Professional Documents
Culture Documents
45
A BRIEF EISITORY OF CONTI,ICT OF LITWS
Chapter'l
PRELIMINARY
CONSIDERATION
INTRODUCTORY
PROBLEM
If in a moment of deep infatuation, a Filipino gets married
in
I:tq- to a lovely, midi-skirted female ro- "t ir"Ito* rr"iti, trr"
following questions may rigitfirny be asked: rbe law
or wuicn
puntrry will govera the rralidity of the marriage? which particular
"":"-. yil-l sovern their personal righ; ""d "bld;;;
Pg* *
n'sDand and wrfe, assuming the marriage to be valid? How
about
their matrimonial property relations?
the responsegto_theseregar interrogations will, insofar
as we
*":"Td, depend,_toa rrery great ejent on theappli"."tioo
T of
what gl'att be referred to in thi; hunble heatise *'piifi,ppi",.
of Laws (otherwise called philippine private I"t";ff;
3+"
IraWr.
rii
PTIIIJPPINE CONTLICf OF IAWS
PBEUMINARY CONSIDERATION
gtill to be manufactured in " ini"a state, and to.be delivered at a reference to their wages and personal property. Upon the other
hand, in North Carolina, for an oral will to be valid, there
given port of a fourth state. should legal so"'plications ensue, which
must be at least two witnesses at the time it is uttered; the
of the countries involved will have jurisdiction over the case, and
will must have been made during the testator,s last sickness,
which state's laws will be applicable?
and either in his own residenceor where he had previously
"Briefly stated, $'e may say resided.
that the subject is importJnt in
order:
(2') In thc Motter of Marriage
(a) to adjust canflialiqg rights in international, mereantile
and corporate transactio.f; an4 In the Philippines and in Anerica, monogamy is practised;
in Moslem countries, a mah may generally have as many as
(b) to solve personal, famiiy, property, and successional, four wives, provided he has the capacity to take care of them;
contractual problems, possessedof facts or. elements in Mustang, Tibet, on account of the scarcity of females and
operating in two or mone states. the sterility of the agricultural soil, a woman is allowed to
have several husbands,usually brothers. Moreover somestates
BASIC CAUSE FOR CO;FLrcTS PROBLEMS recogaize marriages omortis causa, (effective after death) as
'Conflicts problems' when, for sentimental reasons, a girl is married to the corpse
come into being through uarihnce in the of her lover. In the Philippines, we glve eftect only to marriages
muaicipal laws of the countries involved. Indeed, the sad truth is in "articuLo mortis" (at the point of death).
that there is a 'nultiplicity of govemments with separate legal
systems." (Leflar, op. cit. p. 13).As a matter of fact, a single etate, (3) In th.e Motter of Divorce
such a.sthe United States or Switzerland, may even have teritorial
suHivisions (nlsq refen€d to as states), each of which has its own The Civil Code of the Philippiaes does not recognize
iDt€rnal or local legislation; in other states, such a8 h€q_(pTlgf_!9_ absolute divorce; almost all North American States grant it. It
its partition), different systems of law.may govenr differenticlasses: should even be noted that in New Hampshire, as well as in
one Erstem may apply exdusively to Mohnmmedans;anotber qrstem, Kentucky, membership in a religious sect which prohibits or
to the Hindue. interferes with marital duties is a good ground for absolute
divorce.
And even aasuming that the l,awe i;' various countrieg ate
uniforoly the sqge, gtill different municipal tribll+lls nay give @) In the Motter of Incontc Tat Eremptions
identical laws var5ring interpretations.
In the United States members of the judiciary are not
Ihis is no surprising. Muaicipal legialation,.by ita very nsture, exempted from the payment of income tax on their salaries as
tende to be diverse because each gloup'of 'people,is virtually a judicial officers on the theory that they pay the ta+ not os
nation in itself, with a cailture, a language, and a'ruligion peculiady judges but as privatc citizens.In the philippines, under tJre
its own: with varying moodg and national tempera; with distinctive 1935 Constitution, salaries of members of the judiciary were
customs, haditions, ideals and beliefg. u,empt from income taxation on the premise that a contrar;r
mle would result in the diminufion of the salari€s, snfl would,
?T1 . therefore, contravenethe Constitution. Be it noted, however,
EHf,IPLES OF DIVERSITY IN I-AWS
AI{D INTERPRETATIONS that under both the 1973 and 198? Constitutions, thie
I -"v exemption hae been eliminated. Thus, in Nitafan v. Com. of
(1) In t E Aeft.r of WIlb Intcrnol Reuenrn,G.R. No. 787&0,July 28, lg8?, the Suprerne
In ,tbc 'Philippinoa, oral wilb 'arc.not tllorcd;.,1n Court held that "the true intent of the framers of tne fggZ
. P..sacLu$ttq.US-A., an oral wilt it ytdldonly tfcccntcd by constitution . . . was to make the salaries of the members of
sdldicm lD rctul ecrvice or by marinerr at rea and only with the Judiciarytaxable."
PHILIPPINE CONH,IT OF,IAWS PRELIMINARY CONSIDERATION
The sigDificant thing to bear fu1rnind is the stress underlying each States, reference to the
d
THE INDIRECT
SOURCES natural resources shall be under the full control and
(f) The Neturo.l Moral Lou supervision of the State. The State may directly undertake
such activities, or it may enter into co-production,joint venture,
Tbe natural moral law is that rule of human conduct or production-sharing agreements with Filipino citizcns, or
implanted by God in our nature and in our conscience,urging corporations or associationsat least sixtyper centum of whose
us to do whatever Ls right and avoid whatever is evil. capital is owned by such citizens. Such agreementsmay be for
a period not exceeding twenty-five years, renewable for not
(2, Works of Writen more than twenty-frve years, and under such terms and
conditions as may be provided by law. In ca*es of water rights
- -41aory the famo-us writers on the subject may be cited for irrigation, water supply, fisheries, or industrial uses other
the following:
than the developrnent of water power, beneficial use may be
(a) Westlake - frivate Interaational Law" the measure and limit of the grant.'
(b) Falconbridge - "Essays on the Conflict of Laws'
R€call that under the Parif A:nendment to the 1935
(c) E. Rabel - "The Conllict of Lawe'
Constitution, the patrimoniat rights refened to were extended
(d) J. Story - 'Ccmmentaries on the Conflict of Laws"
to Americans. This was by virtue of an ordinance appended to
(e) H.F. Goodrish - sCenflict of Laws" the Constitution in 1947-The arrangement embodiedin an
(f) G.C. Cheshire - Sivate Intemationat Law- Executive Agreement between the hesident of the Philippines
G) J.H. Beale - 'Conflict of Laws" agd the President of the Unit€d States and entered into on
(h) RC. Minor - 'Qsnflidt of Lawso July 4, 1946 did not continue beyoud July 3, 1974.
(i) W.WW' Cook -'I*gal and Logical Basesof the Conl1ictof
In Pedro R. Palting u. San JosePetrclcu.rn,ItLc.,(L-L444L,
Laws" o ^ Dec. 17, 1966), the Supreme Court, thru Mr. Justice Jesus
0) E.G. LorenzeD. - "Cases en Qenfligt of Laws'
Barrera held that an American citizen (natural or juridical)
(k) Graveson - "Conflict of Laws" can take advantage of parity only if in his own particular
Itre above-mcntioned legal scholars are considered sourcea state in the United States, riChts are granted Filipino
(indirect) of Conflict of Laws insofar as their writings have citizens (whether natural or juridical).
inflqgnssd judicial decisions on the subject.
After Cheexpiraticn of Parity Rights, the Government
deciiled to grant American entities a grace period ending May,
THE DIRECT SOURCES 1975 whereby lots acquired by them would cither be actually
disposed oi or made the subject matter of pla.s which would
(f) Corutitutions dispose of them eventually.
In Philippine Conflict of Laws, the Philippine Constitution Later, in June, 1975, Presidential DecreeNo. 713 was
plays a fundamental part. For instance, it enumeratcs the issued granting three types of American citizens, who had
citi2ens of the Philippines. (Art. IV, lgSS Constitution; Art. acquired private residential lands for fanily dwelling purposes
III, 1973 Constitutian ond, Art. IV, lgBT Constitution). Also before July 3, 1974 permission to continue holding such lands
Art. XII, Sec. 2 of the 198? Constitution is explicit, reading in (up to 5000 square meters only, however) and to transfer ttreir
' part: "All lands of the public domain, waters, minerals, coal, ownership to qualified persorur aud entities. These three (3)
petroleum, and other mineral oils, all forces ofpotential energr, types of Anerican citizens are the following:
fisheries, forests or timber, wildlife, flora and fauna, and other
natural nes)urces are owned by the State. With the exception i) those who were formerly Filipino citizens;
ofagricultural laads, all other natural reso'nceEshall uot be
permanentresidentsof the
2) thosewho have become
alienated- fire exploration, development, and utilization of
Philippines; and
PRELIMINARY CONSIDERATION
16 PHILIPPINE CONFLICT OF I.AWS t7