Chapter I

IN GENERAL

1. Define Conflict of Laws.

It is that part of law which comes into play when the issue before the court affects some fact,
event or transaction that is so clearly connected with a foreign system of law as to necessitate recourse to
that system (Cheshire, Private International Law, 1947 ed., p. 6).

Conflict of Laws embraces those universal principles of right and justice which govern the courts
of one state having before them cases involving the operation and effect of the laws of another state or
country (Minor, Conflict of Laws, 1901, p. 4).

Conflict of Laws is that part of the municipal law of a state which directs its courts and
administrative agencies, when confronted with a legal problem involving a foreign element, whether or
not they should apply a foreign law or foreign laws. (Paras, Phil. Conflict of Laws, 1996 ed., p. 2).

2. What is a Conflict of Laws case?

Any case which involves facts occurring in more than one state or nation, so that in deciding the
case, it is necessary to make a choice between the laws of different states or countries, is a Conflict of
Laws case.

3. When the word "state" is used in Conflict of Laws, what does it mean?

It includes not only foreign sovereign countries or states but also political subdivisions of states
or countries which have their own legal systems, such as the different states
constituting the United States of America, the federal states of Australia, Canada, Mexico, Brazil and
Germany, etc.

4. Why is this subject more important in recent times than in the past?

With the fast advance of modern technology in the means of communication between and
among states, the rapid growth and expansion of international trade and commerce, the influx of tourists
arid foreign traders to our country as well as the massive migration of our countrymen to work and live in
foreign shores, the great increase of business transactions of foreign corporations in the Philippines, all
these bring about many and varied problems in Conflict of Laws. Hence, the necessity not only for
lawyers and judges but for our citizens as a whole to study this subject as an important department of
law.

5. Is Conflict of Laws part of International Law?

No. Although it is sometimes thought of as part of International Law because of the presence of
a foreign element in a given problem, it is not international in character but is part of the municipal law
of each state. By “municipal law” in Conflict of Laws is meant the internal or local law of each state, since
every state has its own internal or local system of law, so each state also has its own conflict of laws.

6. What is the reason for the diversity of conflicts rules among the different states of the world?

This is because each group of people have a language, culture, mores and customs, religion,
ideals and beliefs, peculiar to such group, which are reflected or expressed in their laws and legal systems.
For example, while the great majority of the countries of the world allow absolute divorce, our country
still has not legalized absolute divorce. And while some countries are very liberal in granting divorces,
others are not so liberal.

7. Distinguish Conflict of Laws from Public International Law.

(a) As to persons involved: Public International Law governs sovereign states and entities that
are internationally recognized or possessed of international personality, such as the United Nations
Organization; while Conflict of Laws governs private individuals or corporations.

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 (b) As to nature: Public International Law is international in character; Conflict of Laws is
municipal in character.

(c) As to transactions involved: Public International Law applies only to transactions in which
only sovereign states or entities with international personality are concerned and which generally affect
public interest; while Conflict of Laws deals with transactions strictly private in nature, in which the
country as such has generally no interest.

(d) As to remedies applied: In a dispute between sovereign states or international entities or in

case of a violation of International Law, the concerned states may first resort to peaceful remedies like
diplomatic negotiations, mediation, inquiry and conciliation, arbitration, or judicial settlement by
international tribunals like the United Nations. If these remedies fail, the states concerned may resort to
forcible remedies like severance of diplomatic relations, retorsions, reprisals, embargo, boycott, non-
intercourse, pacific blockades, collective measures under the UN Charter and finally, war.

In Conflict of Laws, recourse is had to judicial or administrative tribunals in accordance with the
rules of procedure .of the country where they sit.

8. What are the sources of Conflict of Laws?

Direct sources: Bilateral and multilateral treaties and international conventions; constitutions;
condifications and statutes; judicial decisions; and international customs.

Indirect sources: the same as other branches of law: among others, the natural moral law, and
the writings and treatises of thinkers and famous writers and jurists on the subject.

Chapter II

JURISDICTION AND CHOICE OF LAW

1. How does one deal with a problem in Conflict of Laws?

(a) First, determine whether the court has jurisdiction over the case. If it has no jurisdiction, the
case should be dismissed on that ground. If it has jurisdiction, the court will determine whether it should
assume jurisdiction over the case or dismiss it on the ground of forum non conveniens. Of course, it is the
law of the forum that determines whether the court has jurisdiction or not over the case.

(b) Once the court has determined whether it has jurisdiction over the case, it will next determine
whether to apply the internal law of the forum or the proper foreign law, considering the attendant
circumstances.

2. How does the court determine whether it has jurisdiction over the case?

There are three kinds of jurisdiction: (a) jurisdiction over the subject-matter, (b) jurisdiction over
the person, and (c) jurisdiction over the res.

Jurisdiction over the subject-matter:

Jurisdiction over the subject-matter is conferred by law and is defined as the power to hear and
determine cases of the general class to which the proceedings in question belong.

(a) Since jurisdiction over the subject matter is conferred by law, it cannot be conferred by
consent of the parties or by their voluntary submission.

(b) In the Philippines, jurisdiction over the subject-matter is found in the Constitution and the
Judiciary Reorganization Act, as amended (Judiciary Act of 1948; Batas Pambansa Blg. 129, as amended
by Rep. Act 7691).

(c) Since jurisdiction over the subject-matter exists only in the abstract, it must be invoked by
filing the proper complaint or petition with the court. And it is the allegations of the complaint or
petition read in the light of the proper jurisdictional law, that confer jurisdiction on the court. If the

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allegations of the complaint show prima facie a lack of jurisdiction, the court must dismiss the case
outright. No preliminary hearing on the evidence is needed. If, on the other hand, the complaint or
petition, on its face, shows the presence of jurisdiction, trial must be held. Should the evidence show that
the court really has no jurisdiction, the case must be dismissed.

(d) In the realm of Conflict of Laws, however, there is another element which the court must
consider in determining the matter of jurisdiction; i.e., the possible enforceability of its decision in foreign
states, subject to the rights of said states (see Fenwick, International Law [1948], p. 342). This is because
in Conflict of Laws, jurisdiction is the power of the court of the forum to render a decision that will
create legal rights and interests which other states will recognize and enforce.

Jurisdiction over the Person:

(a) Jurisdiction over the person is the competence or power of a court to render a judgment that
will bind the parties involved: the plaintiff or petitioner, and the defendant or respondent.

(b) Jurisdiction over the plaintiff is acquired the moment he invokes the power of the court by
instituting the action by the proper pleading. Jurisdiction over the defendant is acquired when he enters
his appearance or by the coercive power of legal process exerted by the court over him.

A plaintiff, under the rule of submission, may sometimes by filing suit with the court be deemed
to consent to its exercise of jurisdiction over his original cause of action including counter-claims filed by
the defendant, and he would then be subject to the judgment of the court. As for the defendant, his
personal appearance or appearance by counsel is tantamount to his giving consent to the court's exercise
of jurisdiction over his person, except if his appearance or that of counsel is for the sole purpose of
questioning the jurisdiction of the court.

(c) Jurisdiction over the defendant may be acquired through his voluntary appearance, as already
stated, or by personal or substituted service of summons on him under the Rules of Court. This is
referred to as the coercive process in the manner provided by law.

Personal service: “Sec. 6. Service in person on defendant. -Whenever practicable, the summons
shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive and sign
for it, by tendering it to him.” (Rule 14, 1997 Rules on Civil Procedure)

Substituted service: “Sec. 7. Substituted service.- If, for justifiable causes, the defendant cannot
be served within a reasonable time as provided in the preceding section, service may be effected (a) by
leaving copies of the summons at the defendant's residence with some person of suitable age and
discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of
business with some competent person in charge thereof.” (id.)

Strict compliance with the above rules is required before the court can acquire jurisdiction over
the person of the defendant (Pantaleon v. Asuncion, 105 Phil. 761; Sequito v. Letrondo, 105 Phil. 1139). Thus,
service on a 12-year old daughter of the defendant is not valid substituted service because of the child's
lack of suitable age and discretion (Sequito v. Letrondo, id.). However, the question of erroneous service of
summons must be raised before judgment is rendered, or this would be a clear case of waiver (Jaranilla v.
Gonzales, 96 Phil. 3) Moreover, defective service may be cured by actual receipt of the summons by the
defendant, or if in any other manner, knowledge of the existence of the case should come to his attention
(Sequito v. Letrondo, id.).

Jurisdiction over the Res:

Jurisdiction over the res or thing is jurisdiction over the particular subject-matter in
controversy, regardless of the persons who may be interested therein. The basis of the exercise of this
jurisdiction is the presence of the property within the territorial jurisdiction of the forum, even though
the court may not have personal jurisdiction over the persons whose interests in the property are
affected. This is because the purpose of the suit is not to impose a personal liability on anyone but it is to
affect the interests of all persons in a thing. Examples are land registration cases and admiralty cases
where the purpose is for the judgment to bind the whole world insofar as the subject land or vessel is
concerned and not just the interests of specific persons. This kind of jurisdiction is referred to as
jurisdiction in rem, as distinguished from jurisdiction in personam which binds only the parties and their
successors-in-interest.

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 What about actions quasi in rem? In an action quasi in rem, the purpose is neither to impose a
personal liability or obligation upon anyone, nor to affect the interests of all persons in a thing, but to
affect the interests of particular persons in a thing. In such case, the court may render valid judgment
when it has jurisdiction over the particular persons whose interests are affected. Examples are
foreclosure of a mortgage, partition of land, or an action to quiet title to property. An action affecting
the personal status of the plaintiff is also classified as an action quasi in rem under Rule 14, sec. 15 of the
1997 Rules on Civil Procedure. In actions in rem, actions quasi in rem, or those involving the personal
status of the plaintiff, extraterritorial service of summons by publication is allowed.

3. How may service of summons be effected?

In actions in personam, service of summons may be by personal service or substituted service, as

pointed out above. Service by publication would not be sufficient, whether the defendant is in the
Philippines or not (Pantaleon v. Asuncion, 105 Phil 761).

When, then, is service by publication allowed? Summons by publication is authorized only in

three cases:

(a) If the action is in rem;

(b) If the action is quasi in rem; or
(c) If the action involves the personal status of the plaintiff.
(Rule 14, sec. 15, 1997 Rules on Civil Procedure)

When may extraterritorial service of summons be effected? Sec. 15, Rule 14, id., provides for
four instances wherein extraterritorial service of summons may be made; namely:

(a) When the defendant does not reside and is not found in the Philippines, and the action
affects the personal status of the plaintiff;
(b) When the defendant does not reside and is not found in the Philippines, and the action
relates to or the subject of which is, property within the Philippines (real or personal), in
which the defendant has a claim a lien or interest, actual or contingent;
(c) When the defendant is a non-resident but the subject of the action is property located in the
Philippines, in which the relief demanded consists, wholly or in part, in excluding the
defendant from any interest therein; and
(d) When property of a non-resident defendant has been attached in the Philippines.

In the last case, however, while a writ of attachment may be issued by the court upon
application, said writ cannot be implemented until the court has acquired jurisdiction over the
non-resident defendant, for without such jurisdiction, the court has no power and authority to
act in any manner against the defendant, and any court order to that effect will not bind said
defendant (Davao Light and Power Co., Inc. v. C.A., 204 SCRA 343 [1991]).

How may extraterritorial service be effected?

Such service may, by leave of court, be effected:

(a) By personal service as under sec. 6, Rule 14;
(b) By publication, but copy of the summons and the order of the court must be sent by
registered mail to the defendant's last known address;
(d) In any other manner that the court may deem sufficient. For example, by registered mail
(Midgely v. Fernandez, 64 SCRA 23).

4. Illustrative cases on the problem of jurisdiction:

(a) Mar, a Filipino permanent resident of California, USA, came to the Philippines or vacation.
While here, he had an affair with and impregnated Rose. Learning of Rose’s pregnancy, Mar took the
first available plane to the U.S. If, after the birth of her child, Rose files an action against Mar, who
happens to have some properties in the Philippines, for. recognition of her child with support, would the
action prosper, summons having been served on Mar only by publication?

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 As to the recognition of Rose's baby, yes, because that is an action that affects the status of the
child, so that summons by publication would be sufficient for the court to acquire jurisdiction over Mar
(Sec. 15, Rule 14, 1997 Rules on Civil Procedure).

But the demand for support of the child against Mar will not prosper, because it would be a
judgment in personam, and summons by publication would not give the court jurisdiction over Mar.

(b) Joe, a Filipino non-resident, married Susan in the Philippines while on a short vacation here,
without revealing to Susan that he is already a married man. After Joe's departure for his foreign
residence, Susan filed against, him an action for the declaration of the nullity of their marriage and
damages, as Joe happens to have some properties here. Upon the filing of her petition, Susan also asked
the court for a writ of preliminary attachment against some of Joe's properties in this country. Would
Susan's action for declaration of nullity and damages against Joe prosper, summons having been served
on the latter by publication?

For the declaration of nullity of marriage, yes, because that asks for a declaration of the personal
status of Susan, equivalent to an action quasi in rem.

But as to the demand for damages with a writ of preliminary attachment, it was held in the recent
case of Davao Light and Power Co., Inc. v. C.A., supra, that while the court could issue said writ, it cannot be
implemented until the court has acquired jurisdiction over the non-resident defendant, which can be
done only by personal or substituted service of summons on the latter, because a judgment for damages
is a judgment in personam.

(c) X, creditor of Y (a resident of Spain), filed an action against Y for the foreclosure of
mortgage over a property given to him by Y as security for the payment of a debt contracted by Y while
he was in the Philippines. In his action, X also prayed for deficiency judgment in case the property
mortgaged would not be sufficient to satisfy the debt. Again, summons was served on Y by publication.
Would the action prosper?

As to the foreclosure of mortgage, yes, because it is an action quasi in rem. But as to the demand
for deficiency judgment, no, because it is asking for a judgment in personam against Y.

5. Mention other points to remember on the matter of jurisdiction:

(a) Once the plaintiff files an action before a Philippine court, whether he be a Filipino citizen or
a foreigner, a resident or non-resident of the Philippines, he submits himself to the jurisdiction of the
court and puts the judicial machinery into action. Hence, he is now subject to any counterclaims, cross-
claims, etc. that the defendant may put up under Philippine law. In choosing a particular forum, the
plaintiff has accepted the entire judicial machinery of the forum completely, so that he must accept not
only its benefits but its burdens as well.

(b) As for the defendant, he becomes subject to the court's jurisdiction as to all subsequent
matters in the same suit, like appeals. And even if he leaves the state of the forum prior to the final
determination of the action against him, jurisdiction of the court over him continues.

6. Explain why the court may refuse to exercise jurisdiction over a case on the basis of the
principle of forum non conveniens.

As has been said before, even if the court has jurisdiction over a conflicts case, it may, by
invoking the principle of forum non conveniens, refuse to exercise or assume that jurisdiction, in view of any
of the following practical reasons:

(a) The evidence and the witnesses may not be readily available in the forum;
(b) The court dockets of the forum may already be clogged so that to permit additional cases
would hamper the speedy administration of justice;
(c) The belief that the matter can be better tried and decided in another jurisdiction, either
because the main aspects of the case transpired there or the material witnesses have their
residence there;
(d) To curb the evils of "forum shopping"; i.e., the non-resident plaintiff might have filed the
case in the forum merely to secure procedural advantages or to annoy or harass the
defendant;

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 (e) The forum has no particular interest in the case, the parties not being citizens of the forum or
are residents elsewhere; or the subject-matter of the case evolved somewhere else;
(f) Other courts are open and the case may be better tried in said courts;
(g) The inadequacy of the local judicial machinery for effectuating the right sought to be
enforced by the plaintiff; or
(h) The difficulty of ascertaining the foreign law applicable.
(See Stimson, Conflict of Laws, pp 348-352; Canada Malting Co. v. Patterson Steamship, 285 U.S.
413. 423; Heine v. New York Ins. Co., 45 Fed. (2d) 426)

Example: Several German citizens brought insurance claims against the New York Life Ins. Co.
on insurance policies issued in Germany. Although the plaintiffs were citizens and residents of Germany
and defendant was a New York Corporation, suit was brought in Oregon, U.S.A. where defendant had an
agent on whom summons was served.

Issue: May the Oregon court, in the exercise of its discretion, refuse to take cognizance of the
case?

Held: Yes, on the ground of forum non convenience because:

(a) Both parties were non-residents of the forum;
(b) The courts of Germany and New York are open and functioning, and service can be made on
the defendant in either jurisdiction;
(c) To require defendant to defend the action in the forum would impose upon it great and
unnecessary inconvenience and compel it to produce records and papers which were of daily
use in its current business;
(d) The case could consume months of the time of the court, resulting in delay, inconvenience,
and expense to other litigants who are entitled to invoke the court's jurisdiction. (Heine v. New
York Ins. Co., supra)

Warning: Remember, however, that the doctrine should generally apply only if the defendant
is a corporation. For if the defendant is an individual, the proper forum may not be able to acquire
jurisdiction over him (for example, he might not be residing there), thus leaving the plaintiff without any
remedy (Stimson, supra).

7. After the court has acquired jurisdiction over a conflicts case and has decided to assume that
jurisdiction, when is it bound to apply the internal or domestic law (lex fori)?

There are at least three (3) instances when the forum has to apply the internal or domestic law
(lex fori) in deciding a case in conflicts of law, viz:

(a) When the law of the forum expressly so provides in its conflicts rules;
(b) When the proper foreign law has not been properly pleaded and proved;
(c) When the case involves any of the exceptions to the application of the proper foreign law;
(i.e., exceptions to comity).

8. Give examples of cases which require the application of Philippine internal or domestic law
(lex fori).

(a) Whenever land involved in the suit is located in the Philippines, Philippine law or the lex situs
is applied (Art. 16, first par., New Civil Code)
(b) Regarding the property relations of the spouses, Art. 80 of the Family Code provides that in
the absence of .a contrary stipulation in a marriage settlement, the property relations of the
spouses shall be governed by Philippine laws, regardless of the place of the celebration of the
marriage and their residence. The only exception is when both spouses are aliens.
(c) When a Filipino father with American children (who became such under the rule of jus soli)
dies, his succession shall be governed by Philippine law (sec. par., Art. 16, New Civil Code).
(d) If a will executed by an alien abroad is revoked in our country, the revocation must comply
with the formalities of Philippine law (Art. 829, New Civil Code).

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9. Explain why the foreign law cannot be applied if it has not been pleaded and proved.

This is the second case wherein the internal or domestic law of the forum (lex fori) will be
applied; that is, when the proper foreign law has not been properly pleaded and proved. The reason
is that our courts cannot take judicial notice of foreign laws. So that if the proper foreign law is not
pleaded (in the complaint or petition, or in the answer or any other responsive pleading) and is not
proven as a fact, the court has the right to presume that the applicable foreign law is the same as the
internal or domestic law of the forum and should, therefore, apply the latter law (Adong v. Cheong Seng Gee,
43 Phil. 43; Sy Joc Liong v. Syquia, 16 Phil. 137; Lim v. Collector, 36 Phil. 472; Fluemer v. Hix, 54 Phil. 610; In re
Testate Estate of Suntay, 95 Phil. 500).

(a) In connection with the foregoing question, how is a foreign law proved under our
Rules of Court?

If the law is written it may be proved by:

(1) An official publication thereof, or

(2) A copy of the law attested by the officer having legal custody of the record or by his
deputy, accompanied by a certificate of any Philippine embassy, consular, or foreign
service officer in the foreign country where the record is kept, and authenticated by
the seal of his office. (Rule 132, sec. 25, Rev. Rules of Court)

If the law is unwritten, it may be proved by:

(1) The oral testimony of expert witnesses, or

(2) By printed and published books of reports of decisions of the country involved, if
proved to be commonly admitted in its courts. (Rule 130, sec. 45, id.)

(b) What is meant by the “processual” presumption of law?

This rule means that when the proper foreign law has not been properly proved, the
court of the forum may presume that said foreign law is the same as its local or domestic
law, which it can now apply.

10. How is a foreign law that has been duly pleaded and proved to be interpreted by our courts?

As a general rule, a foreign law that has been duly pleaded and proved should be given by our
courts the same interpretation as that given by the foreign tribunals of the country where the law comes
from.

A possible exception is a case where somewhere in our laws, there is a statute worded identically
as the foreign law, so that our courts cannot be blamed if they disregard the foreign interpretation of said
foreign law and give it the same interpretation previously given by our courts.

11. When a case involves any of the exceptions to the application of a foreign law, the rule is that
the foreign law cannot be applied and the courts should instead apply the domestic or local law.
What are these exceptions?

(a) When the application of the foreign law would run counter to a sound and established
public policy of the forum.

Examples:

(1) We cannot enforce in this country a. divorce law of a foreign country if the parties are
Filipinos. If, however, the parties are a Filipino and a foreigner and the latter validly
obtains a divorce abroad capacitating him or her to remarry, the Filipino spouse can also
marry again (Art. 26, sec. par., Family Code).

(2) A joint will executed by Filipinos locally or in a foreign country is not valid (Arts. 818,
819, New Civil Code).

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 (3) Incestuous marriages under the Family Code and those considered void by the Code by
reason of public policy are null and void, even if they are valid in other countries (Arts.
37, 38, Family Code). However, these provisions apply only to Filipinos.

(b) When the foreign law is contrary to the almost universally conceded principles of
morality (contra bonos mores):

Examples: Foreign laws recognizing prostitution; agreements under foreign laws that
corrupt the proper administration of justice or reward crimes; contracts under foreign laws to
corrupt public officials; and in general, all transactions that infringe good morality as understood
by the forum and those inconsistent with the best interests of its people.

(c) When the foreign law involves procedural matters

There are no vested rights in rules of procedure; hence, a party to an action must submit
himself to the procedural formalities of the forum, except when the law is both procedural and
substantive, like the rules on prescription, and the Statute of Frauds which under Philippine law
are substantive. Hence, an American cannot insist on a jury trial in the Philippines; neither can
he insist in the application of American procedural laws in a case in the Philippines where he is a
party.

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

Crimes committed in foreign countries are violations of penal laws of those countries
and cannot be prosecuted here, especially as we follow the principle of territorially in criminal
law:

A "penal clause" in a contract entered into abroad may, however, be enforced here
because such clause is not criminal in nature but only provides for liquidated damages.

(e) When the law is purely fiscal (i.e., revenue-producing) or administrative in nature:

We are not bound to enforce foreign revenue or administrative laws. We are not
concerned with the collection of taxes by foreign countries or with foreign laws relating to
governmental functions or matters.

(f) When the foreign law might work undeniable injustice to the citizens or residents of
the forum:

Foreign laws that would result or cause injustice to citizens or residents of our country
should not be enforced or given effect here, An example is a foreign law putting the age of
majority at 21 and refusing to recognize contracts of Filipinos abroad who are above 18 but
below 21, considering that the age of majority in our country is 18.

(g) When the application of the foreign law would endanger the vital interests of the
State:

The national interests and security of our country should not be jeopardized by foreign
laws, nor should we enforce foreign laws that undermine our governmental processes.

(h) When the case involves real or personal property located in our country.

Remember that we apply the lex situs or lex rei sitae to all properties, whether real or
personal, found or located in the Philippines (first par., Art. 16, New Civil Code).

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 Chapter III

THEORIES THAT JUSTIFY THE APPLICATION

OF THE FOREIGN LAW

1. What are the theories that justify the court, in a conflicts case, to apply the foreign law instead
of its own domestic or internal law?

Some of the traditional theories in deciding whether to apply the local or domestic law or the
foreign law in a conflicts case are the following:

(a) The theory of comity

(b) The vested-right theory
(c) The theory of local law
(d) The theory of harmony of laws
(e) The theory of justice.

2. Please explain each theory.

(a) The theory of comity

According to this theory, no foreign law would be allowed to operate in another state
except by “the comity of nations”; i.e. the reciprocal courtesy which the members of the family
of nations owe to one another. In the old case of Hilton v. Guyot, the U.S. Supreme Court defined
"comity" as follows:

“Comity, in the legal sense, is neither a matter of absolute obligation, on the one
hand, nor of mere courtesy and goodwill, upon the other. But it is the recognition which
one state allows within its territory, to the legislative, executive, or judicial acts of
another nation, having due regard both to international duty and convenience, and to
the rights of its own citizens, or of other persons who are under the protection of its
laws.” (159 U.S. 113 [1895])

In the above case, a French citizen sued an American in a French court. Judgment was
rendered in favor of the plaintiff French, who later filed an action in an American court to
enforce the judgment. The American court found that the trial in the French court was fair and
impartial but even in such a case, French tribunals do not regard American decisions with finality
but they still review the latter’s decisions on the merits; i.e., they are regarded merely as prima facie
evidence of plaintiff's claim. Hence, the same effect should be given by American courts to
French decisions on "the principle of reciprocity".

However, in a 1926 decision, the U.S. Court of Appeals of New York refused to apply
the above case of Hilton v. Guyot. In this case, an American sued the defendant French citizen for
wrongful delivery of goods in an American court. The defendant set up the defense that the
same matter was already decided in his favor in an earlier case filed by the American in a French
court. The lower court refused to give effect to the earlier French decision on the theory of the
old Hilton case. Reversing the lower court, the U.S. Supreme Court ruled that since it was the
American who filed the earlier case with a French court wherein he lost, he could not later
impeach said judgment against him on the principle of comity, which gives conclusiveness to the
French decision and bars his subsequent action filed with an American court. The basis of
comity was stated as the persuasiveness of the foreign judgment, not the principle of
reciprocity as held in the old Hilton case. (Johnson v. Companie Generale Transatlantique, 242 N.Y.
381, U.S. Court of Appeals of N.Y., 242 NY 381)

Thus, two principles have been given upon which the theory of comity rests: the
comity based on reciprocity, and the comity based on the persuasiveness of a foreign
judgment.

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 Note: In our 1997 Rules on Civil Procedure, we still follow the principle of
reciprocity held in the old Hilton case because in Sec. 48 of Rule 39 on the “effect of
foreign judgments or final orders”, a foreign final judgment or order “is presumptive
evidence of a right as between the parties and their successors in interest by a
subsequent title” and “may be repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of law or fact”.

(b) The vested-rights theory

Under this theory, our courts enforce not the foreign law or foreign judgment but the
right or rights that have been vested under such law or judgment. Rights once acquired under a
foreign law or judgment should be enforced regardless of where the suit for its enforcement was
filed. Thus, the ideal of uniformity and predictability of results would be achieved. If a foreign
law gives a person a right, the mere fact that the law of the forum does not give him a similar or
the same right is no reason to refuse to help him get what belongs to him. The exception is, if
the foreign law is against the public policy of the forum. It is a principle of every civilized law
that vested rights should be protected. This principle also discourages forum-shopping.

An example of the application of this theory is the American case of Gray v. Gray, 87
N.H. 82 (1934). In this case, Mrs. Gray filed an action in New Hampshire for damages against
her husband Mr. Gray for personal injuries alleged to have been caused to her by the latter while
driving from their home in New Hampshire to Maine where the accident happened. In Maine,
the spouses are barred from maintaining an action against each other. There is no such
prohibition in New Hampshire.

The American court ruled in the above case that foreign torts should be governed by the
lex loci delicti commissi. A right having been created by the appropriate law, the recognition of its
existence follows everywhere. (See also MacDonald v. Railway, 71 N.H. 448; King v. Sarria, 69 N.Y.
24; Loucks v. Standard Oil Co. of New York, 225 N.Y. 448)

(c) The theory of local law

The adherents of this theory believe that we apply a foreign law not because it is foreign,
but because our own law by applying a similar rule requires us to do so; hence, it is as if the
foreign law has become part of our own internal or domestic law.

A good example of this theory is Art. 16, par. 2, New Civil Code, which requires us to
apply the national law of the deceased in the matter of his testate or intestate succession. If the
deceased was a Chinese although the children are already Filipinos, we are required to apply
Chinese law, not because it is the appropriate foreign law, but because our own Civil Code tells
us to do so.

(d) The theory of harmony of laws

Under this theory, identical or similar problems should be given identical or similar
solutions, thus resulting in harmony of laws. Certainty of solutions to the same or similar
problems are of particular importance in areas where the parties are likely to think in advance of
the legal consequences of their transactions. For example, transactions involving real property
should be governed by the lex situs, in the interest of certainty and uniformity of result. Similarly,
a person's civil status must be governed by a single law for the sake of certainty; e.g., whether a
person is single or married. The application of the same or similar solution also prevents the bad
practice of forum-shopping.

(e) The theory of justice

Since the purpose of all laws, including Conflict of Laws, is the dispensation of justice,
the proper foreign law should be applied in order to attain this objective. The defect of this
theory, however, is that different persons may have different ideas of what is just. Should we,
then, leave the question to the different notions of fairness and justice?

10
3. There being many theories as to the proper choice of law that should be applied in each
particular case, what, then, should be considered the right theory?

In the words of the late Justice Edgardo L. Paras:

“It will be observed that the theories hereinabove adverted to do not mutually exclude
one another; perhaps, the truth may be found in their combination. Certainly, if the world is to
progress in understanding and judgment, it must recognize this imperative postulate: that
sometimes, we have to apply the proper foreign law because courtesy, convenience, and
international duty so demand; because there are vested rights we cannot conceivably ignore;
because all too often, the foreign law has become part and parcel of our law; because identical
situations should be resolved by identical remedies, irrespective of the forum; and finally,
because to do otherwise may ultimately result in the negation of justice.” (Paras, id., p. 73)

Likewise, former Senator Salonga states thus:

“x x x in the absence of an applicable provision in the code or statute, the various

theories should be examined and weighed as they bear on a given conflicts problem. No single
theory contains the whole truth, no one approach is completely valid. As one author puts it:

‘ The policies behind all of the theories have validity. This suggests that they are
not entirely exclusive. Indeed, there may be a gain in using different theories at different
places to make more readily apparent the change in policies deemed dominant as the
situations vary.’”

(Salonga, Private International Law, 1995 ed., pp. 94-95)

Chapter IV

NATURE AND COMPOSITION OF CONFLICTS RULES

1. Distinguish a purely internal provision of law from a conflicts rule or a provision in conflict of
laws.

A purely internal provision of law governs a domestic problem; i.e., one without a foreign
element. And it authorizes, commands, or prohibits a certain act or mode of conduct. The question
raised - whether the particular act or mode of conduct is allowed, commanded, or prohibited - is
immediately solved.

On the other hand, a conflicts rule or provision of law is a provision found in our own law
which governs a factual situation possessed of a foreign element. It is usually expressed in the form of an
abstract proposition that a given legal question is “governed” by the “law of a particular country” (which
may be an internal law or the proper foreign law), to be ascertained in the manner indicated by the
provision.

Example of an internal rule: Art. 796. All persons who are not expressly prohibited by law may
make a will. (New Civil Code)

Example of a conflicts rule: Art. 16. Real property as well as personal property is subject to the
law of the country where it is situated (Art. 16, 1st par. , id.).

2. What are the two kinds of conflicts rules?

They are:

(a) The one-sided rule (which indicates when Philippine law will apply).

11
 Examples:

Art. 15, New Civil Code: Laws relating to family rights and duties, or to the
status, condition, and legal capacity of persons, are binding upon citizens of the
Philippines, even though living abroad.
Art. 818, id.: Two or more persons cannot make a will jointly, or in the same
instrument, either for their reciprocal benefit or for the benefit of a third person.

Note: The above provisions of law apply only to Filipinos.

(b) The all-sided or multilateral rule: (which indicates whether to apply the local law
or the proper foreign law).

Examples:
Art 16, first par., New Civil Code: Real property as well as personal property is
subject to the law of the country where it is situated.
Art. 17, first par., id.; The forms and solemnities of contracts, wills, and other
public instruments shall be governed by the laws of the country in which they are
executed.

Note: The above provisions tell us when to apply Philippine law or the proper
foreign law.

In the first example, Philippine law is applied if the property is found in the
Philippines. If it is found in a foreign country, like Japan, Japanese law applies.

In the second example, if the contract was executed in the Philippines, its form
and solemnities are governed by Philippine law. If it was executed in a foreign country,
say in England, English law will apply.

Observation: While Art. 15 of the New Civil Code literally applies only to
Filipinos and is actually a one-sided rule, the Supreme Court has given it a multilateral
application in that it has held that foreigners, in their status and legal capacity, are
governed by their national law (Gibbs v. Govt., 49 Phil. 293; Recto v. Harden, L-6897. Nov.
29, 1956). In other words, the nationality theory embodied in Art. 15 of the New Civil
Code has been applied by the Supreme Court even to persons who are citizens of
countries following the domiciliary theory, like Americans.

3. What are the parts of every conflicts rule?

Unlike a purely internal rule which governs a purely domestic problem without a foreign
element, a conflicts rule which indicates whether to apply the internal law or the foreign law, has two
parts which are readily recognizable:

(a) the factual situation, or the set of facts or situation presenting a conflicts problem because
there is a foreign element involved; and

(b) the point of contact or connecting factor, which is the law of the country with which the
factual situation is most intimately connected

In other words, the first part states certain operative facts, the legal consequences of which are
determined in the second part; that is, the first part raises, while the second part answers or solves, a
legal question.

Example: Art. 1763, New Civil Code, providing that “the law of the country to which the goods
are to be transported shall govern the liability of the common carrier for their loss, destruction, or
deterioration”.

In this provision, we have the picture of a cargo ship traveling on the high seas but for some
reason or another, the cargo or part of it is lost, destroyed, or deteriorates during the voyage.

12
 What law is to be applied to determine the liability of the ship? The law of the country to which
the lost cargoes are to be transported, or the law of their destination, not the law of the country where
the lost cargoes were loaded, or the place of embarkation.

Another example: Art. 1039, New Civil Code, providing that “capacity to succeed is governed
by the law of the nation of the decedent”. Here again, we get the picture of a. person who dies, but
whose heirs may be citizens of another country. What law should apply to determine who will succeed
the deceased? The law says it is the law of the country of which the deceased was a citizen, and not the
law of the citizenship of his heirs.

Chapter V

CHARACTERIZATION OF CONFLICTS RULES

1. What do you understand by the concept of "characterization" in determining what law to

apply in a given conflicts problem?

“Characterization”, otherwise known as “classification” or “qualification”, is the process of

assigning a certain set of facts or factual situation to its proper or correct legal category. Every rule of law
is based on situations of fact, actual or imagined, since the legislator must try to solve factual situations
that might arise in the future, based on past observation and experience. These legal categories may be
family relations, contracts, torts, succession, property, etc. By characterizing the legal problem, the court
or the parties involved reach the proper solution whether to apply the local law or the proper foreign law.

2. What makes the problem of "characterization" or classification difficult?

The difficulty in characterization arises from the fact that a conflicts situation or problem may be
characterized by the lex fori differently from the characterization of the lex causae (the law of the state with
which the act or transaction is most closely connected). The lex fori might regard the problem as tort,
while the lex causae regards it as contract. Or the lex fori might regard the problem as crime, while the lex
causae considers it only as tort. Which characterization should apply?

Most writers hold that on the grounds of practical necessity and convenience, it is the forum, or
the lex fori, that should determine the problem's characterization, unless the result would be a. clear
injustice.

The Supreme Court applied the above solution in the following case:

Gibbs v. Govt of P. I.. 59 Phil. 293: A Californian wife dies. Her Californian husband
claims the entire properties acquired by the spouses during their marriage as his alone by
accretion, following California law on property relations of spouses. Under Philippine law,
however, this is a problem in succession, so that inheritance taxes should be paid by the husband
as the lands in question were located in the Philippine. The Supreme Court held that the
properties inherited by the husband were subject to inheritance taxes, categorizing the problem
as one of the succession.

3. Suppose the problem of characterization involves a determination as to whether the matter

pertains to "substantive" or to "procedural" law. How is the problem to be solved?

There is no question that all procedural matters are governed by the lex fori. Thus, matters of
service of summons, joinder or splitting of cause of action, how to appeal, periods of appeal, etc. are
governed by the law of the forum.

But what about prescription of action and the Statute of Frauds? Are they substantive (our law
considers them such, so that they are found in the New Civil Code as well as the Rules of Court) or
merely procedural and, therefore, governed by the lex fori?

The modern trend is to consider the prescriptive periods or the Statute of Frauds that the parties
had in mind at the time the transaction took place. Then, proceed to apply the intended law in its
"totality" including its periods of prescription and its Statute of Frauds. An exception is if the subject-
matter is property located in the Philippines, in which case Philippine law, being the lex situs, applies.

13
 Example: A, an Englishman, borrowed money from B, another Englishman, in England,
evidenced by a promissory note. Let us assume that under English law, the period to sue on the
promissory note is four (4) years. In the Philippines, the period of prescription is ten (10) years. If action
is filed in the Philippines beyond 4 years from the issuance of the note but within 10 years, should we
hold the action as prescribed? Yes, because English law was evidently intended by the parties to govern
their transaction.

Chapter VI

PERSONAL LAW
THEORIES IN DETERMINING ONE'S PERSONAL LAW

1. What is a person's personal law?

A person's personal law may be defined as that which attaches to him wherever he may go; the
law that generally governs his status, capacity, condition, family relations, and the consequences of his
actuations.

It may be his national law, the law of his domicile, or the law of the situs of the event or
transaction wherein he was involved, depending on the theory applied and enforced in the forum.

2. Distinguish "status" from "capacity".

“Status” “is the place of an individual in society, and consists of personal qualities and
relationships, more or less permanent, with which the state and the community are concerned” (Paras,
supra, p. 100). It includes the civil status of a person (whether he is single, married, widowed, or
divorced; his paternity and filiation (whether he is legitimate or illegitimate) or adopted; whether he is a
minor or has reached the age of majority; whether he has the capacity to enter into various transactions.
It also includes his name, sex, and his profession in certain cases (whether he is a lawyer or a doctor, or a
judge or an appellate justice, etc.).

“Capacity”, on the other hand, is only part of one’s status, and may be defined as the sum total
of his rights and obligations (Graveson, Conflict of Laws, p.96).

Under our Civil Code, there are two (2) kinds of capacity:
(a) juridical capacity (passive capacity) - which is the fitness to be the subject of legal relations;
and
(b) capacity to act (active capacity) – which is the power to do acts with legal effects.
(Art. 37, New Civil Code)

A baby has juridical capacity, but it has no capacity to act.

3. What are the characteristics of status?

(a) It is conferred principally by the state, not by the individual.

(b) It is a matter of public or social interest.
(c) Being a concept of social order, it cannot easily be terminated at the mere will or desire of the
parties concerned.
(c) It is generally supposed to have a universal character. When a certain status is created by the
law of one country, it is generally recognized all over the world.

4. State the different theories on how the personal law of an individual is determined.

(a) The nationality theory (also called the personal theory) - by virtue of which the status and
capacity of a person is determined by the law of his nationality or his national law.

(b) The domiciliary theory - by virtue of which the status and capacity of a person is
determined by the law of his domicile (also called the territorial theory).

(c) The situs or eclectic theory - which views the particular place or situs of an event or
transaction as generally the controlling law.

14
4. What theory does the Philippines follow? What about the United States?

We follow the nationality theory.

The United States, like other common law countries, follow the domiciliary theory.

5. Is personal law the same as national law?

In countries that follow the nationality theory like the Philippines, yes. In countries that follow
the domiciliary or eclectic or situs theory, no.

6. Is national law the same as the law of one's citizenship? In other words, are a person's
nationality and citizenship the same?

“Nationality” refers to membership in a political community, one that is personal and more or
less permanent, not temporary. A citizen, on the other hand, is one who owes allegiance to, and is
entitled to the protection of, the State. In the field of Conflict of Laws, however, nationality and
citizenship are the same; or, “national” and “citizen” are the same. When our law refers to one's national
law, therefore, the law means the person's law of citizenship. Thus, the national law of Filipinos is
Philippine law. While the national law of an alien is the law of his citizenship (e.g., Art. 16, sec. par.,
referring to the "national law" of the deceased). Once a Filipino citizen, however, is naturalized in
another country, his national law already becomes the law of his new citizenship; the former Filipino
citizen, once naturalized an American, is now an American citizen, and his national law is now American
law.

7. What are the reasons why some countries adopt the nationality theory, while others adopt the
domiciliary theory?

Civil law countries, like the Philippines, follow the nationality theory. In such countries, the
nationality theory has been considered justified on practical considerations of convenience and
expediency. The people of these countries are considered bound by a spirit of national unity, by a
common history and mores, so that the identity and legal position of their citizens are guaranteed by the
consistent application of their national laws on status and family relations wherever they may go and even
when they migrate to other countries. Note that many Filipinos who have become naturalized in other
countries still want to come back to the Philippines and die here because they still consider themselves as
Filipinos.

The domiciliary theory, on the other hand, assumes that the attributes which make up one's
status and personal relations are intimately connected with the country where they have made their hone.
It is adopted by the United States and other common law countries, whose populations consist of
peoples of different nationalities with varying traditions, culture, and ideals, and whose unity may be
considered achieved by adopting the law of their domicile as the law that governs their status and family
relations. Countries with mixed population brought about by the migration of foreigners to their shores
need the domiciliary principle to attain a certain fusion of their population and to avoid the necessity of
applying a different law to practically every case.

Chapter VII

THE NATIONALITY THEORY

1. What are the weaknesses of the nationality theory?

(a) It offers no solution to the problem of a stateless person or one with dual or multiple
citizenship.
(b) It is unfair to consider a person still bound by his national law if he has lived in another
country for most of his life and practically all his ties are with that country.
(c) It is sometimes difficult for persons who want to change their national laws (like refugees
from Communist countries) to be naturalized in other countries.
(d) It is also sometimes difficult to solve problems relating to individuals in countries where
most of the people, having come from other countries, have different national laws or legal
systems.

15
2. Since citizens and nationals are the same in Conflict of Laws, we should know who are
Filipino citizens considering that Philippine law follows them wherever they go in matters of
status, legal capacity, and family relations. It is, therefore, important for us to review Philippine
law on citizenship.

First of all, what are the different kinds of citizens in the Philippines?

Filipino citizens are either natural-born citizens, or naturalized citizens.

(a) Natural-born citizens are those who are citizens from birth without having to perform any
act to acquire or perfect their Philippine citizenship (Art. IV, sec. 2, 1987 Constitution).

Originally classified as citizens by election were those born before the 1973 Constitution of
Filipino mothers but of alien fathers who, upon reaching the age of 21 or within a reasonable time
thereafter, elected Philippine citizenship. But with the provision of the 1987 Constitution also
considering as natural-born citizens “those born before January 17, 1973 of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority”, those classified before as citizens by election
are now considered natural-born citizens.

Note: Native-born Filipino citizens are those born in the Philippines. Natural-born citizens may
not be native born if they were born abroad.

(b) Citizens by naturalization are those who were formerly aliens but by judicial, legislative, or
administrative process, have become Filipino citizens.

Foreign women who are married to Filipino husbands may also be considered citizens
by naturalization through said marriage if they have no disqualifications to become Filipino citizens by
naturalization, and the wives and minor children of those who had been naturalized as Filipino citizens
are also considered to be naturalized citizens by derivative naturalization.

3. What do you understand by the principles of jus soli and jus sanguinis in the law on
citizenship?

Jus soli - A person is a citizen of the country where he was born, or of the country of his birth.
Thus, the baby of Filipino parents but born in the U,S. is not only a Filipino but also an American citizen
under "the principle of jus soli, which the U.S. follows.

Jus sanguinis - This is the rule that we follow in the Philippines. It is citizenship by blood; i.e.,
those whose fathers or mothers, or whose both parents are Filipino citizens, is a Filipino citizen.

4. Who determines whether a person is a citizen of a certain state or country? For example, who
determines whether a person is a Filipino citizen or not?

Each country or state has the sole power and authority to determine under its internal or
municipal law who are its citizens or nationals. As provided in Art. 2 of the Hague Convention on
Conflict of Nationality Laws (April 12, 1930):

“Any question as to whether a person possesses the nationality of a particular

state should be determined in accordance with the law of that state.”

Art. IV of the 1987 Constitution of the Philippines determines who are Filipino citizens. No
foreign law, or no law of a foreign country, can determine who are Filipinos. Similarly, our Constitution
and laws cannot determine who are, for example, Chinese or American citizens. Only the law of China,
or the law of the United States, can determine who are its citizens.

5. Considering that only the Philippines can determine who are Filipino citizens, may the
problem of the dual or multiple citizenship of a Filipino arise in the Philippines?

No, because as already stated, as long as he is a Filipino citizen, our country is not concerned if
he has any other citizenship. For example, if he was born of Filipino parents, he is a natural-born citizen
under the rule of jus sanguinis. He may also be a U.S. citizen under the principle of jus soli if he was born in
U.S. soil. But from the point of view of our Constitution and law, he is only a Filipino citizen, period.

16
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 citizenship cannot be avoided due to the diverse laws of the different countries of the
world as to who are their citizens and who are not. So, a Filipino may have dual citizenship, as shown in
Question 5 hereof. But the concern of the aforesaid provision of the Constitution is not with dual
citizenship per se but with naturalized citizens of the Philippines who still maintain their allegiance to the
countries of their origin. Thus, for candidates for public office with dual citizenship, suffice it that upon
the filing of their certificate of candidacy, they elect Philippine citizenship to terminate their status as
persons with dual citizenship, considering that their condition is the unavoidable consequence of
conflicting laws of different states. (Mercado v. Manzano, 307 SCRA 630 [1999]).

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 question would arise only from the point of view of a third state. For example, if a girl
whose parents are Filipinos but who was born and has lived all her life in California, U.S.A., is applying
for scholarship in a French university, the French authorities will regard her not as a Filipino but as an
American, as her California citizenship is the more effective connecting factor in determining what is her
citizenship, Filipino or Californian. This is applying the theory of effective nationality embodied in Art.
5 of the Hague Convention on Conflict of Nationality Laws which provides:

“Within a third state, a, person having more than one nationality shall be treated as if he
had only one. Without prejudice to the application of its law in personal matters and of any
conventions in force, a third state shall apply the nationalities which any such person possesses,
recognize exclusively in its territory either the nationality of the country in which he is habitually
and principally a resident, or the nationality of the country with which in the circumstances he
appears to be in fact mostly connected.”

Undoubtedly, in the above problem, California is the more effective connecting factor in
determining which of the girl's two nationalities or citizenships, is her personal law.

8. In what case or cases may a Filipino have dual citizenship from the point of view of a third
state?

(a) In a case where a Filipino (because his parents are Filipinos) was born in American soil, he is
a Filipino under the rule of jus sanguinis while he is an American under the rule of jus soli.

(b) If a Filipino woman marries a foreigner whose national law allows her to become a citizen of
her husband's country like China by such marriage, she still retains her Philippine citizenship under Art.
IV, sec. 4 of the 1987 Constitution, unless by her act or omission, she is deemed to have renounced her
Philippine citizenship. Therefore, she would be both a Filipino and a Chinese citizen, if she does nothing
to renounce her Philippine citizenship.

9. Give an example of a problem involving an alien who, from the point of view of the
Philippines, has dual citizenship.

Example: A woman who is a Japanese citizen by blood but a Chinese citizen by marriage, dies,
leaving some properties in our country where she did some business before her death. Since Art. 16, par.
2, of the New Civil Code, requires us to apply her national law in determining who are her heirs and how
much is the share of each, we should know which law a Philippine court should apply to her succession;
whether Japanese law or Chinese law.

10. How should the foregoing problem of dual citizenship be resolved?

We should apply the “effective nationality” theory previously explained. If the deceased woman
was a domiciliary of Japan at the time of her death, then the Philippine court should apply Japanese law.
If, however, she was a domiciliary 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 her other national

17
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 say, that country where she and her
family had their home was closer to her heart than her other national law. And so, in all personal and
family matters, it is that law that the court should apply.

11. Suppose in the above problem, the deceased woman was residing at the time of her death, not
in Japan or China, but in another or a third country, like Singapore? Will the solution to the
problem be the same?

The solution would now be different because we can no longer say that she was more closely
connected to Japan or China, the countries of which she was a citizen at the time of her death. In this
case, then, the domiciliary theory comes to the rescue and will consider the country of her domicile at the
time of her death (Singapore). So, we should first apply the nationality theory by taking her two national
laws (Japanese and Chinese) and applying them together insofar as they are consistent and harmonious
with each other. But if they are inconsistent and in conflict with each other, then we should already apply
the law of Singapore, which was her domicile and home at the time of her death.

12. Suppose the person whose succession is in question before a Philippine court is stateless.
How should the court decide the case?

Since the person in question is stateless and, therefore, has no national law, we cannot apply the
nationality theory (Art. 16, sec. par., New Civil Code) to him. In this case, again the domiciliary theory
comes to the rescue, and the court shall apply the law of his domicile or if he has none, the law of the
country of his temporary domicile.

13. May a declaration of Philippine citizenship be made in a petition for naturalization?

In Comm. of Immigration v. Garcia, L-28082, June 28, 1974, the Supreme Court held that the court,
in a petition for naturalization, cannot make a declaration that the applicant is already a Filipino citizen
for the reason that in this jurisdiction, there can be do independent action for the judicial declaration of
one’s citizenship. Courts of justice exist only for the settlement of justiciable controversies, which imply a
given right, legally demandable and enforceable, an act or omission violative of said right, and a legal
remedy for the breach of said right.

14. May a declaration of Philippine citizenship be made in a special proceeding for correction of
entry under Rule 108 of the Rules of Court?

In a long line of cases, the Supreme Court formerly held that since a petition under Rule 108
contemplates a summary proceeding, substantial errors like citizenship cannot be corrected therein.
However, this ruling has already been superseded by subsequent cases (Tolentino v. Paras, 122 SCRA 526;
Rep. v. Valencia, 141 SCRA 462; Rep. v. Belmonte, 158 SCRA 173, among others) to the effect that if all
procedural requirements of Rule 108 are followed and all persons with interest in the wrong entry had
been notified and a full blown trial is held, the proceedings are no longer summary but adversarial, and
substantial errors like citizenship can already be corrected under Rule 108.

15. Who are citizens of the Philippines under the 1987 Constitution?

Art. IV, Sec. 1 of the 1987 Constitution enumerates the citizens of the Philippines as follows:
“(l) Those who are citizens of the Philippines at the time of the adoption of this Constitution;
(2) Those whose fathers or mothers are citizens of the Philippines;
(3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship
upon reaching the age of majority; and
(4) Those who are naturalized in accordance with law.”

16. Who were citizens of the Philippines under the 1973 Constitution?

Art. Ill, Section l (l) of the 1973 Constitution provides that the following are citizens of the
Philippines:

“(l) Those who are citizens of the Philippines at the time of the adoption of this Constitution;
(2) Those whose fathers or mothers are citizens of the Philippines;

18
 (3) Those who elect Philippine citizenship pursuant to the provisions of the Constitution of
1935; and
(4) Those who are naturalized in accordance with law.”

17. Since the 1973 Constitution considers as Filipino citizens those who were such at the time of
the adoption of said Constitution on January 17,1973, who are those referred to in said provision?

They are those enumerated in Art. IV, 1935 Constitution, to wit:

“(1) Those who are citizens of the Philippines at the time of the adoption of the Constitution of
the Philippines;
(2) Those born in the Philippine Islands of foreign parents who, before the adoption of this
Constitution, had been elected to public office in the Philippine Islands;
(3) Those whose fathers are citizens of the Philippines;
(4) Those whose mothers are citizens of the Philippines and, upon reaching the age of majority,
elect Philippine citizenship;
(5) Those who are naturalized in accordance with law.”

18. Differentiate the citizenship of children born of Filipino mothers and alien fathers under the
1935 Constitution, from those born of Filipino mothers and alien fathers under the 1973 and 1987
Constitutions.

While the 1935 Constitution considers as Filipino citizens at birth or as natural-born citizens only
those whose fathers were Filipinos at the time of their birth, while those born of Filipino mothers and
alien fathers still had to elect Philippine citizenship upon reaching majority before they could be Filipino
citizens, this injustice to children of Filipino mothers (who are really Filipinos because Filipino blood
flows through their veins) was later corrected by the 1973 and 1987 Constitutions, which already consider
as natural-born citizens those born of Filipino mothers, even if the fathers were aliens. In other words,
those born after the effectivity of the 1973 Constitution on January 17, 1973 of Filipino mothers but of
aliens fathers are already Filipinos at birth without need of electing Philippine citizenship.

19. 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
child’s birth, or at the time of the child’s election upon reaching the age of majority?

At the time of the mother’s marriage to an alien. For if we require the mother to be a Filipino at
the time of the child’s birth, very few children will be benefited by the provision because the mother
would have already become an alien at the time of her marriage (following the husband’s alien
citizenship) and before the child’s birth. Likewise, if we require that the mother should be a Filipino
citizen at the time of the child's election, again very few children would be able to elect, because their
mothers would have already become aliens when they got married to their alien husbands and long
before the birth of the children.

20. Where do you find the law providing for election of Philippine citizenship under the 1935
Constitution?

The law is Commonwealth Act No. 625.

21. Who were Filipino citizens at the time of the adoption of the 1935 Constitution on May 14,
1935?

(1) Those born in the Philippines who resided therein on April 11, 1899 (the date of the
ratification of the Treaty of Paris between the U.S. and Spain) and were Spanish subjects on that
date, unless they had lost their Philippine citizenship on May 14, 1935;

(2) Natives of the Spanish Peninsula who resided in the Philippines on April 11, 1899, and who
did not declare their intention of preserving their Spanish nationality between that date and October
11, 1900 (the time provided for doing so), unless they had lost their citizenship by May 14, 1935;

(3) Naturalized citizens of Spain who resided in the Philippines on April 11, 1899 and who did
not declare their intention of preserving their Spanish nationality between that date and October 11,
1900, unless they had lost their citizenship by May 14, 1935;

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 (4) Children born of (l), (2), and (3) subsequent to April 11, 1899, unless they had lost their
Philippine citizenship by May 14, 1935;

(5) Persons who became naturalized citizens of the Philippines in accordance with the procedure
set forth in the Naturalization Law since its enactment on March 22, 1920, unless they had lost their
Philippine citizenship on or before May 14, 1935;

(6) Children of persons embraced in (5), unless they had lost their Philippine citizenship on or
before May 14, 1935;

(7) Filipino women who, after having lost Philippine citizenship by marriage to foreigners, had
subsequently become widows and regained Philippine citizenship on or before May 14, 1935

(8) Children of (7) who were still under 21 years of age at the time their mothers regained
Philippine citizenship (Roa v. Collector, 23 Phil. 321; Talaroc y. Uy, GR L-5397, Sept. 26, 1952);

(9) Foreign women who, before May 14, 1935, got married to citizens of the Philippines, who
might themselves be lawfully naturalized in the Philippines, unless they had lost their Philippine
citizenship on or before May 14, 1935;

(10) All other persons born in the Philippines who, on the strength of the erroneous application
of the jus soli doctrine in the Roa case, were mistakenly declared by the courts as Filipino citizens,
unless they had lost their citizenship by May 14, 1935. These are citizens by res judicata. (See Tan Chong
v. Sec. of Labor, GR L-47616, Sept. 16, 1947: Talaroc v. Uy, supra).

(Paras, supra, pp. 122-124)

22. Why is the law on election of citizenship under the 1935 Constitution a transitory law?

Because it was effective only as long as there were children of Filipino mothers and alien fathers
who were allowed to elect Philippine citizenship upon reaching 21 years. However, after 1994 (21 years
from the effectivity of the 1935 Constitution), there were no longer those who could elect Philippine
citizenship, because all of them would hare already reached 21 and they either had already elected or did
not elect at all, in which latter case they continued to be aliens following the citizenship of their fathers.

23. Suppose the Filipino mother of a child born under the 1935 Constitution was not legally
married to her alien husband, what is the citizenship of the child?

The child, being illegitimate, followed the citizenship of the mother without need of election.
Hence, the child is a Filipino from birth.

24. What is the citizenship of a Filipino woman who marries a foreigner?

(1) Prior to the 1973 Constitution: If she acquired the nationality of her alien husband, she lost
her Philippine citizenship. Otherwise, she remained a Filipino. Examples are the many
Filipinas 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 Chinese husbands legally, so that they would remain Filipinos and their
children, being illegitimate, are also Filipinos.

(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 renounced her Philippine citizenship (Art. Ill, Sec., 2, 1973 Constitution)

(3) Under the 1987 Constitution: Citizens of the Philippines who marry aliens shall retain their
citizenship, unless by their act or omission, they are deemed, under the law, to have
renounced their Philippine citizenship (Art. IV, Sec. 4, 1987 Constitution).

Note: Unlike the similar provision in the 1973 Constitution, the above provision of the 1987
Constitution now applies to both males and females who marry aliens.

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25. What is the citizenship of an alien woman who marries a Filipino husband?

(1) In the case of Zita Ngo Burca v. Republic, Jan.20, 1967, it was held that the proper proceeding
wherein an alien woman married to a Filipino can be herself declared a Filipino citizen is a
naturalization proceeding 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 Filipino husband who ordinarily follows the citizenship of the latter, than an applicant for
naturalization. Fortunately, this ruling was later abandoned.

(2) In Moya Ya Lim Yao v. Comm. of Immigration, 41 SCRA 292 (1971), the Supreme Court reversed
the Burca ruling and held that “under Sec. 15 of Commonwealth Act No. 473 [the Revised Naturalization
Law], an alien woman marrying a Filipino, native-born or naturalized, becomes ipso facto a Filipino provi-
ded she is not disqualified to be a citizen of the Philippines under Sec. 4 of the same law.” This decision
in effect ruled that it is not necessary for the alien wife of a Filipino husband to prove in a court
proceeding that she possesses all the qualifications set forth in Sec. 2 and none of the disqualifications
under Sec. 4, both of the Revised Naturalization Law. It is enough that she proves that she is not
disqualified to be a Filipino citizen not necessarily in court but even before an agency like the
Immigration Commission.

Note also that an alien woman married to an alien husband who (the husband) is subsequently
naturalized also follows the Philippine citizenship of her husband, provided she does not suffer from any
of the disqualifications under Sec. 4 of the same Revised Naturalization Law. This is a case of derivative
naturalization (similar to the minor children of a naturalized Filipino citizen).

(3) However, in the recent case of Djumanton v. Domingo, 240 SCRA 746, the Supreme Court held
that there is no law guarantying aliens married to Filipinos the right to be admitted into, much less given
permanent residence in, the Philippines. Entry of aliens into the Philippines and their admission as
immigrants is not a matter of right, even if they are legally married to Filipinos. Marriage of an alien
woman to a husband does not ipso facto make her a Filipino citizen and does not excuse her from her
failure to depart from the Philippine upon the expiration of her extended stay here as an alien.

Note: Unlike the Moya Lim case where the alien woman married to a Filipino husband did not
appear to have any disqualification for naturalization, the alien woman in the above Djumanton case
refused to leave this country even after the expiration of her extended stay here and instead got married
to a Filipino, apparently to avoid her deportation.

26. What is naturalization, and what are the different modes of naturalization?

Naturalization is the process of conferring on an alien the citizenship of another country, by

any of the means provided by law. It is considered not a matter of right but one of privilege and may be
enjoyed only under the precise conditions prescribed by law.

The modes of acquiring Philippine citizenship by naturalization are:

(1) By judicial process in accordance with Commonwealth Act No. 475, as amended by Republic
Act No. 530;

(2) By legislative process; i.e., when Philippine citizenship is conferred by a special act of Congress
on deserving aliens;

(3) By administrative process, under Rep. Act No. 9139, otherwise known as "The Administrative
Naturalization Law of 2000", approved in 2001. Under this law, a Special Committee on
Naturalization is created, with the power to approve, deny or reject applications for
naturalization filed with said Committee. Members of the Committee are the Solicitor General as
chairman, and the Secretary of Foreign Affairs or his representative and the National Security
Adviser as members.

Derivative naturalization is Philippine citizenship conferred on: (l) the wife of a naturalized
husband; (2) the minor children of a naturalized father; and (3) the alien wife of a natural-born or
naturalized citizen, in the latter case, the marriage having taken place after husband’s naturalization.

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 Be it remembered that during the period of Martial law, 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 natura-
lization under said LOI to Pres. Marcos, who would issue a decree declaring as naturalized Filipino
citizens those included in the list recommended by the Special Committee. Said Committee is similar to
the Committee on Naturalization created by the recently approved Rep. Act No. 9139.

27. What are the qualifications for judicial naturalization under Sec 2, C.A. No. 473, as amended?

(1) The petitioner must not be less than 21 years of age on the date of the hearing of the petition;

(2) He must have, as a rule, resided in the Philippines for a continuous period of not less than
ten years;

(3) He must be of good moral character, and believe in the principles underlying the Philippine
Constitution, and must have conducted himself in a proper and irreproachable manner
during the entire period of his residence in the Philippines in his relation with the constituted
government as well as with the community in which he is living;

(4) He must own real estate in the Philippines worth not less than P5,000, Philippine currency, or
must have some lucrative trade, profession, or occupation;

(5) He must be able to speak and write English or Spanish and any one of the principal
Philippine languages; and

(6) He must have enrolled his minor children of school age in any of the public or private
schools recognized by the Bureau of Private Schools where Philippine history, government,
and civics are taught or prescribed as part of the school curriculum during the entire period
of the residence required of him, prior to the hearing of his petition for naturalization as
citizen.

28. What are the disqualifications for naturalization under C.A. No. 473, as amended?

According to Sec. 4 of said Act, the following cannot be naturalized as Philippine citizens:

(1) Persons opposed to organized government or affiliated with, any association or group of
persons who uphold and teach doctrines opposing all organized governments;
(2) Persons defending or teaching the propriety of violence, personal assault or assassination for
the success and predominance of their ideas;
(3) Polygamists or believers in the practice of polygamy;
(4) Persons convicted of a crime involving moral turpitude;
(5) Persons suffering from mental alienation or incurable contagious disease;
(6) Persons who, during the period of their residence in the Philippines, have not mingled
socially with the Filipinos, or who have not evinced a sincere desire to learn and embrace the
customs, traditions, and ideals of the Filipinos;
(7) Citizens or subjects of nations with whom the Philippines is at war; and
(8) Citizens or subjects of a foreign country (other than the United States) whose laws do not
grant Filipinos the right to become naturalized citizens or subjects thereof.

28. What are the qualifications for administrative naturalization under Sec. 3 of Rep. Act 9139?

(1) The applicant must be born in the Philippines and residing therein since birth;

(2) The applicant must not be less than eighteen (18) years of age at the time of the filing of
his/her petition;

(3) The applicant must be of good moral character and believes in the underlying principles of
the Constitution, and must have conducted himself/herself in a proper and irreproachable
manner during his/her entire period of residence in the Philippines in his relation with the duly
constituted government as well as with the community in which he/she is living;

22
 (4) The applicant must have received his/her primary and secondary education in any public
school or private educational institution duly recognized by the Department of Education,
Culture and Sports, where Philippine history, government and civics are taught and prescribed as
part of the school curriculum and where enrollment is not limited to any race or nationality;
Provided, that should he/she have minor children of school age, he/she must have enrolled them
in similar schools;

(5) The applicant must have a known trade, business, profession or lawful occupation, from
which he/she derives income sufficient for his/her support and if he/she is married and/or has
dependents, also that of his/her family; Provided, however, That this shall not apply to applicants
who are college degree holders but are unable to practice their profession because they are
disqualified to do so by reason of their citizenship;

(6) The applicant must be able to read, write and speak Filipino or any of the dialects of the
Philippines; and

(7) The applicant must have mingled with the Filipinos and evinced a sincere desire to learn and
embrace the customs, traditions and ideals of the Filipino people.

30. What are the disqualifications for naturalization under Rep. Act. 9139?

Sec. 4 of said Act provides that the following are not qualified to be naturalized under the same:

(1) Those opposed to organized government or affiliated with any association or group of
persons who uphold and teach doctrines opposing all organized governments;
(2) Those defending or teaching the necessity of or propriety of violence, personal assault or
assassination for the success or predominance of their ideas;
(3) Polygamists or believers in the practice of polygamy;
(4) Those convicted of crimes involving moral turpitude;
(5) Those suffering from mental alienation or incurable contagious diseases;
(6) Those who, during the period of their residence in the Philippines, have not mingled socially
with Filipinos, or who have not evinced a sincere desire to learn and embrace the customs,
traditions and ideals of the Filipinos;
(7) Citizens or subjects [of nations] with whom the Philippines is at war during the period of
such war; and
(8) Citizens or subjects of a foreign country whose laws do not grant Filipinos the right to be
naturalized citizens or subjects thereof.

31. How may Philippine citizenship be lost?

Under Commonwealth Act. 63 as amended by Rep. Act. No. 106, a Filipino citizen may lose his
citizenship in any of the following ways:

(1) By naturalization in a foreign country;

(2) By express renunciation of citizenship;
(3) By subscribing to an oath of allegiance to support the constitution or laws of a foreign
country upon attaining twenty-one years of age and more
(4) By rendering service to, or accepting commission in, the armed forces of a foreign country;
(5) By cancellation of the certificate of naturalization;
(6) By having been declared by competent authority, a deserter of the Philippine armed forces in
time of was, unless subsequently, 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 country, she acquires his nationality.

Note, however, that under the 1973 and 1987 Constitutions, the woman in No. (7) above retains
her Philippine citizenship unless by her act or omission, she is deemed under the law to have renounced
her Philippine citizenship.

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32. How may Philippine citizenship be reacquired?

Under Sec 2 of Commonwealth Act No. 63, as amended by Rep. Act No. 106, Philippine
citizenship may be reacquired as follows:

(1) By naturalization; Provided, that the applicant possesses none of the disqualifications
prescribed in Sec. 2 of Act No. 2927;

(2) By repatriation of deserters of the Army, Navy, or Air Corps; Provided, That a woman who
lost her citizenship by reason of her marriage to an alien may be repatriated in accordance
with the provisions of this Act after the termination of the marital status; and

(3) By direct act of the National Assembly (now Congress).

33. What is the procedure incident to reacquisition of Philippine citizenship?

Sec. 3 of the same C.A. No. 63, as amended, provides as follows:

“The procedure prescribed for naturalization under Act 2927, as amended, shall apply to the
reacquisition of Philippine citizenship by naturalization provided for in the next preceding section;
Provided, That the qualifications and special qualifications prescribed in Sections three and four of said Act
shall not be required; and provided further,

(1) That the applicant be at least twenty-one years of age and shall have resided in the Philippines
at least six months before he applies for naturalization;

(2) That he shall have conducted himself in a proper and irreproachable manner during the entire
period of his residence in the Philippines, in his relations with the constituted government as
well as with the community in which he is living; and

(3) That he subscribes to an oath declaring his intention to renounce absolutely and perpetually
all faith and allegiance to the foreign authority, state or sovereignty of which he was a citizen
or subject.

34. How about repatriation? How can it be effected?

Sec. 4 of the same Commonwealth Act referred to above provides that "Repatriation shall be
effected by merely taking the necessary oath of allegiance to the Republic of the Philippines and
registration in the proper civil registry."

During the regime of Pres. Marcos, however, he promulgated P.D. 725 providing that the
petition for repatriation should be filed with the same committee which he created for naturalization, and
said committee had the power to approve or disapprove the repatriation.

Chapter VIII.

THE DOMICILIARY THEORY

1. What is the domiciliary theory in Conflict of Laws?

It is the theory whereby the status, condition, rights, obligations, and capacity of a person are
governed by the law of his domicile or the lex domicilii.

2. Define domicile.

It is the place where a person "has his true, fixed, permanent home and principal establishment,
and to which, whenever he is absent, he has the intention of returning" (Story, Conflict of Laws, sec. 41).

It is “the place where a person has a settled connection for certain legal purposes, either because
his home is there or because that is the place assigned to him by law" (First Restatement, sec. 9).

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 "For the exercise of civil rights and fulfillment of civil obligations, the domicile of natural
persons is the place of their habitual residence." (Art. 50, New Civil Code).

3. Are "domicile" and "residence" the same?

" x x x it is an established principle in Conflict of Laws that 'domicile' refers to the relatively
more permanent abode of a person while 'residence' applies to a temporary stay of a person in a given
place" (Koh v. C.A., 70 SCRA 298)

“Residence’ is used to indicate a place of abode, whether permanent or temporary; 'domicile'

denotes a fixed, permanent residence to which, when absent, one has the intention of returning. A man
may have a residence in one place and a domicile in another. Residence is not domicile, but domicile is
residence coupled with intention to remain for an unlimited time. A man can have one domicile for one
and the same purpose at any time, but he may have numerous places of residence”. (Uytengsu v. Rep., 95
Phil. 890)

4. Distinguish "domicile" from "citizenship".

Domicile in general speaks of one's permanent place of abode, while citizenship or nationality
indicates ties of allegiance and loyalty. A person may be a citizen or national of one state and a
domiciliary of another. Filipinos who are immigrants abroad, like the holders of green cards in the U.S.,
are still Filipino citizens, but their domicile is the country to where they have permanently migrated.

5. Considering that our country follows the nationality theory, why is it still important for us to
know and study the domiciliary theory?

For several reasons, namely:

(1) In some cases, our own law makes the law of the domicile of a person the controlling factor
in the solution of conflicts cases.

Example: “The revocation of a will done by a person outside the Philippines by a person
who does not have his domicile in the Philippines is valid when done according to the lex loci
celebrationis, or according to the law of the place of the testator's domicile at the time.” (Art. 829,
New Civil Code)

(2) Sometimes, our law makes either the law of one's nationality or that of his domicile as the
controlling factor.

Example: “The will of an alien who is abroad produces effect in the Philippines if made with
the formalities prescribed by the law of the place in which he resides, or according to the
formalities observed in his country, or in conformity with those which this Code prescribes."
(Art. 816, id.)

(3) In the case of stateless individuals, or those with dual or multiple nationalities, the domiciliary
theory runs to the rescue of the nationality theory.

(4) During the early years of American colonization of the Philippines, our Supreme Court in
some cases applied the domiciliary theory, like the case of the validity of a divorce decree obtained
abroad.

(5) Citizens of countries like the U.S. or Great Britain, which follow the domiciliary theory, may
become involved in litigation in our country, which follows the nationality theory.

(6) Again, some great countries like the U.S. and Great Britain follow the domiciliary theory, so
that it would do well for us to make a comparative study of the nationality and domiciliary theories.

6. What law determines one’s domicile, his national law or the lex fori?

The prevailing rule is that the forum applies its own concept of domicile in determining the
domicile of a litigant before its courts.

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7. What are the different kinds of domicile?

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

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

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

Note: Domicile of origin is acquired at birth; therefore, it never changes. While constructive
domicile is given after birth to those who lack capacity to choose their own domicile, like minors, insanes,
etc.

Also, domicile of origin never changes, for a person is born only once, while constructive
domicile may change from time to time, like when the parents of a minor change domicile several times.

Both domicile of origin and constructive domicile are, however, assigned by law, while domicile
of choice is the result of .the voluntary will and action of the person concerned.

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

(1) No person can ever be without a domicile; or, every natural person must have a domicile.
(2) A person cannot have two simultaneous domiciles.
(3) A natural person, free (not a prisoner) and sui juris (one of age and under no disability) can
change his domicile at pleasure.
(4) A domicile once acquired, is retained until a new one is gained.
(5) The presumption being in favor of the continuance of an existing domicile, the burden of
proof is on the one who alleges that a change of domicile has taken place.
(6) To acquire a new domicile of choice, the following must concur:
(a) residence or bodily presence in the new locality;
(b) an intention to remain there(animus manendi); and
(c) an intention not to return to the former abode (animus non revertendi)
(Gallego v Vera, 73 Phil. 453)

9. Give some rules in determining one's domicile of origin.

(1) If the child is legitimate, his domicile of origin is that of his parents at the time of his birth;
if the parents are separated, the domicile of the custodial parent.

If the child is illegitimate, his domicile of origin is that of the mother at the time of his birth.

If the child is legitimated, the domicile of his father at the time of his birth controls, since the
effects of legitimation retroacts to the time of the child’s birth (Art. 180, Family Code).

(2) The domicile of origin of an adopted child is the domicile of his real parents at the time of
his birth, not the domicile of the adopters

(3) The domicile of origin of a foundling is the country where it was found.

10. Give some rules in determining one’s constructive domicile.

(1) Minors

(a) If legitimate, the domicile of both parents.

In case of disagreement, that of the father, unless there is a judicial order to the
contrary (Art. 211, Family Code).
(b) If illegitimate, the domicile of the mother (Art. 176, Family Code).
(c)In case of absence or death of either parent, the domicile of the present parent. Even
in case of the remarriage of the surviving parent, still his/her domicile determines the
constructive domicile of the minor child.

26
 (d) If the child is adopted, the domicile of choice of the adopter is the child's
constructive domicile.

(2) Insanes, idiots, imbeciles –

Since insanes and other mentally incapacitated persons cannot select their own domicile,
the law assigns their domicile to them.
(a) If they are below the age of majority, the rules on minors apply to them.
(b) If they are of age and have guardians, they follow the domicile of choice of their
guardians. If they have no guardians, their constructive domicile is their domicile of choice
before they became insane.

(3) Married women -

(a) If the marriage is valid;

(i) The constructive domicile of the wife is the domicile of both spouses, unless
the law allows the wife to have a separate domicile, for valid and compelling reasons
(Art. 69, Family Code).
(ii) If there is legal separation between the spouses, the wife can have her own
domicile of choice.
(iii) If there is separation de facto, the wife can also have a separate domicile (De
la Vina v. Villareal, 41 Phil.13).

(b) If the marriage is voidable: Apply the same rules as when the marriage is valid.
However, after annulment, the wife can freely select her own domicile of choice.

(c) If the marriage is void: Since there is really no marriage in this case, the wife can
have a domicile separate form the husband.

(4) Other persons-

(a) Convict or prisoner - He is not free to have a domicile of choice, so his domicile is
the one he had possessed prior to his incarceration.

(b) Soldiers - Since they are compelled to follow the dictates of the military, their
domicile is their domicile before their enlistment.

(c) Public officials or employees abroad like diplomats, consular officials, etc. Since their
stay abroad is in their official and not in their personal capacity, their domicile is the one they
had before they were assigned elsewhere, unless they voluntarily adopt their place of
employment as their permanent residence.

Chapter IX.

THE SITUS OR ECLECTIC THEORY

1. What is meant by the situs or eclectic theory?

Under the situs or eclectic theory, the capacity, condition, status, or capacity of a person is
governed not necessarily by the law of his nationality or the law of his domicile, but by the law of the
place (situs) where an important element of the problem occurs or is situated.

However, this theory distinguishes two kinds of participation of the individual concerned.

(a) If his participation is active, i.e., when he does the act voluntarily, the governing law is -the
law of the actual situs of the transaction or event. –

(b) If the participation is passive, as when the effects of the act are set forth or determined by
law, the governing law is the law of the legal situs; i.e., the domicile of the individual concerned.

27
 Example: The marriage between two Filipinos in Hongkong.

(a) Since the act of getting married is voluntary, the validity of the marriage is governed by its
actual situs, or the lex loci celebrationis (Art. 26, first par., Family Code)

(b) With respect to the rights and obligations, and property relations, of the Filipino couple,
however, they are governed by the national law of the spouses, which regulates or fixes such
matters between them; in other words, the legal situs is the national law of the spouses. (Art. 80,
Family Code)

2. If the act or transaction involves property, real or personal, what theory do we apply, the
nationality theory, the domiciliary theory, or the situs theory?

Art. 16, first par., of the New Civil Code provides that “real property as well as personal property
is subject to the law of the country where it is situated”. Thus, if the act or transaction involves property,
whether real or personal, the law that determines the validity of the transaction is the lex situs or lex rei
sitae. Even the capacity of the parties to the transaction is governed by the lex situs or lex rei situs, not by
the lex nationalii or the lex domicilii.

Chapter X.

THE PROBLEM OF THE “RENVOI”.

1. What is meant by “renvoi”?

“Renvoi” is a French word which means “refer back” or “return”. In Anglo-American

countries, the term used is “remission”, which means to refer a matter for consideration or judgment.

2. When does the problem of “renvoi” arise?

Every internal or municipal law of a. state has two parts; (1) Its purely internal or domestic law
which applies to domestic cases; and (2J Its rules in Conflict of Laws which it applies to cases with some
foreign element.

Now, the problem of "renvoi" arises when there is doubt as to whether the reference by the lex
fori (the law of the country where the problem arises) to the foreign law involves (l) a reference to the
internal law of the foreign law or (2) a reference to the entirety of the foreign law, including its conflicts
rules.

In such case, if the first state follows the nationality theory, and the second state follows the
domiciliary theory, the problem of “renvoi” will most probably arise.

Take the case of a California citizen who had resided in this country for 50 years and who dies
here, leaving a sizable estate. Art. 16, sec. par., of the New Civil Code provides that in testate or intestate
succession, we should apply the national law of the deceased which, in this case, is California law. But
California’s internal law has one rule for its own citizens who reside there, and another rule for its citizens
who have their domiciles abroad. In the latter case, California law provides that the law 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 law refers the matter back to us, telling us to apply the law of the
deceased's domicile, which is Philippine law. Should the Philippine court tasked to settle the estate of the
deceased accept the “renvoi” and apply Philippine law, or insist that California internal law binding on its
own citizens-residents should be applied, the same being the deceased's national law? This is the “renvoi”
problem.

3. Discuss why our Supreme Court accepted the “renvoi” in the case of The Matter of the
Testate Estate of Edward Christensen, Adolfo Aznar and Lucy Christensen v. Helen Christensen
Garcia. 7 SCRA 95 (l963).

The case referred to above is the first case decided by our Supreme Court which raised the
“renvoi” problem.

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 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
will, he left almost his entire estate to Lucy, an acknowledged natural child in California, and gave a small
legacy to Helen, an acknowledged natural child in the Philippines. Under California internal law, its
deceased citizen may dispose of his estate by will in any manner he pleases. However, California law also
provides that where its deceased citizen resides 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
effect, following California internal law, Helen insisted that Philippine the law, of the domicile of the
deceased, should be applied, under which she is a forced heir and is entitled to a legitime.

The ruling: Recognizing that there were two sets of rules under California internal law, one for
its citizens who reside there and another for its citizens who reside in other jurisdictions, the Supreme
Court held that if it should refer the matter to California law, said law will toss the problem back to us,
which would result in international football. Hence, we should apply Philippine law (the law of the
deceased's domicile) as directed by the conflicts rules of California, especially as Philippine law makes
acknowledged natural children forced heirs of the parents recognizing them, while California law
provides no legitime for such children. As a result, Helen, the Filipino child, was given a legitime.

Note: The Supreme Court's ruling was obviously intended to favor the Filipino child. What if no
Filipino citizen was involved, like, for instance, if those fighting over the estate of the deceased were all
California citizens? Would our Supreme Court have still accepted the “renvoi” and apply Philippine law?

4. There are actually four (4) solutions that court can adopt whenever it is confronted with a
“renvoi” problem like the Christensen case. What are they?

(a) We may reject the “renvoi”.

This means that the court does not want the problem to be sent back to us. That is, as in the case
of the testate or intestate succession of a foreigner but domiciled in our country, we would simply apply
his national law, or the internal law of his country.

(b) We may accept the “renvoi”.

As in the Christensen case, our Supreme Court accepted the referral or the transmission of the
case back to us, so that instead of applying the foreign internal law, Philippine law was applied, being the
law of the deceased's domicile, as directed by our own law (Art. 16, sec. par., New Civil Code). This is a
case of single renvoi or single transmission.

(c) We may follow the theory of desistment, or the mutual-disclaimer of jurisdiction theory.

Here, we refrain from applying the national law of the deceased foreigner, although our law tells
us to do so, if said law follows the domiciliary theory and directs that we apply the law of the domicile of
the deceased. So, in the end, we still apply Philippine law.

(d) We may apply the foreign court theory.

Under this theory, we would simply do what the foreign court would do if confronted with the
same case. So that if the California court (as in the Christensen case) would apply California internal law,
we would do the same. If, however, said court would apply Philippine law, we would follow suit. The
advantage of this theory is that regardless of forum, the applicable law will be the same. But it can also
result in international pingpong if we do what the California court would do, but the California court
would do what we do, etc.

5. What is meant by “double renvoi”?

This occurs when the local court, in adopting the foreign court theory, discovers that the foreign
court accepts the “renvoi.” But since the foreign law remits the case to Philippine law, being the law of
the deceased's domicile, the foreign court may discover that Philippine law does not accept the remission
(as it applies the national law of the deceased), so the foreign court, sitting as a Philippine court, would
still apply its own internal law. This is then what our court will apply.

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6. What about the theory of “transmission”? Is it the same as “renvoi”?

They are not the same because while “renvoi” involves two laws, transmission actually involves
three laws.

“Transmission" is the process of applying the law of a foreign state thru the law of a second
foreign state.

Example: A Chinese citizen domiciled in the Philippines, dies in England leaving some
properties there. The English court will thus have to settle said estate, and following the domiciliary
theory, it refers the matter to the law of the domicile of the deceased, which is Philippine law. But
Philippine law, following the nationality theory, transmits the matter to Chinese law, the national law of
deceased. Hence, the English court will ultimately follow Chinese law.

7. What is the case of Testate Estate of Amos G. Bellis v. Edward A. Bellis, 20 SCRA 359 (1968)?
Did it involve the “renvoi” problem?

Although the “renvoi” doctrine was invoked in this case, our Supreme Court held that there was
no “renvoi” problem here because the deceased Amos G. Bellis was both a. citizen and a domiciliary of
Texas, USA.

The facts: Bellis, a citizen and resident of Texas at that time of his death, left some properties in
the Philippines. Before his death, he executed two wills, one following Texas law disposing of his
properties in Texas, and another, following Philippine law, disposing of his properties in the Philippines.
Bellis had several illegitimate children in the Philippines but in his two wills, he did not give anything to
his illegitimate children. During the settlement of his estate, the illegitimate children opposed both wills
because they had been deprived of their legitimes, and insisting that Philippine law should be applied.
There are no compulsory heirs under Texas law, and Texas law, furthermore, does not have conflicts
rules governing the succession of its citizens.

Held: The illegitimate children are not entitled to any legitime because under Texas law, which is
the national law of the deceased and which we must apply under Art. 16, par. two of the Civil Code, there
are no compulsory heirs and no legitimes.

As for the oppositors’ arguments that since the deceased executed two wills, one to govern his
estate in the Philippines and the other to govern his Texas estate, it must have been the intention of the
deceased to have Philippine law govern his properties in the Philippines, the Supreme Court held that
following Miciano v. Brimo. 50 Phil. 867, a provision in a foreigner's will to the effect that his properties in
the Philippines shall be distributed in accordance with Philippine law and not in accordance with his
national law is illegal and void.

8. All in all, in the absence of definitive laws on the matter, how should we resolve the “renvoi”
problem in the Philippines?

To quote the late Justice Edgardo L. Paras;

“ x x x it is suggested that the theory be adopted which, considering the circumstances

of a given situation, will best result in fairness, equity, and justice. For instance, in the case of
long time domiciliaries of the Philippines, it may seem desirable to presume that they intended
to die with Philippine internal law taking care of the distribution of their estate in the Philippines;
hence, it would be better to accept the “renvoi” (single renvoi or single remission). In all other
instances, to reject the “renvoi” would seem to be the more desirable solution.” (Paras, id., p.
217).

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 Chapter XI.

CONFLICTS RULES ON STATUS AND CAPACITY

1. Considering that one's status starts with the beginning of his personality, when does human
personality begin under our law?

Art. 40, New Civil Code, provides:

“Birth determines personality, but the conceived child shall be considered born
for all purposes that are favorable to it, provided it be born later with the conditions
specified in the following article.”

while the succeeding Art. 41 provides:

"For civil purposes, the fetus is considered born if it is alive at the time it is
completely delivered from the mother's womb. However, if the fetus had an intra-
uterine life of less than seven months, it is not deemed born if it dies within twenty-four
hours after its complete delivery from the maternal womb."

In other words, personality really begins at conception, subject to the following conditions:

(a) The purpose is favorable to the fetus (like if it is given a simple donation or is
considered an heir of the parent); and

(b) If it is born alive under Art. 41 of the New Civil Code.

In fact, Art. 5 of PD 603 (The Child and Youth Welfare Code) is more precise when it provides
that -

"The civil personality of the child shall commence from the time of his conception, for
all purposes favorable to him, subject to the requirements of Article 41 of the Civil Code."

Depending on the conditions of its birth, there are, therefore, two kinds of children:

(a) Ordinary- with an intra uterine life of at least 7 months, so that as long as the child is alive
upon complete separation from the mother's womb, it is already with civil personality.

(b) Extraordinary - with an intra-uterine life of less than 7 months, in which case it must live for
at least 24 hours after complete delivery from the mother's womb before it is considered born and to
have acquired civil personality.

Purposes beneficial or favorable to the fetus may be:

(a) It may already be given a simple donation;
(b) It may already be acknowledged by the father even before birth (De Jesus v. Syquia, 58 Phil.
866);
(c) It is already entitled to be supported even while still in the womb of the mother;
(d) It can already be an heir.

2. In Conflict of Laws, what law determines the beginning of one’s personality?

His personal law. If he is a citizen of a country that follows the nationality theory, his national
law (like the Philippines). If he is a citizen of a country that follows the domiciliary theory, the law of his
domicile.

3. Considering that civil personality begins at conception, may the parents of the unborn
child recover damages from 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?

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 For pecuniary damages on account of injury to or the death of the unborn child, no, because the
fetus did not yet have civil personality and any cause of action that accrued to the unborn child was
extinguished by its pre-natal death. But for moral damages suffered by the parents for the illegal arrest of
the normal development of the fetus and on account of the distress and anguish attendant to its loss and
the disappointment of their parental expectations, yes. (Geluz v. C.A., 2 SCRA 88 [1961])

4. When is civil personality extinguished?

According to Art. 42 of the New Civil Code, "civil personality is extinguished by death."

Death in this article means "physical death", not civil interdiction which is sometimes regarded as
"civil death", and which merely restricts, not extinguishes, capacity to act (Art. 38 New Civil Code). A
declaration of death in accordance with one’s personal law (whether his national law or the law of his
domicile) by a court of competent jurisdiction is considered valid for all purposes.

5. What is meant by "absence", and under what law may one be declared as such?

"Absence" is considered a special legal status pertaining in the Philippine law to a person who
has disappeared from his domicile, his whereabouts being unknown, without leaving an agent to
administer his property, or even if he had left an agent, the power conferred by the absentee on the agent
has expired (Art. 381, New Civil Code).

One’s status of being absent is determined in accordance with his personal law (which may be his
national law or the law of his domicile), and jurisdiction to declare him as such also belongs to the
country of which he is a national or a domiciliary, as the case may be. However, our own courts also have
jurisdiction to declare an alien domiciliary in the Philippines as absent (like when a Filipino wife asks a
local court to declare her alien husband an absentee) under the conditions laid down by our Civil Code
(Arts. 384, 385, and 386). (See Abaling v. Fernandez, 25 Phil. 33)

6. Under what conditions may a person be declared an absentee under Philippine law, and what
are the legal effects of such declaration?

(a) Within two (2) years after a person’s disappearance without leaving an agent to administer his
property, or having left an agent, the power of the latter had expired, any interested person, relative, or
friend may ask the competent court to appoint a person to represent the absentee in all that may be
necessary (Art. 381, New Civil Code). The present spouse is, however, preferred in the appointment
when there is no legal separation (Art. 383).

(b) After the lapse of two (2) years without any news about the absentee or since the receipt of
the last news, and five (5) years if the absentee has left an administrator of his property, his absence may
be declared (Art. 384, id).

7. Who may ask for the declaration of one's absence?

Any of the following:

(a) The present spouse;
(b) The heirs instituted in the will of the absentee, who may present an authentic copy of said
will;
(c) The intestate heirs, if the absentee left no will;
(d) Those who may have over the property of the absentee some right subordinated to the
condition of his death. (Art. 385, id.)

The procedure for the declaration of one's absence is found in Rule 107 of the Revised Rules of
Court. However, “the judicial declaration of absence shall not take effect until 6 months after the
publication in a newspaper of general circulation” (Art. 386, id.).

8. When may the absentee be presumed dead, and for what purposes?

(a) For the purpose of remarriage, the absentee may be presumed dead after four (4) years of
absence, the present spouse having a well-founded belief that the absentee is already dead (Art. 40 Family
Code).

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 However, in case of disappearance where there is danger of death under Art. 391 of the New
Civil Code, an absence of two (2) years is enough (id.).

In either case, a summary proceeding for the declaration of the presumptive death of the absent
spouse under Art. 42 of the Family Code is necessary.

(b) For all other purposes except succession, an absence of seven (7) 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) years is required, except if the
absentee disappeared after the age of seventy-five (75) years, in which case an absence of five (5) years is
enough to open his succession (Art. 390)

The procedure is again Rule 107 of the Revised Rules of Court.

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)?

According to Art. 39, New Civil Code the following shall be presumed dead for all purposes,
including the division of the estate among the heirs:

(a) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who
had not been heard of for four (4) years since the loss of the vessel or aeroplane;

(b) A person in the armed forces who has taken part in war, and has been missing for four (4)
years;

(c) A person who has been in danger of death under other circumstances (like earthquake,
volcanic eruption, landslide, fire, dangerous expeditions, etc.).

Remember, though, that for the purpose of remarriage, extraordinary absence of two (2) years is
enough (Art. 40, Family Code).

10. What determines one's age of majority in Conflict of Laws?

Since age is part of one's personal status, it is the personal law (whether the national law or the
law of the domicile) of a person that determines whether he has reached the age of majority or not.

11. What is the age of majority under Philippine law?

Republic Act. No. 6809, approved December 13, 1989, amended Art. 234 of the Family Code by
reducing the age of majority to 18 years save the exceptions established by existing law in special cases.
But the age of contracting marriage without parental consent has, under the same law, remained at the
age of twenty-one

Note that also under the same Rep. Act No. 6809, the responsibility of parents (if the children
live in their company) and guardians, for the torts committed by their children and wards below 21 years
of age, has been retained. The result is that such parents and guardians are still responsible for the
damages caused by their children (as to parents) and wards (as to guardians) even if the child is above 18
years of age (the age of majority) but below 21 years of age. The defect of the provision is with respect to
guardians of minor children, because if the children are already above 18, they do not need guardians
anymore, unless they are under some other disability.

12. What is our conflicts rules on capacity to contract?

In countries that follow the nationality theory like the Philippines, the capacity to contract of a
person is governed by his national law and follows him wherever he goes, while in countries like the U.S.
and Great Britain that follow the domiciliary theory, one's capacity to contract is governed by the law of
his domicile. In other words, a person’s capacity to contract is governed by his personal law, whether it is
the lex nationalii of the lex domicilii.

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 The exception in the Philippines are contracts involving real or personal property, in which cases
the lex situs or lex rei sitae applies including the capacity of the contracting parties (Art. 15, New Civil
Code).

For example, a Filipino who owns a. piece of property in Florida, USA, wants to donate said
property to another Filipino in the Philippines. For the donation to be valid, the respective capacities of
donor and donee shall be governed by Florida law (not by Philippine law, which is their national law), as
well as the extrinsic and intrinsic validity of the donation, the subject-matter of the donation being
located in Florida.

Former Senator Salonga, however, mentions 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 contracting parties, and
would result in erecting a formidable barrier to international trade and intercourse”. For every person
“who enters into a transaction with a foreign national or domiciliary would then be compelled to gauge
the capacity of the latter by referring to the unfamiliar law of some foreign country”. (Salonga, Private
International Law, 1995 ed., p. 250).

How, indeed, can we subject a foreigner who enters into a business contract with a Filipino in
the Philippines but who has no capacity to contract under his personal law, to Philippine law and hold
him liable under the transaction, unless in determining his capacity to contract we apply the lex loci
contractus which is Philippine law? Thus, following the practice in American courts, Senator Salonga
suggests that Art. 15 of the Civil Code applying the nationality theory be limited to strictly family and
domestic transactions, while the law governing the contract should govern ordinary day-to-day business
contracts (id., p. 256). An example is the early decision of the Supreme Court in Insular Govt. v. Frank, 13
Phil. 236 (1909), where said Court applied Philippine law, being the law of the place where the contract
was to be performed, and not the national law of the defendant, an Illinois citizen, in determining his
capacity to enter into a contract with the Philippine Government to work here as a stenographer.

13. What about the use of names and surnames, which is also part of one's status? What is the
law on the matter?

Traditionally, a. person's name was not regarded as part of his status because be could change his
name at will, but our law now provides that "no person can change his name or surname without judicial
authority" (Art. 376, New Civil Code), and the procedure for the change of one’s name is Rule 103 of the
Revised Rules of Court. As held in Republic v. C.A. and Wong, G.R. No. 97906, May 21, 1992, “a change of
name is a special proceeding to establish the status of a person involving his relation with others, that is,
his legal position in, or with regard to, the rest of the community.”

Even aliens can ask for change of name in the Philippines, provided they are domiciled here. In
other words, the status of an alien is governed by the lex domicillii or the law of his domicile (Ong Huan Tin
v. Rep., L-20997, April 27, 1967). But an alien whose citizenship is either controverted or doubtful cannot
ask for a change of name under Rule 103 (Basas v. Rep., L-23595, Feb. 20, 1966).

As for Philippine substantive law on the use of names and surnames, Arts. 364 to 375 lay down
the rules on the use of surnames by legitimate, legitimated, adopted, and illegitimate children; married
women as well as women whose marriages had been annulled or who are legally separated from their
husbands; widows; and in case of identity of names and surnames between ascendants and descendants.

All children conceived and born outside a valid marriage are considered by the Family Code as
illegitimate (Art. 165), whether the child is an acknowledged natural child or a natural child by legal
fiction as defined by the New Civil Code or spurious, and they are all required to use the surname of the
mother under the Family Code (Art. 176). However, the new Republic Act No. 9255, amending Art. 176
of the Family Code, now allows illegitimate children to use the surname of the father “if their filiation has
been expressly recognized by the father through the record of birth appearing in the civil register, or
when an admission in a public document or private written instrument is made by the father” during the
latter's lifetime.

Regarding Filipino women who have been divorced by their alien husbands under Art. 26 of the
Family Code, the rule on women whose marriages had been annulled should logically be applied to them
(See Art. 374, New Civil Code).

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14. May foreigners with titles of nobility continue using said titles in the Philippines?

The right to use a title of nobility depends upon the national law of the person concerned (Rabel,
Conflict of Laws, Vol. I, p. 169). Such persons may continue using their titles of nobility in our country,
but if they apply for naturalization, they must renounce any hereditary title or order of nobility that they
possess (Sec. 17, Revised Naturalization Law). In fact, our Constitution (the 1935, 1973. and 1987) does
not allow titles of royalty or nobility.

15. Distinguish legislative from judicial jurisdiction over one's status.

Legislative jurisdiction over one's status is the power of his personal law to govern his status
wherever he goes, while judicial jurisdiction is the power of the courts to decide questions or
controversies concerning one's status.

Thus, our courts can decide cases involving the status and capacity of foreigners brought before
them, but in doing so, our courts will apply the personal law of the foreigner, whether it be his national
law or the law of his domicile, depending on what theory the country of his citizenship follows.

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

Chapter XII.

CONFLICTS RULES OF MARRIAGE

A. MARRIAGE AS A CONTRACT

1. Why do conflicts problems arise in connection with marriage as a contract?

Such problems arise because different countries or states, depending on their public policy,
culture, or code of morality, have different laws in determining the validity of marriage as a contract.
Consequently, while our policy and concept of marriage is embodied in Art. 1 of the Family Code, there
are marriages celebrated in other countries that do not conform to our idea and concept of marriage, yet
to deny them validity would create very serious problems in the status of children, the personal and
property relations of the spouses, the authority and rights of parents towards their children and vice versa,
the respective rights of succession of the spouses and the members of their family, etc.

Thus, we should know what rules or laws to apply in such conflicts problems.

2. What is Philippine internal law on the formal validity of marriages, or the validity of marriage
as a contract? ,

The Family Code prescribes essential as well as formal requisites for the validity of a marriage.
The essential requisites are (l) legal capacity, of the contracting parties who must be male and female; and
(2) consent freely given in the presence of the solemnizing officers (Art. 2). While the formal requisites
are:

(1) Authority of the solemnizing officer;

(2) A valid marriage license except in the cases provided for in Chapter 2 of Title I; and
(3) A marriage ceremony which takes place with the appearance of the contracting parties before
the solemnizing officer and their personal declaration that they take each other as husband and wife
in the presence of not less than two witnesses of legal age. (Art. 3, id.)

Like the absence of any of the essential requisites, the absence of any formal requisite shall also
render the marriage void ab initio, except as stated in Article 35 (2), but an irregularity in the formal
requisites shall not affect the validity of the marriage; the party or parties responsible for the irregularity
will, however, be civilly, criminally, and administratively liable (Art. 4. id.).

35
 The above formal requisites apply also to foreigners who get married in the Philippines. If one or
both of the parties are foreigners, the foreigner must submit a certificate of legal capacity to contract
marriage issued by the diplomatic or consular officials of his/her country in the Philippines before
he/she can be issued a marriage license; while stateless persons or refugees need only to submit an
affidavit stating the circumstances showing such capacity to contract marriage (Art. 21, id.).

Considering the above formal requisites of a valid marriage in the Philippines a common law
marriage between Filipinos in this country is void (Enriquez v. Enriquez, 8 Phil 565; Eugenio v. Velez, 185
SCRA 425).

As to common law marriages of foreigners who come to the Philippines as husband and wife, it
would seem that we should consider the marriage valid if valid under their national law or the law of the
place where the relationship began. This is to avoid injustice to the parties as well as their children,
considering the different conceptions of marriage in foreign jurisdictions. But the marriage must not be
contra bonos mores or universally considered incestuous.

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

Under Art. 26 of the Family Code, “all marriages outside the Philippines in accordance with the
laws in force in the country where they were solemnized and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35(l), (4), (5) and (6), 36, 37 and 38”.

In other words, we follow the rule of lex loci celebrationis; if valid in the country of celebration, the
marriage is also valid in the Philippines, except those enumerated in said Art. 26.

But, a foreign marriage of Filipinos in a foreign country will still be void in the Philippines if:

(l) Either or both parties did not have the legal capacity to get married (Art. 35 {l});
2) The marriage is immoral for being bigamous or polygamous (Art. 35{4})
(3) Consent of one party is lacking because of mistake as to the identity of the other (Art. 35{5}).
(4) One of the parties was psychologically incapacitated at the time of the marriage to comply
with the essential marital obligations (Art. 36);
(5) The marriage is incestuous (Art. 37); or
(6) The marriage is void by reason of public policy (Art. 38).

Consular marriages of Filipinos abroad are valid. As provided in Art. 10 of the Family Code:

“Marriages between Filipino citizens abroad may be solemnized by a consul-

general, consul or vice-consul of the Republic of the Philippines. The issuance of the
marriage license and the duties of the local civil registrar and of the solemnizing officer
with regard to the celebration of marriage shall be performed by said consular official.”

4. What are the conflicts rules on marriages between foreigners solemnized abroad?

(l) We still apply the rule of lex loci celebrations, but not the exceptions in the first par. of Art. 26 of
the Family Code, which apply only to Filipinos. But universally considered incestuous marriages are
excepted; i.e., marriages between ascendants and descendants, and brothers and sisters; and marriages
that are highly immoral (bigamous or polygamous marriages in Christian countries that prohibit such
marriages).

(2) Re proxy marriages., while they are not allowed under Philippine internal law, the rule in the
U.S. is that where permitted by the law of the place where the proxy participates in the marriage
ceremony, they are entitled to recognition at least insofar as the formal validity of the marriage is
concerned. This rule is intended to protect the wife and children (Salonga, supra, p. 266).

(3) As to marriages on board a vessel on the high seas, since the country whose flag the ship is
flying has jurisdiction over the ship, the rule is that compliance with the law of the said country is
required for the marriage to be valid. In the U.S. where each state has its own law on marriage, the law of
the domicile of the ship owner governs (Salonga, supra, p. 267).

36
 (4) If the parties or at least the husband is a Muslim (whose religion allows plural marriages), it is
believed that we would recognize up to four marriages of the same husband (as recognized by the
Philippine Muslim Code on Personal Laws) to protect the rights of the wives and children.

5. What about marriages between a Filipino and a foreigner abroad, i.e, a, mixed marriage?

If the marriage is valid under the law of one of the spouses while void under the law of the
other, we should uphold the validity of the marriage, unless the marriage is universally incestuous or
highly immoral (the same rule as to foreigners who get married abroad).

For example, a Filipina marries her American first cousin in California, where the marriage is
valid. If the parties are both Filipinos, said marriage would be void for being against public policy (Art.
38 (l), Family Code). But since the marriage is mixed and it is valid under the lex loci celebrationis, we
should uphold the marriage, to avoid absurdity and to do justice to the wife and children, if any. After all,
the marriage was performed in a foreign shore and is not by itself immoral or universally incestuous.
Indeed, Art. 149 of the Family Code provides that “the family, being the foundation of the nation, is a
basic social institution which public policy cherishes and protects.”

6. What about a mixed marriage in the Philippines; i.e., one between a Filipino and a foreigner?

It is believed that the national law of the Filipino -that is. Philippine law- should be followed;
otherwise, our public policy would be violated. This is true both as to the extrinsic and intrinsic validity
of the marriage. Thus, a Filipino cannot marry his or her American first cousin in the Philippines, such
marriage being prohibited by the Family Code. They cannot also marry without a marriage license, unless
the marriage is one exempt from such license.

B. MARRIAGE AS A STATUS

1. What are the two aspects of marriage as a status?

Marriage as a status carries with it implications in two aspects: the aspect of personal rights and
obligations of the spouses, and the aspect of their property relations. As to the first aspect, the rights and
obligations of the spouses are purely personal to them and are not ordinarily interfered with by the
courts. As to the aspect of the property relations of the spouses, the law lays down certain rules and
judicial sanctions, as they may affect public interest.

2. What law governs the personal relations of the spouses in Conflict of Laws?

In the Philippines, personal relations of the spouses are governed by Philippine law since we
follow the nationality theory (Art. 15, New Civil Code). Other countries that follow the nationality theory
also apply the spouses’ national law in determining their personal relations to each other. On the other
hand, in countries that follow the domiciliary theory, the personal relations of the spouses are governed
by the law of their domicile.

3.Suppose the spouses are of different nationalities, what law will govern their personal relations,
the law of the husband or the law of the wife?

As a general rule, the personal relations of the spouses are governed by the national law of the
husband. Reason for this is because when a woman marries a foreigner, she usually loses her nationality
and instead follows that of the husband. Another reason is that the husband is usually the head of the
family, so that the husband's personal law governs the personal relations of the spouse

In the Philippines, an alien woman who marries a Filipino husband ipso facto becomes a Filipino
citizen if she does not suffer under any disqualification for naturalization as a a Filipino citizen (Moya Lim
Yao v. Comm. of Immigration, 41 SCRA 292). An exception was, however, held in Djumanton v. Domingo, 240
SCRA 746 (1995), wherein the Supreme Court ruled that “marriage of an alien woman to a Filipino
husband does not ipso facto 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 here as an alien”.

37
 As for a Filipina who marries an alien husband, our Constitution provides that she “shall retain
her Philippine citizenship, unless by her act or omission, she is deemed, under the law, to have renounced
her citizenship”.

What law, then, should govern the personal relations of a Filipino wife, who retains her
Philippine citizenship, and her alien husband?

By parity of reasoning with Art. 80 of the Family Code on the property relations of husband and
wife, which provision has abandoned Art. 124 of the New Civil Code providing that the national law of
the husband shall apply to the property relations of spouses of different nationalities, it will be the
national law of the wife or Philippine law, that would govern the spouses’ personal relations. This change
of rule was intended by the framers of the Family Code to protect the Filipino wife (because in many
cases of mixed marriages, it is the wife who is the Filipino) from the harshness or strictness of the
personal law of the alien husband, thus depriving her of her basic, fundamental rights. Many aliens
husbands have divorced their Filipino wives under their personal 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 their minor children, as heir of the husband, and in
the division of the properties acquired during the marriage. (See Minutes of Committee meetings of Nov.
15, 22 and 24, 1986)

4. Suppose husband and wife acquire a new common nationality? Or only the husband changes
nationality? Or there never was a common nationality between the spouses? What law will
govern the personal relations of the spouses?

(1) If the spouses have the same nationality but they acquire a new nationality by their common
act, their new national law will govern their personal relations.

(2) If the husband alone changes his nationality after the marriage, that law of the last common
nationality of the spouses would govern, to avoid prejudice to the wife who would suffer a change in her
rights without any free exercise of choice on her part (as provided in the Hague Convention of 1905)

(3) If the spouses retain their different nationalities after the marriage, it has been suggested that
the national law of both spouses should govern (Rabel, id., p. 327). Another writer, however, offers a
better solution; i.e., apply the law of the husband at the time of the marriage (Wolf, Private International
Law, 360, 361). The result, it is claimed, will not necessarily be unfair to the wife, because the then
national law of the husband may even be more favorable to her than her own national law. Besides, she
should already know what the husband’s national law was when they got married.

Some exceptions to the above rule would be, if the national law of the husband violates the
public policy of the forum, or the national law of the wife happens to be the law of the forum, intended
as it is to protect the wife's rights.

5. Finally, what are the personal rights and duties of husband and wife under Philippine law?

(1) The spouses are obliged to live together, observe mutual love, respect and fidelity, and render
mutual help and support (Art. 68, Family Code).

(2) The spouses have the right to fix together the family domicile. However, in case of
disagreement between them, the court shall decide.

The court may exempt one spouse from living with the other if the latter
should live abroad, or for other valid and compelling reasons which should not
be incompatible with the solidarity of the family (Art 69, id.).

(3) The spouses are jointly responsible for the support of the family (Art. 70, id.)

(4) The management of the household shall be the right and duty of both spouses (Art. 71, id.).

(5) When one of the spouses neglects his or her duties to the conjugal union or commits acts
which tend to bring danger, dishonor, or injury to the other or the family, the aggrieved
spouse may apply to the court for relief (Art. 72, id.).

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 (6) Either spouse may exercise any legitimate profession, occupation, business, or activity
without the consent of the other. The latter may object only on valid, serious, and moral
grounds (Art. 73, id.).

6. Going now to the property relations of husband and wife, what are the conflicts rules on the
matter?

For the same reason that the personal relations of the spouses are governed by the personal law
of the husband if they are of different nationalities, the same rule also applies to their property relations,
or to the property regime that governs their marriage.

In the Philippines, since we follow the nationality theory, the property relations of the spouses
are, in the absence of a marriage settlement between them, governed by Philippine law, regardless of the
place of the celebration of the marriage and their residence (Art. 80, Family Code)

If the spouses are of different nationalities, however, meaning that one of the spouses is a
Filipino and the other, an alien, still Philippine law will govern their property relations. This was the
intention of the Committee that framed the Family Code, considering that in most mixed marriages, it is
the wife who is the Filipino, and the Committee wanted to protect the wife in such a marriage by
applying Philippine law to the property relations of the spouses, whether it is the husband or the wife
who is the Filipino citizen. This rule thus amends Art. 124 of the New Civil Code to the effect that in
mixed marriages between a Filipino and a foreigner, it is the law of the husband that governs the property
relations of the spouses. (See Minutes of meetings of Civil Code Revision Committee, Nov. 15, 22, and
24, 1986)

The exceptions under Art. 80 of the Family Code are:

(l) If both spouses are aliens, in which cases the general rule in Conflict of Laws will apply; and

(2) With respect to the extrinsic validity of contract affecting real property, whether situated in
the Philippines or in a foreign country, in which cases the lex situs will govern the formalities to be
observed for the contract’s validity (Art. 15, New Civil Code)

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 doctrine of immutability of matrimonial regime of the spouses; i.e. regardless
of the change of nationality by the husband or the wife or both, the original property regime that
prevailed at the start of their marriage prevails. The reasons for this doctrine are: Marital peace in the
spouses’ property relations is more or less guaranteed; the spouses will not be able to prejudice creditors,
who in turn cannot jeopardize the interests of the spouses; and even the spouses may protect themselves
from each other, (I Rabel, Conflict of Laws, pp. 453, 354)

8. Is immutability of the property regime of the spouses the same as immutablity of the law
governing said regime?

No, for while a subsequent change of nationality by the husband or the wife or both does not
change or affect the original property regime, the law that creates and governs said regime may change.
However, marriages solemnized before the new law takes effect are still governed by the old law.

A good example is the change that the Family Code introduced in the property relations of the
spouses. While the New Civil Code established the system of conjugal partnership of gains between the
spouses, the Family Code changed the system or the regime to the absolute community regime. Thus,
couples who get married under the Family Code who did not enter into a marriage settlement have a
regime of absolute community of property between them. However, marriages solemnized under the
New Civil Code without marriage settlements are still governed by said Civil Code; i.e., the spouses still
have a conjugal partnership of gains between them, subject, however, to the changes introduced by the
Family Code in the administration and disposition of conjugal properties, which have retroactive effect,
without prejudice to vested rights acquired before the Family Code took effect (Art. 105, Family Code).

39
 C. ANNULMENT and DECLARATION OF NULLITY OF MARRIAGE

1. Distinguish annulment from declaration of nullity of marriage.

Annulment is the remedy if the marriage is voidable or annullable, i.e., valid until annulled; while
declaration of nullity of marriage is the remedy if the marriage is void ab initio.

Since a voidable marriage is valid until annulled by a court of competent jurisdiction, it has
certain legal effects: namely:

(1) It can be convalidated either by free cohabitation or prescription.

(2) The same property regime as in a valid marriage is established between the spouses.
(3) The children are legitimate if conceived before the decree of annulment.
(4) The marriage cannot be attacked collaterally; i.e., there must be a decree of annulment to set
aside the marriage.
(5) The marriage can no longer be impugned after the death of the spouses.

On the other hand, since a void marriage is absolutely inexistent.

(l) It cannot be convalidated.

(2) The only property relationship between the parties is a co-ownership (see Arts. 147-148,
Family Code).
(3) The children are illegitimate, except children of void marriages under Arts. 36 and 53 of the
Family Code.
(4) The marriage may be attacked directly or collaterally.
(5) The marriage can still be impugned even after the death of the spouses.

Note: In Canon Law, there are only two categories of marriage: void and valid. Void marriages
are considered annullable, such that the remedy to declare a marriage null and void under Canon Law is
called annulment. Annulment in Canon Law should, not be confused with annulment in the civil law
which applies only to voidable marriages.

A common mistake of non-lawyers and even some lawyers and judges is to call the remedy to
nullify a marriage under Art. 36 of the Family Code (based on the psychological incapacity of one of the
spouses) annulment. This is wrong, because the marriage under Art. 36 is null and void (this ground
having been taken by the Family Code from Canon Law), and the remedy to declare the marriage as such
is declaration of nullity of marriage, not annulment.

2. If the marriage is null and void or an absolute nullity, can the parties remarry without going to
court, since after all, the marriage does not exist at all?

No. Under Art. 40 of the Family Code which is a new provision, “the absolute nullity of a
previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment
declaring such previous marriage void.”

What the frarners of the Family Code wanted was for a person not to assume that his or her
marriage is null and void, even if such be the fact, but he or she must first seek a judicial declaration of
the nullity of his or her marriage before marrying again; otherwise, his or her second marriage will also be
void and even bigamous (See Wiegel v. Sempio-Diy, 143 SCRA 499; Vda. de Consuegra v. GSIS, 37 SCRA
315). This new provision in the Family Code abandons the old decisions of the Supreme Court to the
effect that where a marriage is illegal or void from its performance, no judicial decree is necessary to
establish its invalidity (People v. Mendoza, 95 Phil. 843; People v. Aragon, 100 Phil. 1033).

The above article also protects the spouse who believes that his or her marriage is null and void
from being charged with bigamy if he or she marries again, because there would already be a judicial
declaration of the nullity of his or her marriage before the remarriage. And this provision is retroactive.

Thus, a marriage void for lack of a marriage license still needs a judicial declaration of nullity
before the parties can marry again (Republic v. C.A. and Castro. 236 SCRA 257; Domingo v. C.A., 226 SCRA
572). It has also been held that where a party contracts a second marriage on the mere belief that his or
her spouse is already dead without filing a summary proceeding under Art. 41 of the Family Code, the
second marriage is bigamous and void (Navarro v. Domagtoy. 259 SCRA 129).

40
3. What are the conflicts rules on annulment and declaration of nullity of marriage?

In Conflict of Laws, the grounds for annulment of marriage, and those for the declaration of
nullity of marriage, are the grounds provided for by the law alleged to have been violated which, in
general, is the lex loci celebrationis or the law of the place where the marriage was celebrated, with certain
exceptions, The reason is this: Considering that it is the lex loci celebrationis that is usually applied to
determine whether a marriage is valid or not, it is the same law that also determines whether a marriage is
voidable or not, and whether it is void or not.

Thus, if Filipinos get married abroad, the lex loci celebrationis will determine the grounds for
annulment (Art 26, Family Code). For example, two Filipinos get married in England. Let us assume that
sterility is a ground for annulment of marriage in England. The marriage of the two Filipinos will be
annullable on the ground of sterility, even if sterility is not a ground for annulment under the Family
Code. This is because English law is the lex loci celebrationis.

As for declaration of nullity of a marriage between two Filipinos abroad, the grounds are the
exceptions to the lex loci celebrationis in Art. 26 of the Family Code; namely, Articles 35 (l), (4), (5), and (6);
36, 37, and 38.

As to foreigners who get married abroad, the exceptions to the lex loci celebrationis would be the
same as those in marriages as a contract; namely, marriages that are highly immoral (like bigamous and
polygamous marriages between Christians) and universally incestuous marriages.

The above rules do not, however, apply to consular marriages, to which either the national law
or law of the domicile of the parties, as the case may be, applies.

4. What courts have jurisdiction over cases for annulment or declaration of nullity of marriage?

Since we follow the nationality theory, our courts have jurisdiction to take cognizance of
annulment and nullity suits in marriage in cases where the litigants are Filipinos.

Domiciliaries of the Philippines can also file such suits in the Philippines.

In other countries, it is usually the courts of the parties’ domicile who have jurisdiction over such
cases, since that is the place which has the greatest interest in the domestic relations of the spouses.
Another reason for this rule is a practical one: in order not to compel the parties, who are domiciled in
one country, to travel to their country of nationality just to file such cases.

In the Philippines, a Filipino citizen or domiciliary can file a case for annulment or declaration of
nullity of marriage even if the defendant is a non-resident of our country. Such cases involve the personal
status of the plaintiff and so, jurisdiction can be acquired over the defendant by publication of summons
(Rule 14, Sec. 15, 1997 Rules on Civil Procedure, see also Sec. 6, new Rule on Declaration of Nullity and
of Annulment Marriage which took effect on May 15, 2003).

D. ABSOLUTE DIVORCE

1. What is the history of absolute divorce in the Philippines?

(1) The Siete Partidas, the law in force in the Philippines during the Spanish regime and prior to
the enactment of the Civil Code of Spain, allowed only legal separation, not absolute divorce.

(2) Later, the provisions on divorce of the Civil Code of Spain were suspended in the Philippines
by Gov. Weyler, so that they were never enforced in the Philippines (Benedicto v. Dela Rama, 3 Phil. 34,
Francisco v. Jason, 60 Phil.442)

(3) On March 11, 1917, a Divorce Law (Act 2710) was passed in the Philippines, but it
recognized only two grounds for absolute divorce, adultery on the part of the wife and concubinage on
the part of the husband; and in either case, there must be a previous conviction. Many couples did not,
therefore, apply for divorce under this law because they did not want their children to have convicts for
their parents.

41
 Re foreign divorces obtained by Filipinos during the effectivity of Act 2710, the Supreme Court
held that the foreign divorces were valid only if the ground therefor was any of the two grounds
allowed under Act 2710 (Barretto Gonzales v. Gonzales, 28 Phil. 67). Thus, a foreign divorce obtained by a
Filipino couple on the ground of desertion on the part of one of them was held void, being contrary to
law or the fundamental policy of the forum (Sikat v. Canson, 67 Phil. 207; Arca v. Javier, 50 OG 3538
[1954])

(4) During the Japanese occupation, a law allowing absolute divorce was passed (Executive
Order No. 141) allowing divorce on 10 grounds. Many Filipino couples took advantage of this law and
sought divorce under its provisions.

(5) Executive Order No. 141 was effective in this country until October 23, 1944 when General
Douglas MacArthur reestablished the Commonwealth Government, which resulted in the repeal of
Exec. Order No. 141 and in effect revived Act No. 2710.

(6) Act No. 2710 was later repealed by the New Civil Code, which allows and recognized only
legal separation. The draft of the Code had provisions on divorce, but during the discussions over the
draft of the Code in Congress and with the strong opposition of the Catholic population of the
country, absolute divorce was eliminated and substituted with legal separation.

(7) The Family Code also does not allow absolute divorce except that which is validly obtained
abroad by a foreigner from his or her Filipino spouse capacitating him or her to remarry, in which case
the Filipino spouse can also remarry (Sec. par. , Art. 26, Family Code)

(a) The above provision avoids the absurd situation of a Filipino as being still married to
his or her alien spouse, although the latter is no longer married to the former, and may already
have another spouse.

(b) The above provision does not apply to a divorce obtained by a Filipino abroad from
his or her Filipino spouse, which divorce is void because our law does not allow divorce and
Filipinos are governed by Philippine law wherever they go as to their status and capacity (Art. 15,
New Civil Code).

(c) The above provision likewise does not apply to a divorce obtained by a married
Filipino who went to another country, became naturalized therein, and later divorced his Filipino
spouse after his naturalization, as it might open the door to rich Filipinos to obtain naturalization
in other countries which allow divorce, only to be able to divorce their Filipino spouses.

2. May an alien who had divorced his Filipino spouse in his home country come back to the
Philippines and ask for legal separation and separation of property against his Filipino wife on
the ground of the latter’s adultery?

No, because a spouse who accuses the other of adultery must be an offended spouse; i.e, he
must still be married to the latter. Here, the alien had no legal standing to accuse his former Filipino wife
of adultery because their marital bond had already been severed when he filed the adultery case and could
no longer be an offended spouse (Pilapil v. Ibay-Somera, 174 SCRA 653 [1989]).

3. Compare the above Pilapil v. Ibay-Somera case with Van Dorn v. Romillo, 139 SCRA 159]
[1985).

The two cases are similar. In the Van Dorn case, Richard Upton, the American husband of Alice
Reyes, and the latter, obtained a divorce in Nevada, U.S.A. Thereafter, Alice Reyes married again in
Nevada. Later, Upton came back to the Philippines and claimed that a business in the name of Alice
Reyes was their conjugal property and that the latter should render an accounting and let him manage
said business. The Supreme Court held that the divorce obtained by Upton from Alice released she latter
from their marriage, and Upton had no legal standing to sue Alice as he was no longer her husband when
he filed the aforementioned case after their divorce.

NOTE: It is important to remember the two foregoing cases of Pilapil v. Somera and Van
Dorn v. Romillo if similar cases arise in the future under the second paragraph of Art. 26 of the
Family Code which recognizes a divorce validly obtained by the alien spouse of a Filipino citizen
abroad and allows the Filipino to marry again.

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4. What are the rules on the validity of foreign divorces obtained by foreigners abroad?

(1) The Hague Convention on the Recognition of Divorce and Legal Separation concluded on
June 1, 1970 states that a foreign divorce will be recognized in the contracting states if, at the date of
the filing of the proceedings:

(a) The petitioner or respondent had his or her habitual residence in the state where the
divorce was obtained;
(b) If both spouses were nationals of said state; or
(c) Although the petitioner was a national of another country, he or she had his or her
residence in the place where the divorce was obtained.

(2) In the United States, a state has the duty to recognize a divorce obtained in a sister state if the
spouses were domiciled in the latter state.

(3) A divorce obtained in a foreign country would be recognized under the same circumstances
that a divorce obtained from a sister state is given recognition. (Rabel, Conflict of Laws,. 1968, pp. 500-
527)

(4) In the Philippines, if both spouses are aliens, we recognize a decree of divorce obtained by
them abroad if valid under their national law. Thus, in Recto v. Harden L--6897, Nov. 29, 1956 our
Supreme Court held that -

“Inasmuch as Mr. and Mrs. Harden are admittedly citizens of the United States,
their status and dissolution thereof are governed by the laws of the United States which
sanction divorce.”

E. LEGAL SEPARATION OR RELATIVE DIVORCE

1. What is legal separation and how does it differ from/divorce?

Absolute divorce (a vinculo matrimonii) dissolves the marriage and the parties can marry again.
Legal separation or relative divorce (a mensa et thoro) is only separation from bed and board but
the parties remain married.

2. Distinguish legal separation from annulment of marriage.

(a) In legal separation, the marriage is not defective; in annulment, the marriage is defective.

(b) In legal separation, the grounds arise after the marriage; in annulment, the grounds must exist
at the time of or before the celebration of the marriage.

(c) In legal separation, the parties are still married to each other and cannot remarry; in
annulment, the marriage is set aside and the parties can marry again.

(d) In legal separation, the grounds are those given by the national law or the domiciliary law of
the parties concerned, inasmuch as the question is one of status; annulment, on the other hand,
questions the very existence of that status; so that as a general rule, the grounds for annulment are
those given by the lex loci celebrationis, subject to certain exceptions.

3. What are the conflicts rules on legal separation?

(a) If the parties are of the same nationality, the grounds for legal separation are those given by
their personal law (whether national law of the domiciliary law, as the case may be).

(b) If the parties are of different nationalities, the grounds available under the personal law of the
husband as well as those available under the law of the wife are all available grounds for granting the
legal separation. (Hague Convention on Legal Separation, Art. 8).

43
4. What courts may grant legal separation? Or, in what country should the case be filed?

(a) Jurisdiction in the case of aliens is not assumed by the forum unless the national law of the
parties is willing to recognize its jurisdiction.

(b) In the Philippines, foreigners may ask for legal separation here, even if they did not get
married in this country. What is important is that the court has jurisdiction over both parties.

(c) Most countries assume jurisdiction over cases for legal separation on the basis of the domicile
of one of the parties or the matrimonial domicile. The rationale for this rule is that the law of the
domicile of the parties is that with which they are most intimately connected (Goodrich, Conflict of
Laws, 3rd ed. , 395-396).

5. Is it necessary that the cause for legal separation take place in this country for our courts to
have jurisdiction over the case?

No. There is no such requirement in the Family Code. Again, what is important is that the court
has jurisdiction over the parties, and that the procedural requirements of the Rules of Court are complied
with.

It is important to emphasize here that Art. 99 of the New Civil Code requiring that the petitioner
must have resided in the Philippines if the cause for legal separation arose in a foreign country, has been
expressly repealed by the Family Code (Art. 254) and is no longer applicable.

6. What are the grounds for legal separation under the internal law of the Philippines?

(1) Repeated physical violence or grossly abusive conduct against the petitioner, a common child,
or a child of the petitioner;
(2) Physical violence or moral pressure to compel the petitioner to change religious or political
affiliation;
(3) Attempt to corrupt or induce the petitioner, a common child, or a child of the petitioner to
engage in prostitution, or connivance in such corruption or inducement;
(4) Final judgment sentencing the respondent to imprisonment of more than 6 years, even if
pardoned;
(5) Drug addiction or habitual alcoholism of the respondent
(6) Contracting by the respondent of a subsequent bigamous marriage, whether in the
Philippines or abroad;
(7) Lesbianism or homosexuality of the respondent;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the petitioner
(10) Abandonment of petitioner by respondent without justifiable cause for more than one year.
(Art. 55, Family Code)

7. What are the defenses to legal separation under Philippine internal law?

(1) Condonation of the offense or act complained of:

(2) Consent of the aggrieved party to the commission of the act or offense complained of;
(3) Connivance between the parties in the commission of the offense or act constituting the
ground for legal separation;
(4) Where both parties have given ground for legal separation;
(5) Collusion between the parties to obtain legal separation;
(6) Prescription. (Art. 56, Family Code)

8. What is the prescriptive period for the filing of the action in the Philippines?

Within five (5) years from the time of the occurrence of the cause (Art. 57, Family Code)

9. Can the wife drop the name of the husband after the decree of legal separation?

No, because they are still married. And this is true whether she is the guilty party or not.

44
 As held in Laperal v. Republic, 6 SCRA 357, the wife who has been granted legal separation cannot
petition to be allowed to revert to her maiden name.

10. If one of the parties in a legal separation case dies during the pendency of the case, should
the case be dismissed or does it survive?

The case should be dismissed because it is purely a personal one. This is true even if properties
are involved. For without a decree of legal separation, here can be no effects.

11. Does the offended spouse inherit from the guilty spouse? What about the guilty spouse, does
he or she inherit from the innocent spouse?

Of course the offended spouse inherits from the guilty spouse because the parties are still
married to each other.

As for the guilty spouse, he or she is disqualified from inheriting from the innocent spouse by
intestate succession, and provisions in the will of the latter favorable to him or her are revoked by
operation of law (Art. 63 (4), Family Code).

However, to disqualify the guilty spouse from inheriting from the innocent spouse by intestate
succession, the latter must file a case of legal separation 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 shall not have any of the rights granted in the preceding articles” (meaning the right
to inherit by intestate succession). But there must be a decree of legal separation as stated in Question 10
hereof.

Chapter XIII.

STATUS OF CHILDREN

A. LEGITIMACY AND ILLEGITIMACY

1. What are the conflicts rules in determining legitimacy of children?

(a) If the parents are of the same nationality, their common personal law, whether their national
law or the law of their domicile, will be applied. (I Rabel, supra).

If the parents are of different nationalities, the personal law of the father governs (Rabel, id.).

(b) In the Philippines, since we follow the nationality theory (Art 15, New Civil Code), the
common national law of the parents applies, and if they have different nationalities, the national law of
the father governs.

2. Who are legitimate and illegitimate children under Philippine internal law?

Art. 164 of. the Family Code defines legitimate children as “children conceived or born during
the marriage of the parents”; while illegitimate children are defined by the succeeding Art. 165 as
"children conceived and born outside a valid, marriage, xx x unless otherwise provided in this Code”.

The second paragraph of Art. 164, however, includes a special kind of legitimate children;
namely, children conceived as a result of the artificial insemination of the wife with the sperm of the
husband or that of a donor or both, provided the children were born under the conditions prescribed in
said Article.

(Please see comments on children by artificial insemination of this same author in her
"Handbook on the Family Code of the Philippines”, 1995 ed., pp. 258-269).

As for the exceptions to Art. 165 of the Code defining who are illegitimate children, the
exceptions referred to are the children born of void marriages under Art. 36 (void because of the
psychological incapacity of one of the spouses) and under Art. 53 (those born of the first marriage of

45
parties before said first marriage had been annulled or declared void, and who marry a second time
without delivering the presumptive legitime of the children of their first marriage).

5. What are the rights of legitimate (and legitimated children) under Philippine law?

The rights of legitimate and legitimated children under Art. 174 of the Family Code are:

(1) To bear the surnames of the father and the mother, in conformity with the provisions of
the Civil Code on surnames;

(2) To receive support from their parents, their ascendants, and in proper cases, their brothers
and sisters, in conformity with the provisions of this Code on support; and

(3) To be entitled to the legitime and other successional rights granted to them by the Civil
Code.

Note: The legitime of each legitimate child is half of the parent's estate divided by the number of
legitimate children (Art. 888, New Civil Code); while in intestate succession, legitimate children inherit
equally (per capita) without distinction as to age or sex, and even if they spring from different marriages
(Art. 979. id.)

4. What are the rights of illegitimate children under Philippine law? .

Art. 176 of the Family Code provides that illegitimate children have the rights:
(1) To use the surname of the mother;
(2) To be under the parental authority of the mother;
(3) To support in conformity with this Code;
(4) To the legitime, which is one-half of the legitime of a legitimate child.

Remember that under the new Rep. Act No. 9255, illegitimate children may now use the
surname of the father "if their affiliation has been expressly recognized by the father through the record
of birth appearing in the civil register or when an admission in a public document or private written
instrument is made by the father" during the latter's lifetime.

5. What law governs the rights and duties between parent and child?

(a) If the child is legitimate as determined by the above rules, either the common personal law of
the parents, or the personal law of the father if the parents are of different nationalities, governs. (Rabel,
id.).

(b) If the child is illegitimate as determined by the above rules, the personal law of the mother is
decisive, unless the child is subsequently recognized by the father, in which case the rules on legitimate
children will be applied (Rabel, id.).

(c) In the Philippines, again since we follow the nationality theory, the law of the mother governs
if the child is illegitimate, unless the child is again recognized by the father, in which case the personal law
of the father (whether it is the same as the mother) applies.

6. What is meant by the doctrine of immutability of status?

This doctrine means that the status of a child (whether legitimate or illegitimate) is not affected
by a subsequent change of nationality of the parents. But the rights and duties of parent and child, or
child and parent, would, after the parents’ change of nationality, be governed by the new national law of
the parents (I Rabel, id., pp. 606-607).

B. LEGITIMATION

1 What are the conflicts rules on legitimation of children?

"Legitimation" is a process whereby children who in fact were not born in lawful wedlock and
should, therefore, be ordinarily considered illegitimate children are, by fiction of law and upon

46
compliance with certain legal requirements, regarded by law as "legitimate", it being supposed that they
were born after their parents had already been validly married (I Manresa 550).

In Conflict of Laws, the requisites of legitimation are generally considered those prescribed by
the national law of the parents, and if the latter have different national laws, the national law of the father
(I Rabel, id., p. 575). In countries following the domiciliary theory, however, the personal law being the
law of the domicile, the law of the domicile of the parents or, in proper cases, the law of the domicile of
the father, should govern.

2. What is the internal law of the Philippines on legitimation of children?

Our internal law on legitimation of children is found in Arts. 177 to 182 of the Family Code.

Under Art. 177, the following requisites must concur in order that a child may be legitimated:
(a) The child was conceived and born outside lawful wedlock.
(b) The parents, at the time of the child's conception, were not disqualified by any
impediment to marry each other.

Note: The additional requirement under Art. 270 of the New Civil Code that the parents must
have acknowledged the child first before or after their marriage, is no longer necessary under the Family
Code, because this Code has deleted recognition of natural children and already confers on legitimate and
illegitimate children their status at the moment of birth. Children that fall under Art. 177 of the Family
Code are, therefore, ipso facto legitimated upon the subsequent marriage of the parents no matter how
long a period of time has elapsed from the birth of said children to the time of the marriage of their
parents.

(See also comments by this same author on Arts. 177 to 182 of the Family Code in her
“Handbook on the Family Code of the Philippines”).

3. If the personal law of the parents, or of the father in proper cases, changes, is the legitimation
of the child affected?

No, because legitimation creates a permanent status of the child, so this status is immutable.
However, the rights and duties of parents and legitimated children may be modified by a change of the
personal law of the parents or of the father, as the case may be.

The immutablity of the status of a legitimated child is very clear under Art 180 of the Family
Code which provides that “the effects of legitimation shall retroact to the time of the child's birth”. Also,
Art. 178 provides that “the annulment of a voidable marriage shall not affect the legitimation”.

4. What are the rights of legitimated children under Philippine law?

They have the same rights as legitimate children (Art. 179), namely:

(1) To bear the surname of their father and mother;

(2) To receive support from their parents, ascendants, and in proper cases, their brothers and
sisters; and
(3) To the legitime and other successional rights granted by law to a legitimate child.

Note: In De los Santo s v. Luciano, 60 Phil. 328, it was held that the legitimated daughter of a man
can inherit from the man's brother as a legitimate niece.

C. ADOPTION

1. What are the sources of the Philippine law on adoption?

(a) Before the Family Code took effect on August 3, 1988, our law on adoption was PD 603 (the
Child and Youth Welfare Code), which expressly repealed all the provisions of the New Civil Code on
adoption.

(b) PD 603 was later amended by Executive Order No. 91 signed by former Pres. Corazon
Aquino on December 17, 1986 regarding non-resident aliens who were allowed to adopt under PD 603.

47
 (c) Subsequently, all the provisions of PD 603 and Executive Order No. 91 on substantive
matters were repealed by Title VII of the Family Code. Certain procedural provisions of PD 603 on
adoption (Arts. 32 to 38) were not, however, repealed by the Family Code.

Under the Family Code, aliens were not allowed to adopt in the Philippines anymore except
those referred to in Art. 184 (3) thereof, and non-resident aliens were allowed to adopt Filipino children
only under the law on Inter-Country Adoption (Republic Act No. 8043) which was signed by former
Pres. Fidel V. Ramos on June 7 1995 Under this law, the adoption proceedings are to be held in the
home country of the adopters.

(d) Still later, on February 25, 1988, former Pres. Ramos signed Republic Act No. 8552,
otherwise known as the “Domestic Adoption Act of 1998”, amending many provisions of the Family
Code on domestic adoption.

2. State the concept and rationale of adoption.

(a) The old definition of adoption in the Partidas is that it is "the act whereby one person is
received as the offspring of another although he is not such by nature".

This definition was based on the theory that adoption is mainly for the benefit of the adopter, so
that those who have no children or have lost them, may have the solace and joys of parenthood, and that
the void which exists in childless homes may be filled (Ynigo v. Republic, 95 Phil. 244).

(b) The rationale of adoption has, however, changed, and it is now considered more for the
benefit of the child than for the adopter, and pursuant to this modern trend, it has been held that
adoption does not merely establish a relationship of paternity and filiation but is also an act which
endows the child with legitimate status (Prasnick v. Republic, 98 Phil. 665).

“Adoption is thus given a social and moral purpose; that is, to extend to the orphan or to the
child of the indigent, the incapacitated or the sick, the protection of society in the person of the adopter”
(Tolentino, Civil Code of the Phil., 694).

3. What law determines whether the relationship of adoption has been created or not?

(a) The child's personal law, to protect his well-being.

(b) If the child does not reside in the country of his citizenship, the personal law of the adopter
will govern, or the personal law of the adopter and that of the child will be applied concurrently.

4. What law determines the legal effects of the adoption?

The legal effects of the adoption are determined by the same law that created the relationship of
adoption.

The legal effects that flow from the adoption are:

(a) The successional rights of the adopted child;
(b) The parental authority of the adopter over the adopted child;
(c) The use by the adopted child of the surname of the adopter.

5. An important problem in adoption in the Philippines is whether aliens can adopt in our
country. What is Philippine law on the matter?

(a) As stated in the discussion of Question No. 1 hereof, while the Civil Code of the Philippines
did not allow non-resident aliens to adopt, PD 603 liberalized the Civil Code provisions on adoption and
allowed even non-resident aliens to come to the Philippines and adopt our children here.

(b) The Family Code, however, became strict in adoption of aliens in the Philippines because of
reports received by the Committee that drafted the Code (of which this author was a member) that some
Filipino children adopted by aliens and brought by the latter to their home countries suffered cultural and
psychological shock and could not adjust to their new lives in the foreign countries of their foreign
adopters. Also, information was received that old alien pedophiles, after having been allowed to adopt
Filipino children in the Philippines, would, after bringing said children to their home countries, simply

48
abandon these children after they had satisfied their sexual desires on them. There were even alleged
cases of Filipino children who, after having been adopted by foreigners, were killed for organ transplants
in the foreign homes of their adopters. Hence, the Committee believed that by limiting adoption of
Filipino children by aliens to former Filipino citizens (and/or their spouses) related by blood to the
adopted children, the latter would be given some measure of protection by the adopters who are their
relatives by consanguinity.

(c) Republic Act No. 8552 or the "Domestic Adoption Act of 1998" again allows aliens (who are
not former Filipino citizens) to adopt in our country, provided:

(1) They have the same qualifications as those required of Filipino citizens (See Sec. 7(a),
Rep. Act 8552);
(2) Their countries have diplomatic relations with our country;
(3) They have been living in the Philippines for at least three (3) years prior to the filing of
the petition for adoption, and maintain such residence until the adoption decree is
entered;
(4) They have been certified by their diplomatic or consular offices or by any appropriate
government agency that they have the legal capacity to adopt in their own countries and
(5) Their government allows the adopted child to enter their country as their adopted child
(Sec. 7 (b), Rep. Act. 8552).

(d) As for the following aliens:

(1) A former Filipino citizen who seeks to adopt a relative within the 4th degree of
consanguinity or affinity; or
(2) One who seeks to adopt the legitimate son or daughter of his or her Filipino spouse; or
(3) One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse
a relative within the 4th degree of consanguinity or affinity of the Filipino spouse;
the same Sec. 7(b) of Rep. Act. 8552 provides that they need not comply with the residency in
the Philippines required of real aliens and they also need not submit a certification that they have
the capacity to adopt from the diplomatic or consular office of their country in the Philippines or
any other government agency.

Note, however, that the special kinds of aliens enumerated above by Rep. Act 8552 are required
to be related to the child to be adopted within the 4th degree of consanguinity or affinity. Art. 184 of
the Family Code which the above provision of Rep. Act 8552 amends did not limit the degree of
consanguinity between the adopter and adopted child. On the other hand, Sec. 7(b) of Rep. Act 8552
includes children related within the 4th degree of affinity to the adopting parent, which relationship of
affinity was not included in Art. 184 of the Family Code.

This author cannot understand, though, why Rep. Act 8552 in the above provision limits the
degree of relationship by consanguinity of the adopter and the adopted child only to the 4th degree. This
means that a former Filipino would not be able to adopt the child of his or her first cousin (5th degree)
or his or her second cousin (6th degree). Since the important consideration here is the love and
protection that a relative by blood, who is now an alien, can give to the child once the latter is brought to
the adopter's foreign home, it is immaterial how close they are related by blood.

6. The cases of Republic v. C.A. and Hughes, 227 SCRA 401, and Republic v. 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, now American citizens, and their
American husbands, because what the Family Code only allowed was joint adoption by Filipino
citizens and their aliens spouses. Are these decisions still good under Rep. Act 8552?

No more if the aliens husbands of former Filipino wives can comply with the requirements for
alien adopters under Sec. 7 (b) of Rep. Act 8552.

But, Rep. Act 8552 still requires that husband and wife must jointly adopt, which joint
adoption was also required by the Family Code, except when one spouse seeks to adopt his or her own
illegitimate child, or when one spouse seeks to adopt the legitimate child of the other spouse (Art. 185,
Family Code). Republic Act 8552 adds that in cases where the spouses are legally separated (Act. 7, sec.
par., sub. par. {iii}), the husband or the wife can adopt alone, and the consent of the other spouse to an
adoption filed by one spouse is no longer necessary.

49
7. What are the legal effects of adoption under Philippine law?

Rep. Act 8552 enumerates the legal effects of adoption as follows:

(1) All legal ties between the biological parent /parents and the adopted child are severed and
the same shall be vested in the adopter/adopters, except in cases where the biological parent is the
spouse of the adopter. In other words, parental authority over the adopted child is transferred to the
adopter.
(2) The adopted child shall be considered for all intents and purposes to be the legitimate child
of the adopter/adopters, and as such is entitled to all the rights and obligations provided by law to
legitimate children.
(3) In legal and intestate succession, the adopter/adopters and the adopted child shall have
reciprocal rights of succession without distinction from legitimate filiation. Testamentary succession will,
however, apply if the adopted child and the adopter or adopters had left a will.
(Secs. 16, 17, 18, Rep. Act 8552)

8. There are still other important points to remember regarding the nature of adoption in the
Philippines law; namely:

(1) Adoption proceedings in our country are always judicial and in rem ; i.e.. publication is
required as constructive notice of the petition for adoption to the whole world, since adoption creates
status.

(2) Since there can be no valid adoption without a court decree granting the same, a mere
agreement of adoption between the adopters and the parents of the child is not a valid adoption (Santos-
Ynigo v. Republic, 95 Rep. 244), nor the fact that the child had been adopted de facto (ampon) by the alleged
adopting parents (Lazatin v. Judge Campos, 92 SCRA 250).

(3) Neither is the mere registration of the child in the civil registry as the child of the adopter a
valid adoption. This even amounts to the crime of simulation of birth punishable by prison mayor in the
medium period, and a fine not exceeding P50,000.00 (Sec. 2l (b), Rep. Act 8552).

(4) The capacity and right of the adopter to file a petition for adoption, are governed by the law
in force at the time the petition is filed, and cannot be impaired by a new law disqualifying him or her for
adoption (Republic v. C.A. and Bobiles, GR 92326, 24 Jan. 1992; Republic v. Miller, GR 125937, April 21,
1999).

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 Procedure, we can recognize such foreign decree of adoption provided the foreign court had juris-
diction to render said decree; and that there was no want of notice, collusion, extrinsic fraud, or clear
mistake of law or fact leading to the foreign decree of adoption.

This is particularly true if both the adopter and the adopted child are nationals or domiciliaries of
the forum that decreed the adoption (Rabel, id., p. 647).

10. Does adoption confer on the adopted child the citizenship of the adopter?

No, adoption does not confer on the adopted child the citizenship of the adopter. Adoption is a
matter political, and not civil, in nature, and the ways in which it should be conferred lay outside the
ambit of the Civil Code (Uggi Lindamand Therkelsen v. Republic, 12 SCRA 400; also Ching Leng v. Galang, L-
11931, 27 Oct. 1958).

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 Chapter XIV.

WILLS, SUCCESSION, and ADMINISTRATION

OF THE ESTATE OF DECEASED PERSONS

1. What law applies in the transmission of successional rights upon the death of a person?

There are two theories or systems in determining the proper law for the transmission of
successional rights; the unitary or single system, and the split or scission system.

Under the unitary or single system, only one law determines transmission of real as well as
personal properties. In countries following the nationality theory like the Philippines, the national law of
the deceased governs the transmission of both real as well as personal properties, while in common law
countries or countries that follow the domiciliary theory, it is the law of the domicile of the deceased that
governs.

However, under the split or scission system, which England and the United States adopt,
succession to real property is governed by the lex situs, while succession to movable or personal property
is governed by the law of the domicile of the deceased at the time of his death.

In the Philippines, we follow, as already stated, the unitary or single system, in that Art. 16 of the
New Civil Code applies the national law of the deceased, whatever may be the nature of the property and
regardless of the country where the property is found.

2. When we talk of validity of wills, we refer to both its extrinsic and intrinsic validity. What does
each validity refer to?

Extrinsic validity deals with the forms and solemnities in the making of wills, which include the
age and testamentary capacity of the testator and the form of the will (whether oral or written, public or
private instrument, notarial or holographic, the number of witnesses, etc.).

Intrinsic validity concerns itself with the order of succession, the amount of successional rights
each heir gets, and such other matters that fall under the term "substance" as distinguished from "forms
and solemnities" of wills.

3. What are the conflicts rules in the Philippines on extrinsic validity of wills?

(a) If a Filipino makes a will abroad, he may comply with the formalities of Philippine law (lex
nationalii) or the lex loci celebrationis (the law of the place where he was at the time of the execution of the
will (Art. 815, New Civil Code).
Thus, a Filipino doctor working in New York may execute a will in accordance with Philippine
law or New York law.

(b) If an alien makes a will abroad, he may comply with the formalities of his lex nationalii (the law
of the country of which he is a citizen), the lex domicilii (the law of his domicile) (Art. 816, New Civil
Code), or the lex loci celebrationis (the law of the country where he was at the time of the execution of the
will). (Art. 17, i.d.).

(c) If an alien makes a will in the Philippines, he may comply with the formalities of his own
country (lex nationalii) or of Philippine law (lex loci celebrationis)

(d) As for a holographic will, which must be entirely written, dated, and signed by the hand of
the testator himself, it is subject to no other form and may be made in or out of the Philippines, and need
not be witnessed (Art. 810, New Civil Code).

4. What are our conflicts rules on joint wills?

(a) Filipinos cannot make joint wills whether here or abroad. Thus, a joint will made by two
Filipinos in a foreign country is void even if valid under the lex loci celebrationis (Art. 819, New Civil Code).

(b) Joint wills made by aliens abroad shall be considered as valid in the Philippines if valid
according to their lex nationalii or lex domicilii or if valid under the lex loci celebrationis (Arts. 816 and 17, id.)

51
 (c) Joint wills made by aliens in the Philippines are void even if valid under their lex nationalii or
lex domicilii, in order that our public policy on joint wills may not be militated against.

(d) A joint will executed by an alien and a Filipino citizen abroad will be valid as to the alien (if
his national law, law of the domicile, or the lex loci celebrationis allows it), but void as to the Filipino, the
same being against our public policy on joint wills.

5. What are the conflicts rules on the intrinsic validity of wills?

As a general proposition, conflicts rules on the intrinsic validity of wills are determined by the lex
nationalii of the deceased in countries that follow the nationality theory, and by the lex domicilii at the time
of death, in countries that follow the domiciliary theory

6. In the Philippines, what law governs the intrinsic validity of wills?

The New Civil Code applies the lex nationalii of the decedent in par. 2 of its Art. 16. This was also
followed by the Supreme Court in Miciano v. Brimo, 50 Phil. 867; Bellis v. Bellis, 20 SCRA 558; and Cayetano
v. Leonidas, 129 SCRA 522).

We must not forget, however, that in case of conflict between the nationality theory and the
domiciliary theory, we can treat the case as one of “renvoi” as in the Christensen case cited earlier in this
work, so that we can still apply Philippine law even if the deceased was a. citizen of another country.

7. What are the conflicts rules if a person dies intestate?

In civil law countries like the Philippines, the national law of the deceased applies. In common
law countries like the U.S. and Great Britain which follow the split or scission system, the lex domicilii of
the deceased at the time of death applies with respect to personalty, while the lex situs applies with respect
to real property.

8. What about revocation of wills, what are our conflicts rules?

(a)Under Art. 829 of the New Civil Code, a revocation done outside the Philippines by a person
who does not have his domicile here, is valid if done according to:
(l) The law of the place where the will was made (lex loci celebrationis); or
(2) The law of his domicile at the time of revocation (lex domicilii).

A problem here would arise if the testator revokes his will while domiciled in one
country and later, changes his domicile, then dies in the latter state. If the laws of his former
domicile and his domicile at the time of his death are different, which law applies? Common
sense and logic should apply the law of the domicile at the time of the testator's death, but
this is not what our law says.

Likewise, suppose a non-domiciliary makes the revocation in accordance with the law of
the place where he was at the time, are we not going to recognize the revocation? Why indeed
does the Civil Code ignore the law of the place of revocation, when we follow the lex loci
celebrationis in determining: the validity of wills executed abroad? Is not the desire of the
testator to revoke his will as important as his desire to make a will?

(b) If the revocation is done in the Philippines, it is valid if made in accordance with the
provisions of our Civil Code (Art. 829, id.).

(c) If the revocation is done outside the Philippines by a person who is domiciled here, it is valid
if made in accordance with our law (the lex domicilii) or the lex loci actus of the revocation (the place where
the revocation was made) (see Art.. 17, par. 1, New Civil Code).

9. What law should be applied in the interpretation of wills?

(a) As in contracts, the provisions of a will shall be interpreted in accordance with the testator’s
intention. If the terms are clear and unambiguous, the literal meaning of the stipulations shall control.
Otherwise, the evident intention of the testator must prevail; by not only referring to the context of the

52
will but also taking into account the contemporaneous and subsequent acts of the testator (Arts. 1370 to
1378, New Civil Code).

(b) If the testator's intention cannot be ascertained by the preceding rules, the interpretation of
ambiguous words must be made in accordance with the law which was most probably in the mind of the
testator when he used those words and with which he is presumed to be most familiar.

(c) If the will admits of different interpretations, that which will make the dispositions operative
shall be preferred. The interpretation that will give the will the most favorable construction to accomplish
its purpose shall be made (Arts. 788-792, New Civil Code).

(d) Every effort should be made to prevent intestacy in keeping with the policy of respecting the
will of the testator, provided that this can be ascertained.

10. What is probate, and what are the conflicts rules on probate of wills?

(a) Probate is the process of proving before a competent court the due execution of a will, that
the testator was possessed of testamentary capacity, and the approval by said court of the will.

(b) The allowance or disallowance of a will is essentially procedural, so that the law of the forum
applies to all procedural matters.

(c) Under Art. 838 of the first paragraph of the New Civil Code, "no will shall pass either real or
personal property unless it is proved and allowed in accordance with the Rules of Court".

(d) There is no period of prescription for the probate of a will. For the probate of a will is not
exclusively established in the interest of the surviving heirs but primarily for the protection of the
testator’s expressed wishes in the disposition of his properties. Since the probate of validly executed wills
is required by public policy, the State could not have intended the Statute of Limitations to defeat said
policy. (Guevata v. Guevara, GR L-5405, Jan. 31, 1956).

(e) Wills proved and allowed in a foreign country, according to the laws of each country, may be
allowed, filed, and recorded by the proper court in the Philippines (Rule 77, sec. 1, Revised Rules of
Court).

(f) Although a foreign will had already been probated in a foreign country, it still has to be
reprobated in the Philippines in accordance with our procedural law, because a foreign judgment, no
matter how intrinsically meritorious, cannot have, as a general rule, automatic extraterritorial effect. But
instead of proving all over again the due execution of the will, it is ordinarily sufficient to ask for the
enforcement here of the foreign judgment of the probate abroad.

(g) The evidence necessary for the probate or allowance of wills which have been probated
outside the Philippines are:
1) The due execution of the will in accordance with the foreign law because we cannot take
judicial notice of foreign laws.
2) The testator had his domicile in the foreign country where the will was probated;
3) The will had been admitted to probate in said country;
4) The foreign tribunal is a probate court;
5 ) The laws of the foreign country on procedure and allowance of wills were followed.
(Vda. De Perez v. Tolete, 232 SCRA 722).

11. What are the conflicts rules on administration of estate of deceased persons?

(a) By "administration" is meant the process of determining and realizing the assets of a deceased
person, the payment of the debts of the estate, and the actual distribution of the residue to the heirs.

(b) Like probate, administration is procedural in nature. Therefore, it is the lex fori that governs,
not the law that determines how the estate of the deceased is to be distributed.

(c) In charge of the administration is an executor (if one is appointed by the testator in his will),
an administrator with a will annexed (one who is appointed by the court if there is a will but no executor

53
is designated therein), or an administrator (if there is no will, the court appoints an administrator of the
estate of the deceased).

(d) The executor is qualified, and the administrator of the estate is appointed, by the court of the
country where the deceased was domiciled at the time of his death; or if he was a non-domiciliary, the
country where his properties are found.

(e) The rights, powers, and duties of the executor or administrator are coextensive with the
territorial jurisdiction of the court that qualified or appointed him. Thus, an executor or administrator
qualified or appointed by a Philippine court has jurisdiction only over the properties of the deceased
located in the Philippines.

(f) Administration granted in the country of the deceased's last domicile is called principal
domiciliary administration; administration in other countries where the deceased also left properties, is
called ancillary administration.

(g) As held by the Supreme Court in Tayag v. Benguet Consolidated, Inc., 26 SCRA 242, the
domiciliary administrator of the estate of a deceased American citizen has no power over and is not
entitled to the possession of the stock certificates of shares of stock owned by the deceased in a Philip-
pine corporation, which certificates must be delivered to the ancillary administrator 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 heirs.

12. What is meant by the "caduciary rights" of a State in Conflict of Laws?

If the deceased had properties but left no heirs and no will, how can the country where the
properties are located claim said properties?

There are two theories adopted by different states so that they may claim the properties left by a
deceased who left no heirs and no will.

First, some countries including England and most American states adopt the theory that such
properties have become ownerless (bona vacantia); hence, they should revert to the state where they are
situated by escheat.

In the Philippines and some civil law countries, the theory adopted is that the State is the last
heir of a deceased person. Hence, the State succeeds to the properties left by said deceased as an heir.

13. There is no difficulty if a foreign element is not involved in the case. But suppose the
domiciliary of one State leaves properties in other states? How can those other States claim for
themselves the properties left by the deceased?

Example: A Chinese citizen died with substantial business interests in the Philippines but with
no heirs and no will. If we apply Art. 16, par. 2 of the New Civil Code, the national law of the deceased
applies to his succession, and if Chinese law- provides that the home state of the deceased (China)
inherits as his last heir, China can claim said properties and business interests for itself.

The Philippines can, however, claim said properties and business interest, by adopting the theory
of “caduciary rights” of the State. This is in consonance with the proposition that in a situation such as
this, "rules of conflict of laws are largely abandoned and each country appears to work on the principle of
seizing all property of the deceased lying within its borders”; i.e., the Philippines should regard said
properties as ownerless or bona vacantia. In short, the properties pass to the Philippines as an incident of
sovereignty, not as an heir (Black's Law Dictionary, Abridged, 5th ed., p. 92).

54
 Chapter XV.

PROPERTY

1. Are the conflicts rules on real and personal property the same?

Almost all legal systems adopt the lex situs or lex rei sitae, i.e., the law of the place where the
property is located or situated, with respect to real property. Thus, the law of the place where it is situated
governs everything concerning real property. The reason for the rule is clear and logical. "As the place
where a thing is situated is the natural center of rights over it, everybody concerned with the thing may be
expected to reckon with the law of such place." (Wolff, Private International Law, p. 564). Indeed, a
reference to the lex situs of real property satisfies the need for certainty, predictability, anil uniformity, as
well as the reasonable expectations of the parties, in dealing with real property.

The same cannot be said of the law on personal property or movables. The old rule during the
Middle Ages was mobilia sequuntur personam, since personal properties were understood to mean the
personal effects or belongings of the owner which he carried with him wherever he went. Therefore,
since said properties did not have a fixed situs, an artificial situs was given to them; namely, the personal
law of the owner.

Recently, in many countries, the lex situs or lex rei sitae has also been adopted with respect to
personal properties, the chief reason for the change being that the situs is easily ascertainable, making it
convenient for the parties and third persons who may be affected by rights in rem created over personal
properties to have those rights enforced and made effective (Wolff, id.). As the place where the
properties are located has the legal and coercive power to enforce said rights, the lex situs or lex rei sitae
applies to said properties (Goodrich, Conflict of Laws, p. 470).

2. How about in the Philippines, have we also adopted the rule of the lex situs or lex rei sitae
with respect to personal properties?

Yes, for Art. 15 of the New Civil Code provides that "real property as well as personal property
is subject to the law of the country where it is situated".

3. What was the reason given for the change of rule in the New Civil Code?

The late Senator Lorenzo M. Tanada, Chairman of the Special Committee on the New Civil
Code, explained the reason thus: "Now that there has been a great increase in the amount and variety of
personal property not immediately connected with the person of the owner, it was deemed advisable by
Congress of the Philippines to adopt the doctrine of lex rei sitae also to movables".

Indeed, it has been held that personal property may be separated from its owner, who may be
taxed on its account at the place where the property is located, although he is not a domiciliary, citizen or
resident of the state which imposed the tax (Manila Gas Cor. v. Collector, 62 Phil. 895). In fact, the concept
of movable property has so grown in the Philippines that even intangible properties like shares of stock
in a corporation, franchises, credits and the like are now considered movable property although they have
no physical or material situs.

4. What matters connected with real property are governed by the lex situs?

Extrinsic and intrinsic validity of transactions over real property such as alienations, transfers,
and mortgages; capacity of the contracting parties; interpretation of documents, effects of ownership; co-
ownership; accession; usufruct; lease; easement; quieting of title; registration; prescription; police power;
eminent domain; and taxation are governed by the lex situs.

Example: X, a California citizen domiciled in California, sells to a Filipino domiciled in the

Philippines a piece of land located in Florida, USA.
(a) The extrinsic validity of the transaction (the formalities) is governed by the lex situs (F1orida
law).
(a) The capacities of both vendor and vendee are governed by Florida Law.
(b) The intrinsic validity of the transaction is governed by Florida law.
(See also pars. (2) and (3) of Art. 80 of the Family Code applying the lex situs to the
extrinsic validity of contracts involving real properties not situated in the Philippines).

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5. What are the exceptions to the rule of the lex situs or lex rei sitae with respect to real
properties?

The exceptions to the application of the lex situs or lex rei sitae with respect to real properties are
the following:

(1) Succession: In civil law countries like the Philippines, testate and intestate succession,
whether the properties are real or personal and wherever they may be located, is governed by the
national law of the deceased, not the lex situs, including the order of succession, the amount of
successional rights, and the intrinsic validity of testamentary dispositions (Art. 16, par. 2, New
Civil Code).
Capacity to succeed is also governed by the national law of the deceased (Art. 1039, id.).

(2) Contracts involving real property but do not deal with title or real rights over the property,
the issue being the contractual rights and liabilities of the parties, are governed by the proper law
of the contract; i.e., either the lex loci voluntatis or the lex loci intentionis .

Example: A Filipino landowner hires a Japanese gardener for the latter to convert into a
Japanese garden a parcel of land in the Philippines. This contract is not governed by the lex
situs although the land to be developed is located in the Philippines. What governs is the
proper law of the contract between the parties.

(3) In contracts where real property is given as security by way of mortgage to secure a
principal contract (such as a loan), the loan is governed by the proper law of the contract
between the parties, while the accessory contract of mortgage is governed by the lex situs.

(4) While the validity of a transfer of land must, as a rule, be determined by the lex situs, the
validity of a contract to transfer is determined 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 title thereto, a mere contract to transfer is a personal contract that does not
create rights in rem. (id.)

6. What are the difficulties in applying the rule of the lex situs or lex rei sitae to movables or
personal properties, and how are they to be resolved?

(1) If the personal property is tangible (called chose in possession) and has a fixed situs, there is
no problem. But there are many different kinds of personal properties that do not have fixed situs, like
those that are usually in motion or have changing situs (e.g., vessels and goods in transit), or intangible
personal properties like rights and shares of stock in a corporation which, because they have no material
existence, do not also have material or tangible situs.

(2) The aforesaid personal properties which are usually in motion or do not have tangible
existence are thus given artificial or constructive situs, which will be discussed in the succeeding
questions.

7. What constructive situs is given to choses in possession that are usually in motion?

(l) Vessels, in view of their inherent mobility, are governed by:

(a) The law of the flag, if it is a public vessel;
(b) The law of the country or place of registry, if it is a private or commercial vessel. If,
however, the vessel is docked at a foreign port, said port is deemed as its temporary situs.

(2) Goods in transit are governed as follows:

(a) As to liability for loss, destruction, or deterioration of goods in transit, the law of
destination is applied (Example is Art. 1753 of the New Civil Code).
(b) The validity and effect of seizure of goods in transit are governed by law of the place
where the goods were seized which is their temporary situs.
(c) Disposition or alienation of goods in transit is generally governed by the proper law of
the contract between the parties (the lex loci voluntatis or lex loci intentionis). The reason is
obvious: such disposition or alienation is effected through a contractual obligation.

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 In some states, however, the transfer of title to chattels is governed by the law of the
place where the chattels are located at the time of the transfer, and this title will ordinarily be
recognized in any other state where the chattels are brought or transferred.

8. What are the rules in giving constructive situs to intangible personal properties or choses in
action?

Intangible personal properties or choses in action may be credits (or debts), negotiable
instruments, shares of stock in corporations, franchises, goodwill of a business, or intellectual properties
like patents, trademarks, tradenames, and copyrights. The situs given to them are as follows:

(a) Credits (or debts):

(l) Involuntary transfer or assignment of a debt (garnishment) - The situs is the place where
the debtor may be served with summons, which is usually his domicile.

(2)Voluntary assignment or transfer of credit - The proper law 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
accidental, or there may have been several assignments all valid according to their respective
leges actus.
(bb) The law of the place where performance or payment is normally expected - This
theory may, however, contemplate a multiple situation, since recovery may be made in any
jurisdiction where the debtor may be made subject.
(cc) The national law of the parties or, in a proper case, their domiciliary law. But the
parties may have different personal laws, or a needless investigation of what the personal
laws of the parties is inevitable.

(3) Situs of a debt for taxation purposes is the domicile of the creditor, where the collectible
credit may be taxed. (Minor, id ., pp. 281-282).

(4) For the purpose of administering debts, the situs is the place where the assets of the
debtor are actually situated (Minor, id., pp. 283-285).

(b) Negotiable instruments:

(1) The law that determines whether the instrument is negotiable or not is:
(aa) The law governing the rights embodied in the instrument (Wolff, id., p. 56l).
Thus, if it is a Philippine check, Philippine law will apply; if it is a California check,
California law applies.
(bb) The American Restatement, however, claims that the situs is the place where the
instrument was executed (Am. Restatement, p. 348).

(2) The law that determines the validity of the transfer, delivery, or negotiation of negotiable
instrument is generally the law of the situs of the instrument at the time of transfer, delivery, or
negotiation (Cheshire, Priv. Int. Law, p. 622).

(c) Shares of stock of corporations;

(l) Sales of corporate stocks are governed by the law of the place of incorporation, since it is
there that the transfer is recorded in the books of the corporation (Beale, Foreign Corporations,
Sec. 376; also, Sec. 650, Corporation Code of the Philippines).
Attaching or execution creditors are not bound by the transfer unless entered in the books
of the corporation (Unson v. Diosomito, 61 Phil. 535), unless said creditors actually knew of the
unregistered transfer (Fua Cun v. Summers, 44 Phil. 705).

(2) Chattel mortgages or pledges of corporate shares of stock, even if registered in the
corporate books, do not bind the corporation, but the parties are bound as long as they are
validly entered into by them (Monserrat v. Ceron, 58 Phil. 261).

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 (3) Sale of corporate shares as between the parties is governed by the proper law of the
contract (the lex_loci voluntatis or lex loci intentionis) because this 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. 624).

(4) Taxation on dividends received by corporate shares is governed by the law of the place of
incorporation. 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 (Manila Gas Cor. v.
Coll.,id.)

(d) Franchises:

Franchises are special privileges conferred by the government on an individual or a

corporation and are subject to the law of the state that granted them.

(e) Goodwill of a business, and taxation thereon:

Art. 521 of the New Civil Code provides that goodwill of a business is property and may be
transferred together with the rigrit 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 general public patronage and encouragement that it receives
from its customers (See Menendez v. Holt, 128 US 514).

(f) Patents, copyrights, trademarks, tradenames, and servicemarks:

(1) As a general rule, patents, copyrights, trademarks, and tradenames are, in the absence of a
treaty, protected only by the state that granted or recognized them (Wolff, id., p. 558).

(2) In the Philippines, Art. 520 of the New Civil Code provides that "a trade-mark or trade-
name duly registered in the proper government bureau or office is owned by and pertains to the
person, corporation, or firm registering the same, subject to the provisions of special laws."

(3) Under Sec. 21-A of Rep. Act No. 166, as amended by Sec. 7 of Rep. Act. No. 638), any
foreign corporation or juristic person to which a mark or trade name has been registered or
assigned under this Act may bring an action for infringement, for unfair competition, or false
designation of origin or false description, whether or not it has been licensed to do business in
the Philippines under the Corporation Code, at the time it brings the complaint; Provided that
the country of which the said foreign corporation or juristic person is a citizen or in which it is
domiciled, by treaty, convention, or law, grants a similar privilege to corporations or juristic
persons of the Philippines.

(4) As to copyrights, the former rule is that a copyright is protected only by the state that
granted or recognized it, absent a treaty. Thus, a copyright in State X could not be enforced in
our country in the absence of a treaty, unless a similar copyright was also applied for and granted
in the Philippines.

(5) On September 27, 1965, the Philippines became a party to the Union Convention for the
Protection of Industrial Property adopted in Paris on March 20, 1993. Art. 8 of said Convention
states that "a trade name [meaning, a corporate name] shall be protected in all the countries of
the Union without the obligation of filing of registration whether or not it forms part of the
tradename".

(6) In Philips Erport B.V. v. CA, 206 SCRA 457 (1992), the Supreme Court reiterated its earlier
decision in Western Equipment and Supply Co. v. Reyes, 51 Phil 115 (1927), that a corporation’s right
to use its corporate and trade name is a property right, a right in rem, which is entitled to
protection like any other tangible property, and cannot be impaired or defeated by subsequent
appropriation by another corporation in the same field.

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 (7) Speaking of trademarks, the High Court, in Emerald Garment Mfg. Cor. v. C.A., 251 SCRA
600 (1995), held that “actual use in commerce in the Philippines is an essential prerequisite for
the acquisition of ownership over a trademark pursuant to Sec. 2 and 2-A of the Philippine
Trademark Law” (R.A. 166)

(8) In 1998, Congress passed Rep. Act No. 8293 known as “The Intellectual Property
Code” and establishing the Intellectual Property Office. Under Sec. 123 of the Act, certain marks
cannot be registered, among which are those –
“x x x identical with, or confusingly similar to, or constituting a translation of a
mark which is considered by a competent authority of the Philippines to be
well-known internationally and in the Philippines, whether or not it is registered
here, as being the mark of a person other than the applicant for registration, and
used for identical or similar goods or services”.

Sec. 3 of the same Act provides that any foreign corporation, being a national or
domiciliary of a country which is a party to a convention, treaty, or agreement relating to
intellectual property rights to which the Philippines is also a party or which extends reciprocal
rights to our nationals by law, “shall be entitled to benefits to the extent necessary to give effect
to any provision of such convention x x x”. Such foreign corporation even if it is not engaged in
business in the Philippines may nevertheless bring a civil or administrative action for opposition,
cancellation, infringement, or unfair competition, as provided for in Sec. 160 of the Act.
However, under Sec. 156, same Act, only owners of registered marks may recover damages from
any person who infringes his rights.

Chapter XVI.

CONTRACTS

1. What is a "contract" and why does the law on contracts present many problems in Conflict of
Laws?

"Contract" is defined by Art. 1305 of the Civil Code of the Philippines as "a meeting of minds
between two persons whereby one binds himself, with respect to the other, to give something or to
render some service".

Although a contract may create a status like marriage, or creates or transfers real rights or title to
property (like sale), the specific subject of "contract" in Conflict of Laws is limited to purely civil or
commercial transactions.

Every state, in the exercise of its sovereignty, has the right to determine its own law on contracts.
As long as there is no foreign element in a contract, questions pertaining thereto are governed by the law
of the forum state. It is when there is a foreign element in a contract that problems arise, for then, the
forum will have to decide what law should be applied in determining the existence or non-existence of a
contract, as well as its validity, both extrinsic and intrinsic, and the capacity of the contracting parties.

A. EXTRINSIC VALIDITY OF CONTRACTS

1. What conflicts rules determine the extrinsic validity of contracts?

As a general rule, the extrinsic validity of contracts is governed by the lex loci celebrationis,
otherwise called lex loci contractus.

Art. 17 of the Civil Code of the Philippines provides that "the forms and solemnities of
contracts, wills, and other public instruments shall be governed by the laws of the country in which they
are executed". And Sec. 9 of the American Restatement Second, considers as binding the "formalities
which meet the requirements of the place where the parties executed the contract".

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2. Are there variations of the rule of lex loci celebrationis in determining the extrinsic validity of
contracts?

Yes, there are variations.

(a) Suppose a contract is entered into by parties in two different countries by cablegram, telex,
or fax. What is the place of execution?

(l) Art. 1319, par. 2 of our Civil Code states that "acceptance made by letter or
telegram does not bind the offeror except from the time it came to his knowledge. The
contract, in such a case, is presumed to have been entered entered in the place where the
offer was made.
In the Philippines, the lex loci celebrationis is, therefore, the country of execution.

(2) In American law, however, a contract is deemed entered into in the place where the
acceptance of the offer is posted or mailed.

(b) Suppose the place of execution was merely casual or accidental like a Chinese and a
Filipino who, meeting accidentally in Hongkong, entered into a certain contract or agreement
there to be performed in the Philippines.
In such a case, the law which has the most significant relationship to the transaction
should be applied. In other words, the court should apply the law which the parties must have
assumed would be applied to give effect to their transaction; namely, Philippine law.

(c) By way of other exceptions are, when the lex loci contractus or lex loci celebrationis
contravenes an established and important policy of the forum; or to apply it would work gross
injustice to the people of the forum; or if the transaction is contra bonos mores. Remember that the
enforcement of a foreign law is only a matter of comity, and the foregoing cases are clear
exceptions to comity.

B. CAPACITY OF PARTIES

1. What are the conflicts rules in determining the capacity of the parties to a contract?

(a) Capacity to enter into contracts is generally governed by the personal law of the parties; that
is by the national law of the parties in countries following the nationality theory, and by the law of the
domicile in countries following the domiciliary theory. Exceptions are contracts involving alienation or
encumbrance of properties, both real and personal, in which cases capacity of the contracting parties is
governed by the lex situs.

(b) In the Philippines, Art. 15 of the New Civil Code provides that capacity of a Filipino is
governed by Philippine law, and this is so because we follow the nationality theory.

2. What law governs the capacity of the Filipino in the following specific problem?

A 20-yr. old Filipino enters into a contract in Italy where the age of majority is 21. Can the
Filipino later plead his incapacity under Italian law (which is the lex loci celebrationis) to avoid liability under
the contract?

No, because under Phil, law, he has the capacity to contract (Rep. 6809 has reduced the age of
majority to 18 years). Art. 15, Civil Code of the Philippines provides that capacity to contract of Filipinos
is governed by their national law.

3. What law will govern the incapacity of the alien in the following specific problem?

An 18-yr. old alien, who has no capacity to contract under his national law wherein the age of
majority is 21, enters into a contract in the Philippines. Can he later plead his incapacity under his
national law to evade the contract?

No, because to apply the national law (or law of the domicile) of the alien in determining his
capacity to contract would require Filipinos to first ascertain what the personal law of that alien is,
sometimes with great difficulty, such that business transactions with aliens would be greatly impeded.

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4. The weakness of applying the national law of the contracting party as to his capacity in the
foregoing cases is thus seen. How can such difficulties be avoided under our law?

(a) If the contract is entered into in the Philippines, or the performance of the contract would be
in the Philippines, we should apply, not the personal law of the parties, but the proper law of the contract
or the law intended by the parties, to determine their capacity. (see Paras, supra, citing the Geneva
Convention and the German Civil Code)
(b) We should limit the application of Art. 15 of the Civil Code (on capacity to contract) to
agreements involving family and domestic relations, while we should apply the proper law of the contract
in business or commercial transactions (Salonga, supra, citing Rabel).

C. INTRINSIC VALIDITY OF CONTRACTS

1. What are the conflicts rules on intrinsic validity of contacts?

(a) Broadly speaking, the intrinsic validity of a contract is governed by the proper law of the
contract; i.e., the lex loci voluntatis or the lex loci intentionis.
(b) In American law -
(1) The American Restatement of 1934 required the application of the proper law of the
contract, or the law of the place of performance.

(2) According to the Second Restatement, however, the law to be applied should be the law
chosen by the parties; if none, the law of the state which has the most significant relationship
to the parties or to the transaction.

(3) Prof. Raleigh Minor advocates the application of the following different laws:
(i) As to the perfection of the contract - lex loci celebrationis.
(ii) As to the validity of the consideration - lex loci considerationis.
(iii) As to questions of performance - lex loci solutionis
(Minor, Conflict of Laws, p. 420).
(c) In the Philippines:
(l) We have no specific provision of law applicable to conflicts rules on the intrinsic
validity of contracts.
However, the policy of our law is to give effect to the intention of the parties. Indeed,
the parties may establish in their contracts such terms and conditions as they may deem
convenient, provided they are not contrary to law, morals, good customs or public policy (Art.
1306, New Civil Code).
(2) Thus, we should apply the proper law of the contract, i.e., the lex loci voluntatis (the law
expressly agreed upon by the parties) or the lex loci intentionis (the law impliedly agreed upon by
the parties), as determined by many factors, especially the law that has the most substantial
connection with the transaction, or the law that may be presumed to have been intended by
the parties to bind their transactions).

2. But there should be limitations to the court’s choice-of-law in determining the intrinsic
validity of contracts. Can you state what they are?

(a) Generally, the parties cannot select a law that has no connection at all with the transaction.

(b) If the law selected should change, it is the new law that should be applied, for it may be
presumed that the parties knew that law can always be changed as times and conditions change. The
exception is, when the change is so revolutionary that it could never have been contemplated by the
parties (Wolff, supra, 430-431).

(c) Several laws may be selected, each of which will govern the different elements of the transaction
(Cheshire, Private International Law, p. 236)

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 (d) If under the selected law, the contract is legal, but in the place of performance, it is illegal, the
selected law should prevail and the contract should be considered legal (II Rabel, supra, p.537).
Otherwise, the place of performance, which could be merely accidental, will control. Besides, the place of
performance may be different under different laws (Wolff, supra, p. 135)

(e) Assuming that the law of the place of performance can be ascertained, (as when it is expressly
agreed upon by the parties), still, questions of substantial and essential validity (such as whether the
contract is valid, voidable, or void) should be governed by the proper law of the contract. Only minor
details (such as the time of payment during business hours) should be governed by the law of
performance (Chesire, supra).

(f) While the parties may stipulate on the proper law of the contract, they cannot stipulate on the
jurisdiction of courts or to oust our courts of their jurisdiction (Molina v. De la Riva, 6 Phil. 12).

(g) The parties cannot also contract away applicable provisions of our law that are heavily impressed
with public interest or which involve public policy (like our labor laws) (Pakistan International Airlines v.
Ople, 190 SCRA 99).

(h) American law recognizes "cognovit" clauses if the parties were of equal bargaining power and the
debtor voluntarily agreed to said clause.
“Cognovit" clauses specify which courts would have jurisdiction in case of breach or default
in payment, or it may be one that waives the debtor's right to notice (otherwise known as
confession of judgment).

D. SPECIAL KINDS OF CONTRACTS

1. Based on our existing laws, state the conflicts rules in the following special kinds of contracts:
1. Barter, sale, donation:
(a) Extrinsic validity - lex situs
(b) Capacity of the parties - lex situs
(c) Intrinsic validity - lex situs
2. Lease of property:

(a) If it creates real rights, such as those for a period of more than one year or is registered, apply
lex situs.
(b) If the lease is from month-to month, week-to-week, or day-to-day, and does not create real
rights, apply the law on contracts:
(1) Extrinsic validity – lex loci celebrationis
(2) Capacity of the parties –personal law of the parties
(3) Intrinsic validity – lex loci voluntatis or lex loci intentionis

3. Pledge, chattel mortgage, real estate mortgage, antichresis:

(a) Extrinsic validity – lex situs

(b) Capacity of the parties – lex situs
(c) Intrinsic validity – lex situs
These are governed by the lex situs because they are contracts of encumbrances of property,
real or personal.
But since they are accessory contracts, if the principal contract secured by them is void, they
are also void.

4. Contract of loan:
If it is mutuum, apply the rules on contracts in general; i.e.,
(a) Extrinsic validity - lex loci celebrationis
(c) Capacity of the parties - personal law of the parties
(d) Intrinsic validity - lex loci voluntatis or lex loci intentionis
If it is commodatum, apply the lex situs because it is a real contract.

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 5. Lease of service (or employment) agency, guaranty or suretyship.

These are personal contracts; hence the law on contracts will apply.
(a) Extrinsic validity - lex loci celebrationis
(b) Capacity of the parties - personal law of the parties
(c) Intrinsic validity - lex loci voluntatis or lex loci intentionis
But an agency to alienate or encumber real is governed by the lex situs.
6. Contract of transportation or carriage:
This is a contract to render service; therefore, the law on contracts applies.
(a) Extrinsic validity - lex loci celebrationis
(b) Capacity of parties - personal law of the parties
(c) Intrinsic validity - lex loci voluntatis or lex loci intentionis
(d) Liability for loss, destruction, or deterioration of goods in transit - law of destination
of the goods (Art. 1753, New Civil Code).
(e) If the Carriage of Goods by Sea act governs, the limitation of the liability of the
carrier under said Act applies, unless the shipper declares the goods and inserts such
declaration in the bill of lading (American President Lines v. Klepper, 110 Phil. 243 (1960).
If, however, the contract is for international air transportation:
(a) The liability of the airline in case of death, injury to passengers, or loss or damage to
cargo, is governed by the Warsaw Convention, as amended, to which we became a party in
1951 (Santos III v. Northwest Orient Airlines, 210 SCRA 256 (1992).
(b) But if there was malice, gross negligence, bad faith, or improper discrimination on
the part of the carrier or its agents, the carrier is liable for damages beyond those limited
by the Warsaw Convention (Lopez v. Pan Am, 16 SCRA 431 (1965); KLM Royal Dutch
Airlines v. C.A., 65 SCRA 237 (1975); Sabena Belgian World Airlines v. C.A., 255 SCRA 38
{1996}).

Chapter XVII.

TORTS

1. What is the meaning of "tort"?

(a) "Tort" is a legal wrong committed upon person or property independent of contract.

(b) In Spanish law, the concept of "quasi-delict" or culpa aquiliana includes all acts or omissions
committed through fault or negligence causing damage to another, independent of contract.

It covers all cases where a person causes damage to another through negligence, or with no
intention to do so; i.e., unintentional wrongs.

(c) In American law, however, "tort" has a broader meaning, for it covers legal wrongs not only
committed through negligence but also those committed with malice or willful intent, but of course,
independent of contract. Otherwise, it will be breach of contract and covered by another field of law,
contract law.

2. What is the concept of "tort" in the Philippines?

Our concept of "tort" under the New Civil Code is a blending of the Spanish culpa aquiliana and
the American tort, which nay be committed not only through fault or negligence, but also with malice
and willful intent.

Thus, Art. 20 of the New Civil Code provides: "Every person who, contrary to law, wilfully or
negligently causes damage to another, shall indemnify the latter for the same". This is a new provision
under Chapter 2 of the Code on Human Relations, which is an entirely new Chapter in the Code.

Art. 2176 of the same Code, on the other hand, retains the Spanish concept of culpa aquiliana or
quasi-delict. It provides:

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 "Whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and is governed by tae provisions of this
Chapter."

3. In Conflict of Laws, what law governs liability for torts, and what are the reasons for the rule?

(a) Liability for torts in general is governed by the lex loci delicti commissii; i.e., the law of the place
where the delict or wrong was committed.

(b) Reasons for the rule:

(1) The state where the social disturbance occurred has the primary duty to redress the wrong
and determine the effects of the injury; and
(2) To compensate the victim for the damage or injury suffered.

4. In applying the rule of lex loci delicti commissii , how is the locus delicti determined,
especially if the wrong conduct is committed in one state and the injuries are sustained in
another, or the conduct is a continuing act that spans several states (like in the U.S.)?

There are at least three (3) theories in determining where the locus delicti is:

(a) Civil law theory - the locus delicti is where the act began. This is so since the rules on tort are
intended to regulate human conduct, such that a person who willfully and negligently acts
contrary to the social norms must be held liable for the injury caused (II Rabel, supra, p.
303).

Example: While hunting in State X near the boundary of State Y, Jim accidentally
shot Ross, who was standing on a street in State Y. The locus delicti is State X, because
that was where the negligent act occurred.

(b) Common law theory: The locus delicti is the place where the wrongful act became affective.
The reason is that without an injury, there is nothing to protect and there is no necessity for
judicial relief.

Example: In the above example under par. (a), the locus delicti is State Y.

(c) Theory of Dr. Rabel - The locus delicti is the place which has the most substantial connection
with the wrongful act.

Example: The situs of the radio station where a libelous broadcast is made is the
locus delicti, even if the broadcast is heard in many places.

5. Because of the difficulty in determining where the locus delicti is, some modern theories
have been developed in determining liability for torts. Please state what they are.

(a) The rule of the "State of the most significant relationship":

This rule is stated in the Second Restatement of 1969, is that the rights and obligations of
the parties in a case of tort is determined by "the local law of the state which, with respect to
the particular issue, has the most significant relationship to the occurrence and the parties".

Examples:

(1) Babcock v. Jackson, 12 N.Y.2d 473; 191 N.E. 2d 279 (1963) - Babcock and Mr. and Mrs.
Jackson left New York, their residence, in the Jackson car driven by Mr. Jackson for a week's
trip to Canada. While traveling in Ontario, Canada, Mr. Jackson lost control of the car and
Babcock was badly hurt. Upon their return to New York, Babcock sued Jackson for damages
under New York law. Ontario's law does not allow any recovery. Can Babcock recover
damages from Mr. Jackson under New York Law?
Held: Yes, for, except for the minimum contact with Ontario law as the accident
happened in that place, all the dominant contacts and factors connected with the accident were
in New York; namely, the parties resided in that place; their guest-host relationship started in
New York and was to end in New York; and the car where the parties rode was garaged,

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 licensed, and insured in New York. So, the state of New York had the most significant
relationship to the case.

(2) Saudi Arabian Airlines v. C.A., 297 SCRA 469 (1998); .Here, our Supreme Court
held that Philippine law should apply, because it was in the Philippines that private respondent
deceived plaintiff-stewardess; plaintiff was working for respondent here; plaintiff's nationality
and domicile were here; we were intimately concerned with the ultimate outcome of the case
not only for the benefit of the litigants but also for the vindication of our country's system of
law and justice in a transnational setting. Hence, the locus delicti was the Philippines

(b) The interest-analysis approach:

This approach considers the relevant concerns that two or more states may have in the case
and their respective interests in applying their laws to it. If this approach is applied to the
Babcock case cited above, it would appear that only New York law had a legitimate interest in
advancing its purposes and policies, while Ontario, Canada law had no interest to advance. In
other words, it was a case of false conflict.
If, however, the case poses a real conflict between the interests of two or more States, if the
interested forum finds that the other State has a greater claim in the application of its law to a
given case, the forum should yield and apply the law of the other state. Or, if the forum is
disinterested in the case, it can dismiss the same on the ground of forum non conveniens. In short,
the State which has the more relevant and weighty interests in the case should be considered the
locus delicti.

(c) Qaver's principle of preference:

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

Example: As a result of an illegal sale of liquor to X in the State of Minnesota, T,

a passenger in the car driven by X in an intoxicated state, was hurt in an accident that
occurred in the State of Wisconsin. Sued for tort by T in Minnesota, X moved to dismiss
the case on the ground that the accident happened in Wisconsin, the law of which
required that wrongful act and the injury should happen in the same State before the
recovery can be had.
Held: To apply Minnesota law to the case would be more in conformity with the
principles of equity and justice since X’s wrongful conduct was completed within
Minnesota where X became intoxicated before leaving said State and before going to
Wisconsin with T. Besides, the parties were both residents of Minnesota whose law
demanded a higher standard of conduct than that of Wisconsin where the accident
happened. (Schmidt v. Driscoll Hotel, 249 Minn. 376, N. W. 2nd 365 [1947])

6. What are the conflicts rules on maritime torts?

(a) If the tort is committed aboard a public vessel, whether on the high seas or in foreign
territorial waters, the law of the flag is the lex loci delicti commissii.
(b) If the tort is committed aboard a private or merchant vessel on the high seas, the law of
registry is the lex loci delicti commissii.
(c) If two vessels collide and are from the same state, the law of registry is the lex loci delicti
commissii.
(d) If the vessels come from different states with identical laws, apply said identical laws.
(e) If the vessels come from different states with different laws, the lex loci delicti commissii is the
general maritime law as understood and applied by the forum where the case is filed (Paras, supra, p. 394,
citing American cases).

7. Is a foreign tort actionable, or may be the subject of an action for damages, in the Philippines?

(a) Yes, provided we acquire jurisdiction over the defendant (because an action for damages is an
action in personam) and certain conditions are present, namely:
(1) The foreign tort must not be penal in nature;
(2) The enforcement of the tortious liability should not contravene our public policy; and
(3) Our judicial machinery must be adequate for such enforcement.

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 (b) Remember, however, that while all procedural matters are governed by the lex fori (i.e.,
Philippine law), since the case is filed here, all substantive matters are governed by the lex loci delicti
sommissii. Thus:
(1) The period of prescription of the action is governed by the lex loci delicti sommissii because
in Philippine law, prescription is substantive, not merely procedural.
(2) The proper parties, the measure of damages, and the question whether the act complained
of is considered the proximate cause of the injury, are all governed by the lex loci delicti commissii.
(3) The burden of proof and the defenses that may be interposed by the defendant are also
governed by lex loci delicti commissii.

(c) Example of a foreign tort actionable in the Philippines: X and Y, both Filipinos, were
vacationing in Hongkong. One day, while driving a rented car, X ran over Y, who was walking, causing
the latter to be hospitalized in Hongkong. Upon the return of both to the Philippines, Y sued X for
damages arising from the tort committed by the latter while they were in Hongkong. Will the action
prosper?
Yes, provided it is filed within the period prescribed by Hongkong law, the lex loci delicti commissii,
since the period of prescription is substantive and not procedural. The kinds and measures of damages
recoverable by Y, and the defenses that X may put up, should also be governed by Hongkong law, which
is the lex loci delicti commissii. But all procedural matters like the period for filing the answer, the period for
appeal, etc., should be governed by the lex fori, which is Philippine law.

8. What is the Alien Tort Act, and do you know if it has been applied in cases filed by Filipinos
in the United States?

(a) The Alien Tort Act of. the United States, which was enacted in 1789, grants U.S. district
courts original jurisdiction over any civil action filed by an alien for a tort committed in violation of the
law of nations or a treaty of the United States.

(b) It was under the above law that the United States Court of Appeals upheld the jurisdiction of
the district court of Hawaii over a class action for damages filed by almost ten thousand Filipino victims
of human rights abuses and torture committed by the late President Ferdinand Marcos and his officials in
the Philippines during the Marcos regime, resulting in a nearly US$2 billion judgment in favor of the
victims and/or their heirs (Trajano v. Marcos-Manotoc, 125 L.Ed. 2d 661, 113 S. Ct. 2959).

Chapter XVIII.

CRIMES

1. Distinguish tort from crime.

(a) While both tort and crime are wrongs, a tort violates private rights while a crime is committed
against the State.

(b) Tort actions are instituted by the injured person against the wrongdoer in a civil case the purpose
of which is indemnification for damages suffered; while crimes are prosecuted in the name of the State
against the offender in criminal 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 from committing the same act.

(c) Torts are transitory in character, so that the tortfeasor can be made liable for his wrongful act in
any jurisdiction where he may be found. Crimes, on the other hand, are local and can be prosecuted only
in the places or states where 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 crime depends on the characterization
of the act in the state where said act is committed.

In the Philippines, certain acts may be both torts and crimes. Under Art. 33 of the Civil Code of
the Philippines, "in cases of defamation, fraud, and physical injuries, a civil action for damages, entirely
separate and distinct from the; criminal action, may be brought by the injured party. Such civil action
shall proceed independently of the criminal prosecution, and shall require only a preponderance of
evidence."

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 Take the offenses classifed as "'criminal negligence" under Art. 365 of the Revised Penal Code.
They may be prosecuted as crimes by the State. On the other hand, the victims may file separate actions
for damages against the offenders based on torts.

3. What are the different theories that determine whether a state or a legal system has
jurisdiction to take cognizance of criminal cases?

(a) Territorial theory - Under this theory, the state where the crime was committed has
jurisdiction to try the case, and its penal code and the penalties prescribe therein will apply. The reason is
that the aggrieved state is duty bound to prosecute and punish the offender as his crime affects directly
and particularly the dignity, authority, and sovereignty of the state where said crime is committed.

This theory may be of two kinds:

(1) The subjective, territorial principle - under which the state where the crime was begun
may prosecute the same, even if it was completed in another state.
(2) The objective territorial principle - under which the state can prosecute crimes begun
abroad but completed within its territory.
(Paras and authorities cited, supra, p. 404)

(b) Nationality or personal theory - The country of which the criminal is a citizen or subject
has jurisdiction to try him for crimes allegedly committed by him, whether inside or outside its
territory, provided it is a crime under said country's penal law.

(c) Protective theory - Any state whose national interests may be jeopardized has
jurisdiction over criminal offenses, even if committed outside its territory, and in some cases, even if
committed by an alien.

(d) Real or eclectic theory - Any state whose penal code has been transgressed upon has
jurisdiction to bring to justice the perpetrators of the crime, whether the crime was committed inside
or outside its own territory. Crimes under this theory would include piracy, slavery, drug trafficking,
immoral traffic in women and children, etc.

(e) Cosmopolitan or universality theory - Any state where the criminal is found or which
has obtained custody over him, can try him for the crime he has allegedly committed, unless
extradition applies.

(f) Passive personality, or passive nationality theory - The State of which the victim is
a citizen 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 Philippines, we follow as a general rule the territorial theory, and by way of exception, the
protective theory.

In other words, we cannot prosecute a crime committed abroad (like bigamy, rape, or murder) in
the Philippines, because it is committed outside our territorial jurisdiction.

We also follow the rule of generality in criminal law; i.e., all persons, whether Filipinos or aliens,
are subject to our penal laws and can be prosecuted for their violations (Art. 14, Civil Code of the
Philippines).

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 by our courts?

They are the cases mentioned in Art. 2 of the Revised Penal Code, to wit:
“Except as provided in the treaties and laws of preferential application, the provisions of
this code shall be enforced not only within the Philippine Archipelago, including its
atmosphere, its interior waters and maritime zone but also outside its jurisdiction, against
those who –
(1) Should commit an offense while on a Philippine ship or airship;
(2) Should forge or counterfeit any coin or currency note of the Philippine Islands
or obligations and securities issued by the Government of the Philippine Island;

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 (3) Should be liable for acts connected with the introduction into these Islands of
the obligations mentioned in the preceding numbers;
(4) While being officers or employees, should commit an offense in the exercise of
their official functions; or
(5) Should commit any of the crimes against national security and the law of
nations”.

Examples of crimes against the law of nations are airplane hijacking, piracy or mutiny on the
high seas, drug trafficking.

6. Do we have jurisdiction over crimes committed on board a foreign vessel if said vessel is
within our territorial waters?

There are two theories that have generally been used, and which our Supreme Court has
applied in the old opium cases, in determining this question of jurisdiction; the English Rule (which
emphasizes the territorial principle) and the French Rule (which stresses the nationality theory).

(a) English Rule: The territory where the crime was committed (in our problem , the
Philippines) will have jurisdiction except:

(a) In matters relating to the internal order and discipline of the vessel; and
(b) Those which affect solely the ship and its occupants such as minor or petty
criminal offenses committed by members of the crew.
(Paras. id., p. 410, citing Hyde, International Law, Vol. I, p. 739)

(b) French Rule: The state whose flag is flown by the vessel has jurisdiction, except if the
crime affects the peace, order, security, and safety of the territory. (Paras, id., citing Brierly,
Law of Nations, p. 180)

The above two rules were also cited and compared by the Supreme Court in the
case of People v. Wong Cheng, 46 Phil. 279, although the Court also held that as we were at
that time a territory of the United States, we follow the English rule which was the one
prevailing in the United States. This case, however, involved the crime of smoking opium
in a foreign vessel anchored in Manila Bay, which the High Court held was a breach of our
public order because of the pernicious effects that it produced in our territory. In short,
the Supreme Court actually applied the French rule to the case, not the English Rule.
Nonetheless, as observed by the late Justice Paras in his book in Conflict of Laws, “the
difference between the two rules is largely academic and theoretical, the two rules being
essentially the same. Thus, if aboard a German ship anchored in Manila Bay, the crime of
murder is committed, under the English rule, the Philippines would have jurisdiction in
view of the general rule. Under the French theory, the Philippines would also have
jurisdiction under the exception, for the crime indeed affects the peace and security of the
territory. Whether we follow, therefore, the English or French rule on the matter is not
significant: The effect is the same”. (Paras, supra, pp. 410-411)

7. Did the United Nations Convention on the Law of the Sea change the above rules?

Art. 27 of said Convention partly provides:

“Criminal jurisdiction on board a foreign ship

1. The criminal jurisdiction of the coastal State should not be exercised on board a
foreign ship passing through the territorial sea to arrest any person or to conduct any
investigation in connection with a crime committed on board the ship during its passage, save
only in the following cases:
(a) If the consequences of the crime extend to the coastal State;
(b) If the crime is of a kind to disturb the peace of the country or the good order of the
territorial sea;
x x x x.”

In short, under the rules of said Convention Philippine courts do not acquire jurisdiction
over crimes committed on board a foreign vessel even if it is within our territorial waters as long
as the effect of such crime does not disturb our peace and order. This is similar to the French

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 rule to the effect that we have no jurisdiction over crimes committed aboard foreign vessels even
if they are found within our territorial waters except when the crimes affect the peace, order,
security, and safety of our country and territory.

Chapter XIX.

BUSINESS ASSOCIATIONS

A. CORPORATIONS

1. How do you define a “corporation”?

A corporation, according to Sec. 2 of the Corporation Code of the Philippines, “is an artificial
being created by the operation of law, having the right of succession and the powers, attributes, and
properties expressly authorized by law or incident to its existence”, while Section 123, of the same Code,
defines a foreign corporation as “one formed, organized or existing under any laws other than those of
the Philippines and whose laws allow Filipino citizens and corporations to do business in its own country
or state”.

2. What are the different theories in determining the personal or governing law of a corporation?

There are at least three (3) theories, namely:

(1) The theory that the personal law is the law of the place of incorporation:

Under this theory, however, a corporation can evade many responsibilities by simply
organizing in one state and performing its functions in another state.

(2) The theory of the place or center of management:

One difficulty of this theory is that the board may meet in different states, although this
defect may be cured by expressly providing in the articles of incorporation or by-laws where the
principal meeting place of the board is.

(3) The theory of the place of exploitation.

The defect of this theory is that the corporation may have its enterprise scattered all over the
world. Besides, the physical acts of the corporation are not as important as the decisions reached
by its board of directors.

(Paras, supra, and authorities cited, pp. 420-421).

3. Among the foregoing three theories, what theory do we follow in the Philippines?

In the Philippines, we follow the theory of the place of incorporation.

This is implied from the definition of a foreign corporation by our Corporation Code as “one
formed, organized or existing under any laws other than those of the Philippines x x x”. In other words,
if the corporation was organized in the Philippines, it is a Philippine or domestic corporation; if
organized elsewhere or abroad, it is a foreign corporation.

4. What about the domicile of a corporation? Where is it?

According to Article 51 of the New Civil Code, “When the law creating or recognizing them, or
any other provision does not fix the domicile of juridical persons, the same shall be understood to be the
place where their legal representation is established or where they exercise their principal functions.”

Even a defectively organized corporation which the law regards as de facto insofar as innocent
third persons are concerned can possess a domicile for its de facto existence (MacDonald v. FNCBNY, L-
7991, May 21, 1956).

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 For the purpose of determining a corporation’s domicile, Sec. 14 of the Corporation Code
requires that the articles of incorporation of a Philippine corporation must state the place where the
original office of the corporation is to be established or located, “which place must be within the
Philippines”. Thus, the place of incorporation of a Philippine corporation is also its domicile.

As for a foreign corporation that has been granted a license to operate or to do business in the
Philippines, it acquires domicile in this country by virtue of said license. As held by the Supreme Court in
Granger Associates v. Microwave Systems, Inc., 189 SCRA 631 (1990), the purpose of the rule requiring foreign
corporations to secure a license to do business in the Philippines is to enable the courts to exercise
jurisdiction over them or the regulation of their activities in our country.

5. What are the exceptions to the theory that the personal law or the nationality of a corporation
follows the place of its incorporation?

The exceptions are:

(a) For constitutional purposes, even if a corporation was incorporated in the Philippines, it
cannot exploit or develop our natural resources nor operate public utilities unless 60% of the capital is
Filipino owned (Art. XII, secs. 2, 10-11, 1987 Constitution).

(b) For wartime purposes, we adopt the control test; i.e., we pierce the veil of corporate identity
and go into the nationality of the controlling stockholders to determine whether a corporation is an
enemy corporation.
Thus, a German-controlled corporation, even if incorporated in the Philippines, was
considered an enemy corporation during the last World War for the purpose of freezing its assets
(David Wineshop v. Phil. Trust, L-3869, Jan. 31, 1952).
The doctrine of piercing the corporate veil or disregarding the corporate fiction also
permits the courts to impose personal liability on the stockholders if the corporation form has
been used to defeat the public convenience, justify wrongs, or protect fraud or crime (Tan Boon
Bee and Co. v. J. Jarencio, 163 SCRA 205).

6. What matters are governed by the personal law of the corporation?

The personal law of the corporation (which, in the Philippines, is the place of incorporation)
governs the requisites for the formation of the corporation, the required number of incorporators and
the members of the Board of Directors, the kinds of shares of stock allowed, the transfer of stocks in a
way that it would be binding on the corporation, the issuance, amount and legality of the dividends, and
the powers and duties of the officers, stockholders, and members.

7. What law determines the validity of corporate acts and contracts?

The validity of corporate acts and contracts is determined by the law of the place of
incorporation and by the law of the place of performance. To be valid and binding, such acts or contracts
must be authorized by both laws. If valid in the place of incorporation but void in the place of
performance, or vice versa, the validity of said acts or contracts is doubtful and it may not be given effect at
all, without prejudice to the principle of estoppel (Sec. 129, Corporation Code; Paras, supra, and
authorities cited, p. 429).

8. May a foreign corporation sue and be sued in the Philippines?

Yes, if it has the necessary license to do business here (Sec. 123, Corporation Code). The license
is required not to forbid the foreign corporation from performing single acts but to prevent it from
acquiring a domicile for purposes of business without taking the steps necessary to render it amenable to
suit in the local courts (Marshall Wells & Co. v. Elser Co., 46 Phil. 71)

Transacting or doing business connotes a continuity of business dealings and arrangements

(Mentholatum Co. v. Elser Co., 72 Phil. 524).

Even a single act or transaction may, however, be an act of ordinary business of the corporation
if it is not merely incidental or casual but of such character as to distinctly indicate a purpose to do other
business in the state and to make the state a base of operations for the conduct of a part of the foreign

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corporation’s ordinary business ( Far East International Import and Export Corporation v. Nankai Kogyo Co.,
Ltd., L-13525, Nov. 30, 1962).

9. How may our courts acquire jurisdiction over a foreign corporation doing business in the
Philippines?

By service of summons on:

(a) Its resident agent designated in accordance with law for that purpose;
(b) If no such agent, on the government official designated by law to that effect; or
(c) On any of its officers or agents within the Philippines.
(Sec. 12, Rule 14, 1997 Rules on Civil Procedure).

10. Suppose a foreign corporation transacts business without first obtaining the necessary
license, what is the status of its contract?

The contract is unenforeceable; i.e., the corporation cannot sue in our courts until the necessary
license is obtained. After the issuance of the license, suits may be instituted even on the pre-license
contracts which are considered valid ( Marshell-Wells & Co. v. Elser Co., supra).

But the person who contracted with the corporation may be considered in estoppel if he had
received benefits from the contract (Fletcher, Vol. I, Cyclopedia of Law of Private Corporations, sec.
8520).

11. May a person sue a foreign corporation that transacted business with him without a license?

Yes, because the corporation cannot put up by way of defense its own failure to comply with the
law (Gen. Cor. Of the Phil. V. Union Ins. Society of Canton, 48 OG #1, Jan. 1952, p. 73). But the court must be
able to acquire jurisdiction over the corporation.

12. If the corporation sells its products in the Philippines through an agent, is that doing
business here?

If the foreign corporation sells its products in the Philippines through a resident merchant on
commission basis, it is the merchant, not the corporation, that is doing business here. But if the foreign
corporation sells its goods in the Philippines through an exclusive distributing agent, it is doing business
here, because the agent is acting only in behalf of its principal (Mentholatum Co. v. Mangalinan, supra).

13. May a foreign corporation not doing business in the Philippines sue?

Yes, in (a) isolated transactions;

(b) to protect its reputation, corporate name, and goodwill;
Thus, a foreign corporation can ask a local court to restrain some Filipinos from
organizing a local corporation with the same name and the same business (Western
Equipment Supply Co. v. Reyes, 51 Phil. 115), provided a similar privilege is granted to
Philippine corporations by the plaintiff’s home state (Sec. 3, Rep. Act 8293).
(c) for infringement of trademark or trade-name, unfair competition or false description
of products, and infringement of patent (Sec. 160, id.).

14. What about multinational or transnational corporations, what law applies to them?

These are actually branches of a big, mother corporation in a highly industrialized, highly
developed foreign country but doing business 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 incorporated under the local law of each state where
they are doing business, the branches are separate entities governed by the said local laws, but in reality,
the major decisions in their operation and management are controlled by their mother or parent
corporation. However, the branches, having incorporated in the state where they are established, are
governed by the internal law of the said states, and their personal laws are the local laws of the host
states.

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15. May a foreign corporation be sued after it had already withdrawn from business in the
Philippines?

Yes, on contracts previously entered into by it. After all, fairness demands that the citizens and
residents of the Philippines be afforded the opportunity to sue these foreign corporations locally, instead
of requiring them to sue in the foreign countries where they are domiciled. By the same token, the
foreign corporation that has withdrawn should also be allowed to sue on validly existing transactions,
entered into previous to the cessation of its business here. And an identical rule should also apply to
contracts entered into prior to the revocation of the foreign corporation’s license. (Paras, supra, and
authorities cited, p. 438).

B. PARTNERSHIPS

1. When does a partnership exist?

A partnership exists when two or more persons bind themselves to contribute money, property
or industry to a common fund with the intention of dividing the profits among themselves (Art. 1767,
Civil Code of the Philippines).

2. Does a partnership, like a corporation, have juridical personality of its own?

In the Philippines, yes, a partnership “has a juridical personality separate and distinct from that
each of the partners” (Art. 1768, id.).

However, in the United States and some countries in Europe and Latin America, partnerships
are not regarded as independent persons with juridical personalities of their own except for the purpose
of insolvency proceedings (See Campos Rueda & Co. v. Pac. Com. Co, 44 Phil. 916). However, in the United
States today, a new theory has been developed, getting away from the old common law conception that a
partnership is simply an aggregate of individuals, and instead treating it as a separate entity distinct from
the partners.

3. What is the personal or governing law of a partnership?

Like Philippine corporations, the personal or governing law of a partnership is the law of the
country where it is created (See Art. 15, Code of Commerce).

Thus, matters like organization, capacity to contract and validity of its contracts, the liability of
the partnership and the partners to third persons, dissolution and winding up, are all governed by the
partnership’s personal law or the law of the state where it was created.

For example, in a New York case where a limited partner under Cuban law was sued in New
York for breach of contract entered into by the Cuban partnership in New York , it was held that the
limited partner was not liable, and that New York Law could not enlarge the liability of a limited partner
under Cuban law simply because the contract was entered into in New York (King v. Sarria, 69 NY 24
[1877]).

4. Where is the domicile of a partnership?

Under Article 51 of the New Civil Code, the domicile of partnerships organized under Philippine
law is, like domestic corporations, “the place where their legal representation is established or where they
exercise their principal functions”.

Consequently, a partnership created in one state but which conducts its main business in another
state may be considered domiciled in the latter state.

5. Are the constitutional limitations on the powers of corporations also applicable to

partnerships?

Yes, so that unless at least 60% of the capital of a partnership is owned by Filipinos, the partnership
cannot engage in the development and exploitation of our natural resources, nor operate public utilities.

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 Neither can a partnership 60% of the capital of which is not owned by Filipinos acquire by
purchase or otherwise agricultural lands in the Philippines.

Foreign partnerships may be mortgagees of land in the Philippines for 5 years, renewable for
another 5 years, but they cannot acquire said land in a foreclosure proceeding (Rep. Act No. 133).

6. If a Philippine court appoints a receiver for a foreign partnership in the Philippines, does the
receiver also act as such with respect to assets of said partnership in its home state?

No, because the authority of the receiver is only within the territorial boundaries of the Philippines,
or co-extensive with the jurisdiction of the court that appointed him.

Chapter XX.

RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS

1. What are the reasons for the recognition and enforcement of foreign judgments by the forum?

The reasons are basically the same as recognition by the forum of the proper foreign law; and the
exceptions to the application of the proper foreign law or comity are also applicable to foreign
judgments.

2. Distinguish enforcement from recognition of foreign judgments.

(a) Enforcement means that the plaintiff or petitioner wants the court to positively carry out and
make effective the foreign judgment, while recognition means that the defendant or respondent is
presenting the foreign judgment merely as a defense, on the basis of res judicata.

(b) Enforcement implies an act of sovereignty; recognition involves merely a sense of justice
(Perkins v. Benguet Consolidated Mining Co., L-1981-82, May 28, 1954).

(c) Enforcement requires a separate action or proceeding brought precisely to make the foreign
judgment effective; recognition, being a matter of defense, needs no action or proceeding but implies that
an action or proceeding has already been filed against the defendant who is invoking the foreign
judgment.

(d) Enforcement cannot exist without recognition, while recognition does not need or does not
require enforcement.

Example of recognition: An American presents a foreign decree of divorce as a defense in a

case for bigamy against him in the Philippines.

Example of enforcement: A Filipina who had been divorced by her alien husband under Art.
26 of the Family Code and who was denied by the local civil registrar a marriage license for her to be able
to marry again, files an action with the proper court to compel said official to issue to her a marriage
license on the basis of the divorce decree obtained from her by her alien husband.

3. For what reason or reasons may a local court in the Philippines refuse to recognize or enforce
a foreign judgment?

(a) The requisite proof of the foreign judgment may not have been presented.
The manner of proving a foreign judgment is the same as proving a foreign law (Rule
132, sec. 25, Revised Rules of Court).

(b) The foreign judgment may contravene a recognized and established policy in our country.
An example is a foreign decree of divorce obtained by a Filipino from his Filipino
wife abroad; or a foreign judgment awarding the custody of a baby to the Filipino father,
not to the Filipino mother.

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 (c) The administration of justice in the country where the foreign judgment came from may be
shockingly corrupt or not beyond reproach.

(See Paras, supra, p. 75)

4. What are the conditions or requirements before a local court in the Philippines can enforce or
recognize a foreign judgment?

(a) There must be adequate proof of the foreign judgment.

(b) The judgment must be on a civil or commercial matter, not on a criminal, revenue, or
administrative matter.

(c) There must be no lack of jurisdiction, no want of notice, no collusion, no clear mistake of
law or fact ( Rule 39, sec. 48, 1997 Rules on Civil Procedure).

(d) The foreign judgment must not contravene a sound and established public policy of the
forum.

(e) The judgment must be res judicata; i.e., the judgment must be final; the foreign court must
have jurisdiction over the subject matter and the parties; the judgment must be on the merits; and there
was identity of parties, subject matter, and cause of action.

5. What exactly do the 1997 Rules of Civil Procedure provide on the effects of foreign judgments
in the Philippines?

Sec. 48, Rule 39, 1997 Rules on Civil Procedure provides:

“The effect of a judgment or final order of a tribunal of a foreign country, having

jurisdiction to render the judgment or final order, is as follows:
(a) In case of a judgment or final order upon a specific thing, the judgment or final
order is conclusive upon the title to the thing; and
(b) In case of a judgment or final order against a person, the judgment or final order
is presumptive evidence of a right as between the parties and their successors in interest
by a subsequent title.
In either case, the judgment or final order may be repelled by evidence of a
want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law
or fact”.

6. What are the differences between the effects of a final judgment or order under the above rule,
and the effects of such judgment or order under the former Sec. 50 of Rule 39 of the Revised
Rules of Court, which the foregoing Rule in the 1997 Rules of Civil Procedure amended?

(a) Under the former Sec. 50 of Rule 39 of the Revised Rules of Court, a foreign judgment in rem
(i.e., a judgment of a foreign court upon a specific thing) was already considered conclusive upon the title
to the thing; meaning, it is binding against the whole world, provided the foreign court had jurisdiction to
pronounce said judgment.

Under sec. 48, Rule 39, of the 1997 Rules on Civil Procedure, however, all judgments or orders
of foreign courts, whether in rem or in personam, are considered merely prima facie or presumptive evidence
of a right between the parties and their successors in interest by a subsequent title, and both kinds of
judgments are subject to the defenses of want of jurisdiction on the part of the foreign court, want of
notice to the defendant or respondent, collusion, fraud or clear mistake of law or fact.

(b) The former Sec. 50 of Rule 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 finality of judgments or orders; i.e., the rules of res judicata.

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