r>i residence in the Phihppines in his

relatron with the duiv constitutecl government as rvell as rvith the
communirv in u'hrch hc/sirc rs hvrng;

No. 473, as amended?

r\ccording t() Sec. 'l of said Act, tl.re foliowrng callnot
na

turalizcd

(1)

as

be

Plrilipprne ciuzens:

Persons opposed to organized goverflment or afFrliated wrth,

any association or grouP o[ persons rvho uphold and teach

doctrines opposine all organizcd governments;

(2) Petsons defending or tcaching the proprietl of vtoleuce,
personnl assauit or assassination for the success and pre-

of their

rdeas;
Pol,vgamists or believcrs in tire practicc of pol,vgam,v;
Persons ccrnvicted of a crirne involving m<-rral turpirude;

dotntnance

(3)
(4)
(5) Persons suffering frou mental alienation or incurable
contagrous disease:

of therr residence in the

wrth the Filiprnos' ot
sociall,v
not
rnrngled
Phihppines, have

(6) Persons

.r'l.ro, during the period

(a) fhe applicant lnust have recetved hislher pnrnarv ancl

secondari' educatron in anv pubirc school or private educational
insurutior.r dulv recognized bl thc Department of F.ducation.
Culture and Sports. where Phihppine irist<-rr1'. governmt:nt anri
civics are taught and prescribed as part of tl'rc school curnculun-r
and where enrollment is not limited to anv race or nationaLn;
Pmuid.ed, that sirould he,/she havc rninor children oi school agc.
he/she must have enrolled tirem in simiiar schooisl
(5) The applicant must have a known trade. business, profession
or larvful occupation, from which hc/she denves incornc sufficier.rt
for ins/her suppon and if helshe ts rnamed zndf or has dependents.
also drat of his/her familr': Prouiticd. howeuer. Tirat thrs shall not
applv to app[cants whc.r are coliege degree hoiders but are unable
to pracltce their profession becausc the'r'are drsqualitlcd to do s,:,
bv reason of their ciuzensirrp;

4H

CONFI,ICT OF LAWS

NATIONALITYTHEOR\

(6r 'i-irc irpplrcent mLlst i)c:ible r<, rcrcl.

t'rrtc and spcak Friinin<,

or anr of tirc tiiaiects ol- ti-rtr l)htiipt-rtncs:

enc]

CONFLICT OF LAWS

NATIONALITYTHEORY

(3) B.v subscribing to an oath of aliegiance ro supporr rhe

constitution or laws of a foreign countrv upon attainrng
fwentv-one vears

'I'irc applicant must hn\-e nrnqlr.i u'ltir ti)c f"ti-tllnos and

eviuced a sinccre desrle to learn anci clnbrxcc thc customs,
traditrons and rdeals oi thc Fihpirro people.

irl

30. What are the disqualifications for naturalization under Rep.

Act.

9139?

Sec. -{

of said .\ct provrdes

to bc traturaiized undcr tire

same

tl-rat tirc iollorving arc

not clualified

i1) 'I'hose opDosed to orsanlzt:d government or aiftirated rvrth

anl associatron or grollp of pcrsons u'lro uphoid and tcach
cloctrines opposmg all organtzeci govemlnen ts ;
(2) 'i hosc cleiendrng or teaching thc ncccssitr of or propricn' of
ltoience. personal assault ol rss;rssinrtlon for the success or

plcdormnance oi their ideas;

(3) Polvgamrsts <x beher.ers ln the practlcc

'fhose c()nvlctecl oi crimcs rrrr-r,lr-ing,

i-l)

(5) I hose strffcring

irron-r

r-ne

49

oi

age and more

(4) Bv rendering service tq or accepdng commission in, the armeci

forces of a foreign country;

(5) By cancellation of the certificate of naturaiization;
(6) By having been declated by competent authoriry a deserrer of
the Philippine armed forces in time of wat, unless subsequentlri
a plenary pardon or amnesty has been granted; and
(7) In the case of a woman, upon her marriage to a foreigner, if
by virtue of the laws in force in her husband's countrl', she
acquires his national-ity.

woman in No. (7) above retains her Philippine citizenship unless bv her
act or omission, she is deemed under the law to have renounced her
Philippine citizenship.

pr.,lvgarny;

r-r'rolal

turpitudcl

rrtl1 lh.'rration or incura[rle

Under Sec 2

of

Commonwealth Act No, 63, as amended bv

Rep. Act No. 106, Philippine citizenship may be reacquired as follo'*'s:

con tagl(r Lls tltseas cs ;

(6)

'I'hc.,sc

u,irrr. dLrmg thc 1-rcnoti

oi thcil rcstdcr:cc jlr thc J)lilrpprlcs.

havc n<,t rmngled socialh'l.".ith i,hprnos- or rvhc.' havc not

cr.iucecl ?r slncerc clcsirc to lcar:n ancl ertrbrace tirc custotrts.
traditir.,ns ancl iclcals of thc iirhpinos:
(7) (-iuzcns or sr.rbjccts l<-,inationslrvith u'horn tire Phrirppines is

(1) By naturalization; Pnuided, that the applicant possesses none

of the drsquahfications prescribed in Sec. 2 of Act No. 2927:
(2) Bv repatriation

of

deserters

of

the

Armli Nary, or Air Cotps

Proaidcd,That a woman who iost her citizenship bv reasor

of her mariage to an alien may be tepatriated in accordancr
wrth the provisions of this Act after the termination of th(
mafital starus; and

at t,at' cilrt'nrg thc pcriocl of sLrcir r."'rr: and

(.9;Cruzens ol srrblccts ol u forcrgrr countn l.i]ose lzrs.'s clr not
grnlrt I;iill)ur()s thc flshr f() l)c nlrtluxi-rzecl ci[zens or sublccts

thercoi
(3) By direct act of the Nauonal Assembly (now Congress).
31.

Hou'mav Philippine citizenship be lost?

33. What is the procedure incident to reacquisition
L,'r-rdcr

Iti(r.

"

1' Ltn

(lon-rruout'<'altit .\cr.

no crcizcrr rlr,.' iosr.

6i

l;r llcp. ,\cr, \-o.

in arl oi the foli<;s'ing

:r: tlttcndccl

l-ris ciuzcnsiriP

of Philippin,

citizenship?
Sec. 4

Iil naturaiizatron in n tirrcrgn coulrtr\';

I\' cxprcss r('1)LLllciiltri )n oI crttzc nshilr

f{

,cq

nt

ifl

iIi
:1',ri

;t

.,d

,ii

l$

'ti
:ll

,,.t

Note, however, that under the 7973 and 1987 Consututions, the

32. How may Philippine citizenship be reacquired?

of

.rl!

of the same C.A. No.

63, as amended, provides as followr

"The procedure prescribed fot nztvrabzation undet Act292i . a

amended, shall apply to the reacquisition of Philippine citizenship b

'O

NATIONALITYTHEORY

CONFLICT OF LAWS

CONFLICT OF LAWS

naruralization provided for in the next preceding secrron; Prouided,That

the qualihcations and special qual-ificauons presctibed in Secrions three
and four of sard Act shali nor be requred; and pror,-rded ftrrther.
(1) That the applicant be at least rwenw-one vears of age and
shall have resided in the Philippines at least six monrhs
before he appiies for naturalization;
(2) That he shall have conducted himself in a proper and
i::reproachable manner during the entire period of his residence

in the Phiiippines, in his relations with the consriruted

government

as

well as 'with the community in whrch he

E
CHAPTER

rs

livrng; and

(3) That he subscribes ro an oath declating his intention to

renounce absolutely and perperually all faith and alleg'iance
to the foreign authorir)', state .or sovereignw of which he
was a citizen or subject.
34. How about repatriation? How can it be effected?
Rep. Act 8171 on repatiarion of Frhpino women who married
alens and natural-born Filiprno who have lost their Philippine ciuzenship,
provides:
"Sec. 1. FiJipino women who have lost their Philippine ciuzenship

by mariage to al-iens and natural-born Fil-ipinos who have lost their

Philippine citzenslup, rncluding thet minor children, on account of pohtical
or economic necessity, may re-acquire Philippine citizenship through
repaftiation in the manner provided in Section 4 of Commonwealth Act
No. 63, as amended: Provided, That the applicant is nor a:
(1) Person opposed to organized governmenr or affiliated with
an association or group of persons who uphold and teach
doctrines opposing organized goverflmenr.
(2) Person defending or teaching the necessity or propriery of
violence, personal assauit, or association for the predorninance

of their ideas;
(3) Person convi,cted of crimes involving moral turpitude; or
(4) Penon suffering from mentai alienation or incurable contagious
diseases.

2. Repauiation shall be effected by taking the necessary oath

of allegiance to the Republic of the Ph-rhppines and regrstarion in the
propff civil registry and in the Bureau of lmmigration. The Bureau of
Immigration shall thereupon cancel the pertinent alien certifrcate of
reg'istration and issue the certificate of identification as Fil_ipino citizen to
the repatriated citizen."
Sec.

THE DOMICILIARY THEORY

1.

What is the domiciliarv theory in Conflict of Laws?

It is the theorv wherebl tl-re starus, condition, rights, obligati<;ns,

and capactrt' of a pclson are gor.-crncd l>i thc larv <-,f his domicilc or the

l*

cloniilii.

2. Define domicile.

It ts thc 1>lace rvherc a pcrsol'l "l-ras l'ris trlrc.

Ftxed. permanent

home and pnncipal cstabhshmer-rr, and to rvhich. whencver he is absent.

Iie has the intcntron oF returning" (Storr; (,onflict of l,aws, sec. 41).

It

is

"thc placc rvhere a pcrs()n

has a settled

connection for cerrain

legal purposes, either because hts hon-rc is tl.rere or bccause that is the
placer assigned to hirn bJ-lotu"' (lrrrst llcstatelnent, scc. 9).

"For ti-re exercise of crvtl rights and fulfrllmcnt o[ crvil obligatrons,

thc domicile oi natr.rral persons is the place of their habttual residence."

[\rt.

50, Nes' Civil (]ode).

3. Are ttdomicile" and ttresidence" the same?

" s r x rt is an established principle in Confuct of Laws that

'dornicile' refels to thc reiattvelr' rrlorc perrnanent abode of a person

.1

CONFLICT OF LAWS

THEDOMICILIARYTHEOIIY

CONFLICT OF LAWS

glr-ctl Diacc"
rvltrlc.'resider-rcc'apphcs t() a tctr)P()fx1-\rstlt\'()i1Persoll tu a
ll',rtl, t'. C.. 1.. =0 .\CR. 1 :t8,

"Rcsidence' is used to tncLcate a pl^cc

of abode'

THE DOMICILIAITY THEORY

bv tlrc lau'

tire place in *'irich rre resicie-.. or according to thc

'f
formairtres obsen'ed rn his counrrt'. or rn conformin, wrth tirose
u4.uch ti-ris Codc prescrtbes," (-\rr. 81(r. znl

w'hethcr

pcrmanent or temPorar\'; 'domicile' denotes a fixcd' Petmanent residence

tnal'
t,,.rrl-uch..r,,hen absetlt. one has thc intention of rettlrning. A man
is
not
i{esidence
another.
in
dornicilc
a
lrave a residence in one place and
tol
fel1]aln
tr)
lntentrou
rvitlr
rlorntcile. but domicilc is residence coupled
same
the
and
onct
for
nrr unl-ilruted trme. ,\ lll^n can have one dornrcilc
l-Ia\re nufiler()us places of residence"'
l)rlrpose at an\' tlme, but he mav
(litt/enq.rtr t'. Rcp.,95 Plttl. 890)

(3) In the case i,i srarelcss indn-rdu.,rls. or those r.vith dual or

multiple nationa[ties. the domtcihan' tlteor-r, runs ro tl-re rescue of the
nationaliw theorr'.

(4) Dunng tl-ie earlv vears of American colonization of thc

Philippines, our Supreme Court ur solrrc cases apphed the domrciliantl-reor1'.

like the case

of

the vahdiri'

of

a drvorce decree

obtained abroad.

4. Distinguish "domicile" from "citizenship"'

15) Crtrzens of countries [ke the U.S. or Great Britain, wl.ricl.r

follorv the dornicihaly dreor1,, rnav bccome rnvolved in iiiigatron in our'

Dorniciie in gencral speaks of one's perrnanent Place of abode'

lovalti A
rvhile citizer-rship or nauonality indicates ties of allegiance and
of
domiciharl'
and
n
pcrson ma\. be a crtrzen or national of one state
of
grcc[
.;rll()rhcf. irilrpiflos rvhcr are imrnigrants abroad' hkc thc holders
stjll Frhpino citizens. but therr dcxnicile 1s thc. coutltfv
cards in the Lj.S..
^rc
to rvhere thev havc per-rnanentll migratcd'

countr)., rvhich follorvs the nationahfi- theor\'.

(6) ,\garn, srxne great ccruntrics hkc the Ll.S. ancl Grcat Britarn
follow the domiciiiari- theor)', so that it rvould do rvell For us tr-r rnake a
comparatle studv oi thc nationalitv and dorniciharr tirconcs.
6.

theorl', whv
5. considering that our countrv follows the nationality
theorv?
is it still important for us to know and studv the domiciliarv

some cases' our own larv nakes the hrv of the domrcile
()i c()nfllcts cases'
a persor-r the controllir-rq tactor in thc soluttt,lr

(1)

. oi

Wrat are the different kinds of domicile?

ln

Example: "'l-i'rc rev'lc'ltl()rl of a r'vill clouc bt' a Persoll

clutstcicthcl)hilrppincsbr.aPels()llrr,lrrldoest.t(}tllavelrisdo'
tire /rr
micile in the Phiiippines is vahcl rvhcu donc according to
testatelr,.s
t;f
tlre
tl-re
piacc
oi
ialv
thc
to
/ocz celebralionil. o1. n...,.d'.'g
domicile at the time " (Art 829. Neu' Civil Codc)

fori

The prcvarirng rule is that thc iorurn applics its orvn concept ()i
domicile in deterrruning the dornicrle of a htrsant bctbrc its courts.
7.

For several reasons! tratr-relt:

What law determines one's domicile, his national lau'or the lex

(a)

Domicile of origin: "I'hc domtcile

assisnccl

b)'in*'t,,

a pcrs()1r

at the rnoment oi his bu-th.

(b) Constructive domicile ot domicile by operation of la\\':

assigncd bv lau' to a person after birth on account ()f r]
legal drsabihn'. lilie nrinorth'. insanin. inrprrsonmeut. ctc-

firc domicile

(c) Domicile of choice: fhe dc-,nrrcrle of a person tui.luri.r bccause

he has his l-rorne tl-rerc and to u'htch. lvltelter.er abscnt. l-re intcnds to
retLll1t.

(]) Sornetimes. our

larv makes either the larv

of

one's natlonalitv

or that of hrs domicile rs the contrt.rlhrlg thctor'

Note: I)onricile oi ongur

Example: " flre will of

effect in the Philtppures

if

ln

alien wlro is abroad produces

tirc fornralltles prcscribcd

macle s'iti.r

is acquired at birtl.r: tireleforc. it ncver

\\'lrilc consrructtrrc domiciic ts gl'cn aftcl btrtir tci those u'ltt,

1:r,-ir. clplcrtt to chr.rosc thelr c-ru,n clou"rtctlc. Iikt'tttttr,'rs. ittsattcs, etc.
cirangcs.

rr
54

CONFLICT OF LAWS

THEDOMICILIARYTHEORY

CONFLICT OF LAWS

THEDOMICILIARYTHEORY

55

AIso. domicile of origrn never changes, fot a person ts born

onlv once. while constructive domtcile mar change from ttme to nme.
like wiren the parents of a minor change dotmcile serreral nrnes.
Botb domrcile of origrn and constructive dornicile are, horvever,
assrgned by laq while domicile of choice is the result of .tl-re voiuntan'
will and action of the person concerned.

$
t[

(3) The domiciie of origin

rt was found.

age and under no drsabiliw) can change his

domicile at pleasure.

(6) 1b acquire a new domicile

of

choice, the follorving must concur':

(a) residence or bodilv presence in the new- localiry;

(b) an intenuon to remain there(.animu.s manendl; ar.d

(c) an rntentron not to return to the former abode
(animu.r not reuerl enci)
(Calie,go

t' I ara, 7J Phi/. 45))

9. Give some rules in determining one's domicile

of origin.

if the child is legitimate, irrs domicile of origrn rs that of hrs

parents at the tlme of irrs birthl if thc parents are separated, the domicile
of tl-re custodial parent.
(1)

If

the child is illegitimate. hrs dor-mcile of origin is that of the

mother at the time of his birth.

If the child is legitimated, the dormcile of his fatirer at the time

of ils binh controls, since tire eflects of legrtlnauon rctroacts to the
time o[ the child's brrth (Art. 1tJ(]. l;amrh'Code).
(2) 1'he domtcilc of c-'ngrn o[ an adopted child is tire domrcile
of his real p^rents at tirc tune of his brrth, not the domicilc of the adopters

1s

rhe countfii where

in determining one's cons*uctive domicile.

t,i[
.,$

ill
i,ifl

(1) N,hnors

;l*

'

if

legrtimate. the domicilc of both pareots.

In case of disagreement, rhar of the father, unless
there is a judicial.order ro the contra$,. (Art. 21 1, Familv
Code).
(b) If illegrtimare, the domicile of the mother (Arr. 176,
Famrly Code).
(a)

(1) No person can ever be without a domicile; or! eveq/ natural

Person must have a domicile.
(2) A person cannot l-rave fwo simultaneous domiciles.
(3) A natutal person, lree (not a prisoner) and vi jui.r (one of

A domicile once acguired, is retarned until a new one is gained.

(5) The presumption being in favor of the continuance o[ an
exisdng dornrcile, the burden of proof is on the one who
alleges that a change oF dornicile has taken place.

{r
F

10. Give some rules

8. State some basic principles regarding one's domicile of choice.

(4)

o[a foundling

(c)In case of absence or death of either parent, rhe

domiciie of the presenr parenr. Even in case of the remarriage
of tire surviung parent. stili hrs/her domrcile determines the
construcrive domicile of tl-re minor child.
(d) If the cirild is adopted, the domicile of choice
of

the adopter is the child\ construcdve dornicile.

(2) Insanes, idiots, imbeciles

Since insanes and other mentallv rncapacitated persons

cannot select their own domicile, the larv assigns their domicrle
to them.

(a) If fiey arc below the age of majontli rhe rules <;n
minors applr, to thern.
p) If they are of age and have guardians, thev follou,
the dorrucile of ch'ice of their- guardrans. If thev ha'e no guardrans,
tireir consrructive do'ucile is their domicile of cr-roice before
thev becamc insane.

(3) Married women (a)

If fie

marriage is valid;
(i) The consrrucrn'e domicile of the wife is tl-re
domrcilc of borl.r spouses, ur.rless the larv alk;u,s thc
wifc to have a separate domicile, tor valid and
compelling reasons (Art. 69, Jiarnilv Code).
(ii)

If

there

rs

legai separauc_,n bcrween the spouses.

l
.r

ili

irlii
,i

il

'ill

1:il

56

CONFLICT Of LAWS

THE DOMICILIARY THEOR}

CONFLICT OF LAWS

the wife can have her os'n domrcile of choice.

ril) If there ls separaucrn de talo, the wife can
aisc, have a separatc domicile (Dc ra I tna r.'. l tliurtu,.
'1:/

Phi;./

i't'

(b) If the martiage r.s voidable: Appll tirc same ruies as

when the maffiage is va[d. However, after annulment, the rvife
can freely select her own domicile of choice.

CHAPTER

(c) If dre marriage is void: Since tirere is realv no marriage

in dris case. dre.lrfe can have a domlcile separate iorm the husband.
(4) Other persons(a) Convict or prisoner - He is not free to have a
domicile of chotce, so iris dornicile rs the one he had possessed
pnor to his incarcerauon.

(b) Soldrcrs - Since thev are compelled to follov"' thc

dictates of the rnilitart', their domicile rs theu domicile before
their enlistment.
(c) Pubhc olficials or empiovees abroad hke diplomats,
consular ofFrcials, etc. Since their stal' abroad is rn their official
and not in their personai capaciry', their domrcile is the one thev
had before thev r.vere assigned elseu'here, unlcss they voluntarilv

adopt tireu place

of emplovment

as

their permanent residence.

THE SITUS OR ECLECTIC THEORY

1.

Vhat is meant bv the situs or eclectic theorv?

Under the sirus or eclectic thcorl', the capaciq; condrtron, sratus.

or capacin of a person is gor.erncd not necessarill bv the lau, of hrs

natronalihj or tl're lau' of his domicrlc. b't br- tl.re law of thc place (.rlzr.r)
where an llnporranr clement of the probleffl occurs or rs situated.
Ilowever. thrs theo.r drsu'guishes tu'o l'ncls oipartrcrpation
the individual concerncd.
(a)

voluntarilt',

If

of

hrs parricipatlon is actir.c, i.e., rvhcn he does thc acr

go'erning law is -the lav' of tl.rc actual situs of thc

tl-re

ffansactron or e\.ent,

(b) If the partrciparion is passi'e, as wi-re' the effccts of rlre act

are set forth or determined by law, the go'e'ring law is the lav- of thc
legal situs; i.e., the domicile of the inciividual concernecl.

Example: The marnagc benveen rwo Frhpinos rn Flongkong.

oi getrurq mirrried rs voiuntan. the vaLdirr.

goveutcd l>r rts acrual situs,.or the /e:r. /u,.t

(a) Sincc the acr

of tlrc nrarriage
ulebraliani.r

1s

i.\rt. 26. firsr par.. Fan-uir. (-ode)

CONFLICTOF LAWS

rI

CONFLICT OF LAWS

THESITUSORECLECTICTHEORY

\Eth respect to tire rights and obhgauons, and proPern'

relauons. oi tire Filipino couple. ltowever' tl,ev are governed br'
the nauonal lau' of the spouses. w-hicir regulates or fixes sucl't
matters benveen thern; in other words' the iegal situs is the
national law of the sPouses. (Art. 8(). Familv Code)
(b)

the act or transaction involves propertyr real or personal, what

theory do we apply, the nationality theory, the domiciliary theory,

2.

If

CHAPTER

or the situs theory?

BII

16, tlrst par.. of the Nerv Civil Code provldes that "real
properw as well as personal ProPert) is subiect to the law of the countrv
where it rs siruated". Thus, if tl-re act or uansaction involves properq-'

Art.

whetl-rer real or personal, the law that deterrnincs the validiry

ts thc /ex rttar or /ex rei ilae. Flven the capacifi

ts governed

rhnuiti.

by the /er

titu.t

or

of dle tfansacdon

THE PROBLEM OF THE *RENVOI''

of tire pardes t() the uansactron

/ex rvi .silu.r, r-rot bv tl-le lex nalionaki

of the /sI
1.

What is meant by "renvoi"?

"Renvoi" is

a French

rvord which means "refer back" or "renrm".

ln Anglo-American countries, the tenn used is "rernrssron", which means

to refer a matter for consideration or judgment.
2. rWhen does the problem

of "renvoi" arise?

Everv internai or municipal hu'oix. state has two pnrts; (1) its
purelv internal or don'reshc iav rvhicl.r appLies to dornestic cases; and (2J
Its rules in Conflict of Laws rvirich tt appires to cases wlth some forergr.r
elernent.

Now, the problera

of "renr-oi"

ariscs rvhen there is doubt as

tr-,

r-vhetlrer the reference bv the iex/an (the lau' of the countr-v where the
problem arises) to the foreign larv irrvolves (l) a refercnce to the internai
larv of tl.re forergn larv or (2) a reference to the entlrer\ <.rf thc foreign iau,'.

inciudrng its confucts rules.

In such casc, if thc hrst statc firllorvs the nationahn, thcorr', and
the second statc fbllorvs the domtciiral\' tbcort, tiic problcrn of "rcnvoi"

wiil

rn<-rst

probabli

artsc.

Take the case

of

a (lalifrrrnia cttizen who hacl rcsidecl in

60

THEPROBLEMOTTHE"RENVOI"

CONFLICT OF LAWS

counrry for 50 years andwho dies here, leaving a sizable estate. Art. 16,
sec. par., of the New Civil Code provides that in testate or intestate
succession, we should appi,v the national law of the deceased which. in
this case..is Califotnia iavr But Cal-iforniat tnternal lav'has one ruie for its
own citizens who reside there, and another rule fot its ciuzens who have
their domiciles abroad. In the latter case, California law provides that the
Iaw of the domicile of its deceased citizen should apply. Thus, while our
Civil Code refers the matter to California law (the national law of the
deceased), California lavr refers the matter back to us, telling us to apply
the law of the deceased's domicile, which is Philippine lavz Should the
Philippine court tasked to setde the estate of the deceased accept the
"renvoi" and apply Philippine law, or insist that California intetnal law
binding on its own citizens-residents should be applied, the same being
the deceased's national law? This is the "tenvoi" problem.

3. Discuss why out Supreme Court accepted the ttrenvoitt in the

case of The Mattet of the Testate Estate of Edward Christensen,
Adotfo Aznat and Lucy Christensen v. Helen Christensen Garcia.
7 SCRA es 0e63).

The case teferred to above is the first case decided by our

Supreme Court which raised the "renvoi" problem.

The facts of the

case are: The deceased Edward Christensen

was a California citizen who had resided in the Philippines for a long time

prior to his death; hence, a domiciliary of the Philippines. In his vdll, he

left almost his entire estate to Lucy, an acknowledged natural child in
Califomra, and ga'l'e a small legacy to Helen, an acknorvledged narutal
child in the Phrlippines. Under California internal law, its deceased citizen
may dispose of his estate by -ill in any manner he pleases, However,
Califotnia law also provides that where its deceased citizen tesides in
another country, the law of his domicile should determine his succession.
Thus, while Lucy contended that the will of the deceased should be given
effecg follou'ing California internal law, Helen insisted that Philippine law,
the law of the domicile of the deceased. should be applied, under which
she is a forced heir and is entided to a legrtime.

The ruling: Recognizing that there

\r/ere two sets of ruies under

California internal iaw, one for its citizens who teside there and another
for its citizens 'q/ho reside in other jurisdictions, the Supreme Court held
that if it should refer the matter to California lau'. said law will toss the

CONFLICT OF LAWS

THEPROBLEMOFTHE-RENVOI"

6-!

ptobiem back to us, which would result in internauonal

football. Hence.
we should applv Phiirpprne lau, (the law of tl:
d'e c ted bl, th. .or' flrcts rure s o f c arifornia,

*,iffi:tt;rfffi11i:

makes acknowledged narurar children forcecr rre*s

of ,rr"

p*."i. ,J.t"gr*ug

them, while Carifornia ia.r'pro'ides no legitrme for

such
result, Helen. the Fihpino child, rvas gir.en a legrume .

.hrr;r;;.;.

Note: The Supleme Cor-rrt,-s ruirng was obviously rntended

to
favor the Filipino child. \x&at if no Filrpino .iur.n was
involved, tike,
fo,

instance, if those Frghtrng over the estate of trre deceased

wire alr Californra
citizens? \ibuld our Supreme coutt have still accepted
the .,renvoi,, and
applv Phihppine lau'?

Therl arc actually four (4) solutions that the court

can adopt when_
it is confronted with a "renvoi" probrem like the
chistensen
case. What are they?
4.

ever

(a) Wb may reiect the .,renvoi".

This means that tl-re court d.es not want the probrem r<,,
be sent
back to us. That is, as in the case of the testate or intesrate
succession

a foreigner but domrciied in our countr.l; we w<;uld simplv

nadonal law, or the internal law

of

<-rf

appl1. iris

his countr\,,.

(b) W'e may accept thc ..renvoi,,.

As in the Christensen casc, our Snpreme Court accepted thc.

referral or the transrnissio' of the casc back to us. so tirat instead

of

applying tire foreign rnrernal la*i prrirrpprne rarv rvas apphed.

berng thc
lau'of the deceased'.s domicrle, as direcred bv our .wn law (Art. 16, ,"..

par., Neu,. Civil Code). Thrs rs a case

transmission.

of single ..r.,rol or single

(c) We mal follow the theory of desistment, or tire murual_

disclaimer of jurisdiction theory.
Here, u'e refrain from applt,rng thc national Larr, of the dcccasecl
foretgner, althougl.r our larv telrs us to d. s<>, if said rau, foil<;u,s
tr.rc
dorrucihan theo.' and drrects that wc appr' tire lau, of thc domicile
of
the deceased. So, in the end, w.e still anoh, philinnne law:

62

THEPROBLEMOFTHE"RENVOI"

CONFLICT OF LAWS

(d) \Ve ma1: applv the foreign court theorv.

Under this tireor\i v'e would simpll do u.hat the tbreien courr rvould
do if confronted wrth the same case. So ti.rat ri the Ca[fornia court (as in
the Christensen case) would applv Ca[fornra internal larq we would do
the same. If, however, said court would applv Phriiporne 1aw, u'e would
follou,' suit. The advantage of this theorv is that regardless of forum, the
appiicable lav'will be the same. But rt can also result in internauonal
ptngpong if we do what the Califomra court would do,
court would do what we do, erc.

br.rt

the California

5; What is meant by t'double renvoit'?

This occurs when the local court, rn adopung the foreign court
theorl', dtscovers tirat the foreign court acceprs the "renvoi." But since
the foretgn law remits the case to Philippine law, being the iaw' oi tire
deceasedt domicile, thc f<-'reign courr lrral discover thar Philipprne larv
does not accept tire remission (as it applies the national larv o[ the
deceased), so the foreign court, sitting as a Philipprnc courr, would stdl
appl,v rts own rnternal lav": This is then rvirat our court will applr'.

6.

Vhat about the theory of "transmission"? Is it the same as ttrenvoitt?

Thev are not the same becausc u'hile "renvoi" invoh'es two laws,
transmrssion actually involves three larvs.

"'lransmission" is the proccss oi applvrng thc larr,'

state thru the law of a second foreign state.

of

a forergn

Example: A Chinese citizen domiciled in the Philippines, dies in

Engiand leaving some properties there. The English court u/ill thus have
to setde said estate, and folloudng the domiciliar'' theory, it refers the'
matter to the law of the domicile of the deceased, which is Philippine
lavz But Philippine law, following the nationaiity theory transmis the mattet
to Chinese law, the national law of the deceased. Hence, the English court
will ultimately follow Chinese lauz
7. What is the case of Testate Estate of Amos G. Bellis o. Edward
A. Bellis,20 SCRA 3r9 (1968)? Did it involve the "renvoi" problem?

Although the "renvoi" doctrine was invoked in this case, our

CONILICT OF LAI\|

I'HE PROBLEM OFTHE

"RENVOI"

rl

fi

63

Suprcme (-oult hcld tirat therc \\'as rt() "rcnv6i''

irere bccausc
rncl a tlorniciirar.r,.i
tl'rc clcccasc,ci .\r-rr's (i. Rcllis r,:rs botir a. citizer'r.blcm
'tcras. LlS,\.

ilq

l:i
I

iri

lrlv

ri:i

:ii,i

:,i;r:

Tire facts:

ciuzcn unci rcsrcicnt r>i'lexas at that trn-rc oi'

i-1s clcath. lcit sonrc propertlcs in tirc l)hihpuincs. lJciolc his dcath, irc
e\ecutecl rrvr, u'ills. onc iirllorviug'lcxas las'disPosinu oi hrs propcrtres
'l'exas, and anoti1cr. follorving l)hilippinc iaui clisposins of his
properties
in
chilcr,rcu
illcgitimatc
in
Bellis
hacl
sevcral
thc
l)hrJ.ippincs
l)hihppincs.
in thc
bgt in l-rrs trvg rvrlls. hc dici nor sivc anvrhins to his iliegitrmare childrep
lJelLs.

l)unng thc scttlcmcur oliris cstate. lhc ilicgtmrrate chilclrcn t-,pposcci ir<-rtir
r.vills bccausc thel had irecn cleprivcd ,.'f therr: lcgrtin-rcs. and rnsisting tirat
Phil-rpprnc larv sl-roulcl l:e altplied.'l'hcrc arc uo cc>urpttls<.rn' heirs r-rtrdcr
'I'exas laq'. ancl -I'cxas lar',i iurtltcrrrtorc, docs tt()1 itavc conflicfs rulcs
governing thc strcccssron rtf tts citizcns.

Helcl;'lirc illcgitlr-ratc

cl.rilc'lrcn

^rc

not cntiitrccl to atl' lcgittmc

bccausc unclcr'fcx',ts lnv'. rvhicl-r is thc ttattot-titl larr' r.,f tl-rc deccascd and
t'hrcl-r rvc urust apph'r-rucier,\lt. 16, par. lrvo of thc Civil Coclc. thcrtc arc
no compulson- ircirs and no lcgttimcs.

r\s ior thc oppositors'aLgttttrcnts that

sit-rcc

thc deccascd

cxecnted tn'o rr'ills. ou.c t() go\-crn his cstate lr tl-rc l)irihppincs and tl-rc
()thcr to g()\'crn his 'l'cxas cstatc. lt tlust havc bccn thc itrtention ol tl-rc
deceascd to i1?rvc l)irihpprne 1211' garlct-t1 his propcrtics in the Pl-rilippurcs,
thc Suprcrrc (,our:t hcld tirat i'trllorvlrg '\Iitiano r' lJt'ittto. i0 Pltil. 867. tr
provision rn a torcrg'ncr'.s u,ill to tl-rc cftcct lhrt lis pr<4rclrrcs ur thc i)hilipplnes
shall be drstnbutecl in lccordancc u'rth l)l-rilqtprnc iat' :tt'tti t'tot tn '.rccordanct'
u'rtl-r hrs nlttional larv rs illcgal atrd votd.

All in all, in the absence of definitivc laws on the matter, how

should we resolvc the "renvoi" problem in the Plrilippines?
8.

'lb quote thc late.|usttcc Irtlsardo 1,. Parasl

" x -s -r it is suggestccl tiraf tl-rc thcon llc aci<>ptcd rvhich'
c<,,trsiclcr:l'rg tirc ctrclttnst.lltc(s ('i a gtvcl] sltuztti()n, rvill bcst
rcsuit in ihtlncss, ccluitr'. anci lusticc. ir<.lr'instauce. itl thc casc of
long tin-re d<-,rnici[alres oi- tire l)irihplttucs. il urat' sccm desil'ab1c
to presulne that thcv trttcndcd to dic rvrth l)hilpprne tutcrtral lat'
tallng carc of tire distribntiou of their estatc in tlrc Philipprncs;

iJ:

,*r

--i&

:6'

'l{

ft
-lt
,il

CONFLICT OF LAWS

64

THEPROBLEMOFTHE"RENVOI"

CONFLICT OF LAWS

"renvoi" (sirrgle rcnvoi or

hence. it wouid be better to accePt the
..renvoi',
to rejcct tire
srngie remission). ln ali otl-rer instances.
to be ti're tnore iestrabie soluuon (Paras' id'' p'
...,,irld u..rrr

"

217'i.

CHAPTER

CONFLICTS RULES ON
STATUS

AND CAPACITY

1. Considering that one's status starts with the beginning of his

personalitl', when does human personalitv begin under our law?

Art.

.10,

Net'Ciril

C-oclc. proricles

"B.i.r'tlr cletemuncs persc,naltttr but the conccivcd

chilcl shall be considcrcd bom lor all purposes that ar('

iavorable to rt, prouf,ed it be bor n later u,rd.r drc cr;ndrnons
specified tn ti.re follow'rng arttcle."
rvhrlc tire succeeding .\r:t. :t1 provides:
"Fc-rr

cn'il purposes. tire fetus is considered born

i[ it is alive at the tlme rt is completelv delivered from

the' rnother's v'otnb. I-los'ever, ii thc Fetus had 'an
intra-uterinc lttc of less than scvcn months. it is n<-,t
decrncd born i[ it drcs *'ithin nvrinn'-four hr>urs aftcr'
its corrrplete cle[r'crt' frorn thc ntaternal rvomb."

in rrthcr words. personaltnto

tl-re

follorving conditions:

reallt' begurs at c()nceplion, subject

66

CONFLICl OF LAWS

ON STATUS AND CAPACIT\

CONTLTCTS RULES

(a)ThcPlrrPoseisfavorabletotilefenrst'Llielirtistrvc:na
ireu'of the larent): rnci
lr ts boru aiive uncict. .\rt' 'll of the Neu Crtrl

an
srmpie donauon or is considercd

6) Il
'

CONFLICT OF LAWS

CONFLICTS RULES ON STATUS AND

CAPACITY

67

the bus company due to an injury to the fetus if a pregnant

woman who is a passenger in a bus suffers an abortion as a
result of an accident due to the negligence of the bus driver?

(-t>dc.

Youth\\'eliate Code)
In fact. Art. 5 oi PD 603 (The Child and
provides that
ls lrlore precise u'heu it

..Tl-rectr.r]personalinoitheclrildslrll]crlmmerrcefrotn

t]rennreofl-risconception,forallpr-rtptlsesfar'orablet<llrim.

subiectt()thefcquirementstlf,\rtrclc.lloftlre(]ivilCode.''

For pecunian'damages on account of injurr. to or the deatl.r of

the unborn cl-rild, no. bccause the feus did not ver havc civil personalin.
and an1' cause of action that accrued to tire unborn chiid was exringuished bv its pre-natal death. But For moral damirges suffered bv tire
parents for the illegal arrest of the normal developmcnt of the fetus and
on account of the drstress and anguisl.r attendant to its loss and the
disappointment of theu parental expectations, ves. (Ceiuit. C.-4., 2 SCk,1

88'te6/)

Depenclingontl-reconditionsrlfitsbirtlr.thcrcale.tlrereforc'
4. S7hen is civil personality extinguished?

rwo ktnds oi children:

(a)

ordinarv- rvithan intra utcrinc l-rtt oI at least 7 monti'rs,

scr

drataslongastlrcclrildrsaliveupor-rconrpietcscparattorrfrt;mtlrcmodrer,.s
rvotnb, rt

i.s

According to Art. 42 of the New Civil Code, "civil personaliqv

ts exti.nguished by death."

aiteadv u'rtl-r crvil personahn-'

(b)Extraordirrary_rr,ltlranintra-ttterinclrfeoflesstiranT
f<rr: at least t-l hours aiter completc
months, in u'hich case lt must livc
j.U.'"r, from ti-tc trother's r'vomb bctore it is consrtlcled born and to
havc acclutrccl civil perst-'nahti''

p';r,,1ln\'alreadr.beacktrtlrvlcdgedl>r.tlreihtjlcrevenbeft>rc
i8 Phtl 866:
(Da
birtl-r
[cru.t t. St'attitr'
to bc sr-rPpor:ted c\rcr'l $-htle still rn thc
alreadr'r:ntrticd
is
it
(c)

u'cxlb of the tnother;

(d) lt can alreaclv be an hcrr'

2'InConflictofLa\t,s,whatla.lr'determinesthebeginningof
one's personalilv?
His personal laur if ]re rs a citizcl-r oi a coutrtrt
(like thc 1)hil-rppincs)
nadonahn t[.,,rt. iris natjonal las'
Follorvs tl-re

or the lav' of his domicile) bv a court of compctent ;unsdrction

rs

consrdered valid for all purposes.

fettls nuv be:

l)urpeses bcneficial or lavorablc to tl'rc
ti()n^Bor1:
a
stmlrlc
be
givcn
(a) It r-r-ral ahcadrt

.,i o .nur]tr.-thlt

Death in ti.ris article means "plrvsical death". not civil rnterdicuon

which rs sometimes regarded as "crvil death", and rvhich merelv restricts,
not extinguishes, capacity to act (Art. 38 Neu'Civil Code). A declaration
of death in accordance with one's personal law (whether his national iaw

domicihar|

the<-,r\. tl-re

tl-rat follor"'s tlrc

lf

hc ts a citlzer.r

la\l of hrs domicile'

3. Considering that civil personality begins at conception'

from
may the pare;rc of the unborn child recover damages

5. What is meant bv t'absence", and under what law may one be

declared as such?
"Absence" is considered a special legal status pertaining in the
Philippine iaw to a person rvho has disappeared from his domicile, his
whereabouts being unknown, witl.rout leaving an agent to administer his
properrv-, or even if he had left an agent, the power conferred b)' tlt"
absentee on the agent Lras expired (r\rt. 381, New Civil Code).
One's status of being absent is determined in accordance u'ith
his personal larv (u'htch mav be his national iau' or the law of his domrcile), and jurisdiction to declare him as such also belongs to the countr\,
of .x'hich he is a national or a dornici[art', as the case tnlrr' be. Hou'evcr,
our own courts also har.e iurisdrction to declare an alien domicilian'in the
Phdrppines as absent (ike when a Fihpino wife asks a local court to
declare her al-ien husband an absentee) under the conditions laid dou,n

.iA

CONFLICTS RULES ON STATUS AND CAPACTT\

CONFLICT OF LAWS

lrv otrr Civil Codc (-\rts. 38,t,385. and 386). (See 'laalingu. I'ernandc\.
l)lti/. 3 1'1

lf

CONFLICTOFLAWS

death under

CONFLICTS RULES ON STATUS AND

Art. 391 of the Nev- Civil Code. an

CAPACITY

absence

of rwo

69

(2)

vears is enough (e/.).

6. [Jnder what conditions mav a person be declared an absentee

under Philippine lawrand what are the legal effects of such declaration?

In either

case. a summarv ptoceeding

fot the deciaration of the

Arl 42 of the Fam_il1

presumptive death of the absent spouse under

Code is necessary.

(a)

\\'ithrn

rwo (2; veats aftcl a person\ drsappearance without

leaving an agent to administer his propertv, or having left an agent. the

power of the latter had expired, any intcrested person. relativc. or lriend
may ask tire competent court to appoint a person to represent the absentee
in all that mav be necessary'(Art.381, Nerv Civtl Code).'fhe Present
spouse is, however, preferred in the apporntment when there is no legal
separatron (Art. 383).
(b) After the lapse oirwo (2) vears wlthout anl: news about the
absentee or since the receipt ol the last nelvs, and frve (5) years if the
absentee iras left an administrator of his properry'his absence mav be
declared (Art. 38-1, id).

seven

(b) For all other purposes except succession, an absence of

fl) years, it being unknown whether or not the absentee still lives, is

necessary (Art, 390, New Civil Code).

The procedure is found in Rule 107 of the Revised Rules of

Court.

(c) For the purpose of succession, an absence of ten (10)

vears is required, except if the absentee disappeared after the age of
seventy-five P5) yeats, in which case an absence of five (5) years is enough
to open his succession (fut. 390).
The procedute is again Rule 107 of the Revised Rules of Court.

\Who may ask for the declatation of onets absence?

.\nv of the Follorvns:

(a) The present spolrse;

(b) The heirs insututed in tl.re will of the abscntee. rviro mat
present an authentjc copv of said will;
if the absentec le ft no rvill;
(d) Those w-ho rnay have over the propert-r' of tl.re absentee
some right subordinated to the condrtion oFhis death. (Art.

9. In what cases would an absence of four (4) years be enough for

a declaration of presumption of death because of danger of death
(otherwise known as .(extraordinary absence)?

(c) 'fhe intestatc heirs,

According to Art. 391, New Civil Code, the following shall be

fot all purposes, rrcluding the division of the dstate

presumed dead

among the heirs:

385. rd.)

The procedure for dre declaratron of one's absence is found in

tl-re Revised Rules of Court. Horvever, "thc iudrcial declaration
of absence shall not take e ffect until 6 n.ronths after the publication in a
Rule 107 of

(a) A persoa on board a vessel lost during a sea voyage, or an

aeroplane which is rnissing, who had flot been heard of for four (4) years
silce the loss of the vessel ot aeroplane;
(b) A person in the armed fotces who has taken part in war, and

newspaper of general circulation" (ALt. 386. td.).

has been missing for four (4) veats;

8.

When may the absentee be presumed dead, and forwhat puqposes?

(c)

For the purpose of remarriage. tire absentee mav 16 presumed

dead after four (4) J'ears of absence. the present spouse having a wellfounded belief that the absentee is alreadv dead (Art. {0 Familv Code).
(a)

person who has been

in danget of death under other

circumstances Qike earthquake, volcanic eruption, landslide,

fte, dangerous

expediuons, etc.).
Rernernbeq thougta that for the pqpose of rernardage, extaordinary

However, in case of disappearancc whcrc

t[Tere is danger

of

absence

of two (2)

.vears

is enough (Art. 40, Family Code).

STATUS AND CAPACITY

CONFLICTS RULES ON

N
10.

in Conflict of Laws?
Vhat determines one's age of maiority
it is the personal law
status'
personal
Since age is part of one's

(whether

a person that
.r""uo"^t law or the law of the domicile) of
not'
or
of
maioritv
vrhether he has reached the age

law?
What is the age of maiority undet Philippine

13' 1989' amended

Republic Act. No' 6809, approved December
to 18 years
maiority
of
age
the
htt.234 of ,n. f"-ity Code by reducing
the age
But
cases'
special
in
law
r"* ,ft. excepdons esiablished by existing

under the
of contacting marriage without parental consent has'
law, remained at the age

of

same

twenry-one

Note that also under the same Rep' Act No' 6809' thc responsiand guardians' for
bility of parents (if the children live in theit company)

tt.

of
tort, committed by their chiidren and 'watds below 21 years

with

are
18, they do not need guardians anymore' unless they
already
"Uor..
under some other drsabiJrtY'

is our conflicts rules on capacity to contract?

In counuies that follow the nationality theory like the Plulippines'

national law and
the capacity to contract of a person is governed by his
U'S' and Great
like
the
countries
irr
follovrs him vrherever he goes, while
to conttact ls
capacity
one's
Britain that follow the domrcil-iary theor,v,
capacity
petson's
a
governed by the iaw of his domicile' In other words,
nationalii
lex
it is the
."o .o.,o,.. is governed by his petsonal law, whether

of

the lex danicitii.

ot

The exception in the Philippines ate contracts involving real

sitae applies includrng
personal properry;in which cases the lex titu or hx rei
Civil Code)'
New
15,
(Art'
ifr. .up".i.y of the contractrrg panles

For example, a Filipino who owns a' piece of property rn Fiorida'

in the Phillppines'
USA, wants to donate sard property to another Filipino

Forthedonationtob.,r"lid,therespectivecapacitiesofdonorand

CAPACITY 7',

Former Senator Salonga, however, mendons some criticisms

leveled by U.S. and former Soviet Union authorities to the use of one,s
personal law (whether his national law or domiciliary law) to determine
his capacity to enter into business transactions with foreign elements, in
that "it would be nothing less than outright infringement of the reasonable
expectations of the contacting parties, and would result in erecting a
formidable barder to intemational trade and intercourse". For every person
"who entets into a transacnon with a foreign nadonal or domrcijiarlwould
then be compelled to gauge the capacity of the lattet by refetdng to the
unfamfiar law of some foreign country". (Salonga, Private Internationai
Law, 1995 ed., p. 250).
How' indee4 can we subject a foreigner who enters into a business

age'

hasbeenfetained.TheresultisthatsuchParentsandguardiansarestill
(as to patents) and
responsible for the damages caused by thel childten
even ifthe chdd is above 18 years ofage (the aqe
*.rd, 1", to guardians)
-but
is
below 21 yeats of age' The defect of the provision
of maiority)
the chil&en are
respect to guardians of minor chil&en, because if

12. $7hat

CONFLICTS RULES ON STATUS AND

their national law), as well as the extrinsic and intrinsic vaiidiw of the
donation. the subject-matter of the donation being located in Fiori<ia.

tt.

i.,.r-t.,
11.

CONFLICT OF LAWS

CONFLICT OF LAWS

law' which is
donee shalt be govetned by Florida law (not by PhiJippine

contact with a Ffipino in the Phrlippines but who has no capacity to

contract under his personal la$/, to Philippine lavr and hold him liable
under the transaction, unless in determining his capacity to contract we
apply the lex loci contractt$ which is Philippine lawl Thus, foliowing the
practice in American courts, Senator Salonga suggests that Art. 15 of the
Civil Code applyrng the nationality theory be hmited to strictly familv and
domestic transactions, wh-ile the law goveming the contract should govem
ordinary day-to-day business contracts (id., p. 256). An example is the
early decision of the Supreme Coutt in Iuular Coat- a. Frank, I t Phil. 236
(909), where said Court applied Phitippine law, being the law of the
place where the contract was to be perforrned, and not the national law
of the defend^nt, ai Illinois citizen, in determining his capacity to enter
into

contractwith the Philipptre Government to work here as a stenographer.

ti.

What about the use of names and surnames, which is also part
of onets status? What is the law on the matter?
Traditionally, a. person's name was not regarded as part of his
status because he could change his name at wiil, but our law nov'
provides that "no person can change his name ot sumame u,ithout judicial
authority" (Art.376, New Civil Code), and the procedute for the change
of one's name is Rule 103 of the Revised Rules of Court. As held in
REublic u. CA. and lVong, G.R No. 97906, May 21, 1992, "a change of
name is a special proceeding to establish the stalus of a person involvrng
his relation with others, that is, his legal position in, ot with regard to, the

CONFLICTS RULES ON STATUS AND CAPACITY

rest

of

CONFLICT OF LAWS

the cornmunih'."

Even ahens can ask for change oi name rn the Phiiipprnes,

provided they are domrciled here. In other u'ords, the starus. of an ahen
is governed bv the lex rionirillii ot the law of lus domicil e (Ong Haan Tin u.
fup., L-20997, Apil 27, 196\. But an alen whose citizenship is either
conroverted or doubtfr:i cannot ask for a change of name under Rule
1,03 (Baws u. Rep.,

L-23595,

Feb.

20, 196q.

As for Philippine substantive law on tJre use of names and

sutnames, Atts. 364 to 375, New Civil Code, iay down the ruies on the
use of sutnames by legrtimate, Iegitimated, adopted, and illegitimate
chjldren; married women as well as women whose marriages had been
annulled or who are legally sepatated from their husbands; widows; and
in case of identity of names and surnames between ascendants and
descendants.

CONTLICTOF LAWS

CONFLI

TS RULES ON STATUS AND

CAPACITY

79

order of nobility that they possess (Sec. 17, Revised

Naturalization Lau)
In fact, our Constiturion (the 1935,1973. and i9g7)
d;.;;;,;;;;;.
of rovalry or nobilin:
15.

Distinguish legislative from iudiciar

iurisdiction over one,s

status.

Legislauve jurisdicdon over one's status is ihe power

personal law to govern his status wherever he goes, iHt.

of his

,rral.i"t

jurisdiction is the power of the courts to decide questions

or controversies
concerning one's stanrs.

of

Thus, our coutts can decide cases invorving the status and capacity
foreigners brought before them, but in doing so, our courts

the personal law of the foreigner, whether it be his national

will

appl1,

I"- oi th.

law of his domicile, depending on whar theory the country of his

citizenship follows.

All children conceived and bom outside

a valid marc:nge arc

the
illeg:timate
considered by
Family Code as
(Art. 165), whether the
child is an acknowiedged natural child or a natural child by iegal fiction as
defined by the New Cir'il Code or spurious, and they are all required to

use the surname of the mother under the Family Code (Art. 176).
Howevet, the new Republic Act No. 9255, amendrng Art. 176 of the
Family Code, now allows iliegitimate children to use the surname of the
father "iftheir fiIiation has been expressly recognized by the father through
the record of birth appearing in the civil register, or when an admission
rn a public document or pdvate handwritten instrument is made by the
father" during the latter's iifetime.

Regarding Filipino women who have been divorced by their

alien husbands under fut. 26 of the Family Code, the rule on v/omen
whose marriages had been annulled should iogrcally be applied to them
(See

Art. 371, New Civil Code).

May foteigners with titles of nobility continue using said titles

in the Philippines?
14.

The right to use a title of nobiliw depends upon the national lav'
the person concerned (X.abel, Conflict of Laws, Vol. I, p. 169). Such
persons may condnue using thet titles of nobility in our country, but if
they apply for nattrafization, they must renounce any hereditary tide or

of

For example, even if the personal law of the foreigner aliows

divorce, he cannot apply for divorce from his spouse before a Pt itipp;n.
court because we do not recognize divorce and our ao,rrt, hurra ,ro
jutisdiction to grant divorces. However, a foreigner who applies
for legal

separation in our country on a gtound available under his nauonal ilu,

but not under our law, may obtain a favorable judgment from our courts,
because it is his national law on legal separatio., th"t o*.o,rrts
will appll:

but subject to our procedural

lavr.

r"

CONFI"ICT OF LAWS

CONFLICTOFLAWS

CONFLICTSRULESOFMARRIAGE

75

of the contracting parties who must be maie and female; and (2) consent
freely given in the ptesence of the soiemmzing officer (Art. 2). While the
formal requisites are:
(1) Authority

of the solemnizing officer;

(2) A valid marriage [cense except in the cases ptovided for in

Chaptet 2 of Tide I; and
(3) A marriage ceremony which takes place with the appearance

of the contracting parties before the solemnizing officer and their

CHAPTER

personal deciaration that they take each othet as husband and wife in
the presence of not less than two witnesses of legal age. (Art. 3, id.)

Like the absence of any of the essential requisites, the absence

stated in Article 35 Q), but an irtegul^rity i" the formal requisites shall not
affect the validity of the mariage; the party or parties tesponsible for the
irregularity will however, be civilly, criminally, and administratively liable
(Art.4. id.).

CONFLICTS RULES ON MARRIAGE

A. MARRIAGE AS A CONTRACT
with marriage
t. \Vhy do conflicts problems arise in connection

as

a contract?

coulltrles
Such problems arise because different
depending

moralifi"
on ,h.t'pubhc pohct', culture' or code of

la.r,s in determining Ot.

*Uatf

or

states'

have different

oF marriage as a conuact' Consequendy'

is errrbodied in Art' 1 oF the

whiie our pollcv aird concept of 't'^'riage

Famil1' Code, therc

n"

'''n':'iug"t

ceiebiated in otl.rer countries that do

of marriage' vet to den-1' them

,rot .o.rforln to our idea nndlo"ttpt

rhe status of children' the

validin'vzould create ver-v serious p'otl"'rrt in
spotlsts' the authoriry and rights
pcrsonal and propert\' t"louottt o[ tht
rigirts of
if por.rr,, towards their cirildren aod uirv uenia, trle respecrive
o[ their familr" etc'
succession of the spouses and the members

applv rn such
Thus, rve should know what rules or laws to
conflicts problems.

formal validity of

2. \flhat is Philippine intetnal law on the

contract?
marriages, or the validity of marriage as a
'
The Familv Code presctibes essential

of

any formai requisite shall also rendet the mardage void ab initio, except as

as rvell as

i:.tT^l

The above formal requisites apply also to foteigners 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 hrs/her country
in the Philippines before he/she can be issued a marriage license; while
stateless persons or refugees need only to submit an affidavit stating the
circumstances showing such capacity to contact marriage (Art. 21, id.).
Considering the above formal requisites

fotthevalidiwofarnatriage.Theessentialrequisitesare(l)legalcapaclt},

is

As to common Iaw marriages of foreigners who come to the

Philippines as husband and wife, it would seem tlrat we should consider
the marriage valid if valid under their national law or the law of the place
vfrere the relationship began. This is to avoid injustice to the parties as
well as thek chil&en, considering the different conceptions of marriage
in foteign jurisdictions. But the mardage must not be contra bonot mores or
.universally

requlsltes

of a valid mardage in the

Philipprres, a conunon iaw marriage between Ffipinos in this country

void (Enriqueqa. Ennque4 8 Phil565; Eugenio u. Wb4 185 SCLA 42r.

considered incestuous.

3. What about foreign marriages of Fitipinos? Are they valid?

Under Art. 26 of the Family Code, "all martiages outside the

CONFLICT OI LAWS

CONFLTCTS RULES OF MARRIAGE

76

phihpprnes in accordance w-1th the larvs in force in the countn'- rvhere thev
u,ere solemnizecl and yaiid there as -sucl'l. sirall also be valici in thts countrv.
except those prol-ribiteci undcr Arucies 35ii). ('l). (5; and (6). 36' 37 and

CONFLICTOF LAWS

CONFLICTS RULES OF

IUARRIAGE 7'

i.e., marriages between ascendants and descendants. and broti-rers and

sisters: and marriages that are hrghlv irnmoral (bigamous or poir,,gamous
rnarriages rn Chrisuan countries thar prohibrt such marnagesT.

38"

In other words. we follo"v tire rule of ux

in the countn' of celebrauon. tl-re n-rarriage
except tir<-rse enumeratecl in sard Art. 26.
a for:eign marriage

But,
be

iot'i rciebrationt.r: rf vaLd

rs also valid tn the Pl-rihpprnes.

of Filipinos in a foreign countrv rvill stiil

(2) \\e proxj tnaruages., w-hile thev are nor allowed under philipprne
internal law, tlre rule in dre U.S. is tl-rat where perrnitted bv the law of tire
pla.ce where the proxy particrpates in the marriage ceremoo)., thev are
entitled to recognition at least insofar as the fonnal valditv of the
marriage is concemed. This rule is intended to protect the wife and chii&en
(Salonga. supra, p. 266).

toid in tire Philippincs if:

(l) Either or botir parties did not havc the legal capacirv to gct

rrrarried 1Art. :5 {l});

2) The marriage rs irnmoral for being bigamous or poiygamou

(Art.

35

{a})

(3) Consent of one partl is lackrng because of mistake as to the

identttv of tl-re other (Art. 35{5}).

(-l) Onc of tire parties was psvchologrcall,v incapacitated at thc
tirne oi the rnarriage to cornpll rvith the essenual marital
obligations (Art. 36);
(5) Tlie marnage is incestuous (Art. 37); ot
(6) The marriagc is vord bl reason of pubhc pohcy (Art. 38).

(3) As to rnarriages on board a vessel on the high seas, since tl:e

country whose flag the ship is flving has juusdrctron over the ship, the rule
is that compliance with the iaw of tire said countrf is recluired for tiie
marrlage to be valid. In the LI.S. where each state has irs own law- on
marriage, the lav' of tire domicrle of the ship owner governs (Salonga.
supra, p. 267).

(4) IF the parties or at ieast the husband is a lvluslim (s'hose

religton allows piural malriages), it is beheved that we would recognize
up to four marriages of dre same irusband (as recognizcd by the PhrJrppine
Muslim Code on Personal Laws) to protect the rights of the wives and
children.

Consular rnrrriagcs of Fiirpinos abroad are rahd. As provided

in -'\rt. 1i) of thc Famih'Codc:

5.

"Marriages between Frhprno crtjzens abroad may

be solcmrizcd bv a consul-general, consul or r,ice-consul
<-rf the Republic of tire Phiirppines. Thc issuance of the
marriage [ccnse and tl-re dr.rues of the iocal crvil reglstrar

If the rnarriage rs valid under the law of one of the spouses

rvhiie void under the law of the other. r'c should uphold the validrn' of

and

Filipino and a foreigner abroad,

the marriage, uniess thc martiage is universallv tncestuous or liighh

immoral (the same rule as to foreigners rvho get rnarried abroad).

of thc solemnizing oftlcer rvith regard to the

celebrirtior-r of m:rrnage shall be perfonnccl bi' said

consr.rlar otfrcial."

4. Vhat are the conflicts rules on marriages between foreigners

solenrnized abroad?

\\c

of

nlehaliolr, but not the excepdons

rvhich appll onlv to
FiLprnos. But universallv consiciered rncestr.xrus rnarriages are exceptedl
0)

What about marriages between

i.e, a, mixed martiage?

sn}1

applv dre r:ule

rn the flrst par. r.,f Art. 2(r

oi

lex lo,t

tire

Fami11' Code.

For exampie, a Filipina rnalnes hcr,\merican first cousu.r ui Califorrua.

where the marriage is valid, If the parties are both FrJrpinos, said martiage
wouid be void fot berng against public pohcv (Art. 38 (l), Farnilv Code)
But since the martiage is mixed and it is valid under rhc iex loti ce/ebrationil.
we should uphold the rnarriage. tc-r avoicl absurdrfi, and to do justrcc t<,
the wife and children, if anv. After all. tl.re rnarriaqe rvas perlormed in a

forergn shore and is not bv itsclf immoral or univers2ill: 1n6srgu6ss.

Indeed, Art. 149 of the Famrh-Code provides that "ti-re familr,. berns thc
foundation oI the nation, is a basic social institutjon rvhich pubhc policv

CONFLICT OF LAWS

7E

CONFLICTSRULESOFMARRIACE

cherishes

one be6. What about a mixed marriage in the Philippines; i'e',

tween a FiliPino and a foreigner?
the FrLpmo -that is. PhiLppine
law- should be followed; otherwise, our public policy would be violated.
This is true both as to the extrinsic and lntrinsic validiW of the marriage.
is believed that the national law

frst

cousin in the

PhrJrppines, sucl, marriage being prohibrted by the Familv Code' Thev

cznnot also marrv without a marriage license, unless the mardage is one
exempt from such [cense.

B. MARRIAGE AS A STATUS
1.

Iil

'urhen a woman marries a foreigner, she usuallv loses het nationaliry and
instead foilows that of the husband. Another reason is that the husband is

usuaily the head of the famrly, so that the husband's personal iaw governs
the personal relations of the spouses.

of

Thus. a Frhpioo cannot marfi' his or her American

What are the two aspects of marriage as a status?

obligations of the spouses are purelv personal to them and are not
ordinarily interlered with bv the courts. As to the aspect of the properq''
relations of the spouses, the law lavs down certain ruies and ludicial
sanctions, as thef mav afFect public interest'

2. What law governs the personal relations

of the spouses in

Conflict of Laws?
personal ;:elations of the sPouses are
governed by Philippine law since we follow the nationahtv theon (Art'
15, New Civil Code). Other countries that foliow the natlonali* theo{'

In the Philippines,

aiso apply tl-re spouses'nadonal iar.v in determining their personal reiations

to each other. On tl,e other hand, in countries tl-rat follou'the domicrliarl,

theorl', the personal reiations of the spouses are governed bv the iaw of
theit domicile.
3.Suppose the spouses are of different nationalities, what law

In the Philippines, an alien woman who manies a FiJiprno husband

farto becomes a Filipino citizen if she does not suffer under any
disqualification for naturalization as a a FiJipino citizen (Ahojta l-in Yao a.
Conn. of lnnigration,4l SCRA 29Q. At exception was, howevet, held in
Djananton a. Domingo,240 SCLA746 (l gg5),wherein the Supreme Court

ipso

ruled that "rnauiage of an alien woman to a Filipino husband does not

tpto faao make her a Filipino citizen and does not excuse her from her
failure to depart from the country upon the expiration of her extended
stay hete as an alien".
As for a Filipina who maffies an alien husband, our Constitution
provides that she "shall retain her Philippine citizenship, unless by het act

Marnage as a stalus carries with 1t mplications in rwo aspects:

the aspect of personal rights and obiigations of the spouses, and the
aspect of their properry relations. As to the first asPect! the rights and

will

govern theit personal relations, the law of the husband or the law
of the wife?

79

As a general rule, the personal reiations of the spouses are

go'erned bv the national law of the husband. Reason for this is because

and Protects "

It

CONFLICTSRULESOFMARRIAGE

CONFLICT OF LAWS

or omission, she is deemed, undet the larg to have renounced her citizenship".

What law, then, should govern the personal telations of a Filipino

wife, who retains her Philippine citizenship, and her alien husband?
By p*ity of reasoning with Art. 80 of the Family Code on the
property relations of husband and wife, which provision has abandoned
fut. 124 of the New Civil Code providrng that the national law of the
husband shall applv to the property telations of spouses of different
nationaiities, it will be the national iavr of the wife or Philippine law, that
would govern the spouses'personal reiations. This change of rdle was
intended by the framers of the Family Code to protect the Filipino wrfe
(because in many cases of mixed mariages, it is the rrtrfe who is the
Filipino) ftom the harshness or sttictness of the personal law of the al-ien
husband, thus depriving her of her basic, fundamental rights. Many alien
husbands have divotced their Filipino u'ives under their petsonal laws.
This should not, however, preclude the wives from claiming the rights
due them under Philippine law as such wives of their alien husbands, like
the rights to support, to the custody of thet minor children, as heir of
the husband, and in the division of the properties acquired dwing the
marriage. (See Minutes of Committee meetings of Nov. 75,22 and 24,
1e86)

80

CONFLICT OF LAWS

CONFLICTS RULES OF MARRIACE

CONFLTCT OF

LAWS

'I'hc- cotrrt nle\: cxclrrpt one sp()r,rse

4. Supposc husband and u'ife acquire a nc\r'comrnon nationalin'?

lf thc husband alonc ciraugcs iris

naticirraLty n[1st ,i.t.

rnarringe, tl-re larv oF thc last com!n()n natlonaiit\- of the s1;ouses rvould
govern. to avoid preiuclice tc., the rvifc rvho r.r'or:id suf[er a cirangc in her
rights .,r'rthout rnr free erercise of chciice on her part (as provided in dre
)-Iague Convention oi 1905)
(3) ii the spolrscs retain thel' diifcrcnt nauonalities after the
rlarriage, it l'ras beet.r suggested that the national larv of both slrouses
slrotrld govern (l{abcl, rd.. p. 327). Anothcr rvriter. lrorvever. offers a
bettcr sohrtion; i.c., applr' the lav' of the l.rusband rt the time of thc'
nrirrriage (\\blf, Prn atc lntemational J--a*',361), 361). 1'he result, rt is clauncd,
rvill rrot necessarih'bc unfair to ti-rc wife, bccause the tiren national lal' of
the husbtnd r-nay c\relr bc urorc far-cilablc to her than hcr o*'n nxt1ol1al
lav: llcsiclcs. sirc shotrld aL'eaci1. knorv t'hl[ thc husbanci's nxtionxl lfl\\i

fro111

ti ti-rc iattcl sirould hyc

rbroad. or for otirer vald and compelling
re^s()ns which sl-rould not be ittcornpatrble rvith
the sohclarin of thc' fimih' (Art 69' rd)'

(3)Thcspollsesar:ciointlr'resllor-rsibleforti-reSuPP()ftofth('
famrlr- (Art. 70' id

their pcrsonal relattons.

(2)

MARRIACE

Living u'rth the other

Or onlv the husband changes nationalin'? Or there never was a

cornmon nationalit\. betwecn the spouses? What lar,r'will govern
the personal relations of the spouses?
(1) if rhe spouscs irrvc thc sarre niluonaLitl but thev acquite a
ncrv nationalifi' bl their cornlrtoll act. thcir nerv national lau's'ill goverlt

CONFLICTSRUL6SO[

of the ht>usehold shnll bc the ttght rnd

dun of both sPouses ('\rt' ?f id')'

(a) The 1nnnagc1l1ent

of the spouscs neglccts his or i-rcr cllrtles tti thc

ulltoll or .a"rt'"'t"' acts u'hich tend tc' brrng dal'rt{er'

(5) \\'hen one

cr-,niugal

to tilc otilcr {)r: tlle fatl'Iih" t}re aggr:tevecl

72' id )'
spouse n'rav appll' to the colut for reLef (Art

dishonor.

c-rr:

ir-riui'r'

((r) Erther sPouse mav excrosc anr lcgrtin.rate

profcssion' occuPxuoo'

otiler' lhc
busrness, or actrvitt'' wlthout the consent of the
qrouncls
latter nlav ob;ect only orl valicl' serit>tls' atlcl moral

('\rt.

73. id';

rvife' rvhat
6. Going now to the propertv relations of husband and

rvas rvhen thev got tr-rarricd.

are the conflicts rules on the matter?

Some excepuons to the lbove rulc rvould bc, if tl're national lar.v
of tl're irusband violatcs the pubhc polio' of the [otr-un, or the national
larv of tl're t'rfc happens to be the larv of the forum. rntended as it is to
pr()tcct the wife's rigi-rts.

tire sPouscs
For the saffIe feaso,l th;rt tlle persoual relatrons of
if tirev are of differcnt
are governccl br. the personal laN of the hnsband
relations' ot 1<'
natilnalties. the same rule also applies ro their ProPert\
tlrc prt,pern l'('gllll(' that guverrrs lhctr tllrttagc'

5. Finally, what are the personal dghts and duties

wife under Philippine law?

of husband and

(1) The spoLlses are obiiged to iivc togethet. observe rnutual

iove, respect and fidclitr, and render urutual help and

support (Art. 68, Fanill'Code).
(r) The spouses have the right to fix togcthcr tire far-mh' dor.mcile.
Ilorvever, in case of disasreemcnr berlvecn them, thc court
shall decide.

in tlre ?}rilrpprnes,

tl-re proper.q.
stnce we foilorv tlre natronalin. dleorr;,

are, in the absence oF a marrrage settlcmcllt

of the place of- thc
bets,eeu them, governed br- Phihppine lar'"" rcgardiess
(A't. 80, Fan-rllt' Codc)
celebrarion of the rnar.r.iage and ihei-esid"nce

reladons

of thc spouses

If

tlri' spr,uses lre

r-'f

differcnt trrttonlhuts' h"rvcvct-'.rD,urnint'

thatoncoithespousesrsaliiliprno;rr-rdt1-reot,hef.andjen,sdl]1)1ri|lp-ptnc
-fl'ris.rvas the rntcutton ot,ttl'
ialv rvill govcrn tl-rerr pr,opctn relauons
(,ode. consrderir-rg tl-rat ln mtlst mtxed

Commrttee that frarned tlre Familv

the Committee r'vanted tc'
marriages. tt is tl.re rlrire who is the Frhpino' and

S2

CONFLICTSRULESOFMARRIAGE

CONFLICTOFLAWS

Philippine iaw to the

prorect the v'rfe in such a mauiage bv appiying
husband or the wfe
it
is
the
whether
spouses,
the
of
prop"rqu relations
Art.
124 of the New
thus
amends
ruie
This
ciizen.
who $ the Filipino
a Filipino and a
between
mauiages
in
mrxed
that
Civil Code to the effect
relations
the
property
husband
that
governs
the
foreigner, it is the law of
Civil
Code
Revision
of
of the spouses. (See Minutes of meetings
Committee, Nov. 15, 22, and 24, 1986)
The exceptions under Art. 80 of the Familv Code
(l)

If both sPouses

are:

are aliens, in which cases the general rule in

Confiict of Laws will apPly; and

(2)

the srrsre'r

7. Suppose the husband or the wife or both change nationalities,

will the rules stated in the preceding question be the same?
Yes, under the

regime of the

doctrine of immutability of matrimonial

spouses; i.e. regardless of the change of nationahry by the

husband or the wife ot both, the originai Property regime that Prevailed
at the startof their marriage prevails. The reasons for this doctrine are:
mantal peace in the spouses' ptoperty telations is more or less guaran-

teed; the sPouses will not be able to preiudice creditots, who in nrm
cannot leopardlz.e the interests of the spouses; and even the spouses may
protect themselves from each oth.4 0 Rabef Conflict of l,aws, pP. 453, 354)
8. Is immutability of the property regime of the spouses the same

immutablity of the law governing said regime?

No, forwhile a subsequent change of nationality by the husband

or the wife or both does not change or affect the otiginal ProPerty
regime, the law that creates and governs said regime may change'
However, maffiages solemnized before the neur law takes effect are still
governed by the old laur
A good example is the change that the Famil;' Code introduced
in the prcperw relations of the spouses. Whiie the New Gvil Code established

CONFLICTSRULESOFMARRIAGE

of conjugal partnership of gai.s

83

benveen the spouscs. the

Fa'rlh'code

changed the svstern or tire regrme to the absolure colnmurufi:

regin-re. Thr.rs. coupies wiro get married under thc Far'ih. (,ode rvho ciicl

not enter into

settiement irave

a marnage

regrme of absolute commumn-

of properq' benveen them. Horvc'er, rnartiages soiemruzed u'dcr thc

Nerv Civi] Code r.vithout marriage settlements are still governed bt, said
Civil Code; 1.e., rirc spouses still have a conjugal partnership of galns
between thern, subject, howeveL, to the changes introduced bv the Famril,
Code in the adminisrration and disposiuon of conjugal properties. whicl.r
have retroactive effect, without prejudice ro vested rights acquired
before the Farnily Code took etfect (Art. 105, Familv Code).

!7ith tespect to the extrinsic validrty of contracts affecting

real properry whether situated in the Phijippines or in a foreign counttl-,

in rvhiih cases the lex situt wlll govern the formal-ities to be observed for
the contract's validrty (Art. 15, New Civil Code)

as

CONFLICT OF LAWS

C.

1.

ANNULMENT and DECLARATION

OF NULLITY OF MARRIAGE

Distinguish annulment from declaration of nulliw of marriage.

Annulment

is thc renredv

if thc

mar:riage is r'oidable or annullable,

i.e., r'alid until annullcd; rvl-ulc declaration of

remedy

if

nullitv of marriage is thc

the rnarriagc is void ab initio.

Sincc a voidable rratriaqe rs r.ahd until annr.rllecl brt a coun

it has ccrtain legai effects: narnelr':

r,i

c<xnpe tent jurisdrctron.

(1)

lt

can be crxrvalidated eithcr

ll'

frec cohabitation or prescription.

(2) Thc s^1nc propcltr rcglrn(':rs in a valid marriagc is

estabiished betrveen thc spouses.
(3)

'fhc chilcllcn

are legidnratc

if conceivcd bcfor:c thc i.c,:..

,f

annulnrcnt.

(a) fhe marriagc car-urot be attackcd collatcralit,: i.c.. there mnst

be a dccree of annultlent to sct aside the nrarriage.
(5) The rnarriaEe can n() longer be impugncd after the death

of

the spouses.

On the othcr

l-rar-rd.

sincc a void r-narnagc is absoiirtch incristcnt.

(l) It cannor bc contalld;rtctl.

(2) The onlv propcrtl' rclationshrp bctwccn thc parties is

co-ownership

(see

Arts. 147-1.lti, Fanril' (,ode).

l'i

64

CONFLICT OF LAWS

CONFLICTSRULESOFMARRIAGE

'fhc chiidrcn are illesitilrratc' c\cePr chjidrcn of

(-oclc
mrrriagcs tttlclcr' t\rts' 3(r and 53 of thc i'ar-l'rii''
(3)

votcl

{'1)'l'hc matriaqc mav be artackcd ciirccth'or cciliaterallr'

(5)'l.hcnauiagccal]suiibctt-t.rprtgtrcdevcnal.tcrtlrcdcatlrclt
the spouses.

Note: In Catlou l-nrr'. tl-rcrc ate oni\' nvo cxtegotles of tnrrrlagc:

loid anci valid. Void mrrriages are considercd anrlullabic' such that tl-re
is callecl
rctnech' to cleciare n ,r:r^.rinf. nuli and voicl r'rnder Canon Larv
rvith
confr'rsed
bc
not
annulment. Alnttlurel-lt ilr'(lanot-r l,arv shoulci'
ar)trttlurent

the civil larv whrch applies

(tlll

t() void:rblc tnarriages'

A conttnon mistalie of nou-larwers and even some lau'r'ers and

a uratriage undcr Art' 36 of the
iudges is to call thc rernccly to nuilifi'

Farnili 6esll (based on the psvchok>grcal incapacitt' of onc of the s1>orrses)

-lhis
rs r-rr-rll and
annui'rcnt.
is rvrong, L".nrr*., t5e *rartiaqc ''der ;\rt. 36
(-ailou
[r<>n-r
void (ti-ris ground having l;cetl talien bv thc l-alrrilr'('t>tlc
c'tf
cleclar';rur-rn
1.at9, anti thc rctnccll to dcclare thc rtlal-r:tagt 'ts such is
nr"rlliw of rnarriagc, not attntllntcnt.
2.

If

the
the marriage is null and void or au absolute nullity, can

CONFLICT OF LAWS

CONFLICTS RULES OF MARRIAGE

Tl-re above article also protects tl-re spouse who behe'cs that
his
marriage
rs null and void fr'm being crrarged rvitir brgamv
or her
if he or
she marries agar'. because tirerc would alread. be a iudicral declarauon

of the nullirr- oi

l-us

or her marriagc before the remarriage. And

thrs

provision is retroactir.c.
Tirus. a marr{age void for lack of a marriage iicense still neecls a
judicial deciaradon of nulltrl before the patries can mary again (Repubtit t.
C.,4. and Cairo. 2j6 SCLL4 257: Doningo u. C.,,1., 226 SCk4 57e. khas
also been held that .uvhere a party contracts a second marriage on the

mere l>elief that his or her spouse is alreadv dead u'ithout fiiing n
sulnllary procceding under Art. 41 of the Farnilt' Code, the second
marriage is bigarnous and void (lr)auarro u. Domagtoy. 259 SCk'1 124.
3. Vhat are the conflicts rules on annulment and declaration of

nullity of marriage?
In Conflrct of Larvs. the grounds lor annulment of marriage,
and tl.rose for the declaration of nulliry oi rnarriage, are the grounds
provided for by the lau' alleged to have been violated which,

irr

general, ts the 1r.v /aci ce/ebralionz.r' or the law of the place where tl're
rnarriage rvas celebrated, rvith certain exceptions. Tire reason is this:

parties temarrv u'ithout going to court' since after all' the

marriage does not exist at all?

Considenng drat it is thc iex iorz tv/ebratiarzi that is usually applied to determine
whether a rnarriage is valid or not, it is the same law that also determines
rvhetl.rer a marriage is voidable or not, and r.vhether it is vord or not.

No. Undcr r\rt. -{0 oi t}rc Farnth'Cr>de s'hich ls I ne\\'pro\tlslol)'

"the absolute nullin, oi a prcvious mar:rirgc nril be inr'oked for purloses
o[ rcmarringe n,-t ,i't. basis soleit of a finai judgmcrlt declartng sucli
previous rrrarriagc void."

T'lius, if Filrpinos get married abroad, the /rx loci ce lebrationi.r rvlll
determine the Erounds for annulment (Art 2(r. Farnily Code). For

MrattlrefrarnersoftlieFanrilr'Criclervat.rte.]rr.astbrilPe|Soll

the
l1ot to assulne tirnt hts or her tnurilge is null antl void' ct'cn if such bc
oii-rrs
cleclaratiou oi the nulht|
fact, but he or she musr Frrst seek a

ludrcial

or her marriage before l1latr\/ing again; otherrvise' ltis or her second

bigarnous (See LV'te.gal u' Senpio-Diy'
rnartiage will als,, be void
^.rd "'""
u'
11) Sall'|+99; I'cta.ch Consuesru GSIS' )7 SCk'1 J/'i) This neu'
provisionirrtheFarnilr,Codeabandc>rrsti-reolddecisionsoftlre

Supreme Court to the effr:ct that rvhere a marriage is illegal or void from
its
n() itrdicral declee ts n('ccssllt'\ to estrblislr rts inval-rdin'
perform:irtcc.

Q)e,oph u. lv4endoia.

rt

Pl'il. E1j;

PrcDlc

r" '\rt'ian'

100

Phit' l03i)'

example, two Filipinos get married in England. Let us assurne that sterihw

is a gr:ound for annuLnent of rnarriage in England. The marriage of thc

rwo Filipinos will be annullable on the ground of steriliw. even if sterilh,
is not a grour.rd fot annuLnent undcr the Farnilv Code. This is because
Englrsh lawis the icx loti celebrationil.

As for declaration of nuliity of

marnage betwcen rwo Fihpinos

abroad. tlre grounds are the exceptions to tlte lax loti teiebralionit rn Art. 26

o[

t]re Familv Code; namelyi Articies 35 (l), (1), (5), and (6);36, 31,and

38.

as to foleigners rvi.lo get married abroad, tire exceptrons to thc

ioti n/ebutiorzi would be the same as those in marrtages as a contract.
r.rarnell', rnarriages th.at are highly i66o.ai (lilie bigamous and polygamous
iex

CONFLICTOFLAWS

CONFLICT OF LAWS

86 CONFLICTSRULESOFMARRIAGE
t-rtn s)
rnarriages benveen Chris

an d

univelslllt

tnces tuor-ts

fiIarrlages'

werc suspended in the Phiiippines

dre

cir"se

ti.sto t'.

as

ij
t,

$i

our courts have turisdrcl3n

follow the nauonairq' theory"
rn c^ses
and nulliw suits in marriage

to take cognizance

";;;t;*t

rvhere the Liugants zre Filipi'nos'

ln the
can also hle sr-rcir suits
Domrciharics of tlie Pirihppines

Phfippirres.
dotntc :ile
the courts of tire parues'

ln other countries' it is usuallv

which has the
t;; t"ttt' srncetl",tt 1s the placeAnother
reason
who have it"isdttt'o,' t';;;
of tl-re soouses

inter"" i"'ilJat-t'Jt "iooo"t

*ll:'ot'
not to to"tptl tl.re perues'
it u pr^<:tical one: in or<ler
to
for t}-ris
'oit
to their country of nari.nalitr iust
domiciied i'-' o"" tntiio''
"*"

greatest

'"

ftle such cases'

hle a case
Iriliplno ciflzcn or domiciliar'r'can
if the defendant
o[ nulliry of marrtage even
status of
for annulrnen' o' attttJ'*on
petsonal
i'-"'olit the

In the Philrppines'

tn'"'

non-residt"'of tt"o.'ntrv'
can be-acqtrired over
the plalnuff n'-'a to' 1o'i'Acflon
tlill,,lrl
Such

rs a

CIil

pubrictuon o f ^""''*Jl'
?"' l:- c
*.. oi.o Sec 6' nerv Rule on Declarauon
on Ma'v 15' 2t)03)'
Matriage which took effect

tl-re

defcndant by

;:f#i;X*;

divorce in the Philippines?

Vhat is the history of absolute
to the enacment of the
Spanish repme and prior
neg 2[5olute divorce'
alloved only iegal seParauon'

of the Civil Code of

in

of the husband; and in either case, there tnust be a previous conviction.

Many couples did not, therefore, apph, for dlorce under this law because
thev did not want their children to have convicts For thetr parents.
Re for:eign divorces obtained bv Filipinos duting the effectivrq'
of Act 2710. the Supreme Court held thtt the foreign divorces were
vaiid only if the ground tirerefor was anv of the rwo grounds allorved
under Act 2110 (Baretto Goniak.r a. Gon3tlet, 28 Phtl' 6,]. Thus, a foretgn
divorce obtarned bv a Filipino couple on the ground of desertion on
thc part o[ one of thern was l-reld void, being contrall' to larv or the
fundamental pohc,v of the forum (Stkat t. Canton' 67 Phi/. 207;"4rca u.
.fauier.50 OG

)5)8

,t19t4'l)

(4) During tire Japanese occupation, a law allowing absolute

divorce was passed (Executive Otder No 141) allowing divorce on
10 grounds. Manv Fihprno coupies took advantage of this lau' and
sought drvorce under its provisions.
(5) Executive Order No. 141 u'as eftecuve in thrs country until
October 23, 1944 rvhen General Douglas N{acArthur reestablished the
Cornmonwealth Govetnment, rvhich resulted in the repeal of Exec.

Order No.

1.11

and in effect revived Act No. 2710.

Catholic populauon

during the
iarv in force tn the Philrpprnes
(1) The Siele Partidts't\e
o[ Spain'
Code
Cilrl

on divotce
(2) Later' the provisions

J4.l:ruti-

(6) Act No. 2710 was later repealed by the Neu' Civil Code,
wirich allows and recognized onlv legal separation. The draft of the
Code had provisi<-rns on divorce, but during the discussiohs over the
draft of the Code in Congress and with the strong opposrtion of the

D. ABSOLUTE DIVORCE
1'

Dela R"tma. J Pht/.

the Phiiippines, but it recognized onlv two grounds for absolute

divorce. adulten on the part of dre wife and concubinage on the part

or
over cases for annulment
4. What courts have iurisdiction
declaration of nullity of mariage?
Since we

u.

Jann.60 Phil.a{1
(3) On N{arch 11, 1911 , a Divorce Law (Act 271Q was passed

mart be. aPPhes'

87

bl Gov Wevler. so that thev werc

rrever eniorced rn ti.re Phil-ipoines (Benedtcto

nrarrlage^s:

oPpl)' tt'consulal
Tire above rules do not' howe\'er'
o[ tire parues'
ot iaw oi the domicile
to rvhich eithet the n^u"lli'i"*

CONFLICTSRULESOFMARRIAGE

Sparn

of

the countr\'. absoiute divorce was eliminated

and substituted with legal separation.

(7) The Famtli'Code also does not allow absolute divorce excePt
that u'hrch rs validlv obtained abroad bv a foreigner from hrs or her
Filipino spolrse capacitating hirn or her to remarry, in which case the

Filipino spouse can also remarr) (Sec par. , Art. 26, Famih Code)

88

CONFLICT OF LAWS

CONFLICT OF LAWS

CONFLICTSRULESOFMARRIAGE

CONFLICTSRULESOFMARRIAGE

#,
89

I
E

(a) The above provisron avoids the absurd situauon

of

a Fiiipino as being still marned to his or her aiien spouse,

aithough tire iatter is no longer marrted to the tormer. and mal
alreadv have another spouse.

(b) The above provision does not applv to a divorce

obtained bi' a Filipino abroad from his or her Fihpino spouse,
which divorce is void because our law does not allow drvorce
and Filiprnos are governed bv Plr.ilippine law wherever they go
to their starus and capacity (Art. 15, New Civii Code).

as

(.) The above provision likewise does not applv to a

drvorce obtained by a married Frirprno urho v'ent to another
country', became naturalized therein. and iater drvorced his

spouse after his nafuralizatron, as rt

Filipino

mght open the door to rich

Filipinos to obtain naturalizaflon in other countries wirich allow

divorce, only to be able to divorce dreir Filipino spouses.
2, May an alien who had divorced his Filipino spouse in his home
counry come back to the Philippines and ask for legal separation

and separation of property against his Filipino wife on the ground

of the latterts adultery?
No, because a spor-rse who accuses dre other of adultery must be
an offer-rded spouse: i.e, he must sull be married ro tite latter. Hcre, the
alien had no legai standing to accuse his forrner FiLpino wife of adultery
because their malital bond had alreadv been severed r.vhen he filed the
adulterv- case and could no longer be an offended spouse (Pilapil u. Ibay
Somera,

/74 SCk4 6tJ

":/98E).

as he was
t

no longer her husband when he filed the aforementioned case

after theit divorce.

NOTE: It is rmponant to remember the rwo foregorng

cases of Pilapil u. Somera and Van Dorn a. Ronillo if similar cases
anse rn the funrre under the second para$aph of Art. 26 of the
Family Code wluch recogruzes a divorce vahdly obtarned bv the
alien spouse of a FiLprno citizen abroad and allows the Fdiprno to
maffy

^g:n

4. What are the rules on the validity of foreign divorces obtained

by foreignets abroad?
(1) The Hague Conventron on the Recogniuon of Divorce and
Legal Separation concluded on June 1, 1970 states that a foreign
divorce u'ill be recognized in the contracung states if, at the date of the
hling of the proceedings:
(a) The petitioner or respondent had his or her habitual
residence in the state v'here the divorce was obtained;
(b) If both spouses were nationals of said state; or
(c) Although the petrtroner was a national of another
country, he or she had his or her residence in the place where the
divorce was obtained.

In the United

(2)

States, a state has the du.ry to recognize a

if the spouses were domiciled in the

divorce obtained in a sister state

latter st2te.

(3) A divorce obtained in a foreign countty would be

3. Compare the above Pilapil v, Ibay-Somera case

u. Romillo, 139 SCRA 159 (1985).

with

Van

Dotn

recognized under the same circumstances that a divorce obtained from

a sister state is grven recognitron. (Rabel. Conflict of Laws,. 1968, po.
s00-s27)

T'ire rwo cases are similan

In

the Van Dorn case, fuchard Upton,

the American husband of Alice Reves, and thc latter, obtained a divorce
in Nevada, U.S.A. Thereaftcr, Alice Reyes marrie d agarn in Nevada. Later,
Upton came back to tire Phihppines and claimed that a business in the
name of ALce Reves was their conjugal properfir and that the latter should
render an accounung and let hirn managc sard business. The Suprerne
Court held that the drvorce obtuned b1, Upron frorn ,\hce rcleased rhe
latter from their marriage, and Upton had no legal standrng to sue Alice

(4)

In

dre Phfippines,

if both

spouses are aliens. we recognize

of divorce obtained by them abroad if valid under tbeir

national law. Thus. in Recto u. Harden L - 6897, l'lou. 29, 1956, <>ur
decree

Supreme Court held that -

"In

as much as

Mt. and Mrs. Harden are

admittedlv citizens of the United

States, their status

LUNI.LII

(JI LAW5

CONFLICT OF LAWS

90

bv the laws of the

and dissolution thereof are governed
United States which sanction divorce'"

DTVORCE
E. LEGAL SEPARATION OR RELATIVE
1.

CONFLIC TS RULES OF

MAI{RIAGE

91

CONFLTCTSRULESOFMARRIAGE

it diffet from divorce?

What is legal sepatation and how does

the mardage and

Absolute divorce (a vinato natinoni) dissolves
the pames can marry again'
Legal sepamtion or relative divorce (a nerca

from bed

U"ta

"--"a

et

tlnm) is only separation

but the Parties remain married'

annulment of marriage'
2. Distinguish legal sePatation from
in annullegal separation, the marriage is not defective;
ment, the marriage is defective'
(a)

In

@)

in
In legal separation' the gtounds arise after the martiage;

annulmengthegtoundsmustexistatthetimeoforbeforethecelebration

of the

marri4ge.

to each other
(c) In legal separation' the parties are still marded
and the
aside
is set
and cannot remarry; in annulment, the matriage
parties can marry again'

the
legal sepatation' the grounds ate those given by
inasmuch
concerned,
parties
nationailaw ot the aomiclliarv law of the

(d)

In

on the other hand' questions

as the question is one of satus; annuiment,
genelal rule' the gtounds
the very existence of that starus; so that as a

forannulmentarethosegivenbythelexlocicelebrationli,subiectto
certain excePtions.
3. What ate the
(a)

If

of

the same nationality' the grounds for legal

Gor. given by their personal law (whether national law

oi,h. do-t"iliary law, as the case may be)'
,"p"r"aior,

@)

*.

If

separation. (Hague Conr.'enuon on l-esal Separation.

.\rt.

grounds available
the parties arc of different nationalities, the

8).

4. What coufts ma)' grant legal separation? Or, in what counrrv

should the case be filed?
Jurisdicuon rn tl.re case of ahens is not assurned by the forum
unless the nauonal larv of the parties is rviliing to recogmze its jurisdictron.
(a)

(b) In the Philipprnes, foreigners rnal ask for legal separatron

if thev drd not get married in tiris countnr \X,'hat is importanr

is that the court has iudsdiction over both parues.
here. even

(c) Most countries assume jurisdiction over cases for legal

separation on the basis of ti"re domicile oi one of the parties or thc
matrimonial domrcile. The rationale for tiris nrle is tl-rat the larv of tl.rc
domicile of the parues is that u'ith v4ricir fhev are most intirnateh'
connected (Goodnch, Conflict of Laws, 3rd ed. .395-396).

it necessarv that the cause for legal separation take place in

this country for our courts to have jurisdiction over the case?

5. Is

No. There is no such requirement in the liamily Code. Again.

what is important is that the court has iurisdicuon over the partics, and
that the procedural requirements of the Rules of Court are complied
with.

It is important to empl.rasize here that Arl 99 of tl-re New Civil

Code requiring that tlre peutioner must have resided in the Philipprnes
if ti-re cause for legal separatlon arose in a foteign countr)', has been
expressll'repealed by the Familv Code (,'\rt. 254) and is no longer applicable.
6. What are the grounds for legal separation under the

conflcts tules on legal separation?

the parties are

under the personal law of the husband as welr as those avaiiable u'dcr
tire larv of tl-re wrtt are ali availabie grounds for granung the leeal

internal larr

of the Philippines?
(1) Repeated phvsical r'iolence or grosslv abusive conduct against

the petitioner, a comlnon child. or a chrld of the peutioner:

(2) Phvsical violence or moral pressure to compel the petitioner
to change religrous or politrcal afhliatron;
(3) Anempt to corrupt ot induce the petitioner. a common child,

92

CONFLICTSRULESOFMARIUAGE

CONFLICT OF LAWS

or a chiid of the peuuoner to

elrgage rn prostrtuuon, or connrvance rn

such corruptron or inducement:
i-1) i'-inal iucigmer.rt sentencing the respondent to lflrpnsonmenr

of tnore tiran

(r vears, even if pardoned;

(5) Drug addiction or habituai alcoholism of the respondent
(6) Contracung bv the respondent of a subsequent bigamous
marriagc. wirether tn the Phiiipprnes or abroad;
(7) Lesbianrsm or hornosexualigv o[ the respondent;

(8) Sexual infidehty or petversionl

(9) Attempt bv tl-re respondent agaurst the life
cause

CONFLICTOFLAWS

(10) Abandonment of peutioner bv respondent without justifiabie

for more than one vear.
(Art. 55, Familv Code)

10. [f one of the parties in a legal separation

case dies during the
pendency of the case, should rhe case be dismissed

(1) Condonauon oF the offense or act complarned ofi

(2) Consent of the aggrieved parry to the commlssion of the act
ot offense cornplarned of;
(3) Connivance berween the parties in the coramlssion of the
offense or act constiruting the grourld for legal separatron;
(4) \lhere both parues harre grven ground for legal separauon;
(5) Collusion berween dre parties to obtain legal separation;
(6) Prcscripuon. L\rt. 56, Famill Code)

Vhat is the prescriptive period for the filing of the action in the

Philippines?
r'ears

from the un.re of the occurrence of the

cause (Art. 57, Familv Code)

9. Can the wife drop the name of the husband after the decree of
legal separation?
No. because therr are still married. And this is truc wl-rether she is
t}-re

guiln parn or not.

As heid tn Ltperal u. Repuhitc,6 SCl..1 J57. tl'te wrfe who has been
gtanted legai separation cannot petiuon to be allowed to revert to her
marden name.

or

survive?

The case should be dismissed because it is purely

This is true even if properties are involved. po.*itiro,rt

"

separation, there can be no effects,

dis it

personal one.

d:.;;;;;;;

Does the offended spouse inhsril from the guilty spouse?

Vhat
about the guilty spouse, does he or she inherii nom ihe irrrro"".r,

spouse?

Of course the offended spouse inherits from the gr:ilty spouse

because the parties are still martied to each other.

from

\\tthrn tive (5)

93

11.

of the petitioner

7. What are the defenses to legal separation under Philippine

internal law?

8.

CONFLICTSRULESOFMARRIAGE

As for the guilty spouse, he or

she is drsqualified

ftom inheriting

innocent spouse bv intestate succession, aod provisions in

the
will of the latter favorable to hrm or het are revoked by operauon
of
law (Art. 63 (4), Family Code).
tJ-'e

Hovrever, to disquali$, the guilty spouse from inheriting from

the innocent spouse by intestate succession, the latter must Flre
Ias" of
"
legal sepatation against the former. This is provided in Art. 1002,

New

civil code, stating that "in case of legal separation, if the surviving spouse
gave cause for the separation, he or she shalr not have any of the
nghts

granted rn the preceding articres" (meaning the right to inherit by

inteJtate
succession). But there must be a decree of legal separation as
stated in
Question L0 hereof.

CONFLICT OF LAWS

CONFLICT OF LAWS

STATUSOFCHILDREN

95

The second paragraph of r\rt. 164. hower.er, inciudcs a special

kind of leEtimate childrenl nameh'. children conceived as a result of the
artiirciai inserunatron of the wife with tire sDerm of the husband ()r rh^1
donor or both, provrded the children were born under the conciitrons
prescribed rn said Arucle
of

(Please see cofiunenrs on chjldren bv arnficial

CHAPTER

As for the exceptions to Art. 165 of the Code definingrvho arc:

iliegJrtimate childr-en, tire excepticins refetred to are tlte chiidren born oi
void marriages under Art. 36 (r'oid because of tlie psvchologrcal
rncapacit,v of one of the spouses) and under Art. 53 (those born of tire
fust martiage of parues before sard ltrst marriage irad been ar.rnulled cx"
declared void, and who marfl' a second time without deliverrng the
presumptive legitirne of the chridren of their ltrst rnauiage).

STATUS OF CHILDREN
A. LEGITIMACY AND ILLEGITIMACY
1.

insemrnation

of this same author in her "Handbook on the Famrir.

Code of the Philrpprnes". 1995 ed., pp 258-269).

of children?
What are the conflicts rules in determining legitimac;-

5.

Vhat are the rights of legitimate and legitimated children

under Philippine law?

the Parents are o[ the same nationaliq" their common
larv of therr dornrcile' will
personal Ia*, whether their national 1au'or the
(a)

If

be applied. (I Rabei, suPra)'

lf

The rights of legttimate and legrtrmated children under Art. i 7'l

of the Iramrly Code

lau of
rhe percnts are of different nattotraiiues' tl-Ie Pcrsonal

the fatl-rer gol'erns (Rabel. id')'

theory (Art
(b) In the Phrlippines. since lve foiiow tl.re nationaLrrl

lau' of the Pa(ents applies'

15. Nerl Civrl Code)' th" common national
narional law of the father
and tf thev have diffetent naoonalioes' the

are:

(1) To bear the surnames of the father and the mother, in

conformity wrth the provisions of tire Civil Code on surnames;
(2) To receive support fron.r their Parents! their ascendants.
and in proper cases, their brothers and sisters, in conforrniw rvitl.r thc
provisions of this Code on support; and

goverfls.
(3) To be entrtled to the legiume and otl-rer successionai rights

under Philippine
2. Who are legitimate and illegitimate children

internal

gtanted to them by the Civil Code.

law?

Art l(r4 of. the Familv Code defines legitimate children

Note: The legiume of

as

eacl-r

legitimate child rs half

of

the parent's

..clrildrenconcetvedorborlrdurrngt}remarriaqeoftl.reparents',;u'lrile

estate divided bv dre number of legltimate cirildren (Art. 888, Nev' Cn'il
Code); while in intestate succession. iegrumate children inherit equallv (pcr

rilegiumatechildrenaredefinedbvtl-,..,'....drngArt.165as..children
x unless otherwise
conceived and born outside a valid, marrlage' xx

upita) v;rthout distinction as to age or sex, and even if they spnng from
different marriages (Art 979. id.)

provrded in this Code"

96

CONFLICT OF LAWS

STATUSOFCHILDREN

CONFLICT OF LAWS

An.

176

of

che

Famiil Code provides that illegrumate chiidren

have the rights:

(1) To use the surname

of

the mother;

of

legitimate child.

Remembet that under the new Rep. Act No. 9255' illegitlmate
chi-ldren may now use the sufname of the father "if ther affiliation has
been expressly recognized by the father through the recotd of birth
appearing in the civil regrster orvrhen an admission in a public document
or private handwritten instfument is made by the father" dudng the iatter's
lifetime.
5. What lawgovetns the rights and duties between parent and child?

If

the child is legrtimate as determined bv the above rules,

either the common personal law of the parents, or the Personai law o[
the father if the parents are of different nationalities, governs. (R-abel, id.).
(a)

if

the child is illegtdmate as determined by the above rules,

the personal law of the mother is clecisive, unless the chiid is subsequently
tecognized by the fathet, in which case the rules on legitimate childten
(b)

will be apphed

1.

What are the conflicts rules on legitimation of children?

"Legrumation" is

(2) To be under the parental authorifY of

the mother;
(3) To suppott in conformir,v \\'lth this Code;
(4) To the legrtime, which is one-half of the iegtime

97

B. LEGITIMATION

children undet Philippine

4. \what are rhe dghts of illegitimate
laq'?

STATUSOFCHILDREN

(R.abel, id.).

(c) In the Philippines, agarn since we follow the nationaiity theorl',

the mother governs if the child rs illegtimate. unless the child
law
of
the
is again tecogruzed by the father, in which case the personal law of the
fathet (whether it is the same as the mother) appiies.

a process wherebv children vu'ho in fact were

not born rn lau'ful wedlock and should, therelore, be ordinarily considered
illegitimate children are, b,v fiction of lav' and upon compliance vrith
certain iegal requirements, regarded b)' law as "legitimate", it being
supposed that thev were born after their parents had alreadv been validlrmarried (I Manresa 550).

In Cont-lict of Lalvs, the requisites of legrtimatron are generallv

considered those prescribed by the national lau'ofthe parents, and it the
latter have different nat-ional lav's, the national larv oF the father (I Rabel,
id., p. 575). In countnes following the doraiciliarv theory, however, the
personal law being the lau' of the domicile, the law of thc domrcile of
the parents or. in proper cases. the law of the domrcile of the father,
should govern.
2. \7hat is the internal law

of the Philippines on legitimation of

children?
Our internal law on legfurnadon of children
to 182 of the Familv Code.

rs

found in Arts. 177

Under Art. 177, the foliowing requisites lrrust colrcur in order

that a child rnav be legitinrated:
(r) The chiid was cotrceived and bom outside lawful rvedlocli.
(b) The parents. at the time of the child'-s conception. rvcrc
not dtsqualified by anf impediment to lnarrv each other.

Note: 'fhe addrtional requirement under Art. 270 of the Ncrv

Civil Code tlrat the parents must have acknowledged dre child first be-

6. What is meant by the doctrine of immutability of status?

This doctrine means that the status oFa child (whether legitimate

or illegttimate) is not affected by a subsequent change of nationaliw of

the parents. But the nghts and duties of patent and child, or child and
parent, would, after the parents' change of nationaliry be governed bv
the new national law of the Parents (I Rabei, id., pp. 606-607)

fore or after theil rnarriage, is no ionger necessary under the Familv Codc,
because this Code has deletcd recogrrition ofnatural children and alreadv
conFers on legrtimate and illegitimatc children their status at the moment

of btth. Chtldren that fali under Art. 177 of the Family Code are, therefore, ip.ro -farto legitimated upon the subsequent marriage of the parents
no matter how lonE a period of ume has elapsed from tl-re birtl'r of said
children to the time oF the matnage of tI-reir parents.
(See also comments by this samc author on Arts. 177 tr,r

98

CONFLICT OF LAWS

STATUS OF CHILDI(Li\

I82 of the Farnih' Code in her "Handbook on

Code of thc Phiirppmes";

CONFLICT OF LAWS

STATUSOFCHILDREN

99

tl.re Famtlr,

bv former Pres. Corazon Aqurno on December 11 ,1986 regardrng nonresident aliens u'ho were aiiou'ed to adopt under pD 6L)3.

3. If the personal la'.r' of the parents, or of the father in proper

cases, changes, is the legitimation of the child affected?

(c) Subsequenth: ali the provisions of PD 603 and E.recurive

Order No. 91 on substanttve marters were repealed bv'fitle \rII of the
Familv Code. Certain procedutal provisions of IrD 603 on adoption
(Arts. 32 to 38) were not, hov'ever. repealed bv the Familv Code.

No, because legirlnauon crextes a permanent starus of tire child,

so this starus is irnn.rutable. However. the rights and duties of parents and
legitrmated children tlav be modified b,v a change of the personal law of
thc parents or of the f:rthcr. as the case rnal be.
The immutabhw of the status o[ a legrumated child is verv clear
under Art 180 of the Family Codc which provides tirat "the effects of
legitimatron shall retroact to the tjme of tire cirild's blrth". Aiso, Art. 178
provides tirat "the annulment of a vordable marriage shall not affect the

Under the Famil,v Code. aliens v!'ere not allowed to adopt in tirc
Art. 18.+ (3) thereof. and
non-resident a[ens were allowed to adopt FiLpino children oniv under
the iau' on Inter-Countr,v Adoption (Republic Act No. 8043) which wa.
signed by former Pres. Fidel V Ramos on.]une 7 7995 Under this law, tl.re
adoptlon proceedings are to be heid in tire home countrv of the adopters.
PhrJrpprnes anvmore except those reterred to rn

legrumauon".

(d) StlX later. on Februarv 25, 1988, former Pres. Ramos signed
Republic Act No. 8552, other-wise known as the "Domestic Adoptron

4. What are the rights of legitimated children under Philippine

Act of 1998", amending manr provisions of the Famill'Code

lau'?

domestic adoption.
T'hev have dre same rights as legltrmate chrldren

(1)
(2)

Ib

'Io

bear the surname

receive support

(Art. 179), namelv:

o[ theu tather and mother;

ftom their parents,

proper cases, their brothers and sisters; and

(3) To the legidme and other successional nghts granted
las' ro

r legiumate
Note: In

a man can inherit from the man's brorher as

legitrmate niece.

it is "thc

have lost them. may have tire solace and joJ's of parenthood. and ti-rat thc

void whicli exists in childless homes

ma1,

$6 frlled (\'nigo a. IkPablic, 95

Phi/. 241).

C. ADOPTION
1.

rhe Particlar is that

act rvherebv one person is received as the offspring of another although

he is not sucir bv natuLe".

This dehnitron was based on the theorv that adoption is mainlr,

for the benefit of the adopter, so that those who have no children or

De lot Santo s u. I-ztiano, 60 Phil. J28, ttwas held that the

of

'fhe old definiuon oi adoptron in

bl

child.

legitimated daughter

2. State the concept and tationale of adoption.

(a)

ascendants, and in

on

What are the sources of the Philippine law on adoption?

of adoptron has, howevet, changed, and it rs

now considered more for the beneltt of the child than for the adopter,
and pursuant to this modern trend, it has been held that adoption does
@) The ratronale

not merely establish

(a) Before the Family Code took effect on August 3, 1988, our

las'on adopuon vas PD 603 (the Child and )buth \ielfare Code), which
erpresslv repealed all the provisions oi tl-re Nerr,' Civil Code on adoption.
(b) PD 603 was later amended br,Execudve Order No. 91 signed

relationshlp of paternity and hliauon but is also an

act wirrch endows the chrld with legrtimate status (Pranick

Ref>ublir'

98

Phit.66r.
'Adopuon is thus given a sociai and morai purposel that is. to
e stend to the orphan or to the child of the indigent, the incapacitated ol

CONFLICT OF LAWS

lOO STATUSOFCHILDREN

of socrew in tlre person of

PhrI..
69'1;.
the
of
Civil Code
the sick. the protectton

the adopter" flolentino.

3. What law determines whether the relationship

been created or not?

of adoption

has

(a) The child's personal law, to protect his well-being.

(b) If dre child does not reside in the countrv of his citizenship,
the personal iaw of the adopter u'tll govern, or the personai lau' of the
adopter and that of the cirild wrll be applied concurrentl\,.

CONFLICT OF LAWS

STATUSOFCHILDREN

101

alleged cases of Filipino childten who, after ha'ing been adopted br,
foreigners, were killed for organ transplants in the fore4gr homes of theu
adopters. Hence, the Commrttee believed that bv limrung adopuon of
Frirprno children by al.iens to former FrJrpino ciuzens (and/or the6 spouses)

reiated by blood to the adopted chiidren, the latter would be given

some measure of protection bv the adopters who are their relauves by
consangurnirv.

(c) Republic Act No. 8552 or the "Domestic Adoprion Act of

1998" again allows aliens (who are not former Filipino citizens) to adopt

in our countr;,, provided:

4. What law determines the legal effects

of the adoption?
(1) They have the same qualifications

The iegai effects

oi

the adopuon are determined by rl-re same

law that created the reiationship of adopuon.
The iegal effects tirat flow from the adopuon are:
(a) Tire successional nghts of the adopted child;
(b) The parental authorin' of the adopter over rhe adopted child;
(c) The use bl the adopted child of the surnarne oF tl-re adopter.

An important problem in adoption in the Philippines is whether

aliens can adopt in our countrv. What is Philippine law on the

of

entered;

(a) They

5.

matter?

as tirose required

Filipino citizens (See Sec. 7(a), Rep. Act 8552);

(2) Thet countnes have drplomanc relations wrth our countrf,
(3) The,v have been livingin the Phihppines for at least three
(3) years prior to ti-re fihng of the peution for adoption,
and maintain such residence until the adopuon decree rs

(5)

have been certified bv their diplomatlc or consular

offices or b1' any aPProPrlate govemment agenc' that thev
have the legal capaoty to adopt in their own countries and
Theil government allows the adopted child to entet their

countn, as their adopted chiid

(Sec. 7 (b), Rep.

(a) As stated ir.r tl're discussion

of Quesuon No.

the Civil Code of the Phrhppines did not allon' non-resident aliens to
adopt, PD 603 liberalized rhe Civil Code provisions on adoption and
allorved even non-resident aliens ro come to the Phdtppines and adopt
our childrer-r here.
(b) The Farnilr Code, howei'er, became strict in adoption of
aliens rn the Phiirppines because

Acl

8552).

1 hereof, rvhiie

of reports received bi. the Comrnittee

tirat drafted the Code (of rvhich this author was a member) that some
Filipino children adopted bv aliens and brought bv the latter to their
home countries suffered culrural and psr,chologrcal shocli ar.rd could not
adiust to theil neu'hves in the foreign countries of their ioreign adopters.
AIso. rnformauon was received that old alien pedophiles. after iravrng
been allou'ed to adopt Fihprno children in thc Phrlppines, rvould. aitet
bringing said children to tireir home conntries. simply abandon these children after tl'rev had satisfred their sexual destes on them. There rvere even

(d) As for the foliowing a)rens:

(1) A former Fihpino citizen wl,o seeks to adopt a relatjve
within the 4th degree of consanguiniw or affiniw; or
(2) One who seeks to adopt the legrtlnate son or daughter
of his or her Filipino spouse; or
(3) One',vho is married to a FiLipino citizen and seeks to
adopt jointly rvith his or her spouse a relative within the .1th
degree of consanguiiltv or affnrq, of the Frlipino spouse;
the same Sec. 7(b) of Rep. Act. 8552 provides that d.rev need
not compiv wrth dre residencv in the Philippines required of
real aliens and they also need not submit a ccrtificatron that
the'r' have the capacitr

to adopt from the diplornatic or

consulat office of their countrv in the Philippines or an1'

other government agency.
Note. however, that the special kinds of aliens enumerated above

rO2

CONFLICT OF LAWS

STATUSOFCHILDREN

bv Rep. Act 8552 are requtred to be related to the ciriid to be adopted

N.rthln the .ltfi degree of consangutnrfi'or affrnrn. Art. 184 of tirc
Famiir Code wirrch the above pror.isiou of Rep. Act 8553 arnends drd

not Lmit the degree of consanguinin' betu'een tl.re adopter and adopted
child. On the otirer irand. Sec. 7(b) of Rep. Act 8552 includcs children
related within the 4tir degree of afhnin' to rhe adoprlng parenr. which
relationslrip of afhnin was nor included in Art. 184 of the Famiiv Code.
This author cannor understand, though, whv Rep. Act 8552 rn
the above prol-ision hmits the degree o[relauonshrp bv consanguinlfl, 6f
rhe adopter and tire adopted child onlv ro rhe 4rh degree, This means that
a former Filipino would not be able to adopt the child of his or her hrst
coustn (5th degree) or his or her second cousrn (6th degree). Since the

important consideration here is the iove and protection that

relative bl'

blood, who is now an alien, can glve to the child once the latter is brought

to the adoptert foreign home, it is irnmarerial how close thev are related

by blood.

of Republic u C,A. and lfughes, 227 SCRA 401, and

Republic u Judge Toledano, GR. 94147, June 6, 1994, decided by
the Supreme Court, denied the joint petitions for adoption filed
under the Family Code by former Filipino wives, nou'funerican
citizens, and their American husbands, because what the Famill'
Code only allorved was ioint adoption b,v Filipino cirizens and their
aliens spouses. Are these decisions still good under Rep. Act 8552?

if

the aiiens husbands

of former Filipino tnves

cornpll'with the requiremenrs for a[en adopters under

Act

S'TATUS OF

Sec.

can

7 (b) of Rep.

8552

But, Rep. Act 8552 still requires that husband and wife must

jointly adopt, rvhich joint adoption was also required br. the Famih.
Code, except when one spouse seeks to adopt his or her own illegrttmate
child, or when one spouse seeks ro adopt tl.re iegiumate child of the other
spouse (Art. 185, Famii,v Code). Republ-ic Act 8552 adds tl.rat in cases
where the spouses are legally separated (Act. 7, sec. par., sub. par. {iii}).
the husband or tl-re wlfe can adopt alone, and the consenr of the othel
spouse to an adopuon Frled by one spouse is no longer necessarv.

CHILDREN

TO3

7. What are the legal effects of adoption under Philippine lau'?

Rep. Act 8552 enurnerates the legal effects

of adopuon

as folior,r's:

All legal ues

berw'een the biologrcal parent /parenrs and

the adopted child are severed and the same shall be vested in rhe adopter/
adopters, except in cases where the broiogrcal parent is the spouse of the
(1)

adopter. In other words, parental authorltv over tile adopted child is

uansferred to the adopter.
(2) The adopted child shall be considered for ail intents and
purposes to be the iegrtimate chrrld of the adopter/adopters, and as such
rs entltled to all the rights and obligations provided bv law to legrtimate
children.

(3) in legal and intestate succession' the adoptet/adopters

and the adopted child shall have reciprocal tghts of succession witirout
dlstlnctlon from legrtirnate hliatton. 'Iestamentary succession will, however,

appll if the adopted child and the adoptet or adopters had left
(Secs. 16, 17, 18, ReP.

6. The cases

No more

CONFLICT OF LAWS

a will.

Act 8552)

still other important points to remember regarding

the nature of adoption in the Phitippines law; namely:

8. There are

(1) Adoption proceedings in our count4'are always iudlcial and

in rem ; i.e.. publication is tequired as constructive notice of tl-re petition

for adopuon to the whole rvorld, since adoption creates statlls.
(2) Since there can be no valid adoption without a court decree
granting the same, a ntere agreement of adoption berweerl the adopters
and tbe parents of the child is not a valid adopuon (Santot-\'nigo u' kepublic, 95 Rep. 244:), nor the fact that the child had been adopted dt .facto
(ampon) by the alleged adopting patents (Ltiatin u.ludge Canpol 92 SCK4
2

t0)

of the child in the civil regrstry

as the child of the adopter a valid adopuon, This even amounts to the
crime of simulauon of btth punishable bv pison mayor in the medrum
period, and a fine not exceeding P50,000.00 (Sec. 2l (b)' Rep' Act 8552)'
(3) Nerther is the mere registration

(a) The capaciry and tght of the adopter to file a petition for
adoption, are governed bv the law in force at the time the petitron is filed,
and cannot be impaired bv a new iaw disquahfuing lrrm or her for adoption

IO4

SIATUSOFCHTLDBEN

CONFLICT OF LAWS

CONFLICT OF LAWS

(Repabtu t'. C-4. andBobilu. GR92326.24 Jan' /992;Republ;cu. Mi//er, GR

t 2 i9j7,,4Pri/ 2/. / 999;.
9. Should we in the Philippines recognize 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 1997 Rules on Civil Procedwe,
\r/e can recognize such foreign decree of adoption provided the foreign
court had junsdrctron to render said decree; and that there was no want
of notice. collusion. extrinsrc fraud, or clear mrstake of law or fact leading
to the foreign decree of adopt-ion.

CHAPTER

This is particulady tme if both the adopter and the adopted child
of the Forum that decreed the adopflon (R-abel,

are nationals or domiciliaries

WILIS, SUCCESSION, and ADMINISTRATION

OF THE ESTATE OF DECEASED PERSONS

id., p. 6a7).
10. Does adoption confer on the adopted

child the citizenship of

the adopter?

What law applies in the transmission of successional rights upon

the death of a person?
1.

No, adoption does not confer on the adopted child the citizenship

of the adopter. Adopuon is a matter politicai. and not civil, in nature, and
the ways in which tt should be conferred lav outside the ambit of the
Civil Code (LIgt l)ndanand Tberkehen u Republir. I 2 SCk4 400; aho Ching
L-eng u. Galang, L-/ 1931, 2i OcL 195E.

There are two theories or svstems in determirung the proper law

for the transmission of successional nghts; the unitary or single system, and the split or scission svstem.
Under the unitary or single system, onll' one iaw determtnes
transmission of real as well as personal properties. In countries following
the nationality theory like the Phfippines, the national iaw of the deceased
governs the transmission of both real as well as personal propertles,
while in common iaw countries or countries that follow the domicihan'
theorl', it is the law of the domicile of the deceased that governs.
However, under the split or scission system, which England
the
and
Uruted States adopt, succession to real property is governed bv
the /ex itat, sAt:ie succession to movable or personal proPerw is governed bv the law of the domicile of the deceased at the time of hls death.

In the Pluhppines, we follow as already stated, tire unitary or

single system, in that Art. 16 of the Neu' Crvrl Code applies the natronal
law of the deceased, whatever may be the narure of the property and
regardless

of the country where the properF is found.

I06

!{ILLS, SUCCESSION ' ANd ADMINISTRATION

OF THE ESTATE OF DECEASED PERSONS

CONFLICT OI; LAWS

wtLLs,

SUCCESSION , and

ADMINISTRATION

107

OT THE ESTATE OF DECEASED PERSONS

2. When we talk of validin' of u'ills, u'e refer to both its extrinsic

and intrinsic validiw. Vhat does each validin refer to?

Extnnsic validrn' deals n,rth the forms and solemnrties

mahrng of wrlls, rvhich rnclude the age and resramentan, capacitl'

CONFLICT OF LAWS

in the
of tl-re

testator and the forrn o[ the will (whether orai or wrltren, pubhc or
pnvate instrumen!. notarial or hoiographrc. the nulxber o[ wrtnesses.
etc.),

Intrinsic validitv concerns itself wrth the otder of succession, the

amount of successional flghts each heir gets, and such other matters that
fall under the term "substance" as distingurshed frorn ..form.s

(a) Frirprnos canriot make yoint u'ills u']rether bere or abroad.

jotnt wili rnade bt' tu'o Fiiiprnos in a foreign counrrv is void even
if valrd under tire iex ioci ceiebralioni.r ({fi.819. Neu'Cir.il Code).

-fhus,

ft) Joint wiiis made bv aliens abroad sirall be consrdered as valid

tire
rn
Philrppines if valid according to thelr iex nationttlii <;r lex domitilii or
il valid under tile lex loci cehbratioarl(Arts. 816 and 17, id.)
(c) Joint wiils made bv aliens rn the Philippines are void even if
valrd under thek /ex nationalii or lex dani,;liii, tn otder tlrat or-rr public pohcv
on joint wills ma1' not be militated agatnst.

and

solemnities "
3.

oI

rvills.

$/hat are the conflicts rules in the Philippines on extrinsic validity

(d) A iornt u,i.ll executed bv an aiien and a Filrpino ciuzen abroacl

will be vahd as to the ahen (if his national la-'r,, iaw of the domicile, or the
/ex /ori tvlebratiorzi allows it), but void as to the Filipino, tlre same being

of wills?

against our pubhc policy on jornt rvdls.

(a) if a Filipino makes a will abroad, ire mav cornply with the
formalities of Philippine law (lex nationalit) ot the lex loci nlebrationi.r (the
larv of the place rvhere ire was at the time of the execuuon of tire wili
l.\rt. 815, Neu' Cir.il Code).
T'hus, a FiJrprno docror u'orking in Neu']brli rnav execute a will
rn accordance with Philippine iaw 01 New lbrk lauz

5. rJflhat are the conflicts tules on the intrinsic

(b) If an ahen makes a will abroad. he rnav complv witl-r the

forma]rties of his /ar nationa/ii (the law of the countrr, of which he is a
citrzen). t.he lex donidlii (the law- of his domicile) (Art. 816, Neu, Cir.,il

6. In the Philippines, what law govelns the intrinsic validiw of

wills?

Code), or tlre

The New Civil Code applies tlte lex nationalii of the decedent irr
par. 2 of its Art. 16. This was also followed b)' the SuPreme Court in

/e.:y /oct ce/ebrationit (the law of the country rvhere he,was at

the tirre of the execuuon of the will). (Art. 17. i.d.).

general ptoposinon. conflcts rules on tl,e inuinsic vahdrry

oF wrlls are determined by the /ex nationalii of the deceased in countries
that foiiow the nationalin' theory. and bv the lex donui/it at tl'Ie ume of
death, in countlies that follow the dorriciliary theorv

As

u. Bnmo, 50 Phil. 867;

Leonidal 129 SCK4 524.

Midano

If

an al-ien makes a wil] in the Philippines, he may comply

rvitlr tlre forma-lities of his own country (/ex nationalil or of philippine
last (/ex lod celcbrationi.)
(c)

(d) As for a holographic will. u'hrch musr be entuelv writren,

dared, and signed bv the hand of tl.re resraror hlnself, it rs subject to no
other form and mav be made in or our of the Philippines. and need nor

validity of willsl

Be//u'

u. Be//it, 20 SCk4 558; antl Ca.vtlano

r.

We must not forget, however, that in case <-rf confhct berrveen

the nationalry theorv and the domiciltarv theory, w can treat the case as
one of "renvoi" as in the Christensen case cited ear[et in this rvork, so
that we can still appl,v Philippine law even if the deceased was a. cittzen

of

another countrv.

be witnessed (Art. 810. New Civii Code).

4. rWhat are our conflicts rules on ioint wills?

?. What are the conflicts rules

if

a Person dies intestate?

In civil law countries hke tire Phihppines. the nauonal larv of the

108

CONFLICT OF LAWS

WILLS, SUCCESSION , and ADMINISTRATION

OFTHE ESTATE OF DECEASED PERSONS

the t,I.S. and Great Bntain

which follov, the spltt or scission svstem. rb,e iex riomialit of the deceased
deceased apphes.

at the rime

of

CONFLICTOFLAWS

ln common law countnes like

death appLies rvith respect to personai6" while the rcx situ.t

apphes with respect to real properfi.

8. What about revocation

of wills, what are our conflicts rules?

(a) As in contracts. the provisions of a wili shalr be

intelpreted in
accordance wrth tire testator's intenuon. If the terms ar. .le^r and

unambrguous, the hteral meaning of dre supulauons shall control. otherwise.

the evident intention of the testator must prevail by not only refernng to
the context of the will but also taking into account the contempor".r"Lr,r,

and subsequent acrs

(a)Undet Att. 829 of the New Civil Code, a revocation done

outside the Philippines bv a person who does not have his domrcile here,
rs valid if done accordtng ro:
(i) The law o[ the place where the will vras rrrade (/ex lotz
celebrationis);

WILLS, SUCCESSION, and ADMINISTRATION 109

OFTHE ESTATE OF DECEASED PERSONS

or

(2) The law of his domicile at the time

donicili).

of revocation

(/ax

(b)

oI the restaror (Arts. 1370 to

1378, Nerv Civi] Code).

If

the testator's intention cannot be ascertained by the

preceding rules, the interpreration of ambiguous words must be made
in accordance wrth the law which was mosr probably rn the mind of the
testator when he used those words and with which he is presumed to be
most fami[ar.

A problem here wouid arise if the testator revokes his

vdll while domlciied in one country and later, changes hrs
domicile, then dies in the latter state. If the laws of hrs former

(c) If dre will admrts of different interpreta[ons, that which will

make the dispositrons operative shall be preferred. The interpretation
that will grve the will rhe mosr favorable construction to accomplish rts
purpose shall be made (Arts. 788-792, Nerv Civil Code).

domicile and irrs domrcile at rhe time of l-ris death are different,
which law applies? Common sense and logrc should applv
the law of the domrcile at the time of the testatork death'

with the policv of respecung the will of the testator, provided that this

but this is not what our law

can be ascertained.

savs

(d) Every effort shouid be made ro prevent intestacy in keeping

I-lkewrse, suPPose a non-domrciiiarv makes the revocation

in accordance with the law- of the place where he *'as at the

What is probate, and what are the conflicts rules on probate of

wills?

trme, are we not going to recognize the revocation? Why

indeed does the Civil Code ignore the law o[ the place of
revocation, when we follou' rhe lex /oct ceiebrationts tn
determining: the validity of rvills executed abroad? Is not
the desite of the testator to revoke his wili as imPortant as his

(a) Probate is the process of proving before a comperenr court

the due executron of a will, that the testator u/as possessed of tesramentary
capacity, and the approvai by said court of the will.

10.

(b) The allowance or disallowance of a will is essentiallv

desLe to make a will?

procedural, so that the lav"'of the forum applies to all procedural matters.
(b) If the revocation is done in the Phihppines, tt is valid if made
in accordance with the provisions of our Civil Code (Att 829' id')'
the revocation is done outside the Philippines bv a Person
who is domiciled here, it rs yalid if made in accordance with our law (the
tex d.onirzli) or the /cx ioti actu of the revocauon (the place u'here the
revocaoon was made) (see Art . 17 , pzr- 1. New Civil Code)'
(c)

if

9. What law should be applied

in the interpretation of wills?

(c) Under Art. 838 of the first paragraph of the New Civil Code,
"no will shall pass either real or personal properry unless it is proved and
allowed in accordance wrth the Rules of Court".

(d) Tirere is no period of prescupuon for tiie probatc oia will.

For the probate of a wiii is not exclusivelv established ur thc interest of
the survrtng heirs but primarilv for the protection of the tcstator's expressed wishes in the disposrtron of his properties. Since the probate of

110

WILLS, SUCCESSION , and ADMINISTRATION

CONFLICT OF LAWS

CONFLICTOFLAWS

OF THE ESTATE OF DECEASED PERSONS

validlr. executed u'ills is requted bv pub[c poiiq,. tl-re State could not havc
intended the Starure of Limrtauons to defeat said pohct (,Gueuata t. Gaeuara.
'CR L-5105,
.lan. )/. / 956;.
(e) Wills proved and aliowed in a forergn countr\! according to
the laws of each counnv. may be allowed, frled. and recorded by the
proper court in the Philippines (Rule 77, sec. 1, Revised Rules of Court).

(f Although

a forergn u.dl had alreadv been probated

in a forergn
countr\, it still has to be reprobated in the phiiippines in accordance with
our procedural lau; because a foreign judgment, no matter how intnnsicallv

meritorious. cannot ha'e. as a general rule, automatic extraterritorial

effect. But instead of provrng all over agarn the due executjon of the urdl.
it rs ordina'ilv sufficient to ask for the enforcement here of the foreign
judgmenr

of the probate

abroad.

which have been probated outside the piril_ippines are:

1) The due execurion of the wi_1l in accordance u,,ith the foreign
law because we cannot take judicial notice of foreign laws.
2) The testator had hrs domicile tn the foreign counrrv urhere
the will was probated;
3) The will had been adrrutted to probate rn said counrry;
4) The foreigntribunal is a probate courr;
5)

Tire laws oi the foretgn country on procedure and allowance

of rvrlis were follorved.

(|,'cia. De Pereia. Tolere. 2J2

11.

SCk4 724.

(d) The executor is qualified, and the administrator of the estate

is appointed, by the court of the counw where the deceased was domiciled

at the time of his death; or if he was a non-domiciiiary the countrv

where his properties are found.
(e) The rights, powers, and duties of the executor or administrator
are coextensive with the terdtorial jurisdiction of the court that qualihed

or appointed him. Thus, an executor or administratot qualified or

appointed by

of

Philippine court has jurisdictron only over the properues

the deceased located in the Philtppines.

Administration gtanted in the country of the deceased's last

domrcde is called

principal domiciliary administration; administration

in othet counfties whete the deceased also left properties, is called ancillary

administration.
(g) As held by the Supreme Court inTajtagu. Bengaet Consolidated,

Inc., 26 SCRA 242, the domiciliary administrator of the estate of a

deceased American citizen in the U.S. has no Powet over and is not
entitled to the possession of the stock certificates of shares of stock
owned by the deceased in a Philippine colporation, which certihcates
must be delivered to the ancillary administator of the deceased's estate in
the Philippines, to be administered by the latter in the nature of assets of
the deceased liable for his debts or to be distributed among his heits.

What are the conflicts rules on administration of estate of

deceased persons?

111

appointed by the testator rn his will). an administrator vzith a will annexed

(one who is appointed bv the court if there is a will but no execuror is
designated therein), or an administrator (if there is no will, the court
appoints an administrator of the estate of the deceased).

(f
(g) The evidence necessary for the probate or allowance of wills

WILLS, SUCCESSION, and ADMINISTRATION

OFTHE ESTATE OF DECEASED PERSONS

12.

What is meant by the "caduciary rights" of a State in Conflict

of Laws?
(a) Bv "adminisrration" is meanr the process of determiniog and
realizing the assets of a deceased person, the pavment of tl-re debts of the
estate. and the actual drstr-rbution of the residue ro the heirs.

the deceased had properties but left no heirs and no will, how
can the country where the ptoperties are located claim said ProPertles?

(b) Lik" probate, administration is procedural in narure. Therefore,

it is tlre lex.fori that go'erns, not the larv tirat determines how the estate of

There are rwo theories adopted bv different states so that they

may claim the properties ieft bv a deceased who left no heirs and no will.

If

the deceased is ro be drstributed.

(c) In charge of the admrnistration is an esecuror (rf one

is

First, some countries includrng England and most American states

adopt the theory that such propenies have become ownedess (bona uatantici);

112 WLLS,

SUCCESSION, and ADMINISTRATION

CONFLICT OF LAWS

CONFLICT OT LAWS

OF TI{E ESTATE OF DECEASED PERSONS

hence, thev should revert to the state uzhere thev are situated bv escheat.

in

the Philipprnes and some civil iaw counuies, the theory adopted

is that the State is the last het of a deceased person. Hence, the State
succeeds to the propercies left bv sard deceased as an heL.

difficulty if a foreign element is not involved in the

case. But suppose the domiciliary of one State leaves propenies
in other states? How can those othet States claim for themselves
1ji. There is no

E
CHAPTER

the ptoperties left by the deceased?

Example: A Chinese citizen died with subsantial business intetests

in the Philippines but with no heirs and no vdll. If we apply Art. 16, par.
2 of the New Civil Code, the national law of the deceased appl-ies to his
succession, and if Chinese law- provides that the home state of the

PROPERTY

deceased (China) inherits as his last heir, China can claim said properties
and business interests for itself.
The Phitippines can, howevet, claim said properties and business
interests, by adopting the.theory of "caduciaq' dghts" of the State. This
is in consonance with the proposition thar in a situation such as this, "rules
of conflict of lav;s are largelv abandoned and each country eppears to
work on the principle of seizing all property of tle deceased lying within
its borders"; i.e., the Philippines should regard said prcperties as ownerless or bona uacaxtia.In short, the properties pass to the Phiiippines as an
incident of soverergnty, not as afl heir @lackt Law Dictionary, Abridged,
5th ed., p. 92).

L.

Are the conflicts rules

on real and personal properry
the same?
Almosr

alJ ieea] systems

adopt the /ex tttai ot /ex rei

iaw of the p)oce wh.re

the propcrry

sitae. r.e.,

ir.f...r"i
..al prop"i.n rrrus, tire 1u*
;i-;;;;..ff"::'::',1.1.*tm respe*
e

very thin

logrcal' 'As

on

c e

rn

er tai n

qi

expectations

predic

of

to
ta bil*i;

the parues,

rop er n.. +

.1:

,r.in!

to

pir.",;6ri"iii*'
the /ex i/u.,.of real

;;,il;;;'

,, d.oL;;;i'rr.i

r; ; ;-" ;

0 n a m, s in c e
p er s o n d p
personal effects or b.longings

^H

of the

Laq

J-1'l5"io-.nal
iJTff T J ^,X."t::,:l'jffi

Tl-re same cannot be

said of the law
movables. The old rule
during the Middle

p en

ro

il ;. ;, :";1i: .. ::l :,:rr. fl":::Tj

*:,;;a
is rhe natural cenrer of
^
.o"..;;;;,ir'rlr.
,n.* mav be expected

re a r p

t'e pr'ce'whe'e

nghts ovsr rt. evervbody

reckon wrth the law of
iuch
564). Indeed, u ."r.r.n."
ro

the

p.

proo.rq,.
,

Personal properq,' or
o: r
rr:;::

"on
rff :.:,:

": : ;;r^:

u'herever he wenr. Therefir.l

"*'* i"t ra. he carried with hrm
sir.; ;;;lro.,
aa not have , n*"j
sltus, an artificial situs
rv glven to them; namely,
the
personal l^*
"s
ov/ner.

"a;lr;

b.."

Recendy, in ma

^d;;;;;ft;'r#:t

countnes' tbe lex

itat or lex rei tilaa

has at.so

:il;;;;:;;il^i;1Tl:1i.#::":#lT:*11ili.ff::,i:l

for the patties and thrd persons

*ho -uy be affected by ights in
ren

114

CONFLICT OF LAWS

PROPERTY

created over personal properues to have those nghts enforced and made
effecuve 0il,blff. rd.). As the place wi'rere tl.re ProPerties are located has
the iegal and coetctve power to enforce sald rlghts, the lex .rltu.t or tlex rei
sitae zpphes to said properues (Goodricir, Confuct of Laws, p 470;.

2. How about in the Philippines, have we also adopted the rule of

the lex situs or lex rei sitaewith resPect to personal properties?
Yes, for Art. 15 of the Neu'Civil Code provides that "real
as well as personal properly is subiect to the iav/ of the country

CONFLICTOFLAWS

Example: X, a California ciuzen domiciled in Caiifomia, sells to

Filipino domrciled rn the Philippines a piece of land located in Florida,

USA.

of tire rransacuon
governed bv tire iex itus (Floidalawi.
(a) The exrnnsic validrn'

Fiorida Law
(b) Tire rntinsic validiry of the transaction

Civil Code?
The late Senator Lorenzo M. Tanada, Chairman of the Special
Committee on the Neri" Civrl Code, explained thc reason thus: "Now
that there has been a great increase in the amount and variew ofpersonal
properfi, not immediateli' connected with the person of the owner, it
was deemed advisable bv Congtess of the Philppmes to adoPt the doctrine
<:f iex rci ilae also to movables"
been held that personal Properrv mav be separated

from its owner, wiro mav be taxed on its account at the piace where the
property is located. althougl'r ire is not a domrciiiarn citrzen or resident of
tlre state which imposed the tax (L4anila Ga.t Cor. u. Colleclor, 62 Phi/' 89r.
In fact, the concept of movabie proPern, has so grown in tl-re Philrpprnes
that even lntangible properties like sltares of stock in a corporation'
franchises, credits and tl-re like are nou' considered movable propern'
although thev have no phvstcal or materiai srtus.
4. What matters connected

with real property are governed by the

Iex situs?

(See also pars. (2) and (3)

Flonda

of Art.

80

of

the Famrly Code

ila.r to the exftinsic validity of contracts

applying
involvingteal properties not siruated in the PhrJrppines).

5. What are the exceptions to the rule of the /ex situs

sitaewith respect to teal properties?

Extrinsic and intrinsic validitv of transactions over real proPerh

such as alienauons, translcrs. and mottgaees: capacitl'' of the contracting
parties; interprctation of documents, eFfects of ownersl-rip; co-orvnership;
lccession: usuFt'uct: lease: easement: quieung of utle: registration: prescrrpuon; pohce power: cminent domainl and taxation are govemed bv

ot lex tei

The exceptions to the application of the lex itus ot lex rei silae
with respect to real properties are the foliowing:
(1) Succession: In civil law countries iike the Phrjlppines' testate
and intestate succession, vrhether the properties are real or
personal and wherever thev tnav be located' is governed by the
natlonal iaw of the deceased, not the lex sitas. including the order
of succession, the amount o[ successional nghts' and dre intrrnsic
vahdrr,v of testamentarv disposiuons (Art' 16, par. 2, New Civil

Code).
Capacrw to succeed is also governed
the deceased (Arr 1039. id.).

bl

the nauonal iaw

of

(2) Contracts involving real properw but do not deal with

trtle or reai rigirts over the ProPert)', the issue being the contractual
rights and liabiliues of the parties, are governed by the ProPer
Iarv of the contractl i.e., either the lex /oci t'o/unlalzs or the /ex ha
intenlionA

iex.ri/u.;.

is govemed bv

the lex

3. Vhat was the reason given for the change of rule in the New

the

are govetned by

law

where ir rs situated''.

l-ras

(the formalitres) is

(a) The capacities of both vendor and vendee

properw

lndeed, it

PROPERTY II5

Example: A Filipino landowner hires a J'apanese

gardener for the latter to convert into a Japanese garden a
parcei of land in the Philippines' This contract is not
governed bv tl, e lex ita.r akbotgh the land to bc developed
is located in the Phrlrppines' \'Vhat governs is the proper larv

of

the contract benveen tl-re parties'

115

CONFLTCT9FLAp5

PROPERTY

CONFLICTOFLAWS

(2) Goods in ftansit are governed as follows:

(a) As to liabfity for loss, destrucuon, or deteriorauon
of
goods in transit, the law of destination is applied (Example
is Art. 1753 of the New Civil Code).
@) Th. varidity and effect of seizure of goods in ttansit are
governed by law of the place where the goods were seized
w*rich is their temporary situs.
(c) Disposition or alienation of goods in transit is genenlly

(3) in conttacts where reai ptoperhr is grven as secunw b,v

wav of mortgage to secure a principal contract (such as a ioan),
the loan rs governed bv the proper laq,' of the contract berween
the partres, while the accessory contrzct of mortgage is governed bv rJ;'e hx itat.
(a) While the valtdrq,'of a transfer of land must, as a rule, be
determined bv the lex iltus, the validiry of a contract to transfer is
determrned by the proper law of the contract (Salonga, Priv.
International Law, 1995 ed., p. 473). The obvious explanation
for this is that while the transfer of land involves the t-itle theretq
a mere contract to transfer is a personal contfact that dogs not
create dghts in reru. (id.)

governed by the propff law of the contact between the

parties (the kx loci wlantath or hx loci iilentiorn).Th. reason is
obvious: such disposition or alienarjon is effected through a
contractual obligation.
In some states, however, the transfer of tide to chattels
is govemed by the law of the place where the chattels are

located at the time of the transfer, and this title will

in applying the rule of the lex situs or

lex rci sitae to movables or personal properties, and how ate they
to be resolved?
6. What are the difficulties

If

in possession)
and has a fixed sirus, there rs no problem. But there are many different
kinds of personal properties that do not have hxed situs, like those that
are usually in mouon or have changrng sirus (e.g., vessels and goods in
transit). or intangrble personal properties like rights and shates of stock in
a corporation which, because they have no material existence, do not also
have material or tangible sirus.
(1)

the personai property is tangrble (called chose

PROPERTY I77

ordinarily be recognized in aoy other state where the chattels

are brought or transferred.

8. What are the rules in grving constructive situs to intangible

petsonal ptoperties or choses in action?
lntangible personal properties or choses in action may be credits

(or debts), negotiable instruments, shates of stock in corporations,

franchises, goodwill of a business, or intellectual propetties like patents,
tradematks, tradenames, and copynghts. The situs 5{ven to them are as

follows:
(2) The aforesaid personal properties which are usually in
mouon or do not have tangrble existence are thus given artificial or

(a) Credits (or debts):

constructive situs, which will be discussed in the succeeding questions.

(l) Involunary ftansfer or assignment of a debt (gamishment)
7. What constructive situs is given to choses

in possession that are

usually in motion?

of their inherent mobihry are governed by:

The law of the flag, if it is a public vessel;
ft) The law of the country or place of regrstry. if it is a
private or commercral vessel, If, however, the vessel is
docked at a foreign port, said port is deemed as its

(l) Vessels, in view

(a)

temporary situs.

- The situs is the place where the debtor may be served.with

surrunons, which is usually his domicile.

(2)Voluntary assignrnent or transfer of credit - The proper

Iaw of the contract controls; i,e, the proper law of the original
transaction out of which the chose in action or credit arose.
There are other theories like:
(aa) The law of the place where the assignment is executed - This theory is criticized because the law of the place
where the assignment is made may be purely fortuitous or

118

CONFLICTOFLAWS

PROPERTY

CONFLICTOFLAWS

accidental. oI there mat'' ha\re been several assrgnmenrs all

vaLid accordrng to their respective /e;yet actu:.

of the piace rvhere performance or

ts normall-r' expected - firis theorv ma\'-. however.

(bb) The iau'

pavmeflt

contemplate muinple situation, since recovcn'mav be made

in any iurisdrction wirere tl-re debtor mair be made subiect.
(cc) The nat-lonal iau' of the parues or, in a proper case.
a

' therr domiciliary lar'": But

parties mav have dtfferent

personai laws, or a needless invesugation of what the personal

PROPERTY

119

Cotpotations, Sec. 376; alsq Sec. 650, Corporarion Cocie of

the Philippines)

Attaching or execudon credirors are not bound bv the

ransfer unless entered in the books of the corpor a6c>n (LJnson t:
Dionmito, 6r Phil' 53-i), unless said creditors actuallv knew of the

unregistered transfer (Fua Cn

a.

Summerr,44 pbit.

i0,

tl-re

laws of tire Parties is inevitable.

(3) Situs of a debt for taxatron purposes rs the domicile of
the creditor, where the collecrible cred.tt may be taxed. (Minor,

id .PP l8l-282)'

(2) Chattel mortgages or pledges of corporate shares of stock,

even if registered in the colporate books, do not bind the
corporation, but the parties are bound as long as they are validly
entered into by them (Monserat u. Cewn, 5S Phit. 26/).

(3) Sale of corpotate shares as between the patties is

governed by the proper law of the contract (the lex

loci uolantatis

(4) For the purpose of administenng debts. the sirus is tl.re

olace where the assets of the debtor are actualiv situated (Minor,
ta, OP 283-285)'

intentionit)bectusethis is really a contract. In many cases,

the proper law of the contract is the place where the certificate is
delivered to the buyer (Cheshire, id.,p.62!.

ft) Negotiable instuments:

(4) Taxation on dividends received by corporate shates is

governed by the law of the place of incorpotation. Thus, taxes
on dividends from shares of stock in a Philippine corporation
may be taxed here, although the owner of the shares does not
reside in this country (Matila Gar Con a. Co//.,id)

(1)

or not

'I'he iarv drat determ-tnes whedrer dre urstnulent rs negotiable

is:

(aa) The iaw governing tire nghts embodred in the

instruffrent CX'blff, rd.. p. 561). Thus. rf it is a Phihppine
check, Philippine law will applv; rf it is a California check,

or

/ex bci

(d) Franchises:

Calitbrr-ria lau' applies.

(bb) The Arrerican Restarernent, hou.ever. ciarrns that
the sirus is the place where the instrument $'as executed

Franchises are special pdvileges confened by the govemment

on an individual or a corporation and are subject to the Iaw of

(Am. Restatement, p. 348).

the state that gmnted them.

(3) The law drat determines the validrw

of

the transfer, deliverr,:

or negotiation o[ negotiable instrurrrent

rs gencrallv the la*' of

the sirus o[ tl-re instrument at tl"re tinre of transfer. deliver)'. or
negotiation (Cheshu'e, Prir'. Int. Law, p. 622).

(c) Shares of stock of corporations;

(l) Sales of ct>rporate stocks are Poverned bv tl-re law of the
placc o[ lncorPor:rtion, since rt is there that the transfer is
rec.r.d.d rn thc books o[ the corporation (Reale, Foreign

(e) Goodwill of a business, and ta:ration thereon:

Art. 521 of the New Civil Code provides that goodwill of

business is property and may be transfered together wrth the

right to use the name under which the business is conducted.
The goodwill of a business, as well as taxation thereon, is
governed by the law of the place where the business is carried
on. "Goodwill" is the patronage of any established trade or
business; the benefit acquired by an establishment beyond the
value of its capital stocks, funds, or property, in consequence of
the genenl public patronage and encouragement that it receives

r2O

CONFLICT OF LAWS

PROPERTY

from its customers

(See Menenrieiu

Ho/t, 128 ti.t 514).

(f) Patents, copvrights, trademarks,

tradenames, and

servicemarks:

CONFLICT OF LAWS

(.6\

PROPERTY I21

ln

Philtps Erporr

B.It.

u,

C4, 206 SCk4 457 (1992), the

Supreme Court reiterated its earlier ciecision in Wesnrn

E quipment
and Suppn Co. u. fu1et 57 phil /t j (7927), that a corporariont

tigirt ro

use its corporate and trade name is a proper$

nght, a
ngbr in rem,wlich is enutled to protec[on like any otl.,.,
tungibi.

/1) As a general ruie, patents, copvrights, trademarks, and

tradenames are, in the absence of a ueary protected onl,ir by the
state that granted or recognized them (lVolff, td., p. 558).

properry and cannot be rmpared or defeated by subseq"uent

appropriauon bv another co{porarion in the same field.

(2) In the Philippines. Art. 520 of the New Civil Code

provides that "a trade-mark ot trade-name duiv regrstered in
the proper government bureau or office is owned bv and

Cament MJg. Cor. u CA' 25/ SCk4 600 (/ ggj),ireld that.,actual

use in commerce in the Philipprnes is an essenrial prerequisite for
the acqursiuon of ownership over a trademark pursuant to Sec.
2 and 2-A ol dre Phihppine Trademark Law" E.A. 166)

(7) Speaking

pertains to the person, corporatlon. or hrm registenng the same,

subject to the provisions of special laws."
(3) Under Sec. 21-A of Rep. Act No. 166, as amended by
Sec. 7 of Rep. Act. No. 638), any foreign corporatlon or;urisuc
person to whicir a mark or trade name has been registered or
assigned under this Act mav bring an action for inftingement,
fot unfair competition, or false destgnatron of origrn or faise
description, whether or not it has been licensed to do business in
the PhiJrppines under the Corporation Code, at the time it brings

the complaint; Provided that the country of u'hich the said

foreigo corporation or jurisuc person ts :r ciflzen or in whrch it is
domiciled, by tteaty, convendon, or larv, grants a similar pnvilege
to corporations or jurisuc persons of the Phihppines.
(a) As to copynghts, the formel ruie is that a copyright is
protected only bv the state that granted or recognized it, absent a
ueag. Thus, a copvright in State X could not be enforced in our
country in the absence of a treary unless a similar copvright was
also applied for and granted in the PhiJ-ippines.
(5) On September 27, 7965, the Phiiippines became p^rw
^
to dre Union Convention for the Protection of lndustrial Property
adopted in Paris on March 20,'i993. Art. 8 oi said Convention
states that "a trade name lmeaning, a corporate name] shall be
protected in all fie counftles of the Union ulthout the obligauon
of hhng of registration wirether or not it forms part of the
ftadename".

of

trademarks, the High Court,

jn Enera/d

(8) in 1998, Congress passed Rep. Act No. 8293 known as

"The Inteliectual Properq'Code" and establishing the Intellectual
Property OfFrce. Under Sec. '123 of the Acq certain marks cannor
be registered, among whicir are those "x x x identical wrth, or confusingly srmilar to,
or constituting a translatron of a mark which is

considered by a cornperenr aurirority

of

the

PhrJrppines to be rvell-known internationally and

rn the Philippines, whether or nor ir is registered
here, as being the matk of a person other than

the applicant for registration, and used for

idenucal or similar goods or services".
Sec. 3

of the same Act provides that

corporation, being a national or domiciliaq' of

^ny

forcrgn

country which

is a partv to a convention, ueat\! or agreement relating to intellectual

properfv ngirts to which the Phihppines is also a partv or which

extends reciprocal rights to our nationals by law, "shall be
entitied to benefits to the extent necessarv to give effect to any
provision of such convention x x x". Such foreign corporauon
even if it is not engaged in business in the Philippines may
nevertheless bring a civil or admtnistrative action for opposition,
cancellation. infringement, or unfat compefltion, as provided
for in Sec. 160 of the Act. However, under Sec. 156, same Acr,
onlv ownerc of registered marks may recover darnages from
anv person who infringes his rights.

CONFLICT OF LAWS

CONFLICTOFLAWS

CONTRACTS

123

A. EXTRINSIC VAIIDITY OF CONTRACTS

1.

\$/hat conflicts rules determine the extrinsic validitv

of contracts?

As a general rule, the exrrnsic validrty of contracts is governed

by rhe kx loci cehbration*, otherwise calfed lex loci contractut.

CHAPTER

M
CONTRACTS
1.

Att. 77 of the Civil Code of the Philippines ptovides that ..the

forms and solemnities of conftacts, wills, and other public instuments
shall be governed by the laws of the country in which thev are executed".
And

Sec. 9

of the American Resratement Second, considers as binding

the "formalities which meet the requirements

of the place

where the

parties executed the conttact".

2. Are there variations of the rule of lex loci celebrationis in

determining the extrinsic validity of contracts?

What is a "contracttt and why does the law on contracts present

many problems in Conflict

of

Laws?

"Contract" is dehned bv Art. 1305 of the Civrl Code of the

Phihppines as "a rneeting of minds betrveen lwo Persons whereby one
binds hlnseif, with respect to the other, to give somedting or to render

Yes, there are variations.

(a) Suppose a contract is entered into by parries in rwo

different countries bv cablegram, telex, or fax. \fi/hat is the place

of

execution?

some service".

Arl 1,319, par.2 of our Civil Code states rhat

"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.
In the PhJrppines, the bx loci alebratioaziis, therefore,
the country of execuuon.
(l)

conftact may create a status like rnarriage, or creates

or uansfers real rights or title to properry (like sale), the specific subject
of "contract" in Confuct of Laws is limited to purely civil or commercial

Although

transactions.

Every state, in the exercise of its sovereigntl', has the nght to

determine its own law on conuacts. As long as there is no foreign
element in a contract, questions pertaining thereto are governed by the
Iarv of the forum state. It is when there is a foretgn eiement in a contract
that problems arise, for then, the forum v'ill have to decide what ]aw
shouid be applied in deterrnining the existence or non-existence of a
contract, as well as its validrq', bodr extrinsic and intrinsic, and the capacity
of the conftacting parties.

(2) In American laq however, a contract is deemed

entered into in the place where the acceptance of the
offer is posted or mailed.
@) Suppose the place of execution was meteiy casual or
accidental like a Chinese and a Filipino who, meeting accidentalll'

in Hoogkong, entered into a certain contract or agreement there

to be performed in the Philippines.

CONFLICI OFLAWS

CONFLIC-T OF LAI,VS

CONTRACIS

124

has the most significant

Itt stttlt :r clls(" lh( l;r*'rvirich
shortlcl bc applied ln .tircrrvords'
reiel.t.tlsltlptt' ti"l ''^"t"t tt.tt
rvhich the partres must hav-c
tht'c.rtrl tttt"'ttl 'q-t1''t' 'i'tt iarl.
transactl()n'
tc; qt'-c eifect t() tilclI
assrttrctl ri'ottitl lrc aPPitecl

namelt' I thriqlPrllc larri

wiren the

lex loci clnfracla!

x1s'
wav oi other excePtlons
established and rmportant
an
contravenes
ctr lu loti ielebrationi't
to
it wouid work gross injusuce
to
pohcv of tt-" toru-; or
mores'
^PPI\;
bonot
i*"*; orli tire ftan'saction is contra
the people tr

(c)

'i"

B. CAPACITY OF PARTIES

of the
in determining the capacitv
What are the conflicts rules

contract?
Parties to a
contracts is generalll'
(a) Capacrn' to enter lnto

gc,l':t"td

-:'i^'n'
ln
the natlonti larv of the parues

tiril is
personal la'r' oi tire O^'Jt"
ff
the domrcile
theorl" and bv tl-re law of
countries followrng the nadona[w
conff2cts
tl-'et'rv' Excepuons are
in countries r"["*"g t;Jt"ttiiiti"u
botl.r reai and

of p'op"'ties'
involving aliet'otioriot encumbranct to'lt'"cttng parties is governed
tl-tt
in which *'"t t^p*'* t'f
personal,

bl

the /ex rilzt'

in the
llilpp,n.,t1,::.^':?:'[,il;r:T".,,
governed Dr I
thrt cepaciw of I Frirprno ls
theort''
b".nrr.. ve folion' the nadonaliry
(b)

2'

725

what law will govern the incapacitv of the alien in the following
specific problem?

3.

An 18-yr. old alien, who has no capacitv ro contracr under iris

nadonal iaw wherein the age of maioriry rs 21, enters mro a contract in the
Phihppines. can he later plead his incapacrtv under his national raw to
er.ade the contract?

13v

Remembettit"'ft"t""tcementolaforeignlavrsonlvamatt:r
to comlq''
cases arc clear excepuons
of conuq" and tire foregorng

1.

CONTRACTS

* iJ:i::

No, because to apply the narional }aw (or iaw of dre domicile)
of the alien in determining his capacity ro conftac would require Fil_ipinos
to fust ascertain what the personal law of thar alien is. sometimes with
great difficulry such drat busjaess uansactions.xrith aliens would be greatly

impeded.

4. The weakness of applying the national law of the conracting

party as to his capaciry in the foregoing cases is thus seen. How
can such difficulties be avoided under our law?

(b) We should limit the application of Art. 15 of the Civii Code

(on capaciry to conftact) to agreemenrs involving familv and domestic
telati.ons, while we should apply the proper law of the contract in business
or commercial transactions (Salonga, supra, citing Rabel).

C. INTRINSIC VALIDITY OF CONTRACTS

sPecific Problem?

c()nffact (RcP'
hct has dre capacin'to
No. llc<:ause r'rnclcr l)hil' latrr
tt'tt;^1-L:.]'ot
t. 18 vears)' 11
6809 has rcclucecl
tot"'^t' of Filipinos is govetned
";';:';;;;;"q
capacifi'
Phrhpprncs pror'ides that
the

bv therr nattonlrl

hw

'o

of

Code)

of the Filipino in the follorving

What law governs the capacitv

the age
into a contract in ltaiv where
A 20-vr' old Filiprno enters
ltalian
under
plead irrs incapacin
cii maiorrtv i' 21 ;' ;:;ililer
contract?
under tht
ceiebralionu) to avoid [abiiiw
Iau' (tr"lrich is the /rr ioct

If

the conrract is entered into in the Phiiippines, or rhe

ti're contract would be in the Philippines, vre should
apply, not the personal law of the parties, but the proper law of the
contract or the law mtended bv the parues, to determine tl.reir capacity.
(see Paras, supra, ciring dre Geneva Conventibn and the German Civil
(a)

performance

1.

What are the conflicts rules on intrinsic validity of contacts?

(a) Broadly speaking, the intrinsic validiry of a conuact is

governed b1' the proper 1aw of the contract; i.e., the /ex loti uo/antatit

or the

lex lod inlenlionis.

ft) In Amencan lau'(1)The Amencan Restatement of 1934 required the

application of the proper law of dre contract, or the law
of the place of performance.

126

CONFLICTOFLAWS

CONTRACTS

(2) According to ti-re Second Restatement' howcver' the

la.r, to be applied should bc the larv clrosen br. the parues: tt
none' the lav'of the state u'hrcir has the most slgnlllcxni
relationship to the parties or to the transacilon

CONFLICTOFLAWS

CONTRACTS I27

wiren the change is so revoluuonarl' that it could never have been contempiated bv tl-re parues Oiblff. supra. zl30--131).

(c) Several laws mav be selected. each o[ which u'ill govern ti-r
different elements of the transacuon (Chesirue, Private International Lau,
p.236)

(3) Prof. Raleigh \4rnor advocates the application of the

followtng different laws:
nkbrationit'
(i) As to the perfectlofl of the contrac t - lex loci
loci
hx
consideration
the
of
validrry
(ii) As to the
considzrationis.

(')

A.,.Gff;::T#::f;ilffi

/;;i;ci

ntu'ln ni:

In the Phil-rPPines:

(c)

(l) l&'e have no specific provision

of lav'applicable to

conflicts rules on tl-re intrinsic validiw of contracts'

Horvever, the poiicy oi our law is to give effect to the
in
rnteorion of the parties' Indeed, the parties may establish

their.contractssuchtermsandconditionsaStheymaydeem

convenient, ptovided they are not contraly to law' morals' good

customs or public policy (Art' 1306, New Civil Code)'
(2) Thus' rve should appl,v the ProPer law o[ the contract'
by the
i.e.. the lex lotz aohtnlalei (the law expresslv agreed upon
upon
parti.es) or the /ex loci inlentionis (the law lmpliedl-v agteed
ty tl,. po.u.r), as determined by manv factors' especially the

\\hile

ti.re parttes

parties to bind their uansactions

1e0

are?

with the transaction

p) If the law selected should change' rt ls the new law that should
law can
be applied, for it may be presumed that the Parties knew that
^l.,uou.

may stipulate on the proper law of the contract,

thev cannot stipulate on the jurisdiction of courts or to oust our courts
of therr: judsdicuon (Molina r. De la Naa 6 Ph;/. 12).
(f)

(g) The parties cannot also contract away aPpLcable provisrons of

our law that are heavily impressed wrth publ-ic interest or which involve
public policy (like our iabor laws) (Pakzstan Internationa/ 'Airlinu u Opk'

no connection
(a) Generally, the parties cannot select a law that has
at all

(e) Assuming that the law ol the place of performance can be ascertained, (as when it is expressly agreed upon b1' tlie parties), still, quesuons
of substantral and essentral vahdtry (such as whether the contract is valid'
t'oi.dable, or void) should be governed by the proper ia.r" o[ the contract.
Onlv minor details (such as the time of ptvment during busrness houts)
should be governed by the law of performance (Chesite, supra)'

iaw that has the most substantial connection widr the transaction,
by the
or the law that may be presumed to have been intended

in
2. But there should be limitations to the court's choice-of-law
what
determining the intrinsic validity of contracts' Can you state
thev

(d) If under the selected law, the contract is legal. but in the place of
performance, it rs illegal, the selected law should prevail and the contract
should be considered legal (II Rabel, supta, p.537). Orherwise, the place
of performance, which couid be merely accidental, wili control. Besides,
the place of performance mav be different under different larvs fWolfi,
supra. p. 135)

b.

is'
chanped as times and condiuons change' The exception

of

scK+e2.

(h) American law recognizes "cognovit" clauses if the parties werc

equal bargaining power and the debtor voluntarily agreed to sald

clause.

"Cognovit" clauses specify rvhich courts would have

iurisdiction in case of breach or default in payrnent' or it mav
be one that waives the debtor'.s right to notice (otl.rerwise knorvn
as confession

of iudgment).

coNFLIcroFLAws

CONFLICT OF LAWS

12S CONTRACTS

coNTRAcrs

D. SPECIAI KINDS OF CONTRACTS

1..

5. Lease

Based on our existing lau's, state the conflicts rules in the

foliowing special kinds of contracts:

of

service (or empiovment) agency,

guarantv or surewship.

.Jn..:

are personal conrracrs; hence

the law on contracts

wili apply

1. Barter. salc. donauon:

(^) Extrinsic validtry

lex /oci celebrationit

(a) Extrlnslc validiw - lex tilu.r

(b) Capaci6' of the parues - /ex situ.r

(c) Intrinsrc vahdrq' - kx vlut

2. Lease of properry:

c!

If it creates

real rights, such as those for a period of more

tl-ran one vear br is regrstered, apply lex sirus.
(b) if the lease is from montl-r-to month, week-to-week, or da,vto-day. and does not cteatc teal nghts, apply the law on contJacts:
(a)

(1) Extnnsic validitrl

lex lori celebrationit

(2) Capaciw of the parties -personal ]aw of the parties

(3) Intrinsic vahdity - lex loti uoluntath or lex loti intentionit

b
L]

(b) Capaciry of.f..

.
n"rues _ personal law of the parties
Intrinsic
validrty
G)
- /ex bi aoluntatit or lex loci
i
inteilioni.r
j
nut an agency to alienate or encumbet
real property
is
governed by the /ex itat.
:

6.Contract of ransportation or carriage:

$*

This is a contract to render service; therefore,

the law on

contracts applies.

(a) Extrinsic validity

(a) Extrinsic validiry

I[ it is mutuum, apply the rules on contracts

i.e ..

(a)

Extrinsic validrq' - lex loci

If
conuact.

such declaration
Unes

I{

a.

in the bill of lading Q4meican pretidrnr

KWrr, fiO phil.24j (tg6q.

however, the contract is for intemational

aL transporation:

the Warsaw Convention,

,m.nd.4 ,o oihi.h
^,
came a party in 1951 (santos
III a.
tine4 210

rclebrationi.r

(c) Capaciry of the parties - personal

law of the parties
(d) Intnnsic validiq - lex lorz uoluntatis or
/ex

1753, New Civil Code).

(e) If the Carriage of Goods by Sea
Act governs,
the limitation of the liabiliry of the
carier underiaid Act
applies, unless the shipper declares
the goods and inserts

(a) The [abfity of the airline in

case of death, injury to
passengers, o^r loss or damage to
cargq i. go\r..rr.j bu

4. Conuact of loan:

in gencral:

lex loci celebrationit

validiry - lex hci uolnntatit or /ex /oci intentionis

(d) Uabilitv for loss, destruction, or
deterioration of
goods in transit _ law of destination
of the goods (Art.

kx .rilat

(b) Capacity of the parties * lex ntul

(c) Intdnsic validrq' - lex iltas
These are governed bl'the lex situs because they are
contracts of encumbrances of property, real or personal.
But since they are accessorv contracts, if the principal
contract secured bv them is void, thev are also void.

of pardes _ personai Iaw of the parties

-Capacity
(c) Intrinsic
(b.)

3. Pledge, chattel mortgage, real estatc mortgage, antichresis:

/ut inlenlnni.t
it rs commodatum, appiy the lex situt because it is a real

t2g

(b) But

SCk4

if

j6 (t 994.

*.

b",_

Nortbwett oient,4ir_

there was malice, gtoss negligence, bad

faith,

improper discrimination Jn the p".t of

9r

*" .roi..

ol

Its agents, the carier is liable for damages

beyond those
by the Warsaw Convenf_ion

tT**a
SCLA

ltiprqr.'p"r2;,-;;

ajt

KLA4 RUal Dach Airitu ,. C)1..', os

SCRA 237-(1965);
(t 975); Sabena Eelgian lyorld Airlinu
t. C_4".

255 SCRA 3S

(7

e96).

CONFLICT OF LAWS

CONFLICTOF LAWS

F"

Chapter in the Code.

('
A
,

=
L'
.'t

4rt.2176 of the same Code, on the other hand, tetains the Spanish
concept of cupa aqailiana ot quasi-dtlict. It provides:

.l

131

who, contrary to law. wilfully or negligently causes damage ro anothei.

shall indemni$ the latter for the same". This is a new provision under
chapter 2 of the code on Human Relabons, which is an enrirely neu,

CHAPTER

TORTS

t
.t

"\X{hoever by act or omission causes damage to anothet,

there being fault or negligence, is obliged to pay for the damage

relation between the parties, is called

by the provisions of this Chaptet."

tn

<.
E

TORTS

done. Such fauit or negJigence, if there is no pre-existing contractual

a

quati-dtlict and is governed

1. What is the meaning of "tort"?

3. In Conflict of Laws, what law governs liability for torts, and

what ate the reasons for the tule?

person or proPerry
"Tort" is a legal wrong cornmitted uPon
independent of contract^

(a) Liabfity for torts in general is govemed by the /ex loci delicti
commbii; i.e., the lav of the place where the delict or wrong was

(a)

or

-.t

aqailiano

committed.

(b) In Spanish lavr, the concePt of "quasi-dehct"

lalpa
fault or negligence caus$g
ra.. all acts or omissions committed through

@) Reasons

of contract'
damage to anothet. independent

primaty duty to redress the wrong and determine the effects

through
It covers aII cases where
do so; i'e'' unintentional wrongs'
negligence, or with no tntentiorto
a

for the rule:

(1) The state where the social disturbance occutted has the

damage to another
Person causes

of the rnjury;

for it

"tort"-has a broader'meaning'
(c) In American lavi however'
through negligence' but also
covers legal wrongs toi o"fy commrtted
willfi:l tntent' but of course' independent
those committed with *^Utt t'
covered by

of conftact and
of conffact' Otherwise, it *tt U" breach
another field of law, conuact law

and

(2) To compensate
suffered.

tle victim for the damage or injury

4. In applying the rule of lex loci delicti conmissii , how is the

locus delicti determined, especially if the wrongful conduct is
committed in one state and the iniuries are sustained in another,
or the conduct is a continuing act that spans several states (like in
the U.S.)?

2.Vhatistheconcept'of'(tott''inthePhitippines?

Civil Code is a blending

Our concept of "tort" under the New
American tort' which mav be
of the Spani sh cr'tlpa-aquiliana and the
but also with malice
not onlY ifttotgft fauit or negligence'
committed
andwillful intent'

provides: "Every Person

Thus, Art' 20 of the New Civil Code

There are at least three (3) theories tn determrningwhere the bcat

ddictik:

(a) Civil law theoty - the loat

the act began. This

is so since the rules on tort are intended to regulate human
conduct, such that a person who willfully and negligendy
acts contrary to the social norms must be held liable for the
dekcti is v.rhere

132

CONFLICTOF LAWS

CONTLICT OF LAWS

TORTS

TOf,TS ur3

Upon their return to New York. Babcock sued

-Jackson for
damages under Nev'York lavi Ontario,s law does not al.lov,

inlurv causcd (il Rabel, suPra, p' 303)'

an1 reco\/en'. Can Babcock recover damages from Mr.

Jackson
under Ner*'' York La'u'?

Example: \X4rile huntrng m State X near the bouncian'

shot Ross' who was standiog
of Statc i', Jrm
"ccidentallt'

onasueet-instate\lThelocusdclictirsStateX'because

Held:

that rr/as where the negligent act occurred'

(b) Common law theory:The locus deluti

is the place where the

that wrthout an
wrongfui act became effecgve The reason is
necessit\ fot
no
is
injurf the,. is nothlflg to ptotect and there
;udicral telief'

the
Example: In the above examPle under par' (a)'
locus dzlicti is State

Y'

Yes, for, except for the minimum conract \rrlth

Ontario law as the accident happened in that place, ali the
dominant contacts and factors connected with the accidentwere
in New York; namely, the parues resided in that place; their
guest-host relationship started in New York and was to end rn
Nerv York; and the car where the parries rode was garaged,
hcensed, and insured in New York. So, the state of Nerv York
had the most significanr relationship to the case.
,Q) Saadi,4rabian -4irhnu r C-4, 297 .tck4 a69 ( 998);
Here, our Supreme Court held that Philippine law should
applyi because it was in the Philippines that private tespondent
.

(c) Theory of Dr. Rabel - The

locat delictiis the place

which has

wtongful act'
the most substanrial connecdon wlth the
Example: The situs of the radio station whete

]ibelousbroud.".tismadeisr\elonsdzlicti,evenifthe
broadcast is heard in manv Places'

5.

the locus delicti

Because of the diffrculty in determiningwhere

in determining
is, some modern theories have been developed
liabitity for totts. Please state what thev are'
(a) The

de

of the "State of the most signifi-cant telationship":

of 1969' is

This de as stated in the Second Restatement

a case of tort is
that the rights and obligations of the parties in
with respect
which'
state
the
determinei by "the local law of
to
relationshLrp
significant
to th" p^rdiar issue, has the most
the occunence and the Patties"'

ExamPles;
N'Y'2d 47); 191 It'E' 2d 279
lr'{rs' Jackson left New \brk'
and
(96)'' Babcock and Mr'
Mt'Jackson for a
their residence, in the Jackson car driven by

(l)

Babcock u. Jackton,

working for respondent

here; plaintiff's natrona]itv and domicile rvere here; we were
intrmatelv concerned with the ultrmate outcome of the case not
onlv for the benefit of tl-re litgants but also for the vindication of
deceived pla:nnff-stewardess; plainbff was

l2

Canada' Mr'
weekt trip to Canada. \X4rile uaveiing in Ontario'
badly hurt'
was
of the car and Babcock
Jackson lost conttol

our country's svstem of lau'and justice in a ttansnadonal setung.

Hence. the lorus drlittiwas the Philippines

(b) The interest-analysis apptoach:

This approach considers the relevant concerns that nvo or
more states may have in the case and dreir respecuve interests in
apph'ing their lav's to it. I[ this approach is applied to the Rabcock
case cited abor,e, it would appear that only New \brk lav' had a
legrtrmate interest in advancing its purposes and pol-icres, while
Ontario, Canada iaw had no intcrest to advance. ln othcr words,

it was a case of false c.rnflict.

If, horvever, the case poses a real conflict berween the interests of two or more States. if the interested forum finds that
the other State has a greater claim rn the :rpplicauon of its law to
a glven case, the forum should vield and applt' the larv of the
other state. Or, if the forum is disinterested in the case, it can
dismrss the same on the groun d o( lbran rcfl Lvnuettien,r. In short,
the State which has the rnore relevant and rveiglrw interests in the

134

CONFLICTOF LAWS

TORTS

case

should be constdered tbe ioul

TORTS

135

applied bv the forum wirere tl're case is rrled

@aras, supra. p. 39.r. citing
Amencan cases).

deJicil.

(c) Qaver's principle of preference:

Under this theory, a irigher standard

CONFLICT OF LAWS

of

conduct and

7. Is a foreign tort actionable, or may be the subject of an

action
for damages, in the Philippines?

Frnancial protectron given to the iniured party by one State is

if the latter
oI conduct and financial

(a) Yes, provided we acquire lurisdictron over the defendant

applied by the State where the iniury happened,

State adopts a lower standard

protectlon to tl-re iniured.

(because an action for damages is an actron in penonam)and certain

conditions are present, namely:
(1) The foreign tort musr nor be penal ln nafure;

Example: As a resuit of an illegal sale of iiquor

to X in the State of Minnesota, T, a passenger in the car
driven bv X in an intoxicated state, was hutt in an accident
that occurred in the State of\nisconsin. Sued for tort by
f in Minnesota, X moved to dismrss the case on the gtound
that the accident happened in Wisconsin, the law of whiclr
required that rvrongful act and the injuty should happen

in the

same State before the recoverv can be irad.

(2) The enforcement of the torrious habi[n, shouid nor con_

travene our public policy: and

(3) Our judicial machinerv must be adequare for such

enforcement.
(b) Remembet, however, that while all procedurai matrers are
governed bv the lex.fbi (.i.e., PhrJrppine law), since the case is hled here, ali
substantive matters are governed bv the lex lon dc/itli .rommzL.Lz7. Thus:

Held: To appiy Minnesota law to the case would

be more in conformiry wlth the princrples of equiry and
justrce since X'.s wrongful conduct was completed s'ithin
N.&nnesota where X became intoxicated befote leaving
said State and before going to Wisconsin rvrth T. Besides,
the parties
both lesidents of \4tnnesota whose law

(1) The period of prescriprion

the kx loLi

de

licti nmmis.riibecause in

of the action

rs governed by
Philippine larg prescripuon is

substantive, not merely procedural.

(2) The proper parties, the measure

of

damages, and the

of conduct than that oF

questron whedrer d1e act complained of rs considered the proxrmate

cause of the injury, are ali governed bv the lex loci delicti tommixij.

Wisconsin rvl.rere the accident happened. (SclLnidt u Dnlcoll

Hotel. 249 Minn. 375, N. LV'. 2'/ 365 119a7iS

(3) The burden of proof and the defenses drat may be rnterposed
by the defendant are aiso governed bv hx loti de/icti commnit.

"vere

dernanded a higher standard

6. What are the conflicts rules on maritime torts?

(c) Example of a foreign tort actionable in the Philippines:

X and I both Ftlipinos, were vacationing in Hongkong. One day, while

(a) If thc tort is committed aboard a pubhc vessel, whether on

the high scas or rn foreign tcrritorial waters. tire law of tl-re flag rs the /rx
io ti de li cf i cont n i.r.r i t.
(b) If thc tort ts committed aboard a private or merchant vessei
on the lrigh seas, thc larv of regisuv is the lex loti delicti commissii.
(c) lf trvo vcsscls c<-rl[de and are from the same state, the ]2w of

driving a rented car, X ran over \'. rvho was walkrng. causing tl.re latter to
be hospitalized in Hongkong. Upon rhe rerurn of both to the Phiirppines,

registq is rhc l'.r

/a,r

r/c

hilt ,rtmmit.rii.

(d) ll-tlrt' r't'ssc'ls come trom different states rvith identical

lau's, appll s;ritl rtlctrttcrl linvs.
(c) ll- tlrc vcsst'ls cot::t' frotn different states urith di[ferent laws,
tlre /r-v /oti rbhrtt tontntt.t.tu ls llt(: llcnerlrl maritimc law as understood and

sued X for damages adsing from the rott commirted bv the latter
while thev were in l{ongkong. Will tlie action prosper?
Yes, provided rt is hled within dre period prescribed by Flongkong

of prescriptron is subsrantive
and not procedural. The kinds and measures of darrrages recoverable b1Y, and the defenses that X mat' put up, should also be governed bv
Hongkong law, which is rhe lex lott delicti commilsii. But all procedural marrers
hke the period for filtng the answer, the period for appeal. etc., sl-rould be
governed 6v rhe lex./ori. whrch is Phihppine law.
Iaw, dre lzx bci rhlicti tvmmhlii, since the penod

136

CONFLICT OF LAWS

CONFLICT OF LAWS

8. What is thc Alit'rr 'lirrt Act, and do vou know if it has been
applied in cast's lilctl lrr trilipinos in the United States?

(l) 'l'lrt' ,\lrcrr'lirlr Act

ol

the United States. which was enacted

civil acuon
hled by ,rn alrcn lor a rorl commrtted in violation of the law of nations
or a lreah' r>f tlrc Unrted States.

in

17U9, grants t I.S. tlsrrrcr courts original jurisdrctron over any

(b) It was under the above law that the United States Court of
Appeals upheld the jurisdrction of the distnct court of Hawaii over a
class actron for damages filed by almost ten thousand Filipino victims of
human nghts abuses and tortw'e comrnitted bv dre iate President Ferdinand
Marcos and his ofhcials rn the Philippines during the Marcos reglme,
resulung in a nearll US$2 briiion judgrnent in favor of the victims andf or

their lrerrs (Tralano

a.

Marcot-Manotoc, / 25

LEd.

2d 661 ,

17

CRIMES

3 S. Ct. 2958.
1.

Distinguish tort from crime.

(a) Whiie both tort and crime are wrongs, a tort violates pnvare
rights u'hile a crime is committed against the State.
(b) Tort acuons are instituted by the mlured person against dre

ttongdoer

in a civii case the purpose of which is indemnifrcatron fcrr damages

suffeted; wirile crimes are prosecuted in the name of the State agarnst the
offender in crimirrai actions the purpose of which are the protection and
vindication of the interests of the public as a whole, the punishment of
the offender, the reformation of the offender, or to deter others tiom

committing the same

act.

in character, so that the tortfeasor can be

made liable for his wrongful act in any furisdicuon where i-re mav be
(c) Torts are transitorv

found. Crimes, on the other hand, are iocai and can be prosecute d onlv in
the places or states rvhere the crimes are committed.
2. How does the court determine whether a wrongful act is a tort

or a crime?
The determination of whether a wrongful act is a tort or a cnme
depends on the charactenzation of the act in the state where said act is
committed.

138

CONFLICT OF LAWS

CRIMES

CONFLICT OF LAWS

CRIMES

139

In thr'ltlrrlrpl)lll('s. ('('rtitlrl:lcts mal be both torts and crlmes.

Under Art. 33 o{ tlrc ( tvrl ( .otlc ol'thc Philrppines. "rn cases of defamation.
fraud. and phi'stc;rl lrrprrr('s. a ctli] actton for damages. enurelv separate
and disdnct i'r'orrr tircl cltnrinal acrron, mal be brought bl t]re rniured

parw. Such civtl actron shall proceed independentlv of the crir'i'rai

prosecutlon, ar-rcl shall recluire onlv a preponderance of evidence."
Take the ofienses classifed as "'criminal negligence" r.rnder Art.
365 of the Revised Penal Code. They mav be ptosecuted as crimes bv
the State. On the odrer hand, the vrctims ma,v file separate actions for
damages against the offenders based on torts.

Vhat are the different theories that determine whether a state

or a legal system has jurisdiction to take cognizance of criminal
3.

cases?
(a) Territotial theory - Under this theorli the state whete the
crime was committed has juusdiction to tr\: the case, and its penal code
and the penalties prescribe therein rvili apply The teason is that the
aggrreved state is dutl'bound to prosecute and punish the offender as his

crime affects direcdt'and particularlv dre drgruq,, authoriq', and soverergnh'

of the state w'here saici crime is committed.

'lhis theort mav be of two kinds:

(1) The subjective, territorial principle - under which the
state wllere the crime was begun may prosecute the same, even

if it was complcted in another

state.

(2) The objective territorial principle - under which the

state can prosecute crimes begun abroad but completed rvithin
its territory.
fParas and authorities cited, supra, p. a0a)

(b) Nationalitv or personal theory - The countrv of which

the criminal is a citizen or sub;ect has jurisdrcnon to tn'hrm for crimes
allegedly cornmrtted b,v him, whetirer inside or outsi.de its tetritory,
provided it is a crime under said countr,vh penal lau,.

(c)
Protective theorv - Anv state whose nacionnl interests
mav be jeopardtzed has lurtsdictron over cnmrnal offenses. even if
comrnitted outside its territorii and in some cases. even if committed
bv an alien.

(d) Real or eclectic theorv _ Anv srare whose penai cocie

has been transgtressed upon has jurisdrcuon to bring to iusuce tire
perpetrators of the crime, whether the crime was commrtted rnside
or outside rts own terrttory. crimes under thrs theon'would rnciude
pitacy, slavery', drug tratficking, imrnorai tmffic in women and
children, etc.

G) Cosmopolitan or universality theory - Any state

where the criminal is found or whicir has obtained custody over him,
can trv him for the crime he has allegedly committed, unless exrradidon
apphes.

(0

Passive personality, or passive nationality theory

The State of which the victim is a citzen or subject has jurisdiction to

Prosecute the offense.

(The above enumeration was taken from Paras, id., pp.

403-406)

4. Which among the theories enumerated above, do we follow in

the Philippines?
In the PhiJrppines, we foliow as a genetal rule the territorial theorl',
of exceptron, the protectrve theorl'.

and by wav

.In other words. we cannot prosecute a cdme committed abroad

or murder) in the Philippines, because it is committed
outside our territorial jurisdicuon.
(Like bigamy, rape,

We also follow the rule o[ generaltrv in criminal lau'; i.e., al]

persons, whether Fihpinos or aliens, are subject to our penal laws and can
be prosecuted ior theirviolauons (Art. 14. Civrl Code of thc Phihppines).

5. In what cases do we follow the protective theory, such that

even if the crime was committed outside our territorial jurisdiction, the crime is triable bv our courts?
Thev are the cascs tncntloned in Art. 2 c,rf thc l{evised l)cnal
Code, lo wil:
"Except as provrded n thc treaties and laws of prei-crenna)

CONFLICTOFLAWS

140 cRlMlrs

,rtr.tr. llr(' l)r()\'lsl()11s of this code sirall be enforced

1.r .rl\' \r'lllrlr) lll(' l)hihpprne Archrpelago. including its
:lilltr,s!)ll('t('. lts ll)tc:fl()r waters and maritrme zone but also
otllsltlt'tts lttrts<1tcuon, agzlnst those rvho -

CONruCTOFLAWS

CRIMES

141

;rl)l )lt(

(l)

Should commlt an offense \'"'hile on

Philippine

slltp ' rr arrshiPl

(2)

Sirould forge or counterieit anl'corn or currency

note of the Philipprne Islands or obiigations and secudties
issued bv the Government of the Philippine Island;
(3) Should be liable for acts connected with the

introduction into these Islands of the obiigations

mendoned in the preceding numbers;

(4)

\Xhile betrg offrcers or emplovees, shouid commit

an offense in the exercise of their official functions; or

(5)

Should commit any

of the crimes against

nationai security and the law of nations"'

Examples of crrmes against tire iau' of nations are airPlane

hijaclung, piracl or mutlnv on the high seas, dtug trafFrcking'

6. Do we have jurisdiction over crimes committed on board

foreign vessel if said vessel is within our tefritorial waters?

Tl'terc aretwo ti-reones that have generally been used, and which
determining
our Supreme Court has appl-ted ln the old opium cases, in
the
emphasizes
Rule
(which
Enghsh
the
this quesuon of iurisdtcuon;
nationality
the
(wi-rrch
stresses
Rule
French
territorial principle) and the
theory).

(a) English Rule: The territory where the ctrme was

committed (in our problem . the Phiiippines) will have
iurisdiction

excePt:

(a) In matters reiating to the internal order and

drscipline of the vessel; and
(b) Those which affect soleiy the ship and its
occupants such as minor or petfv criminal
offenses committed bl' members of the
crerJ/.

(?aras. id., p. 410, citing Hyde,

Laq Vol. I, p. 739)

International

(b) French Rule: The stare

whose flag is flown bv rhe vessei

has jurisdrction. excepr if the crtme affects rhe oeace.
order, securiry', and safew of the territory. paras. rd., ctting
Bnedy, Law of Nauons. p. 180)

The above two rules were also cited and

compared by the Supreme Court rn the case of people t.
lWongCheng,46 Phi/. 279, although rhe Court also held that
as we were at that time a tertitory of the United States, we
follow the English rule which was the one prevaihng in the
United States. This case, however,'involved the crime oi
smoking opium in a forergn vessel anchored rn Manila
Bay, which the High Court held was a breach of our public order because ofthe pernicrous effects that ir produced
in our terdtory. In shott, dre Suprerne Court actualiv applied
the French rule to the case, not the English Rule.
Nonetheless, as observed by the lateJustice Paras in his
book rn Confhct of Laws, "the difference between the
two rules is largely academrc and theoretical, the two rules
being essentially the same. Thus, if aboard a German
ship anchored in Maniia Bay, the crime of murder is
committed, under the English rule, the Philtppines would
have junsdiction in view of the general rule. Under the
French theory, the Phiiippines would also have iurisdicuon
under the exception, for the crime indeed affects the peace
and secudty

of

the territory, \X4rether we follow, therefore,

the English or French rule on the matter is not signihcant:

The effect is the same". (?aras, supra, pp. a10-a11)

7. Did the United Nations Convention on the Law of the

change the above rules?

Sea

Art.27 ofsaid Convention pardy provides:

"Criminal jurisdiction on board a foreign ship
The criminal junschcuon of thc coastal State should
not be exercised on board a forergn ship passrng through the
territorial sea to arrest any person or to conduct any rrvesugation
in connection with a crime committed on board the shrrp during
1.

CONFLICT OF LAWS

142

CONFLICTOFLAWS

CRIMES

its passage, save onlv in the following

(a) If the consequences

cases:

of the crime extend to the

coastal State;

(b) If the cnme is of a krnd to disturb the peace of the

country or the good order of the territoriai sea;

CHAPTER

Iu

In short, under the rules of said Convention Philippine

courts do not acquire jurisdiction over cdmes commrtted on board a
foreign vessel even if it is within our territorial waters as long as the effect

BUSINESS ASSOCIATIONS

such cdme does not disturb our Peace and order. Th,rs is similar to the

of
Ftench rule to the effect that we have no iurisdiction over ctimes
committed aboard foreign vessels even if they are found within our
territorial waters except when the crimes affect the peace, order, securiry
and safety of our countty and territory.

A. CORPORATIONS
1.

How do you define a "corporation"?

A corporation, accotding to Sec. , of the Corporation Code of

Phihppines, "is an artihcial belrg created bl the operation of las',
having the right of succession and the powers, attributes, and properues
cxpressly authorized bv law or incident to its existence", rvl-riie Section
123, ol the same Code, defines a foreign corporation as "one formed.
c+'ganrzed or existing under any lar:,'s other than those of the Phtlipprnes
and whose laws ailou,'Fil-ipino citizens and corporations to do busi.ness in
its own countrv or state".

fie

2. What are the different theories in determining the personal or

governing law

of

a corporation?

There are at ic^st three (3) theories, namely

(1) The theory that the personal law is the law of the
place of itlcorporation:
Under this theory, horvcver. l corporati<rn carr cvaclc rnaul
responsibilitres bv simply orgrnizing irr onc st;rlc and perfbnnrng
its ftrnctions in anotlrer staf e.

144 BUSINI Ss A\\( )t

(2)

'l'lr

l/\ ll( )N5

tlrt.orv

CONFLICT OF LAWS

coNFLIcr oF LAWS

of the place or center of management:

14

( )rrc tlrllrtrrltv of thrs theoq'rs tl-rat tire board mav meet in

tlrllclt'rrl st;rtt.s, ulthough ti-us defect mal be cured bl expresslv
pt,,r'ttltttl' rrr tlrc articles of ilcorporaUon ot bv-iaws w]rere tire
prtrrctp;rl n)('cur)g place of the board is.

(3) 'l'he theory of the place of exploitation

-l'l.re

de fect of this theory is that the corporation may have

its enterprise scattered all over the rvorld. Besides, the physical
acts of thc corporation are not as unportant as the decisions
reachcd bv rts board oF directors.

.f

BustNESs

ASsoctATIoNS

l4.s

For the purpose of determrnrng

a corporanon,.s domrcile. Sec.
corporauon Code requrre. ,rrn, ,i,"
arilcles of rncorp.ration
n phrirppinc corp( )rauo, ,)Lrsr srare
,n. rrio.. ,"lr"r; ,;. ;;;;",:;;.

of

tl-re

of the corporation is to be estabrrsireci or

..whicrr

lc,cated.
piace must be
withrn the Phiirppines". Thus, the place
of incr )rPoralon of a PhrJrppine
corporatlon rs also its domicile.

As for a foreign corporation that has been

granted a jtcense t<;
operare or r() do busrness rn the phi,rppines,
it o.quo., ao*r.rr. i., ,rri,
countrv by vrrrue ol said license. As heid
bi, the Suprem
lr.;s6i4 1 s, a.

Mirt

aa t,,. S

t.r

enr. l n t.. l g 9

Cll I

Coun in

C*)i*

t'(t ;;rl" ;"';'JJJ::1.

fre,rule.requiri"g foreig.r corporatlons ro secure a rrcense to do business

in the PhrJrppines is to enabrc the courts ro
exercise jurisdiction
or the regulatron of

tl-reir activitres rn

,";;;;

our counff\,.

(Paras, supra, and authorities cited, pp.420-421).

3. Among the foregoing three theories, what theor-v do we

follow in the Philippines?

in

The exceptions are:

tlre Phrlippines, we follou,' the theorv of the place

of

incorporation.

This is rmphed from the deFrnrtion of a foreign corporation by

our Corporauon Code as "one formed, organized or existtng under any
lar.vs other than those of the Philippines x x x". In other words, if the
corporadon

"r'as

organized

rr

the Philippines, it is a Phrlpprne or domestic

corporation; if organized elsewhere or abroad. it is a fotergn corporation.

4.

5. Vhal are the exceptions to the theory

that the personal law or
the nationality .f a coqporation fotows the
place of its incoqporation?

Vhat about the domicile of a corporation? Where is it?

According to Article 51 of the Ner.v Civil Code, "When the larv

creating or rccognizing them, or anv otirer provision does not F1x the
domicilc of jr-rndrcal persons, the same shall be understood to be the
place whcrc tlrcrr legal representation is estabiished or where thev exercise
dreir pnncipal hrnctions."
l'.r,crr

tk'li.cttvclv organizcd corporation which the lau'regards

1rs lnll()c(.nt third persons are concerned can possess a

as de.falo ursofar

domicilc ftrr tls r/r //.r,/, ('xlst(.ncc (Mal)onald

27. / 95().

zr

FN'CBAI', L-7991 , Majt

(a) For constitutional purposes, even

incorporated in the phiJrppines. it ."r.no, exproit

rl corporauon was
^
or d.-relop o.,, ,r^,..rr"'
0f the capriai is Firiprno

fesources nor operate pubhc urrhties unress

6070
owned (Art. XII, secs. 2, 10-11, 19g7 Consurutron)

(b) For wartime purposes, we adopt rhe control

test; i.e..
';;;; we

pierce
of coryorate rdentin. and go lrrto t1.,.
.the 'eil
controlJrng stockholders to deter'rinc *l-retrrer
a

corporarion.

"^"";;

corporauon is an enem',

Thus, a German_controlled corporation, even

ii
incotporated in the pl-riJippines, was considered
an coemr.

corporaflon during the last Wbrld War for the purpose

of freezrng
its assers (Dauid Winethop u phil. Tnul. L_)g69.
3/
/an. , 195?).

The doctrine oi pierciog the corporate veii or

drsregarding tie corporate

fictt<_in also permrts the courts r<r

lmpose personal riabilrn, on the stockholdcrs if
the c'rporadon
form has been used_ ro defeat the pubhc ..,nlr",rr"r.",

wrongs, or protcct fraud

Jarencio, I 61

.\Ck,1 205).

or

lurtif,

crtme (.l.art lJoon Bet anrl Lo. u..i.

CONFLICI'OF I ,\\VS

l.16 BL5l\l 55 ,\55(,L1,\llOi\5

6.

Vhat matteis

are governed bv the personal law

BUSINESS ASSOCIATIONS I47

How may our coufts acquire jurisdiction over

doing business in the Philippines?

of the corporation?

9.

a foreign corporation

'I'hc pc,rsonll lau' of tire corporati()n (rvhrch. rn thc Phihppines. is

tire placc ()l rnc()rp()ra[on) governs the tequisttcs for t]re formation of
tire corporatt<)n. thc reclulr'ed nurnber of mcorporators and tire members
,.,f ti.re floard of I)trectors. the kincls of shares of stock aliowed, thc
transfer ()[ stocks in a rval tl-rat it wr>uld be bindrng on ti-rc corporation.
the rssuance, aln()unt and legahw of tirc diviclends, and the powers tncl
duues of the offtcers. stockholders, and mernbers.
7. ttr(/hat law determines the

T'he vahditl
tl.rc

of

Bl

service

of sumrrons

(a) rts resrdenr agent

r

hat purpose;

on:
designated in accordance
wirh

ra*,for

(b) If no such agent, on rhe governrnent official

desrgnated
by law ro thar effect; or
(c) On any of its officers or agents within the philipprnes.
(Sec. 12, Rule 14. 1997 Rules on Civil I'rocedurej.

validity of corporate acts and contracts?

corporate acts and contracts is determined br'

lav of the placc of incorporation and bv the larv of the place of

pertormance. To be vahd and binding, such acts or contracts must bc

authorized bv both larvs. If valid in the place of incorporation but void
in tlre place o[ performance, or atce uer.ra, the vahdiq' of said acts or
contracts is doubtlul and it mav not be griven effect at all, without prejudicc
to the principle oi estoppel (Sec. 119, Corporatton Code; Paras, supra,
and authorities cited, p. a29).

10. suppose a foreign corporation transacts business

without first
,btaining the necessary license, what is the status of its contract?

The conrract

is unenforeceable; i.e.. the corporation cannor sue in

)ur courts until the necessaq' license is obtained. After the
issuance of tire
license, suits mav be instiruted even on the pre-license contrzcts
,

considered vahd ( Marrhell-lV,e/h s, Co. 1,. hher Co., tupre.

which are

8. May a foreign corporation sue and be sued in the Philippines?

But the person who contracted with the corporation may be

considered in estoppel if ire had received benefits from the ..rnr.n.,
;lrietcher, vol. I, cvclopedia of Law of pr-ivate corporations, sec. g520).

Yes, if it has the necessarv hcense to do business here (Sec. 123.

Corporation Codc). The license is required not to forbid the foreign

rvith him without a license?

corporation from perfolnng single acts but to prevent it flrorn acquiring a

domicile for purposes of business u'ithout takrng the steps necessanr to
render it amenable to suit in the local crsutts (hIarcltall W'e 1l.r d:" Co. u. E/vr
Cu.. 16 l'hti. -11
'Iiansacting ol dorng business connotes a continuity of business
dcalings and arrangemenrs (Mentholulum Co. u. EllerCo..72 Phil. 521).

llvcn a single rct or transaction ma); however, l;e an act of

o[ the corporation if it is not merell incidental or

<>rdinalv l>ursiness

blrt of srrcir charactcr as to drsunctlv indrcate n purpose to dc-, other

l>usincss rr tlr(' statc and to make the state a base of operations for thc
conduct ol' a part of tlre forcign corporation's ordinan' business ( R;r
I '.r.sl Jnlrrntltontl lml,rnl tnJ [\Vorr Corporalion Nankai Kogyo Co., Lld., L
"'.

czisual

lli2l. \ot'.

10. l()6:'\.

11.

May a person sue a foreign corporation that transacted business

Yes, because the corporation cannot put rrp by way of defense

tts own failure to comply with the lauz (Gen. Cor. of the phi/.
I/. (J nion In.r.

\ode! of' Canton, 48 OG #1 ,

Jan. 1952, p. 7). But rhe court must be abie
to acquire jurisdiction over the corporadon.
12' If the corporation sells its products in the philippines through
an agent, is that doing business here?

If the forergn corporation sells its products in the phihppines

rhrough a resident rnerchant on commrssion basis. it is rhe merchan,. .r.r,
the corporation, thar is doing business here. But if the foreign corpora-

tion sells its goods in the Philippines througrr an cxclusive ;istnbuung

onl'in behaii

agent, it is doing business here, because thc agent is acung

oi its princrpal (Mentholatan (.0. t'. Man,p!/inaz, supra).

l{E

BUSINESS ASll(r('lAl loNS

coNrLIcroFLAwa

CONfLICTOFLAWS

"usINEss

lit. May a forcign corporation not doing business in the Philip-

allowed to sue on

pines euc?

the cessation

Thus, a foreign corporatioa can ask

ntered into ptevious

to
l1'11lt""ln'.1lif#:T:.""1
enhcal rule should
also apply
p'or to the
of

corporatronis rrcense.
6norur, ,rpr^.

local coutt

the forergn
;d;;;:'-::."t1on.
ronues cited, p.
43g).

B. PARTNERSHIPS

to restrain some Filipinos from organizing a local

corpontion with the same name and the same business
(lYestern Equipnent Supp! Co. a. Rga, 5l Phil. I l r,
provided a similar pnvilege is granted to Philippine
corporations by the plaintiff's home state (Sec. 3,

1.

Vhen does
.1

partnership exist?

partnershrp exists when

two or more Ders^nc l-;_ r -r
bind themselves

to contnbute money, properff

or indus,,v

Rep. Act 8293).

(c) for infringement of trademark or rade-name,

unfair competition or false description of products, and

"?'il$ffi il"1i

; ;i'

p;#'

,,"tPttton'

;;;ffi ;;:T"::(TT? #:3#* i::

infringement of patent (Sec. 160, id.).

3;

14. What about mul 'national or transnational corporations, what

law applies to them?

15. May a foreign corporation be sued after

drawn from busineee in the Philippines?

it

had already with-

on contracts previously entered into by it. After all, fairness

demands that the citizens and residents of the Philippines be affotded the
opportunity to sue thcse foreign corporations locally, instead of requiring
them to sue in thc foreign countries where they are domiciled. By the
same token, thc f<rrcign corporation that has with&awn should also be
Ye s,

like a corporation, have juridic

al

ln the phrhpprles.

pers onatity

parrnership .,has a.;urichcal

personaliry
of the iartners,, (Art. 176g,
id.).

However, in the United

States rnd sorne countries
in Europe

in many countries of the world through branches that have been

incorporated under the law of each country .or state where it has
extended its business, in association with local businessmen. Since they
are incolporated under the local law of each state rvhere they are doing
business, the branches are sE)arate entities govemed by the said local
laws, but in reality, the major decisions in their operation and management
are controlled by theit mother or parent corporation. However, the
branches, having incoqporated in the states where they are established, are
govemed by the intemal law of the said states, and their personal laws are
the local laws of the host states.

l_r.j;!"rtnership,

separare and distinct from les.

that .o.1,

These ate actually branches of a big, mother corporation in a

hfttrly industroli"ed, hrghly developed foreign country but doing business

and Latin America, parrnerships

are nor

with ju.drcal pcrsonalitie.

of tlr.r,

,"g.i.a ;, ;:;.;i.."r
r"Xl;.
.rw-i-.i..', For the purpose
of

tnscrlverrcl proceedings (Sce

Canpo., t\r,r,ao jJ'Co. t: puc.
Cont. Co. 14 phil.
91 6). However.
in the ,T,."0 Sor.J .a^,
, n.-_ ,r_.1. has been developed,

getting away from dre old

common
simply an aggregate of individuar,.
end& distlnct from the partners.

i;;;;;p""n rhar a partnershio rs

;";;;rr* treating ir o ,.porrr.
^,

3. Vhat is the personal

or governing law

of a partnership?

IJke Ph'ippine colporatl.ns,

trre personar or governing
raw of
partnership is the law of

the

Code of Commerce).

countn'#;.";

is creared (See Art.

Thus, marrers iike organiza,.ron,

caDacin
ct., tr., r.,n uirrn,
persons, dissolution" and
wrndrng rp.
personal law or the taw of
^,. ^ttgnl,*n".1
t1.," ,,oi" *h";:;
o

f its

15

;?;il; ;.i; l;:i ;jffi:: ::':,:Xf.:

con tra

;;,

For example. in

teg

to contracrs""'entered into

Ycs. tn (a) rsolated transactrons;

(b; to protect its reputation, corporare nam{and goodwilt

AssocIATIoNs

New

\brk

case wl:ere a

lr.,,

thc partnership,.s

crcated.

limited partner under

CONTLIC-I OF LAWS

150 llllslNl 'rr'. Atrrrl rl lA lll lNrt

CONFLICT OF LAWS

(.rrlr;rrr l,ru, \\',r1, ru('{l tlr l'.1('\r Yrttl'

tot lllcach of contrlrct entefed lnto b\

the liurtted partner

rrl,.nr l),nlnr'r',lrt1, ttr l'Jt's'\irlh .l1 vils irelcl that
enl;rrge thc liabihn'oiwa:, ilr)l lt,rl,l, ,rtr,l llr,rl l\t lr \'"tli l'ltu'c()Llld n()t
\t'il:
ltl('l llll(l( l ( .ttl>rltr lalv sll)IPII bccause tht contfact
a hililtt rl
tlrc

lt,rt

clrt(

f'(

(l f ttl,, trt Nt's \ "rli (irrrlq t'' \''trrju' 6t N)- 2a

4. Whcrc is thc tlomicile

187

'\'S'

of a partnership?

tlrrtlcr,'\rticle 5l of the Nerv Civil Code' the domicile

t-:f

dornesnc cor?orauons'
p^rtncI'sl)ll)s ()r:ganlzcd under Phdippine iarv is' Iike
vhcre thel
:,tl_,.
pl^.., rvhcre their legal representation is estabhshed of
cxercisc their princrpal funcuons"'

but

C)onsequently' a Partnership created in one state

domiciled
conclucts its main business in another state n1a' be considcred
rvhicl.r

RECOGNITION A}{D ENFORCEMENT

OF FOREIGN JUDGMENTS

rn tlle latlel state

of corporations
5. Are the constitutional limitations on the Powers
also applicable to PartnershiPs?
a partnersirip is
Yes, so that unless at least 609'i' of tl're capital of
development
the
tn
owned bv Fihpinos' tl-re partnersl-rip cannot engage
public utilitres'
and exploitatron of our naturai resourccs' nor operate

rvhich is not owned

Netthet can a partnershtp 600''o of thc caprtal of
lancls in the
agricultural
b-v Filiputos o.q,rir. bv putcirase or otherrvrse
Philipprnes.
rn the Philtppincs
Forergn partnerships may be mortgagees of land
acquire said
for 5 vcars, rer"re*nbl. for another 5 )'tn"' but tirey callnot
iand rn a foreclosure proceeding (l{ep' Act No 133)'

a receiver for a foreign Partnership

with respect
the PhilipPines' does the receiver also act as such
assets of said partnership in its home state?

6. If a PhilipPine court appoints

in
to

Ntl.lxcntlsctlrc.ar.rtlrolttl'oItlrcrcceir,erison]r.wrdrintlreterrit<>rial
of tlre
l)lrrlrpPln('s, or co-cxtensive vitl-r the ir.rrisdiction

boriDdarit,. rrl'tht'

court that irpPorr-rtctl lrirtr'

for the recognition and enforcement of

foreign iudgments bv the forum?

1. What are the reasons

The teasons are basicailr- thc sar:re as recognitton by thc forurn

of tire proper foreign lawl and thc exceptions to the apphcauon of the
proper forergn law or comin'are also appltcable to foreign judgments.
2.

Distinguish enforcement from recognition of foreign iudgments.

Enforcement means that the plaintrff or petitloner wanrs the

out and make effective the foreign judgment.
',vhiie recognition rneans that the defendant or respondent is presenting
the foreign judgment merelv as a defense, on the basis of ru judicata.
(a)

court to

p<-rsitrvelv carr\,'

(b) Enforcernent implies an act of soverergr)t\': rcc(,gnlu()n il)of iustice (Perkin t'. Ilenpae/ C,onrolitktd hlintng(.0..
L-|981-82, May 28, 1951).
volves merelv a sense

(c) Enforcement reguues a scpar:rtu acuon ()l procecdir,g brouglrt

preciselv fo make tirc fcrreign judgnrcr.rt cffccuvc: rcc<>gnition, berng a
()r pr'occcriinu but imphes that an
matter o[ defense, necds no
^cti()n
action or proceeding has alrcadt' becn hled
tire defcndant rvho is
^galnst
invokrng the frrreign iudgment.

152

CONFLICT OF LAWS

l{l;( (,(;Nt I l(lN ANI) llNt'()I{CFIMENT

RECOGNITIONANDENFORCEMENT

nllt()r (l()(:' llol

ll('( (l or tltrt's not tequlre etlforcement'

l',xirlrr;rlt: of tecognition: An Americarl presents a forergn decree

clrr,,rt t :rs :r tltictrse in a case for btgarnv zgalnst him rn the

l)hih111rtrrt's.

153

oF FORETGNTUDGMENTS

()t, troRt,t( ;N ll tl t(;MliN'l's

(tl) l,.rrtof ( (.il1(.il1 c?tnnot extst rvithout recognluor], v'htie recog-

oi

CONFLICT OF LAWS

on a criminal! revenue, or administauve lnatter.

(c) There must be no lack of iurisdicuon. no wanr of nouce. no

collusion. no clear mistake of larv or fact I Ruie 39, sec. 48. 1997 Rules on
Civil Procedure).
(d) The foreign iudgment lnust not conraveoe a sound and

lixampleofenforcement:AFitipirrawhoi-radbeendir'orced
bv hcr alicn husband under Art' 26 of the Familv Code and who rvas

to
cle,lcd bv the iocal civil regrstrar a rnarriage license for hct to be able
official
said
n-rarrv agaln, hles an actlon with the proper: court to cornpel
to issue to her a marriage license on thc basis of the divorce decree
obtarned from.her l:v her alien husband'

3.Forwhatreasonorreasonsm^v^localcourtinthePhilippines
refus to recognize or enforce a foreign iudgment?
(a) The requisite

becn prcsented.

proof of the forergn judgment mav not

have

Tire tnanner of ptovlng a foreign iudgrnent is the

samc 2s proving a foretpp

Rules

J211'

(I{ule 1i?' sec' 25' Revised

of Court)'

(b) The foreiEn iudgment rlav conravene 2 recognized and

cstablishecl policv in oul country.
An exampie is a foreign decree o[ drvorce obtarned
abroad; oI a foreign
bv a l;iliptno from iris Fiirpino
"r"rfe
babv to t]rc Filipino
a
o[
custodl
jrrclgrr.rent awardrng thc
f

irthcr'. not to thc Filipino motirer'

'l'lrc irtlrrilrrtslr.irtton o[iusticc in the countn v.there the foreign

or not beyond
lrrrillnrcrrt ( lttll(' ll()lll ttt;tY lrt' shockrngly corrupt
(t.)

established public po[cv

of the forurn.

(e) The judg'rnent must be ret.iudirata; i.e.. the judgment must bc

final; dre foreign court must have iurisdicuon over the subject marter and
the partres; the judgrne nt rnust be on the rnerits; and tllere was idennn' of
partres, subject lnatter, and cause of actron.

of Civil Procedure provide on

the effects of foreign iudgments in the Philippines?
5. $/hat exactly do the 1997 Rules

Sec. -18, Rule 39, 1997 Rules on Crvil Procedr.rrc provrdes:

"Tl're effect of a iudgment or Final order of a tribunal

oi a forergl countr\", having jurisdicuon to rendcr the
judgment or final order, is as folkrv,s:
(a) In case of a judgn.rent <.rr tlnal ordcr upon a
speciiic thing, the iudgment or hnrl order is conclusive
upon the trtle to the tlring; and
(b) In case of a judgrnent or Ftnal ordcr against a

person, the judgment or final order is presumptivc

an

:;:*::,:,:T':,LT. :"-:"*
In eithcr .n.",

al-,.

:li"""
"'H,

d'lhe ir

judgmcnt or final r>rcler mar

be repcllcd bt' evidence of a waut <-l[ jurisdicriolr, \r'anl

oi notice to tire par6,, collusion, fraud. or clear nristak<
of larv or fact".

rt'1 I rr ,,tt-l t

rl,r't' l);tul.. srrllrlr.

11.

75)

whar irfc tltc (.r,n(litir,trr .rf r..(luifr:mctrts bcfore a local court in

the PlrilipprlrrI ('lll ettftrrt'r ot tt't'ttgtrizt t firrcign iudgment?

4.

(:r

I lltllr

ttrtt',t

l"

'trlt'r1tt,rlt'

pirrol ol tlrc lirrcttl-t judgment'

(l,l Ilr, ;,t,l1,tlt,lll lllllnl ltt "ll;tt11'11 rrl t"ttttltt'tctal matl(:r' n()t

6. \$[ihat are the differences between the effects of a final iudgment

or ordCr under the above rule, and the cffects of such iudgment or
order under the former Sec. 50 of Rulc 39 of thc llevised Rules t,l'
Court, which the foregoing Rule in tlre 1997 Rulcs of Civil Procc'
dure amended?
(a) Under thc forrner Sec, 50

of Rule

39

of

the ltevrscd Rules ol

t54 It'r t't.NllllrNANlrlN]l|Xr ]MFNt

(lt lr lll ll(,t{ ll rl il.Ml!N I E

(.(llill

r oNt't

tt I ([,I Aw\

I'rt{ l,rtt lrtrllrltlr ltl tfl rtt4 (t i ,l lilrllrtil(il1 'rl ,r lrrt(.tptt ( Qlltl illroil
?l sl)('( rltr lltttr!'t rt,,r', rrltr,r,lt , lil'rlrlrtt rl r ililr lilrit\,( illxrtl llt(. ltllr. to tlr<.
,r

tlrr rvlt,,lr r,r,,,rlrl, lrr,rvtrl<'<l lltr.lrrr

llIl|
lo
lrtttrrltr
lrtr)tilrililr r' ,r,il(l lil(ll'ilrrttl

tlltttt'. lr',rtlltt1,
('1l1lt ( (,ult lr.rrl

11

1, Irttr,ltttl!, itfrttttt,,t

lltrtlrt scr. ,lll. lLulc 1(), ol tlrc l()()/ l{rrlt.:, orr (,tvtl l)ror-t:tlufc,
ltou,t'r''r'r. itll ;rrtl1|ttcltls (,t ()t'(l('rs ol lor<'t1'rr ( oulli\, wllt'llrcr rn rcn ot itl
Penonutt, ilr(' c()nsidrrccl rncrclv fnrnil filtr( ( )r l)r('sunll)lrv(. cvrclcncc of a
right bctwcr:n the partrcs at)d th('rr su(( cssr)ts ut ult('r('st Iry a subse<1ucnt
ude, arrd both kinds of ;udgmcnts,rr('riul)l('('t to tlrc tlrlcnscs of want o[
jurisdrction on tbe part of thc foru:r11r c()rrrt. w,ult o1'notrcc to the defendant or respondent, collusion, fratrrl or t:lt:ar rlrstake of law or [act.
@) The formcr Scc. 50 of Rr.rlc 39 of the Revised Rules of
Court covered only final judgments. Sec. 48, Rule 39, of the 1997 Rules
on Civil Procedure, includes final orders. Both, however, must comply

with the rules on hnahry of judgments or orders; i.e., the ruies of

.fad.tcata.

**************)k*

rer

qn['

'rj'"':?slw
', i. ,r i, l"

CABAIAIUAN CIIY