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?

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 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.

(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 per-
sonality 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.

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 (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 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.

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 (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.
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

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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?

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

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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:

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 (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;
(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;

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 (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).

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.)

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 (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).

(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.

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 (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).

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:

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 (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.

Note: In our 1997 Rules on Civil Procedure, we still follow the

principle of reciprocity held in the old Hilton case because in Sec.

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 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

12
 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?

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.

13
 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, 1 st 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).

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.

14
 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.

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.

15
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.
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

16
 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, con-
dition, 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).

17
 (c) The situs or eclectic theory - which views the particular place or
situs of an event or transaction as generally the controlling law.
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

18
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.

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.

19
 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.
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

20
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 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?

21
 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:

22
 “(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 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?

23
 (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;

(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.

24
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.

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
provided 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.

25
 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.
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 Natura-
lization created by the recently approved Rep. Act No. 9139.

26
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;

27
 (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;

(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?

28
 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.

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

29
 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).

"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".

30
 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.

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.

31
 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).

32
 (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.
(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

33
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.

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.

34
 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.

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”.

35
 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.

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?

36
 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).

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:

37
 “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 re-
quirements 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

38
a passenger in a bus suffers an abortion as a result of an accident
due to the negligence of the bus driver?

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;

39
 (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).

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.

40
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.
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

41
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 acknow -
ledged 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).
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.

42
 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.).

43
 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

44
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).

(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.

45
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”.

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?

46
 (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.).

(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.

47
 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).

48
 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

49
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).
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.

50
 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.

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.

51
 (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.
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:

52
 (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).

53
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;

54
 (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.

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).

55
 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 Philip-
pines”, 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 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:

56
 (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 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 diffe-
rent 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.

57
 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.

58
 (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?

59
 (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
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

60
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.

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

61
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 jurisdiction 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).

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.

62
 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.)
(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.

63
 (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.).

64
 (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 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.

65
 (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 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 co-
extensive 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 Philippine 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?

66
 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).

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

67
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).
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:

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 (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:

69
 (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.
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.

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 (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).

(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).

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 (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.

(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,

72
 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".

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?

73
 (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?

74
 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.
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).

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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)

(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.

76
 (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.
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

77
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:

"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

78
 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, 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:

79
 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.

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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."
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?

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 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;
(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

83
 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 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”.

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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).

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

85
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

86
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
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.).

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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.

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,

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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.

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

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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.

(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.

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 (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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