Philippine Conflict of Laws PDF

PHILIPPINE CONFLICT
OF LAWS
by
EDGARDO L. PARAS*
Litt., B., LI.B., LI.M., LI.D.
Associate Justice, Supreme Court
Member, Supreme Court Committee
for the Revision o f the Rules of Court
Member, Senate Electoral Tribunal
Professor of Law and Pre-Bar Reviewer
AdeM, SBC, UST, FEU, UE, MLC, SSC, PLS, Lyceum,
Arellano, UM and UP Law Center
Law Dean, Perpetual Help College o f Rizal
Full Professor, UST Graduate School
Founder-Consultant, Paras Law Office
EIGHTH EDITION
1996
Published
HUL3 & Distributed by
Book Store
856 Nicanor Reyes, Siv St.
Tel. Nos. 741-49-16 • 741-49-20
1977 C.M. Recto Avenue
Tel. Nos. 741-49-56 • 741-49-57
Manila, Philippines
Philippine Copyright, 1968, 1970,1973, 1976, 1979,
1984,1990,1996
by
IS B N -9 7 1 -2 3 -2 0 0 3 -0
No portion of this book may be copied or repro

duced in books, pamphlets, outlines or notes, whether
printed, mimeographed, typewritten, copied in differ
ent electronic devices or in any other form, for distri
bution or sale, without the written permission of the
family of the author except brief passages in articles,
reviews, legal paper, and judicial or other official
proceedings.
Any copy of this book without the corresponding

number and the signature of the author on this page
either proceeds from an illegitimate source or is in
possession of one who has no authority to dispose of
the same.
ALL RIGHTS RESERVED
Printed August 2001
No. 5201
Printed by
Printedby
REX pRINTINq COMpANy, INC.
T ypoqR A phy & creative liihoqR A phy
84 P. Florentino St., Quezon City
Tel. Nos. 712-41-08 • 712-41-01

,
To my dearly beloved wife Gloria my
loving children Emmanuel, Edgardo, Jr.,
and Eugene; my caring daughter-in-law
Ylva Marie; and my talented grandchildren
Yla Gloria Marie and Edgardo III, in all
o f whom I have found inspiration and
affection — I dedicate this humble work.
PREFACE TO THE 1996 EDITION
This eighth edition (revised) embodies the same format and

style as that of the previous ones.
Necessarily, the most recent cum relevant decisions, both local
and foreign, have been included in synopsis form, for easy
understanding.
For that matter, the Paras Family would like to extend its
gratitude to Dr. Edgardo “Edgie” C. Paras, Jr., a product of the
Hague Academy of International Law, for the updating efforts, and
also to Mr. and Mrs. Juanito F. Fontelera for the speedy release of
this new edition.
Manila, Philippines
This book is now on its seventh edition, embodying the same

format and style, and made more currently relevant with the
addition of the most recent decisions and doctrinal precepts capped
by easily-understandable illustrations.
For the eventual realization of this new volume, the author
hereby values the solicitious help rendered by his son, Dr. Edgardo
“Edgie” C. Paras, Jr. (Doctor of Civil Law and Ph.D. in Business),
an alumnus of l’Academie de droit international de la Haye, and
columnist of Business Star — for invaluable research work done,
editing, and styling. Grateful acknowledgment is likewise made to
the owners and publishers of Rex Book Store (Mr. and Mrs. Juanito
F. Fontelera), for their enthusiasm in making possible the speedy
publication of this volume.
EDGARDO L. PARAS
Padre Faura, Manila

Supreme Court of the Philippines
June 15, 1990
There is something unusual to be said of Conflict of Laws,

Philippine Style, and it is this: the fundamental principles on which
the subject is premised hardly undergo any change. Our regard for
the sanctity of contracts, the immutability of personal rights and
obligations, the proper accord given to status — all these remain
the same.
One important note has to be made however and this is the
complete repeal effective January 1, 1983 of the Usury Law thru
Central Bank Circular No. 905. The cause is simple enough: the
demeaning of our currency, and the recurrence of economic fiascos
experienced in recent years.
EDGARDO L. PARAS
July 16, 1984
vi
Our world is troubled anew: Red China has invaded Vietnam

ostensibly in “self-defense”, and although she has promised to
withdraw her troops, the withdrawal, so breathlessly awaited by
Soviet Russia and the United States, has been rather long in coming;
Iran has been rocked asunder by a successful religious revolt, but
counter-elements, particularly the leftists, and the women non
conformists, threaten a continuing civil strife; Israel and Egypt
continue their mad struggle for alleged self-vindication despite heroic
efforts of the American presidency; the Arabs have once again raised
the price of oil in a spectacular bid for economic autocracy; and in
the meantime, we in our country are poised to suffer the advert of
insufferable prices. YET the fundamental tenets of Conflict of Laws
remain, unchanged. The rules remain municipal in character
domestic in application but universal in aspiration they continue to
work for justice and harmony — for the welfare of all people in all
parts of the world.
EDGARDO L. PARAS
Manila, Philippines
March 30, 1979
In the last few years, the Philippines has played an increasingly

significant role in international affairs: the resurgence of the ASEAN
(Association of South East Asian Nations), with President Ferdinand
E. Marcosêmerging as the leader non-pareil; the declaration by
the “Group of Seventy-seven” of its economic and social faith; the
beginning of diplomatic ties with Red China and Soviet Russia.
As a direct resultant thereof, our citizens have come in contact
with diverse political and legal systems, and with problems in
multinational commerce which require for their resolution the
application of conflicts rules.
It is our fond hope that this modest revised edition will meet
the challenge posed by the interplay of these international forces.
EDGARDO L. PARAS
Manila, Philippines
July, 1976
Despite the advent of a new Constitution and the auspicious

introduction of essential reforms, the subject of “Philippine Conflict
of Laws” has undergone little change in the fundamentals: basically,
we still adhere to the nationality theory in matters of status and
capacity, and the territoriality principle still lords it over penal
disposition of property, whether movable or immovable, still depend
on the lex rei sitae; successional rights remain undiminished in the
meantime, despite socio-economic overtones of charge; renvoi and
characterization continues to be as vexing and fascinating as before.
Amendments there has been, however, to the enumeration of
those who are considered citizens of the country and to the
possession by foreigners and foreign juridical entities of rights
apropos our natural and developmental resources: greater incentives
have been set up to improve the financial climate and the
government has taken pains to ensure more expeditious legal
processes whenever foreigners or tourists are concerned.
It is ardently to be hoped that with the overhauling of our
political traditions and practices, and the resultant improvement
in our national discipline, our people may at long, long last find
surcease from want and disillusionment.
EDGARDO L. PARAS
Manila, Philippines
October 12, 1973
In these days of social ferment, both in our restless native

land and in affluent foreign shores, it is perhaps imperative for us
to re-examine the validity of hitherto basic international and
national institutons. The very existence of society is at stake: we
face a future that is uncertain; it is desirable that this uncertainty
be minimized. What is the solution?
The history of mankind reveals that regardless of ideology,
two contending forces have always struggled against each other,
namely, LAW and LIBERTY. Ironic as it may seem these two are
direct and oppositef contradictories: the uncompromising strictures
imposed by law, by their very nature, diminish ever so ceaselessly
the liberty of the citizens; upon the other hand, the abuses of
misunderstood liberty cause ever so inevitably the death of law and
authority.
When, at a particular place and at a particular time, the
masters of authority have begun to choke even the feeble voices of
emotional dissent, the people cry out for freedom; the clamor grows,
sometimes in the clandestine secrecy of night, sometimes openly,
publicly; when the change demanded is refused, blood-red hands
become the answer, and liberty emerges triumphant. BUT then,
the time, the veryf protagonists of liberty become abusive; from out
of the confusion, anarchy rules; no one is safe, the danger grows,
and one day, there will be a cry, deafening, mighty, crushing, for
the return of law. When at long, long last law has been restored,
there will be peace. But the lull will be short for this power that
has returned will again seek to abuse, and the cycle is on. Thus far
swung the PENDULUM of history, from the far far right to the far
far left to the far far right, and so on ad infinitum.
Earlier, I asked what the solution was; it would seem that
there can be only one: we, in our country, and throughout the rest
of the “civilized” world must learn to enjoy LIBERTY WITHIN
THE CONTEXT OF LAW. Only then may we begin to fulfill the
“mad, mad dream” of our ancient aspirations.
EDGARDO L. PARAS
Manila, Philippines
July 4, 1970
Whether it be in the pursuit of our daily bread or in the

challenging arena of forensic combat, the element of conflict has
always intrigued mortal men.
Thus it is that even in this jet age of ours, where to be
fashionable is to be “mod” and where students live and swear by
the “a-go-go” way of life, the study of “Conflict of Laws,” no matter
how difficult, no matter how mentally exhausting, continues to be
terribly fascinating.
This humble treatise is an attempt to simplify the subject.
Needless to say, there were many hazards along the way, the most
notable of which was, and is the scantiness of pertinent Philippine
jurisprudence; The reader will therefore please forgive the author
if in the course of his study, he will come across hypothetical
problems (with their equally hypothetical solutions) that are
virtually explorations into the unknown.
The author acknowledges with gratitude the tremendous help
that has been offered by previous researchers; he also appreciates
the cooperative enthusiasm of those wonderful publishers, Mr. and
Mrs. Juanito F. Fontelera, and their nationally known “Rex Book
Store.”
EDGARDO L. PARAS
Manila, Philippines
January 2, 1968
XI
TABLE OF CONTENTS
Chapter I ;.......................................................................................
PRELIMINARY CONSIDERATION
Introductory Problem, 1; Definition of Conflict of Laws, 1;
Elements of the Definition Discussed, 3; Importance of the
Subject, 5; Basic Cause for Conflicts Problems, 6; Examples
of Diversity in Laws and Interpretations, 6; Scope of
Functions of Conflict of Laws, 8; How Conflict of Laws Is
Observed, 8; Why Conflict Is Observed, 9; Names Given to
the Subject, 9; Conflict of Laws and the Law of Nations
(Public International Law) Distinguished, 10; Donald Baer
Commander U.S. Naval Base, Subic Bay v. Hon. Tito V.
Tizon, L-24294, July 15, 1979, 12; Sources of Conflict of
Laws, 13; The Indirect Sources, 14; The Direct Sources, 14.
Chapter I I .......................................................................................
WHAT THE TRIBUNALS OF THE FORM MUST DO

Alternatives Given to the Court, 25; The Question of
Jurisdiction, 25; Gemperle v. Schenker, L-18164, Jan. 23,
1967, 32; Refusal to Assume Jurisdiction, 35; Heine v. New
York Insurance Co., 45 Fed. (2d) 426 (1940), 38; Assumption
of Jurisdiction, 39; Application of the Internal or Domestic
Law, 39; When the Law of the Forum Expressly Provides for
the Application of the Internal Law, 40; When the Proper
Foreign Law Has Not Been Properly Pleaded and Proved,
43; Philippine Trust Co. v. Bohanan, et al., L-12105, Jan.
30, 1960; 44; Fluemer v. Hix, 54 Phil. 610, 44; In re: Testate
ôf Suntay, 95 Phil. 500, 45; Exceptions to the Application of
the Proper Foreign Law (Exceptions to the Application of
Comity), 46; Querubin v. Querubin, L-3693, 47 O.G. (Supp.
12) p. 316, 49.
Chapter III 64
THEORIES ON WHY THE FOREIGN LAW

MAY IN SOME CASES BE GIVEN EFFECT
Introduction, 64; The Theory of Comity, 65; Hilton v. Guyot,
159 U.S. 113, 67; Johnston v. Companie Generale
Transatiantique, 242 N.Y. 381, 68; The Theory of Vested
Rights, 68; Loucks v. Standard Oil Co. of New York, 225
N.Y. 448, 70; The Theory of Local Law, 71; The Theory of
Harmony of Laws, 72; The Theory of Justice, 72; The Right
Theory, 73; Collateral Matters, 73.
Chapter I V ......................................................... ............................. 74
THE NATURE AND COMPOSITION OF CONFLICTS RULES

Nature of Foreign Judgm ents, 74; Recognition and
Enforcement of Foreign Judgments Distinguished, 74;
Reasons' for the Recognition and Enforcement of Foreign
/'Judgments, 75; Reasons Why Not All Foreign Judgments
Can Be Recognized or Enforced in Our Country, 75;
Conditions and Requisites Before Foreign Judgments May
Be Recognized and Enforced in the Philippines, 76;
Illustrative Cases on the Recognition and Enforcement of
Foreign Judgments, 78; Sawyer v. Maine Insurance Co., 12
Mass. 291, 78; Cousins Hix v. Fluemer, 54 Phil. 610, 78;
Barretto Gonzales v. Gonzales, 58 Phil. 67, 79; Provisions of
the Rules of Court on Foreign Judgments, 79; Whose
Judgment Is Really Enforced, 80.
Chapter V ...................................................................... .............. 81
NATURE AND COMPOSITION OF CONFLICT RULES

Nature of Conflicts Rules, 81; Kinds of Conflicts Rules, 82;
Composition of Conflicts Rules, 84.
Chapter V I ...................................................................................... 86
THE CHARACTERIZATION OF CONFLICTS RULES

Introduction to the Concept of Characterization or
Classification, 86; Characterization Defined, 87; Factors
Which Give Rise to the Problem of Characterization, 87;
Steps in Characterization, 88; First Step — The
Determination of the Facts Involved, 88; Second Step — The
Characterization of the Factual Situation, 89; Third Step —
The Determination of the Conflicts Rule Which Is to Be
Applied, 90; Fourth Step — The Characterization of the Point
of Contact or the Connecting Factor, 91; Fifth Step — The
xiv
Characterization of the Problem as Substantive or Procedural*
93; Sixth Step — The Pleadings and Proving of the Proper
Foreign Law, 97; Seventh Step — The Application of the
Proper Foreign Law to the Problem, 97; Theories on
Characterization, 98.
Chapter V I I ..................................................................................... 100
THE VARIOUS THEORIES ON STATUS

AND CAPACITY
Status Defined, 100; Capacity Defined, 100; Characteristics
of Status, 101; Personal Law, 101; Justification of Personal
Law, 102; Defect of Personal Law, 102; The Theories on
Personal Law or the Law That Should Govern States and
Capacity in General, 102.
Chapter V IH ................................................................................... 104
THE NATIONALITY THEORY

The Theory Restated, 104; Nationality and Citizenship, 104;
Defects o f Nationality Theory, 104; The Three Kinds of
Citizens of the Philippines, 105; Two Theories on Whether
the Place or Ancestry Determines Citizenship, 106; The
Problem of Dual and Multiple Nationalities, 106; Dual
Allegiance of Citizens, 109; The Problem of Stateless
Individuals, 110; Successional Rights, 110; Where a
Declaration of Philippine Citizenship May Be Made, 111;
Lorenzo Lim & Juana Alvarez Lim v. De La Rosa, etc., L-
17790, March 31, 1964, 111; In re: Petition for correction of
entry of certificate of birth of the minor, Chua Tan Chuan,
L-25439, March 28, 1969, 113; Republic v. Hon. Manolo L.
Maddela, L-21664, March 28, 1969, 113; Dugcoy Jao v.
Republic, G.R. No. 29397, March 29, 1983, 114; Citizenship
o f a foreign Woman Who Marries a Foreigner, 114;
Citizenship of a Foreign Woman Who Marries a Filipino,
115; In re: Petition to declare Zita Ngo Burca to possess all
the qualifications and none of the disqualifications for
naturalization, L-24252, Jan. 30, 1967, 116; Citizens of the
Philippines, 119; Roa v. Collector of Customs, 23 Phil. 321,
120; Citizens of the Philippines Under the 1935 Constitution
and New Civil Code, 121; Citizens of the Philippines Under
the 1987 Constitution, 122; Citizens at the time of the
Adoption of the Philippine Constitution (May 14, 1935), 122;
Citizens By Virtue of Having Been Elected to a Public Office
in the Philippines, 124; Chiongbian v. De Leon, G.R. L-2007,
Jan. 31,1949,126; Children of Filipino Fathers, 127; Children
XV
of Filipino Mothers, 129; Commonwealth Act No. 625, 131;
Laureto Talaroc v. Alejandro D. Uy, G.R. L-5397, Sept. 26,
1952,133; Naturalized Filipino Citizens, 134, Naturalization
Defined, 134; Presidential Decree No. 1379, 136; Attributes
of Naturalization, 140, Tan Ching v. Republic, L-33216, June
. 28, 1983, 141; Qualifications for Naturalization, 142; The
First Qualification — Age, 143; The Second Qualification —
Ten Years Residence, 143; The Third Qualification — Good
Morals and Conducts and Belief in the Principles Underlying
the Philippine Constitution, 145; The Fourth Qualification
— Real Estate or Occupation, 151; Tan Ching v. Republic,
L-35216, June 28, 1983; Fifth Qualification — Language
Requisites, 155; Sixth Qualification — Enrollment of Minor
Children o f School Age, 156; D isqualifications for
Naturalization, 158; Comment, 159; Steps in Naturalization
Proceedings, 161; The Declaration of Intention, 162; Filing
of the Petition for Naturalization, 168; The Hearing of the
Petition, 172; Rehearing After Two Years in Case of Approval
of the Petition, 174; Republic Act No. 530, 174; Yvanovich v.
Republic, L-15998, May 26, 1964, 176; The Taking of the
Oath, 180; Cancellation of the Naturalization, 181; How in
General Citizenship May Be Lost, 183; How Philippine
Citizenship May Be Lost, 186; Willie Yu v. Miriano Defensor
Santiago, G.R. No. 83882, Jan. 24, 1989 187; Frivaldo v.
COMELEC, 174 SCRA 245,188; Jose B. Aznar v. COMELEC
and Emilio Mario Renner Osmena, G.R. No. 83820, May 25,
1990,188; Denaturalization Proceedings, 189; How Philippine
Citizenship May Be Reacquired, 189; U.S. Naturalization
Law Vis-a-Vis Filipino Veterans.
Chapter I X ......................................................................................
THE DOMICILIARY THEORY

The Domiciliary Theory Restated, 191; Defects of the
Domiciliary Theory, 191; Domicile Distinguished from
Citizenship or Nationality, 191; Importance of Knowing
Domicile, 192; Definition of Domicile, 193, The Three Kinds
of Domicile, 193; Rules for the Domicile or Origin
(Domicillium Origins), 193; Rules for the Constructive
Domicile (Domicilium Necessarium), 194; Rules for Domicile
of Choice, 198; In Re Dorrance’s Estate, 309 Pa. 151, 200; In
Re Dorrance’s Estate, 115 N.J. Eq. 268, 200; Velilla v.
Posadas, 62 Phil. 624, 201; Gallego v. Vera, 73 Phil. 453,
202; Testate Estate o f Bohanan, L-2105, January 30, 1960,
202; The cases of Imelda Marcos and Agapito “Butz” Aquino,
203; Domicile D istinguished from Residence, 206;
Constitutional and Penal Safeguards on Domicile, 207.
Chapter X ......................................... ............................................... 209
THE SITUS OR ECLECTIC THEORY
The Situs or Eclectic Theory Restated, 209; Examples, 209.

Chapter X I .......................................................... ........................... 211
THE PROBLEM OF THE RENVOI

Introduction to the Renvoi Problem, 211; Proposed Solutions,
212; Transmission, 215; Double Renvoi Distinguished from
Transmission, 215; Implications of Renvoi and Transmission,
215; Argument in Favor of Each of the Proposed Solutions
for Renvoi, 216; Suggested Conclusion, 217; Philippine Law
on the Matter, 217; Testate Estate of Amos G. Beilis, et al.
v. Edward A. Beilis, L-23678, June 6, 1967, 219. j ,
Chapter X I I .................................................................................... 222
RULES ON STATUS IN GENERAL

Synopsis of the Rules on Status in General, 222; In General,
222; The Beginning of Personality of Natural Persons, 223;
Ways and Effects of Emancipation, 224; Age of Majority,
225; Use of Names and Surnames, 226; Titles of Nobility,
227; Absence, 227; Presumptions of Death and Survivorship,
227; End of Personality, 230; Legislative Jurisdiction
Distinguished from Judicial Jurisdiction, 230; Ybanez de
Barnuevo v. Fuster, 29 Phil. 606, 230.
Chapter X III............................................................................. ...... 232
MARRIAGE AS A CONTRACT
Marriage Defined, 232; The Two Aspects of Marriage, 232;

Synopsis of the Rules on Marriage, as a Contract, 233;
Marriage as a Contract (In General), 234; Formal Requisites
in Marriage in Conflict of Laws, 234; Substantial or Essential
Requisites, 235; Marriages Celebrated Abroad Between
Filipinos, 236; Illustrative Problems, 236; Marriages
Celebrated Abroad Between Foreigners, 237; Mixed
Marriages Celebrated Abroad, 239; Marriages Celebrated in
the Philippines Between Foreigners, 239; Mixed Marriages
in the Philippines, 240; Marriages By Proxy, 240; Distinctions
09 Between the Contract of Marriage and Ordinary Contracts,
241.
xvii
Chapter XIV 243
MARRIAGE AS A STATUS
Synopsis or Rules for Marriage as a Status, 243; Personal
Rights and Obligations, 244; Ly Giok Ha, et al. v. Emilio
Galang, et al., G.R. No. L-10760, May 17, 1957, 245; Bar
Question, 1959, 246; Effect of Change of Nationality, 247;
Scope of Personal Relations Between the Husband and the
Wife, 247; Duty to Live Together, 247; Duty to Observe
Mutual Respect and Fidelity, 249; Duty to Render Mutual
Help and Support, 250; Rules on Procedure, 250; Property
Relations Between the Husband and Wife, 250; The
Matrimonial Property Regimes, 251; Family Code Vis-a-Vis
Corporation Code, 251; Immutability of Matrimonial Property
Regime Doctrine, 255; Im m utability o f the Regime
Distinguished from Mutability of the law, 255; Some Cases,
256; Harden v. Emilio Pena, 48 O.G. 1307, 256; Collector of
Internal Revenue v. Fisher, G.R. L-11622, Jan. 28, 1961,
256.
Chapter X V ..................................................................................... 258
ANNULMENT A VOIDABLE MARRIAGE

AND DE' IATION OF NULLITY
OF A VOID MARRIAGE
Synopsis of the Rules on Annulment of a Voidable Marriage

and the Declaration of Nullity of a Void Marriage, 258;
Annulment Distinguished from Declaration of Nullity of a
Void Marriage, 258; Grounds for Annulment or Declaration
or Nullity, 259; Illustrative Problems, 260; Proper Courts,
261; Church Annulments and Declarations of Nullity, 261;
Psychological Incapacity, 261.
Chapter X V I ................................................................................... 263
ABSOLUTE DIVORCE
Synopsis of Rules for Absilute Divorce, 263; Absolute Divorce
Distinguished from Annulment, 264; Kinds of Divorce, 264;
Rules Today for Absolute Divorce, 264; Manila Surety and
Fidelity Co. v. Teodoro, L-20530, June 29, 1967, 265;
Illustrative Problems, 266; Prevailing Rule Today Re:
Marriages Celebrated Abroad and Effect of Foreign Divorce,
269; Imelda Manalaysay Pilapil v. Hon. Ibay-Somero, Hon.
Victor and Erick Ekkihard Geiling, G.R. No. 80116, June
30, 1989, 271; Rules on Absolute Divorce Prior to the New
Civil Code and the Family Code, 265; Bar Examination
Problem — 1958, 279; Bar Examination Problem, 281;
xviii
Japanese Occupation, 281; Validity of Absolute Divorce
Obtained on the Philippine Under the Old Laws, 283.
Chapter XVII..................................................................................
LEGAL SEPARATION
Some Grounds for Legal Separation, 285; Legal Separation
Distinguished From Absolute Divorce, 286; Legal Separation
Distinguished From Annulment of Marriage, 286; Grounds
for Legal Separation, 286; Residence Requirements, 287; Our
Internal Laws on Legal Separation, 288; Pastor B. Tenchavez
v. Vicente F. Escano, L-19671, Nov. 29,1965, 289; Comment,
293; People v. Schneckenburger, 73 Phil. 413, 294; Ocampo
v. Florenciano, L-13553, Feb. 23, 1960, 296; Effect of Death
During Pendency of the Case, 301.
Chapter XVIII............................................................. ...................
PATERNITY AND FILIATION, ADOPTION,

GUARDIANSHIP, AND FUNERAL
Synopsis of the Pertinent Conflicts Rules, 302; Paternity
and Filiation Defined, 303; Conflicts Rules on Paternity and
Filiation, 304; Philippine Internal Rules on Legitimation and
Recognition, 305; Doctrine of Immutability of Status, 306;
Definition and Purpose of Adoption, 306; Conflicts Rules on
Adoption, 307; People v. Judge Tolentino, G.R. 94147, June
8, 1994; 307; Joseph K. Katancik v. Republic, L-15472, June
30, 1962, 309; Ching Leng v. Galang, G.R. No. L-11931, Oct.
27, 1958, 311; Validity of Foreign Decrees Respecting
Adoption, 313; Guardianship, 314; Guardian Over the Person,
314; Guardian over the Property, 314; General Guardians,
314; Guardianship Rules in the Philippines, 315; Bar
Question — 1959, 315; Funerals, 316.
Chapter X I X .................................................... ...............................
REAL AND PERSONAL PROPERTIES
Synopsis of Conflicts Rules on Property, 318; Real Property,

322; Scope of the Rules in Case of Real Property, 322; Swank
v. Hufnagle, 111 Ind. 453; 323; Exceptions to the Rule in the
Case of Real Property, 324; The Rules for Personal Property,
327; Rationale for the Doctrine as Applied to Personal
Property, 327; Scope of the Theory for Personal Property,
328; ‘Chose’ Defined, 329; Choses in Possession That Usually
Move, 330; Bar Question — 1953, 330; Intangible Personal
Property (Choses in Action), 331; Filipino Society of
Composers, Authors and Publishers v. Tan, G.R. No. 36401,
March 16, 1987, 341.
Chapter X X ............................................................................ ........
WILLS, SUCCESSION, AND ADMINISTRATION

Synopsis of Conflicts Rules, 344; Extrinsic and Intrinsic
Validity of Wills in General, 347; Extrinsic Validity of Joint
Wills, 347; Intrinsic Validity of Wills, 348; Philippine Trust
Co. v. Bohanan, et al., G.R. L-12105, Jan. 30, 1960, 349;
Miciano v. Brimo, 50 Phil. 867, 350; Bar Question — 1960,
351; Testate Estate on Amos G. Beilis, et al. v. Edward A.
Beilis, L-23678, June 6, 1967, 352; Theories on the Proper
Law for the Transmission of Successional Rights, 354;
Capacity to Succeed, 355; Revocation of Wills, 355;
Interpretation of the Words of a Will, 356; Effect of Change
of Nationality of the Testator, 357; Caduciary Rights, 357;
In the Estate of Musuros (1936), 2 All E.R. 1666, 358; Probate,
359; Probate of Wills Executed Abroad, 360; Administration
of Estate of Deceased Persons, 361; Conflict Rules on
Administration, 364; Testate Estate of Idonah Slade Perkins;
Renato Tayag v. Benguet Consolidated, Inc., L-23145, Nov.
29, 1968, 366; Trusts, 367.
Chapter X X I ..................................................... ............ .........
OBLIGATIONS AND CONTRACTS

Synopsis of Conflicts Ruies, 370; Conflicts Rules for Specific
Contracts, 371; Definition of Obligations and Contracts in
General, 373; From the Viewpoint of Conflict of Laws, 374;
Formal or Extrinsic Validity, 375; Bar Question — 1953,
377; Capacity of the Parties, 378; Insular Government v.
Frank, 13 Phil. 236; 378; Suggestions for the Conflicts Rule
on the Capacity in General, 380; Intrinsic Validity of
Contracts, 380; Molina v. De la Riva, 6 Phil. 12, 382;
Companie de Commerce, etc. v. Hamburg-Amerika, etc. 36
Phil. 590, 383; Bar Question — 1966, 385; Conflicts Rules
for Specific Contracts, 385; Bar Question — 1966, 386; Bar
Question — 1966, 386; Philippine Banking Corporation,
representing the Estate of Justina Santos v. Canon, Faustino
v. Lui She, administratix of the Intestate Estate of Wong
Hong, L-17587, Sept. 12, 1967, 387.
Chapter XXII...................... .................................................. ........
TORTS (QUASI DELICTS)

Synopsis of Conflicts Rules, 390; Tort Defined, 390; Liability
and Damages for Torts in General, 391; Characterization of
the Locus Delicti, 392; Special Rules, 393; Some Cases, 394;
Morrisette v. Can Pac. R. Co., 76 VT. 267, 394; Le Forest v.
Tolman, 177 Mass. 109, 394; Enforceability of Foreign Torts
in the Philippines, 395; Slater v. Mexican National Railway
Co., 194 U.S. 120, 396; Application By Philippine Courts of
the Proper Lex Loci Delicti Commissi, 397.
Chapter X X III............................ .............................. ................... 399
CRIMES
Synopsis of Conflicts Rules, 399; Crimes Defined, 401; Crimes
Distinguished From Torts, 402; Sim ilarities, 402;
Characterization, 403; Theories as to What Court Has
Jurisdiction to Try Criminal Cases (Theories on Extra-
Territorial Competence), 403; Illustrative Examples of the
Aforementioned Theories, 406; The Philippine Theory in
Criminal Law, 407; Illuh Asaali, et al. v. Commissioner of
Customs, L-24170, Dec. 16, 1968, 408; Query, 409; Crimes
Committed Aboard Public Vessels, 409; Crimes Committed
Aboard Private or Merchant Vessels, 410; Bar Question —
1961, 411; The Philippine-United States Military Bases
Agreement, 412; The 1987 Constitution on the RP-US
Military Bases Agreement, 415; The Mutual Defense Board,
415.
Chapter XXTV................................................................................ 416
JURIDICAL PERSONS
Synopsis of Conflicts Rules, 416; Corporation Defined, 420;
Theories on the Personal or Governing Law of a Corporation,
420; The First Theory, 420; The Second Theory, 421; The
Third Theory, 421; Exemplification of the Theories, 421;
Theory Followed in the Philippines, 421; Pedro R. Palting v.
San Jose Petroleum, Inc., L-14441, Dec. 17, 1966, 423;
Filipinas Insurance Co. v. Christern Huenefeld & Co., L-
2294, May 25, 1951, 424; The ‘Grandfather Rule’, 426; What
the Personal Law of the Corporation Governs, 426; Phil.
Association of Free Labor Unions (PAFLU) et al. v. Sec. of
Labor, et al., L-22228, Feb. 27, 1969, 427; Validity of
Corporate Acts and Contracts, 429; Right to Sue and
Amenability to Court Processes, 429; Bar Question — 1955,
433; Bar Question — 1957, 433; Wang Laboratories, Inc. v.
Mendoza, G.R. No. 72147, Dec. 1, 1987, (First Division), 434;
Manner and Effect of Dissolution, 438; Domicile of a
Corporation, 439; Receivership of a Corporation, 439;
Partnerships, 439; Conflict Rules on Partnerships, 439;
Receivership of a Partnership, 441; Domicile of a Partnership,
442; Foundations, 442; Taxation of Juridical Persons, 442.
xxi
Chapter XXV 445
A BRIEF HISTORY OF CONFLICT OF LAWS

Ancient Rome, 445; The Edict of Caracalla (212 A.D.), 445;
The Coming of Barbarians, 445; The Return to Territorial
Law, 446; Two Jurists From France, 447; The Dutch Theory
of Territoriality and Comity, 448; Writers of the 19th and
20th Centuries, 449.
xxii
PHILIPPINE CONFLICT OF LAWS
Chapter I
PRELIMINARY CONSIDERATION
INTRODUCTORY PROBLEM
If in a moment of deep infatuation, a Filipino gets married in
Vietnam to a lovely, midi-skirted female from strife-torn Haiti, the
following questions may rightfully be asked: The law of which
country will govern the validity of the marriage? Which particular
legal system will govern their personal rights and obligations as
husband and wife, assuming the marriage to be valid? How about
their matrimonial property relations?
The responses to these legal interrogations will, insofar as we
are concerned, depend, to a very great extent on the application of
what shall be referred to in this humble treatise as Philippine
Conflict of Laws (otherwise called Philippine Private International
Law).
As fittingly pointed out by Prof. Robert A. Leflar, a former
Justice of the Supreme Court of Arkansas, “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 the
different states or countries, is a conflict of laws case.” (Leflar, The
Law o f Conflict o f Laws, p. 1).
DEFINITION OF CONFLICT OF LAWS

In the second (1880) edition of his well-known “Private
International Law,” Westlake begins his discussion as follows:
l
2 PHILIPPINE CONFLICT OF LAWS
“Private International Law is that department of national

law which arises from the fact that there are in the world
different territorial jurisdiction possessing different laws.”
The definition obviously leaves much to be desired: while it
indicates the basic cause of “conflicts” problems, nowhere does it
show a rule of action or conduct.
We venture to suggest the following definition:
CONFLICT OF LAWS (OR PRIVATE INTERNATIONAL
LAW)" IS THAT PART OF THE MUNICIPAL LAW OF A
STATE WHICH DIRECTS ITS COURTS AND ADMINIS
TRATIVE AGENCIES, WHEN CONFRONTED WITH A
LEGAL PROBLEM INVOLVING A FOREIGN ELEMENT,
WHETHER OR NOT THEY SHOULD APPLY A FOREIGN
LAW OR FOREIGN LAWS.
There are in this definition four (4) important elements,
namely:
(1) Conflict of laws is part of the municipal law of a state;
(2) There is a directive to courts and administrative agencies;
(3) There is a legal problem involving a foreign element;
% (4) Finally, there is either an application or a non-application
of &foreign law or foreign laws.
Before We discuss the elements hereinabove enumerated,
quoted hereunder are the definitions of the subject given by
outstanding authorities.
(1) GOODRICH — “It is that part of the law which deals
with the extent to which th| law of a state operates, and determines
whether the rules of one or another state should govern a legal
situation. A conflict of laws problem is presented whenever a legal
controversy arises in which there is a foreign element.” (H.F.
Goodrich, Conflict o f Laws, 3rd Edition, 1949, p. l).
(2) CHESHIRE — “Private International Law is that part of
law which comes into play when the issue before the court affects
some fact, event, or transaction that is so closely connected with a
foreign system of law as to necessitate recourse to that system.”
(G.C. Cheshire, Private International Law, 3rd Edition, 1947, p. 6).
(3) MINOR — “Conflict of laws embraces those universal
principles of right and justice which govern the courts of one state
PRELIMINARY CONSIDERATION 3
having before them cases involving the operation and effect of the
laws of another state or country.” (R.C. Minor, Conflict o f Laws,
1901, p. 4).
(4) AMERICAN RESTATEMENT - "That part of the law of
each state which determines whether in dealing with a legal
situation the law of some other state will be recognized, be given
effect, or be applied is called conflict of laws.” (American Restatement
o f Conflict o f Laws, p. 2).
ELEMENTS OF THE DEFINITION DISCUSSED

(1) Conflict o f Laws Is Part o f the Municipal Law o f a State
Since every state has its own municipal law, it follows
quite naturally that each state has also its own conflict of
laws. Hence, the conflict of laws of the Philippines is different
from its counterpart, say in France or Japan or Cuba or
England. Similarly, American conflict of laws differs in the
various states of the American Federal Union.
And precisely because the subject is “part of the municipal
law,” it is NOT international in character. It is however given
the appellation of INTERNATIONAL LAW because of the
presence of a FOREIGN element in a given problem.
In light of what has been said, We are now ready^to
define PHILIPPINE CONFLICT OF LAWS as that part of,the
municipal law of the Philippines 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.
(2) The Direction to Courts and Administrative Agencies

It is the judicial tribunals of a country that ultimately
are called upon to decide or resolve “conflicts” problems.
Various administrative agencies of the state, such as the
Department of Foreign Affairs, the Bureau of Immigration,
the Securities and Exchange Commission, and the like also
decide PRELIMINARILY a given controversy involving a
^foreign factor.
(3) A Legal Problem Involving a Foreign Element

In an existing situation premised on certain facts, a
“foreign element” has to be present before the matter can be
considered a “conflicts” problem. Eliminate the “foreign

element” and the problem is obviously NOT a question calling
for private international law.
If a Cebuana marries a Tagalog in Ilocos Norte, the priest
being a resident of the Visayan region, what law governs the
validity of the marriage? In this problem, there is NO foreign
element that comes into play; verily, it is not one calling for
the solutions offered by Philippine conflict of laws. Make the
groom, however, a gigolo from Japan, or make the blushing
bride a/mestizilla” from France, or let the wedding take place
somewhere in the hinterlands of Afghanistan, and immediately,
a problem in conflict of laws, will arise, namely: “the law of
which country governs the validity of the marriage contract,
assuming that indeed a marriage has really taken place?”
As has been well-stated by Prof. Minor, “if the transaction
in question arises wholly within a single state, all the parties
interested having been, and continuing to be, domiciled and
actually present there (and we may add, all nationals of the
very same state), the question being raised there also, no
foreign element exists to cause any interference with the usual
and regular enforcement of the domestic municipal law by the
domestic tribunals. There is no room in such a case for the
application of the rules of Private International Law.” (Minor,
Conflict o f Laws, p. 4). But, gravely warns Cheshire, “the
moment a case is seen to be affected by a foreign element, the
court must look beyond its own internal law, lest the relevant
rule of the internal system to which the case most appropriately
belongs, should happen to be in conflict with the forum. Private
International Law comes into operation, therefore, whenever
the Court has a suit before it that contains a foreign element.”
(Cheshire, Private International Law, p. 3).
(4) The Application or Non-Application o f a Foreign Law

or Foreign Laws
When our courts are confronted with a “conflicts” problem

over which they may have jurisdiction (and are willing to
assume such jurisdiction), the solution will have to be found
in the applicatoin of either the LOCAL law or FOREIGN law.
In a good number of cases, our courts will discover, perhaps
to their dismay, that they have no alternative except to apply
directly Philippine internal law in the resolution of the problem
(as when, for instance, the, proper foreign law has not been
properly pleaded and proved); in other litigations, a foreign
legal or judicial system may be inquired into and applied.
This later alternative becomes particularly urgent when our
own law, by reason of justice or convenience or plain common
decency, commands our tribunals to apply the law or laws of
a foreign state.
For the purpose of our subject, the phrase “foreign system
of law” may include not only the law of foreiign states (as the
word “states” is understood in the national or political sense)
but also the law of political subdivisions which have their own
legal system (for example: insofar as the state of California is
concerned, the laws of New York or Hawaii or Texas are
“foreign laws”). (See Graveson, Conflict o f Laws, p. 4).
Parenthetically, the question may be asked: in applying
the law or a foreign state, does not a sovereign state recognize
the superiority of another state? In recognizing the principles
of a foreign legal system, do we not implicitly admit the
inadequacy of our own jurisprudence? Professor Raleigh C.
Minor has a ready response:
It is to be observed that the rules of Private International
Law do not derive force from a power superior to the sovereign
states which recognize and enforce them. On the contrary, the
very essence of a sovereign state is that it has no superior. It
is one of the fundamental principles of this branch of the law
that each sovereign state is supreme within its own limits. It
is, therefore, within the power of such state at any time to
exclude any or all foreign laws from operating within its
borders. To the extent that if it cannot do this, it is not
sovereign. Hence, when effect is given to a foreign law in any
territory, it is only because the municipal law of that state
temporarily abdicates its supreme authority in favor of the
foreign law, which for the time being, with reference to that
particular matter, becomes itself, by will of that state, its
municipal law.” (R.C. Minor, Conflict of Laws, 1991, pp. 5-6).
IMPORTANCE OF THE SUBJECT

With the advent of information superhighway, conflict of laws
has assumed increasing importance. For instance, two individuals,
nationals and domiciliaries of two different states may in the space
of a few hours, engage in a mercantile transaction over chattels
still to be manufactured in a third state, and to be delivered at a

given port of a fourth state. Should legal complications ensue, which
of the countries involved will have jurisdiction over the case, and
which state’s laws will be applicable?
Briefly stated, we may say that the subject is important in
order:
(a) to adjust conflicting rights in international, mercantile
and corporate transactions; and
(b) tp solve personal, family, property, and successional,
contractual problems, possessed of facts or elements
operating in two or more states.
BASIC CAUSE FOR CONFLICTS PROBLEMS

“Conflicts problems” come into being through variance in the
municipal laws of the countries involved. Indeed, the sad truth is
that there is a “multiplicity of governments with separate legal
systems.” (Leflar, op. cit., p. 13). As a matter of fact, a single state,
such as the United States or Switzerland, may even have territorial
subdivisions (also referred to as states), each of which has its own
internal or local legislation; in other states, such as India (prior to
its partition), different systemsôf law may govern different classes:
one system may apply exclusively to Mohammedans; another system,
to the Hindus.
And even assuming that the laws in various countries are
uniformly the same, still different municipal tribunals may give
identical laws varying interpretations.
This is no surprising. Municipal legislation, by its very nature,
tends to be diverse becauge each group of people is virtually a
nation in itself, with a culture, a language, and a religion peculiarly
its own: with varying moods and national tempers; with distinctive
customs, traditions, ideals and beliefs.
EXAMPLES OF DIVERSITY IN LAWS

AND INTERPRETATIONS
(1) In the Matter o f Wills
In the Philippines, oral wills are not allowed; in
Massachusetts, U.S.A., an oral will is valid only if executed by
soldiers in actual service or by mariners at sea and only with
reference to their wages and personal property. Upon the other

hand, in North Carolina, for an oral will to be valid, there
must be at least two witnesses at the time it is uttered; the
will must have been made during the testator’s last sickness,
and either in his own residence or where he had previously
resided.
(2) In the Matter o f Marriage

In the Philippines and in America, monogamy is practised;
in Moslem countries, a man may generally have as many as
four wives, provided he has the capacity to take care of them;
in Mustang, Tibet, on account of the scarcity of females and
the sterility of the agricultural soil, a woman is allowed to
have several husbands, usually brothers. Moreover some states
recognize marriages “mortis causa” (effective after death) as
when, for sentimental reasons, a girl is married to the corpse
of her lover. In the Philippines, we give effect only to marriages
in “articulo mortis” (at the point of death).
(3) In the Matter o f Divorce

The Civil Code of the Philippines does not recognize
absolute divorce; almost all North American States grant it. It
should even be noted that in New Hampshire, as well as in
Kentucky, membership in a religious sect which prohibits or
interferes with marital duties is a good ground for absolute
divorce.
(4) In the Matter of Income Tax Exemptions

In the United States members of the judiciary are not
exempted from the payment of income tax on their salaries as
judicial officers on the theory that they pay the tax, not as
judges but as private citizens. In the Philippines, under the
1935 Constitution, salaries of members of the judiciary were
exempt from income taxation on the premise that a contrary
rule would result in the diminution of the salaries, and would,
therefore, contravene the Constitution. Be it noted, however,
that under both the 1973 and 1987 Constitutions, this
exemption has been eliminated. Thus, in Nitafan v. Com. of
Internal Revenue, G.R. No. 78780, July 23, 1987, the Supreme
Court held that “the true intent of the framers of the 1987
Constitution . . . was to make the salaries of the members of
the Judiciary taxable.”
SCOPE OF FUNCTIONS OF CONFLICT OF LAWS

G.C. Cheshire states the scope and three-fold functions of
Conflict of Laws in the following manner:
“(1) To prescribe the conditions under which the court is
competent to entertain such a suit;
“(2) To determine for each class of cases the particular
territorial system of law by reference to which the rights
of the parties must be ascertained;
“(3) Torjspecify the circumstances in which a foreign judgment
can be recognized as decisive of the question in dispute.”
(Cheshire, Private International Law, p. 3).
In other words, the three (3) specific aims of functions are:
(1) the determination of which country has jurisdiction;
(2) the applicability to a particular case of either the local or
the foreign law;
(3) the determination of the force, validity and effectiveness
of a foreign judgment.
Thus, three questions, present themselves: the question, firstly,
of jurisdiction; the question, secondly, of choice o f law; and the
question, finally, of applicability o f a foreign judgment. Of the three
undoubtedly the most important is the choice of law.
Let us suppose that a Filipino movie star goes to Reno, Nevada,
and obtains a decree of absolute divorce from his Filipino wife. Let
us further suppose that three years later the Filipino wife sues in
Manila for support from said husband. Three questions will confront
the Filipino judge. Firstly, does he have jurisdiction over the case?
Secondly, what law will he ajjply in determining whether or not a
proper cause of action exists — shall it be Nevada law or Philippine
law? Thirdly, should he recognize as valid and binding in the
Philippines the reno divorce decree?
HOW CONFLICT OF LAWS IS OBSERVED

(1) States may observe conflict of laws by complying faithfully
with its “conflict rules” (rules of Private International Law). The
rules must be applied to the end that justice will be served.
Moreover, states must, insofar as is practicable try to harmonize
their own rules of equity with the legislation and jurisprudence in
other lands.
(2) Private individuals may in their own way abide by our

conflicts rules by observing them and by complying with judicial
decisions on the subject. Furthermore, fairness demands that they
should not try to evade our laws by the simple expedient of going
elsewhere and resorting to a foreign forum. Thus, Art. 81 of our
Civil Code prohibits the marriage in the Philippines of Filipino
first cousins. If the first cousins get married, say, in California
(where such marriages are legal and binding), their attempt at an
evasion would be futile since under the explicit provisions of Art.
37 of our Family Code, such a marriage, even if valid in the place
of celebration, cannot be countenanced in this country for the simple
reason that it is “incestuous,” as determined by Philippine law.
WHY CONFLICT OF LAWS IS OBSERVED

(1) States must of necessity observe the subject because it is
part of their own municipal law. Surely, a government, anywhere
and anytime, is duty bound to enforce and respect its own municipal
legislation.
(2) Upon the other hand, individual citizens observe it because
of fear of municipal sanctions. For instance, the marriage which they
may have so enthusiastically entered into may by one judicial stroke
be tom asunder; their contracts valid elsewhere may suddenly be
nullified; there is even a chance that they may go to jail.
NAMES GIVEN TO THE SUBJECT

Two different schools of thought give various appellations to
the subject: on the one hand, the school emphasizing the
“international” angle call it “Private International Law” (also:
“International Private Law,” “Civil International Law,”
“Extraterritorial law.” “Private Law of Nations,” “Private Law of
Foreigners,” “The Extraterritorial Recognition of Rights,” “The Law
of Strangers,” “The Theory of the Extraterritorial Authority of
Laws”). Upon the other hand, the other school stresses the “conflict”
angle, and the principal name given by this group is “Conflict of
Laws” (also: “Collision of Laws,” “Conflict of Statutes,” “Choice of
Law”). „
Incidentally, it should be observed that the name “Private
International Law” is rather misleading, for as we have already
discussed, it is municipal, not international in character However,
the name “Conflict of Laws” has even more defects:
(1) Firstly, it stresses the “conflict,” whereas the principal

objective of the subject is precisely to resolve or eliminate
said “conflict.”
(2) Secondly, there may be no conflict at all in the laws
themselves: the “conflict may exist only in the mind of
the judge who, unsure of himself, and bereft of judicial
maturity, may hesitate and find himself confused.
(3) Thirdly, aside from the existence of a conflict of laws,
there may also be a conflict of jurisdiction, and a conflict
,*nay arise between provisions in our Civil Code and in
our Revised Penal Code. Even in the Civil Code itself,
inconsistent provisions may be present.
Be that as it may, it is clear that any further academic
discussion on the semantics involved can serve no useful purpose.
The significant thing to bear in mind is the stress underlying each
phrase.
The only reason we have used the name “Conflict of Laws” for
this book is the fact it is the official name given both by our
Department of Education, Culture and Sports/Commission on Higher
Education and our own Supreme Court (insofar as the Bar
Examination is concerned).
CONFLICT OF LAWS AND THE LAW OF NATIONS

(PUBLIC INTERNATIONAL LAW) DISTINGUISHED
CONFLICT OF BASIS LAW OF NATIONS

LAW
(1) municipal in Nature (1) international in character
character
(2) dealt in by Persons (2) the parties involved are
private indivi Involved sovereign states and other
duals entities possessed of an
international personality,
such as the United
Nations Organization
(3) transactions are Transactions (3) transactions are entered
private ones Involved into which generally affect
between private public interest; those
individuals which in general are of
interest only to sovereign

states
(4) the remedy here Remedies or (4) the rem edies may be
is to resort to Sanctions peaceful or forcible. Peace
municipal tribu ful rem edies include
nals diplomatic negotiation,
tender and exercise of
good offices, mediation,
inquiry and conciliation,
arbitration, judicial set
tlem ent by the Inter
national Court of Justice,
reference to regional
agencies such as the
Organization of American
States, reference to the
United Nations itself.
Forcible remedies include
the severance of diplo
matic relations, retor
sions, reprisals, embargo,
boycott, non-intercourse,
pacific blockades, collect
ive measures under the
U.N. Charter, and finally
war.
The distinctions hereinabove adverted to have been advanced

by the Dualist School of Thought. This is also the majority opinion:
the school believes that the two subjects are world apart, at least
insofar as the above-mentioned distinctions are concerned.
According to the Monist School of Thought, however, Private
and Public International Law are in essence identical for both of
them manifest a single concept of law, ultimately addressed to the
same individual. States, the adherents of this school maintain, can
act onjy through individuals: what can bind individuals must,
therefore, necessarily bind also the respective states to which they
belong.
On several topics, it cannot be denied that the two subjects
may overlap each other, hence:
(1) The question of citizenship and nationality is properly a

part of both subjects: part of the Law of Nations in the
sense that a state’s observance of it depends primarily
on the actuations of the citizenry; and part of Conflict of
Laws for oftentimes it is the law of the citizenship or the
law of the nationality that should govern a person’s
capacity and status.
(2) While generally a state may resolve a “conflicts” problem
freely, and even use its own internal law exclusively in
^deciding a given situation, still, should there be a treaty
obliging a state to apply foreign law to certain cases,
the state is of necessity compelled to abide by such
treaty. (See Hans Kelsen, Principles of International Law,
p. 257).
(3) Under both subjects, if State A should recognize the
government of State B, the latter is automatically given
permission to sue in the courts of the former. However,
it should be noted that a sovereign state, whether
recognized or not, cannot be made a defendant in a foreign
country. For if the rule were otherwise, aside from the
fact that an insult against a sovereign state has been
made, how can the judgment ever be effectively enforced?
(See Max Wulfsohn, et al. vs. Russian Socialist Federated
Soviet Republic, United States o f Appeals o f New York,
1923). However, if a recognized state is given permission
to sue in another, a counterclaim (whether compulsory
or permissive) may be filed against the former. A contrary
rule will be eminently unfair.
Donald Baer Commander U.S. Naval Base,

Subic Bay vs. Hon. Tito V. Tizon
L-24294, July 15, 1974
FACTS: If a Filipino is granted a timber license

may he conduct a logging operation within a U.S. Military
Base when the U.S. Base Commander refuses to grant
him permission to do so?
HELD: (thru Mr. Justice, later to become Chief
Justice Enrique M. Fernando): No, he cannot conduct
such a logging operation. To sue the Base Commander
(to compel the allowance of the operation) would amount
to a suit against the U.S. Government. This cannot be
done in view of the principle of state immunity from suit.

True, the Base Commander does not possess diplomatic
immunity (and he may, therefore, be proceeded against
in his personal capacity, or when the action taken by
him cannot be imputed to the government he represents).
But here, the suit is not actually against him, but against
the U.S. Government, which has merely acted on the
basis of its treaty stipulations with our Republic.
International Commissions and Administrative

Bodies Have A Distinct Juridical Personality
Independent o f the Municipal Law of the State
Southeast Asian Fisheries

Development Center Aquaculture
Department v. National Labor
Relations Commission
G.R. No. 86773, Feb. 14, 1992
Permanent international com m issions and
administrative bodies have been created by the agreement
of a considerable number of States for a variety of
international purposes, economic or social and mainly
non-political.
Among the notable instances are the International
Labor Organization, the International Institute of
Agriculture, and the International Danube Commission.
Insofar as they are autonomous and beyond the control
of any one State, they have a distinct juridical personality
independent of the municipal law of the State where
they are situated. As such, they must be deemed to
possess a species of international personality.
SOURCES OF CONFLICT OF LAWS

There are indirect and direct sources of Conflict of Laws.
«There are two indirect sources: the natural moral law, and
the works of writers.
There are six direct sources: constitutions, codifications, special
laws, treaties and conventions, judicial decisions, and international
customs.
14 PHILIPPINE CONFLICT OF LAW$
THE INDIRECT SOURCES

(1) The Natural Moral Law
The natural moral law is that rule of human conduct
implanted by God in our nature and in our conscience, urging
us to do whatever is right and avoid whatever is evil.
(2) Works o f Writers

Among the famous writers on the subject may be cited
the fallowing:
(a) Westlake — “Private International Law”
(b) Falconbridge — “Essays on the Conflict of Laws”
(c) E. Rabel — “The Conflict of Laws”
(d) J. Story — “Commentaries on the Conflict of Laws”
(e) H.F. Goodrich — “Conflict of Laws”
(f) G.C. Cheshire — “Private International Law”
(g) J.H. Beale — “Conflict of Laws”
■(h) R.C. Minor — “Conflict of Laws”
(i) W.W. Cook — “Legal and Logical Bases of the Conflict of
Laws”
(j) E.G. Lorenzen — “Cases on Conflict of Laws”
(k) Graveson — “Conflict of Laws”
The above-mentioned legal scholars are considered sources
(indirect) of Conflict of Laws insofar as their writings have
influenced judicial decisions on the subject.
THE DIRECT SOURCES

(1) Constitutions
In Philippine Conflict of Laws, the Philippine Constitution
plays a fundamental part. For instance, it enumerates the
citizens of the Philippines. (Art. IV, 1935 Constitution; Art.
Ill, 1973 Constitution and Art. IV, 1987 Constitution). Also
Art. XII, Sec. 2 of the 1987 Constitution is explicit, reading in
part: “All lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources are owned by the State. With the exception
of agricultural lands, all other natural resources shall not be
alienated. The exploration, development, and utilization of
natural resources shall be under the full control and

supervision of the State. The State may directly undertake
such activities, or it may enter into co-production, joint venture,
or production-sharing agreements with Filipino citizens, or
corporations or associations at least sixty per centum of whose
capital is owned by such citizens. Such agreements may be for
a period not exceeding twenty-five years, renewable for not
more than twenty-five years, and under such terms and
conditions as may be provided by law. In cases of water rights
for irrigation, water supply, fisheries, or industrial uses other
than the development of water power, beneficial use may be
the measure and limit of the grant.”
Recall that under the Parity Amendment to the 1935
Constitution, the patrimonial rights referred to were extended
to Americans. This was by virtue of an ordinance appended to
the Constitution in 1947. The arrangement embodied in an
Executive Agreement between the President of the Philippines
and the President of the United States and entered into on
July 4, 1946 did not continue beyond July 3, 1974.
In Pedro R. Palting v. San Jose Petroleum, Inc., (L-14441,
Dec. 17, 1966), the Supreme Court, thru Mr. Justice Jesus
Barrera held that an American citizen (natural or juridical)
can take advantage of parity only if in his own particular
state in the United States, reciprocal rights are granted Filipino
citizens (whether natural or juridical).
After the expiration of Parity Rights, the Government
decided to grant American entities a grace period ending May,
1975 whereby lots acquired by them would either be actually
disposed of, or made the subject matter of plans which would
dispose of them eventually.
Later, in June, 1975, Presidential Decree No. 713 was
issued granting three types of American citizens, who had
acquired private residential lands for family dwelling purposes
before July 3, 1974 permission to continue holding such lands
(up to 5000 square meters only, however) and to transfer their
ôwnership to qualified persons and entities. These three (3)
types of American citizens are the following:
1) those who were formerly Filipino citizens;
2) those who have become permanent residents of the
Philippines; and
3) those who have resided in the Philippines continuously

for at least twenty (20) years.
Then President Ferdinand E. Marcos pointed out that
these properties had been acquired in GOOD FAITH, in the
honest belief that such properties could be held even after the
expiration of parity. Under the 1973 Constitution, titles of
American citizens to the private lands are void as against the
Government but valid as against private persons. With this
new decree, according to Mr. Marcos, these three types of
American citizens are granted “special consideration and
compassion” in the interest of justice.
Meanwhile, with the advent of the 1987 Constitution,
“lands of the public domain are classified into agricultural,
forest or timber, mineral lands, and national parks.
Agricultural lands of the public domain may be further
classified by law according to the uses to which they may be
devoted. Alienable lands of the public domain shall be limited
to agricultural lands. Private corporations or associations may
not hold such alienable lands of the public domain except by
lease, for a period not exceeding twenty-five years, and not to
exceed one thousand hectares in area. Citizens of the
Philippines may lease not more than five hundred hectares,
or acquire not more than twelve hectares thereof by purchase,
homestead, or grant. Taking into account the requirements of
conservation, ecology, and development, and subject to the
requirements of agrarian reform, the Congress shall determine,
by law, the size of lands of the public domain which may be
acquired, developed, held, or leased and the conditions
therefor.” (Art. XII, Sec. 3, The 1987 Phil. Const.).
(2) Codifications
The Civil Code of the Philippines, which took effect on
August 30, 1950 (Lara v. Del Rosario, G.R. L. 6339, 50 O.G.
1957), contains several important articles on Philippine Conflict
of Laws, the most fundamental of which are Articles 15, 16,
17, 66, 71, 99,124, 815, 816, 817, and 819. The other provisions
will be enumerated in detail in the subsequent pages.
The Philippine Code of Commerce which is really the
Code of Commerce of Spain (extended to the Philippines by
Royal Decree of August 6, 1888, and effective here beginning
December 1, 1888) also contains some provisions on “conflicts”

problems. One such provision is Art. 15.
In other countries mention may be made of:
(a) The French Napoleonic Code of 1804 which stressed the
“nationality” theory. (Said theory has tremendously
influenced other codes, such as the Spanish Civil Code,
the Italian Civil Code, and our own Civil Code of the
Philippines.)
(b) The Civil Code of Greece of 1940 which among other
things, makes the relationship between a father and his
illegitimate son depend upon the national law of the
father.
(c) The Civil Code of Switzerland of 1907, which provides
among others that although capacity to contract is
governed by the national law of the person concerned,
still if the transaction is effected in Switzerland, the
foreigner may be considered capacitated if he be so
considered under either his own law or Swiss law.
(3) Special Laws

Among Philippine legislation dealing with our subject
are the Corporation Code, the Insurance Act, the Patent Law,
the Presidential Decree on Intellectual Property, the
Nationalization of the Retail Trade Act, the Omnibus
Investments Code, the Foreign Investments Act, and the
Central Bank Act (Bangko Sentral Act). These laws regulate,
for instance, the treatment of foreign insurance companies,
the reciprocal privileges in the matter of patents, the requisites
before an alien may obtain a copyright, the conditions under
which alien retail trade may still continue, and the grant of
incentives to foreign investors.
(4) Treaties and Conventions

Some countries are parties to certain treaties which
« embody “conflicts” rules; the rules are therefore binding on
the courts of the signatories concerned. Among the most
important conventions on the matter are:
(a) The European Hague Conventions of 1896, 1902, and
1905. Among the rules chosen were those concerning the
validity of marriage and marriage contracts, their effects

on property and status, divorce and judicial separation,
guardianship o f minors and persons under civil
interdiction, testamentary and intestate succession, and
parts of judicial procedure.
(b) The Geneva Conventions of 1823, 1926, 1930, and 1931.
They dealt with arbitration and foreign arbitral awards;
and matters concerning negotiable instruments.
(c) The Treaties of Montevideo of 1899 (revised in 1940).
•Here, the countries of South America adhering to the
domiciliary theory (as distinguished from the nationality
theory) agreed on rules concerning domicile, property,
ju rid ical acts, marriage settlem ent, succession,
prescription, jurisdiction, commercial law, maritime law,
bills of exchange, and the like.
(d) The Codigo Bustamante of 1898 — which was entered
into by American states following the nationality theory,
and which gave rules on practically all aspects of Conflict
of Laws.
(5) Judicial Decisions

In the Philippines, as well as in many other countries,
the “conflicts” rules that have been the subject of codal and
special legislation are hopelessly inadequate; hence, the need
for decisional jurisprudence. Under Art. 8 of the Civil Code of
the Philippines, “judicial decisions applying or interpreting
the laws or the Constitution shall form part of the legal system
of the Philippines.” Judicial decisions, though not laws, are
indeed evidence of what the laws mean. The decisions referred
to are those enunciated by the Supreme Court. Thus, our
Supreme Tribunal, in Miranda, et al. v. Imperial, et al. (77
Phil. 1066), categorically stated that “only the decisions of
this Honorable Court establish jurisprudence in this
jurisdiction.” Decisions of subordinate courts are therefore only
persuasive in nature, and can have no mandatory effect.
However, the Court continued, “this does not militate against
the fact that a conclusion or pronouncement of the Court of
Appeals which covers a point of law still undecided in the
Philippines may still serve as a juridical guide for the inferior
courts. It is even possible that such conclusion or
pronouncement may be raised to the status of the doctrine, if
after it has been subjected to test in the crucible of analysis

and revision, the Supreme Court should find that it has merits
and qualities sufficient for its consecration as a rule of
jurisprudence.” (Ibid., see also Gaw Sin Gee v. Market Master
o f the Divisoria Market, et al., C.A. 46 O.G. 2617).
(6) International Customs

Almost all states, in their respective municipal laws,
adhere to certain principles or customs in deciding “conflicts”
problems. Among the principles and customs uniformly followed
are the following:
(a) The “lex situs” (law of the place where the property is
situated) governs almost everything that concerns real
property: formalities for their alienation, the capacity to
encumber or otherwise dispose of them, and so forth. In
the Philippines this rule applies to both real and personal
property. (Art. 16, par. 1, Civil Code).
(b) The “lex loci celebrationis” (law of the place of celebration
or execution) governs generally all transactions insofar
as formalities or solemnities are concerned. One important
exception to this rule is whenever property is involved,
in which case it is the lex situs that should control. (Art.
17, par. 1, Civil Code).
(c) Either the “lex nationalii” or the “lex domicilii” (the
national law or the domiciliary law) of the deceased
governs the successional rights to his estate. In our
country, we have expressly adopted the “lex nationalii.”
(Art. 16, par. 2, Civil Code).
(d) In the sphere o f crim inal law, the principle of
“territoriality” and the principle of “generality” are usually
fundamental maxims. Under the rule of “territoriality
the place or territory where a crime has been committed
has jurisdiction to try the offense that has been
committed. Of course there are several exceptions to this
rule. (See Art. 2, Revised Penal Code). This principle of
“generality” states that the criminal laws of a country
bind both the citizens and the aliens who are in the said
country or territory. This principle is enunciated in our
Civil Code in the following terms: “Penal laws and those
of public security and safety shall be obligatory upon all
who live or sojourn in Philippine territory, subject to the
principles of public international law and to treaty

stipulations.” (Art. 14, Civil Code). It should be noted
that aliens whether male or; female come under our
territorial jurisdiction. This is because aliens, while in
our country, owe some sort of allegiance, even if it be
temporary.
Parenthetically, it will be observed that Art. 14 of the
Civil Code in dealing with the principle of “generality”
recognizes two exceptions:
(a) 'Firstly, the principles of public international law.
(Examples are the immunities granted to diplomatic
officials and visiting heads of foreign states provided that
the latter do not travel incognito. If they travel incognito
but with the knowledge of our government officials, heads
of states are entitled to immunity. If the incognito travel
is without the knowledge of our country, the diplomatic
immunity cannot be insisted upon, and the heads of states
thus travelling may be arrested for the commission of a
crime. However, once they reveal and prove their identity,
immunity is given.)
(b) Secondly, the presence of treaty stipulations.
Thus, we had, for instance, the now abrogated
Philippines-United States Military Bases Agreement of
March 14, 1947, which contained some provisions
exempting certain members of the armed forces of the
United States from the jurisdiction of our courts. (See 43
O.G. No. 3, pp. 1020-1034). Incidentally, the Supreme
Court held that the bases agreement is constitutional.
Reasoned the cgurt: if bases may validly be granted the
United States under our Constitution, it follows
necessarily that the lesser attribute of jurisdiction over
certain offenses may be waived or given by law or treaty.
Furthermore, the grant of bases necessarily includes the
waiver of jurisdiction within the terms “necessary
appurtenances to such bases, and the rights incident
thereto.” (Dizon v. Philrycom, 46 O.G. Sup. No. 1, p. 68;
see also Miquiabas v. Com. Gen. Phil. Ryukus Command,
U.S. Army, G.R. L-1988, Feb. 24, 1948).
The Agreement had already undergone various
amendments: firstly, on the extent of criminal jurisdiction
(effective Aug. 10, 1965 — Mendez-Blair Exchange of

Notes); and secondly, on the duration of the agreement
(Ramos-Rusk Exchange of Notes of Sept. 16, 1966 —
decreasing the term of 99 years to 25 years, counted
from Sept. 16, 1966).
However, in an opinion rendered in November, 1968,
then Secretary of Justice (later to become Supreme Court
ChieiJ Justice) Claudio Teehankee, ruled that the
amendments are not yet in force for lack of Senate
concurrence. [Ironically, the United States Government
has considered the amendments as already effective on
the theory that the Bases Agreement (together with all
amendments thereto) is not a treaty, but a mere President
Executive Agreement, which does not necessitate
Congressional action.]
Prior to its abrogation, the position of the Philippine
government has been that the Amendments referred to
hereinabove are already EFFECTIVE, firstly, because the
Amendments may be considered as amendments to a
Presidential Executive Agreement, not to a treaty; and
secondly, because, as of that time, the National Assembly
referred to in the 1973 Constitution has not yet been
convened. By reason of the May 14, 1984 elections, (not
merely interim) Batasang Pambansa had come into being.
The onset of the Corazon C. Aquino government
saw this issue become a constitutional one. The 1987
Constitution, Art. XVIII, Sec. 25 of the Transitory
Provisions states that: “After the expiration in 1991 of
the Agreement between the Republic of the Philippines
and the United States of America concerning Military
Bases, foreign military bases, troops, or facilities shall
not be allowed in the Philippines except under a treaty
duly concurred in by the Senate and, when the Congress
so requires, ratified by a majority of the votes cast by the
people in a national referendum held for that purpose,
and recognized as a treaty by the other contracting State.”
Lawyer-author Hector S. de Leon in his textbook on
the New Philippine Constitution avers:
“The R.P.-U.S. Military Bases Agreement is merely
an executive agreement entered into between the
President of the Philippines and the President of the
United States. Such an agreement does not require

legislative concurrence. It is binding only upon the heads
of States entering into them. (See Art. VIII, Sec. 4[2].)
Thus, all disbursements under the Bases Agreement for
the Philippines have to be approved by the U.S. Congress.
A treaty, upon the other hand, requires the concurrence
of the legislative body to be valid and effective. It is an
international agreement binding upon the States as
parties thereto. (See Art. VII, Sec. 21.)”
t According to 1986 Constitutional Commission
member Vicente B. Foz, in his Manila Bulletin (Nov. 23,
1989) column, there was no conflict between the
Constitution and the Military Bases Agreement. Wrote
he: “When a treaty and a country’s constitution conflict,
which will prevail? The query is especially timely because
the Constitution and the Philippine-United States
Military Bases Agreement speak differently on MBA’s
termination. The first says it will expire in 1991, while
the second expressly provides that after Sept. 16, 1991,
it will be subject to termination upon one year’s notice by
either party. “After the expiration in 1991 of the
Agreement. . . ” says the Constitution, but the MBA
provides “. . . this Agreement and agreed revisions thereof
shall remain in force for a period of 25 years from
September 16,1966 after which . . . it shall become subject
to term ination upon one year’s notice by either
governm ent.’’ When they were fram ing the new
Constitution in late 1986, the framers assumed that, as
commonly thought, the MBA automatically ends on Sept.
16,1991. But as early as Sept. 16, 1966 when the Ramos-
Rusk Notes werf exchanged, formally amending the MBA,
it is officially known that only after Sept. 16, 1991 will
either government have the option to serve notice of
termination on the other, to take effect a year after. The
agreement has the force of international law between
the two countries.
“Previously we would discourage any efforts to create
a constitutonal issue over the apparent conflict between
the fundamental law and the MBA on termination date.
The country has nothing to gain and something to lose
by holding up the ultimate question of whether to allow
the American continued access to the Philippine bases.
But, if we anticipate such an issue to arise, how is it

going to be resolved? Professor Edgardo L. Paras, now
associate justice of the Supreme Court, answers the poser
in his book “International Law and World Organizations”
in the following manner: 1. From the viewpoint of the
world, the treaty ought to prevail to avoid international
embarrassment and to prevent charges of international
delinquency. The state must accordingly update its
municipal constitution. 2. From the viewpoint of the state
itself, it would seem that most constitutions (including
our own) provide that a treaty may be declared
unconstitutional by a state’s own national courts; it is
thus clear that, from this standpoint, municipal law,
prevails — though, of course, it should also be evident
that the decision of a national court, while binding on
municipal authorities would have NO international effect,
for indeed it is a settled principle of international law
that a sovereign cannot be permitted to set up its
municipal law against a claim founded on international
law.
“A fundamental principle governing the appli
cation and enforcement of treaties, pacta sunt servanda
dictates that treaties must be observed in good faith.
Quoting, international law publicist Kelsen, Paras said,
‘Treaties have a binding effect, for by means of them
rights and obligatoins are established.’ Citing a decision
of the International Court of Justice, Paras said, ‘If a
treaty is contrary to a signatory’s national constitution,
the international legal order dem ands faithful
compliance with the treaty, to avoid international
embarrassment.”
“In the case of our Constitution, its transitory
provision on the military bases mentions the MBA expiry
merely in passing. It doesn’t make a categorial, black-
and-white declaration that the MBA shall terminate on
Sept. 16, 1991. Indeed, the provision doesn’t even indicate
a full date but only speaks matter of factly, “After the
expiration in 1991 of the Agreement. . .” That falls short
of a mandate contrary to what some senators would make
us believe. The most significant thrust of the transitory
provision is its unequivocal requirement that after the
MBA expires, foreign military bases, troops and facilities
shall be allowed only under a treaty concurred in by the

Senate, and if Congress so requires, ratified by the people
in a plebiscite.”
NOTE: The RP-US Military Bases Agreement has
been terminated by the Philippine Government in
1991.
Chapter II
WHAT THE TRIBUNALS OF THE FORUM
MUST DO
ALTERNATIVES GIVEN TO THE COURT

Whenever a conflicts problem presents itself before a tribunal
of the forum, the court is primarily confronted with the question of
jurisdiction. (Leflar, op cit., pp. 5-6).
When a court is without jurisdiction, it has no alternative
except to dismiss the case. Any judgment rendered without or in
excess of jurisdiction is clearly null and void even in the state that
rendered it, in view of the lack of “due process.” (Pennoyer v. Neff,
95 U.S. 714).
Upon the other hand, when a tribunal possesses jurisdiction,
it may:
(1) refuse to assume jurisdiction on the ground of forum non
conveniens; or
(2) assume jurisdiction, in which case it may either:
(a) apply the internal law of the forum (lex fori); or
(b) apply the proper foreign law (lex causae). (See
Stimson, Conflict of Laws, p. 348).
THE QUESTION OF JURISDICTION

Jurisdiction Defined
„ In general, jurisdiction (from the Latin “jus dicere” —
the “right to speak”) is the authority of a tribunal to hear and
decide a case. (Herrera v. Barretto, 25 Phil. 245; De la Cruz
v. Moir, 36 Phil. 213.) Complete jurisdiction necessarily
25
includes not only the power to hear and determine a cause,

but also the power to enforce any judgment it may render
thereon. (14 Amer. Jur., pp. 363-364; Ballentine’s Law
Dictionary).
In the realm of Conflict of Laws, jurisdiction has
essentially the same definition, with the added element of
possible enforceability in foreign states, subject, of course, to
the rights of said states [See Fenwick, International Law.,
(1948), p. 342], The Encyclopedia Britannica says that in the
Conflict of Laws, jurisdiction is the power of the state to create
legal interests which other states will recognize and enforce.
(Vol. 12, p. 412).
Ultimately, it is the court of the forum which decides
whether or not jurisdiction, considering the attendant
circumstances, is present. For this purpose, it is usually the
law o f the forum that furnishes the yardstick FOR THE
PRESENCE OR ABSENCE OF JURISDICTION.
Kinds o f Jurisdiction
Although jurisdiction may be variously classified from
different viewpoints, we shall for the present content ourselves
with three (3) kinds:
(1) jurisdiction over the subject matter;
(2) jurisdiction over the person; and
(3) jurisdiction over the res.
(As distinguished from jurisdiction over the subject
matter, which is generic in character, jurisdiction over
the res is jurisdiction over the particular subject matter
involved, as when, for instance, specific properties which
are the subject of the litigation have been properly
attached. (See Banco Espafiol-Filipino v. Palanca, 37 Phil.
921; Bernabe v. Vergara, 73 Phil. 676.)
Jurisdiction Over the Subject Matter
Jurisdiction over the subject matter is conferred by law

and is defined as the authority of a court to hear and decide
cases of the general class to which the proceedings in question
belong. (Reyes v. Diaz, 73 Phil. 484). The consent or the
submission of the parties on this point is of no consequence;
indeed, only the law confers it, and only the law may change
WHAT THE TRIBUNALS OF THE FORUM MUST DO 27
it. (Calauag v. Pecson, 82 Phil. 8). In the Philippines this law

on the jurisdiction of our courts may be found in the Philippine
Constitution and in the Judiciary Act of 1948, as amended by
Batas Pambansa Big. 129 (also as amended).
It is not enough, however, that the court has this power
in the abstract: something more is vital, and this is the invoking
of such power by the filing of the proper petition or com
plaint. (Calauag v. Pecson, 82 Phil. 8). Therefore, it may truly
be said that it is the allegations in the petition or complaint,
read together with the proper jurisdictional law, that will con
fer jurisdiction on the court. (Baguioro v. Barrios, 77 Phil.
120). /
If the allegations in the complaint show prima facie a
lack of jurisdiction, the court must immediately dismiss the
case. No preliminary hearing on the evidence is needed.
(Administrator v. Alberto, G.R. L-12123, Oct. 31, 1958).
If, upon the other hand, the complaint, on its face, reveals
the presence of jurisdiction, trial in the meantime must be
held. Should the evidence in the trial show that the court
really has no jurisdiction, the court has no course except to
dismiss the case. (Manlapaz v. Pagdanganan, 54 O.G. No. 34,
Dec. 1, 1958, p. 7890).
Parenthetically, it is worthwhile to note that legal
provisions prescribing the period in which a decision should
be rendered are merely directory, not mandatory — in the
sense that even if a judgment is promulgated after the
expiration of the period, said judgment would generally still
be valid — unless the intent to the contrary is manifest. Of
course, the officer who failed to comply with the lav/ may be
dealt with administratively. (PAFLU v. Sec. of Labor, et al., L-
2228, Feb. 27, 1969).
Jurisdiction Over the Person

Jurisdiction over the person is the power of a court to
render a judgment that will be binding on the parties involved:
■the plaintiff and the defendant.
Jurisdiction over the person of the plaintiff is acquired
from the moment he institutes the action by the proper
pleading. (Manila Railroad Co. v. Attorney-General, 20 Phil.
523).
Jurisdiction over the person of the defendant is acquired

through the following means: voluntary appearance; personal
or substituted service of summons. (Rule 14, Rules of Court).
NOTE:
(1) The first way is by voluntary appearance in court or
voluntary submission to the jurisdiction of the court (Rule
14, Sec. 23, Rules o f Court) except, of course, if the precise
purpose of the appearance is to question the jurisdiction
of the court over his person. (Carballo v. Encarnacion, 92
’Phil. 974).
[NOTE: An appearance by motion, by answer,
or by a simple manifestation of appearance, whether
in person or through an attorney, is sufficient.
(Flores v. Sarbito, 37 Phil. 746; Lezama v. Piccio, 95
Phil. 899).] /;
(2) The second way is through personal or substituted service
of summons (Rule 14, Secs. 7 and 8, Rules o f Court).
[NOTE: This is referred to as service by the
coercive process in the manner provided by law.
(Tolendano v. Severino, 78 Phil. 283).]
Personal Service — “The summons shall be served
by handing a copy thereof to the defendant in person,
or if he refuses to receive it, by tendering it to him.
(Rule 14, Sec. 7, Rules of Court). Service of summons
may be made at night as well as during the day or
even on a Sunday or holiday because of its
ministerial character. (Laus v. CA, 219 SCRA 688
[1993]).
Substituted Service — “If 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
dwelling house or 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.” (Rule 14, Sec. 8, Rules of
Court; Laus v. CA, 219 SCRA 688 [1993]).
Strict compliance with these modes 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 through a 12-year old daughter of the
defendant is not valid substituted service, even if
she was a Grade Four pupil, in view, even if she
was a Grade Four pupil, in view of the lack of
suitable age and discretion. (Sequito v. Letrondo,
supra.) However, the question of erroneous service
o f summons must be raised before judgment is
rendered, otherwise, 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 manner,
knowledge of the existence of the case should come
to the attention of the defendant himself. (Sequito
v. Letrondo, supra).
(3) Effect of summons by publication (Secs. 16, 17, 18, Rule
124, Rules of Court). This manner of summons is good
only if the action is in rem or quasi in rem (Sec. 17) or
involves the personal status of the plaintiff (Sec. 17;
Fontanilla v. Dominguez, 73 Phil. 579). If the action is in
personam, summons by publication would not be sufficient
service on the person of the defendant, whether or not
said defendant is in the Philippines. (Pantaleon v.
Asuncion, 105 Phil. 761). While there is no prohibition
against availing of a foreign newspaper in extraterritorial
service of summons, neither should such publication in a
local newspaper of general circulation be altogether
interdicted. (Sahagun v. CA, 198 SCRA 44 [1991]).
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 thereon. Said jurisdiction may
for instance be acquired by coercive seizure of the property by
attachment proceedings. (See Banco Espanol-Filipino v.
Palanca, 37 Phil. 921; Bernabe v. Vergara, 73 Phil. 676).
Illustrative Examples:
1) Problem: An American, not residing in the Philippines,
intimidated a Filipino woman into marrying him in
Manila. The day following the marriage, the man left the
wife, and departed for parts unknown. Subsequently, the
woman filed in the Regional Trial Court of Manila a suit
asking for the annulment o f the marriage and for
consequential damages. Since the husband could not be
found, service of summons was made by publication.
Incidentally, the man has no property in the Philippines.
(a) Does the Court have jurisdiction to annul the
marriage, assuming that the intimidation can be
r* duly proved?
(b) Does the Court have jurisdiction to award damages
to the woman in case the marriage is annulled?
ANSWER:
(a) Yes, the Court has jurisdiction to annul the
marriage, assuming the intimidation to be duly proved.
The Court has jurisdiction over the subject matter —
annulment of a marriage — a jurisdiction granted it by
law; jurisdiction over the person of the plaintiff — for
the simple reason that she filed the complaint before it;
and finally, jurisdiction over the res — the annulment
itself. While it is true that the summons here was merely
by publication, this is sufficient because the proceeding
partakes of an action in rem, more particularly, it involves
the personal status of the plaintiff. Neither personal
service of summons nor voluntary appearance by the
defendant in court, in person or through an attorney, is
required. (See Sec. 17, Rule 14, Rules o f Court; See also
Fontanilla v. Dominguez, 73 Phil. 579). As a matter of
fact, in a case like this, jurisdiction over the person of
the defendant is NOT essential, and if the law demands
service by publication, it is merely to satisfy the
constitutional requirement of due process. (Perkins v.
Dizon, 69 Phil. 186). Moreover, the Family Code sanctions
the annulment of a marriage even if the defendant does
not appear, in the following words:
“In all cases of annulment or declaration of
absolute nullity of marriage, the court shall order
the prosecuting attorney or fiscal assigned to it to
appear on behalf of the State to take steps to prevent
collusion between the parties and to take care that
evidence is not fabricated or suppressed. In the cases
referred to in the preceding paragraph, no judgment

shall be based upon a stipulation of facts or
confession of judgment.” (Art. 48 of the Family Code).
It is true that marriage may be annulled for
certain causes, but if instead of proving these causes
the party concerned will only submit either a
stipulation of facts (facts agreed upon and signed
by both the husband and wife) or a confession of
judgment (a statement by the erring spouse to the
effect that he or she is not against the annulment),
then the court will refuse to render judgment.
Instead, the Court will proceed as in Art. 60, 2nd
par. of the Family Code. It is provided for in Art.
60, par. 2, that “In any case, the court shall order
the prosecuting attorney or fiscal assigned to take
steps to prevent collusion between the parties and
to take care that the evidence is not fabricated or
suppressed.” Thus, a marriage cannot be annulled
by means of a summary judgment. (Jocson v. Robles,
22 SCRA 521)
(b) No, the Court has no jurisdiction to awa
damages to the woman, even if the marriage is annulled,
and even if ordinarily, damages should have been
adjudged. This is because an award of damages is clearly
a judgment in personam, enforceable not against the
whole world as in a proceeding in rem, but only against
the party concerned, the defendant. There can be no valid
judgment in personam here because the service of
summons was only by publication. There was neither a
voluntary appearance nor personal or substituted service
of summons. Hence, for the purpose of awarding damages
there was NO jurisdiction over the person of the
defendant. (See Pantaleon v. Asuncion, 105 Phil. 761).
While indeed there was jurisdiction over the personal
status of the plaintiff, there was no jurisdiction to grant
a relief which would be a personal liability of the
defendant. (Pennoyer v. Neff, 95 U.S. 714; Banco Espafiol-
^ Filipino v. Palanca, 37 Phil. 921).
[NOTE: In the problem hereinabove presented
concerning the award of damages, the defendant
had NO property in the Philippines. Now, then,
suppose the defendant has properties here, would
the answer be the same? YES, the answer would be

the same; since the court never acquired jurisdiction
over his person, it cannot now satisfy his liability
from his properties found in this country. The reason
is evident: since he never incurred personal liability,
how can his properties be held liable? HOWEVER,
there is one exception to this rule: when previously,
the court had acquired jurisdiction over the property
itself, such as by attachment or by any other
proceeding in rem, the court may validly render the
property liable for the payment of the damages,
notwithstanding the fact that the only summons on
the defendant was summons by publication. (See
Pennoyer v. Neff, 95 U.S. 714; Perkins v. Dizon, 69
Phil. 186).
(2) Similarly, an action for the recognition of an illegitimate
child concerns the personal status of the plaintiff, and
summons by publication would be sufficient on a non
resident defendant; but an award for support is a
proceeding in personam, and summons by publication is
not adequate therefor.
(3) Similarly, again, if a debtor-mortgagor is a non-resident
defendant, summons by publication would be sufficient
for the foreclosure of the mortgage, but not for award of
the deficiency, in case the proceeds are insufficient to
cover the indebtedness.
Gemperle v. Schenker
L-18164, Jan. 23, 1967
FACTS: Sometime in 1952, Raul Schenker — acting
through his wife and attorney in fact, Helen Schenker —
filed with the Rizal Court of First Instance (now Regional
Trial Court) a complaint (regarding certain corporate
shares in the Philippine Swiss Trading Co., Inc.) against
a certain William Gemperle. Gemperle in turn sued the
couple for damages (action in personam), allegedly because
of certain libelous matters in connection with the case
filed against him. The principal issue in the case with
the Supreme Court was whether or not the lower court
had obtained jurisdiction over the person of Paul Schenker,
who admittedly was a Swiss citizen and resident of Zurich,
Switzerland. The summons in the case filed by Gemperle
had actually been served in the Philippines personally

only on Helen (although addressed to both Paul and
Helen).
HELD: There was jurisdiction over the person of
Paul, the alien non-resident, it appearing from Helen’s
answer to the complaint that she was the representative
and attorney-in-fact of her husband in the civil case they
had filed against Gemperle. In other words, Helen had
authority to sue and had actually sued, on behalf of her
husband, so that she was, also empowered to represent
him in suits filed against him, particularly in a case, like
the one at bar, which is a consequence of the action that
had been brought by her on his behalf.
How Service Is Made on a Private Foreign Corporation

“SEC. 14. Service upon private foreign corporations. — If
the defendant is a foreign corporation or a non-resident joint
stock company or association, doing business in the Philippines,
service may be made on its resident agent designated in
accordance with law for that purpose, or if there be no such
agent, on the government official designated by law to that
effect, or any of its officers or agents within the Philippines.”
(Rule 14, Rules o f Court)
NOTE: The private foreign corporation must be DOING
BUSINESS in the Philippines (and not engaged merely in an
isolated transaction), otherwise the rule hereinabove quoted
does not apply, and our courts cannot acquire jurisdiction over
the same. (Pacific Micronisian Line, Inc. v. Baens del Rosario,
96 Phil. 23). Whether the business it is doing is illegal or not
is immaterial, for either way there is no question that it should
be held amenable to our legal processes. (General Corporation
o f the Phil. v. Union Insurance Society o f Canton, 90 Phil.
868). Nonetheless, for purposes of acquiring jurisdiction by
way of service of summons, there is no need to prove first the
fact that defendant is doing business in the Philippines.
(Signetics Corp. v. CA, 225 SCRA 737 [1993]).
08Effect of Vitiated Personal Service of Summons

(a) Vitiation by Fraud
X) If fraud was availed of in personally serving the
summons on the defendant in a proceeding in
personam, and such fraud was thru the initiative or

at the instigation of the plaintiff, the court does
NOT acquire jurisdiction over the person of such
defendant. (See Dunlap and Co. v. Cody, 31 Iowa,
260, Ex parte Edwards, 99 Cal. App. 541).
Example: If a woman-plaintiff in a breach of
promise damage suit lures the defendant into her
state by fraudulently alleging serious illness on the
part of her mother, and succeeds subsequently in
having a sheriff personally serve summons on the
occasion of the defendant’s arrival in her state, such
defendant is not subject to the jurisdiction of the
court.
2) Upon the other hand, if the plaintiff has in no way
intervened in the perpetration of the fraud, the court
acquired jurisdiction. (See Taylor, Petitioner, 29, R.I.
129.)
(b) Vitiation by Force
1) If the force used is LEGAL, as in extradition
proceedings, jurisdiction may properly be acquired.
2) If the force is ILLEGAL, as in the case of kidnapping
or abduction, jurisdiction is not obtained. (See
Dunlap and Co. v. Cody, 31 Iowa 260.)
Repercussions o f Submission (Voluntary or Coercive) to

Jurisdiction
(a) On the part o f the plaintiff:

If a plaintiff goes to court by filing a complaint or
a pleading, he puts the judicial machinery into action,
and he is, therefore, now subject to any set-offs,
counterclaims, cross-claims, etc. that the forum may
provide as proper elements of a defense. (Aldrich v.
Blatchford and Company, 175 Mass. 369). The reason is
patent: having chosen a particular forum, and a particular
judicial machine, the plaintiff, in all fairness, has to accept
the entire machine completely. In availing himself of its
benefits, he announces his readiness to assume its
burdens. (See Goodrich, Conflict of Laws, p. 158.)
(b) On the part o f the defendant:

Once properly before a court, defendant is subject
to its jurisdiction as to all subsequent matters in the
same suit, such as appeals. (Dadmun v. Dadmun, 279
Mass. 217); but certainly not as to an entirely different
action which is not an essential concomitant of the original
litigation. (New York Life Insurance Co. v. Dunlevy, 241
U.S. 578.)
Continuing Jurisdiction Even if the Defendant Leaves

Even if the defendant leaves the state of the forum prior
to the final determination of the suits, the jurisdiction over
him that had been previously acquired continues. Mr. Justice
Oliver Wendell Holmes, Jr. explains the reason for this in the
case of Michigan Trust Co. v. Ferry, 228 U.S. 346, 353. He
says in characteristic felicitous terms:
“Ordinary jurisdiction over a person is based on the
power of the sovereign asserting it to seize that person
and imprison him to await the sovereign’s pleasure. But
when the power exists and is asserted by service at the
beginning of a cause, or if the party submits to the
jurisdiction in whatever form may be required, we
dispense with the necessity of maintaining the physical
power, and attribute the same force to the judgment or
decree whether the party remain within the jurisdiction
or not. This is one of the decencies of civilization that no
one may dispute.”
It should be noted that the principle hereinabove
adverted to applies not only to cases where jurisdiction had
been acquired by personal service within the state, but also
to those instances where judgments in personam as already
explained may validly be given. (See Goodrich, Conflict o f
Laws, p. 157.)
REFUSAL TO ASSUME JURISDICTION

Basis
As already stated at the beginning of this Chapter, if the
forum has jurisdiction, it may decide either to refuse to assume
that jurisdiction, it may go ahead and assume it.
It has been said that every sovereign has the right to

refuse to assume jurisdiction over a particular litigation, even
granting that it indeed possesses such jurisdiction. As a matter
of fact, a state without jurisdiction or without the possibility
of acquiring it, cannot refuse to assume jurisdiction for there
would be nothing to refuse.
The reason often given for refusal to assume jurisdiction
is that to do so would prove inconvenient for the forum: forum
non conveniens. The inconvenience may be manifested, among
othpr things, in the following ways:
(1) the evidence and the witnesses may not be readily
available. (Koster v. Lumbermen’s Mutual Casualty Co.,
330 U.S. 518);
(2) the court dockets of the forum may already be clogged:
to permit additional cases would inevitably hamper the
speedy administration of justice;
(3) the evils of “forum-shopping” (the practice of looking over
the courts of the world for possible procedural advantages)
ought to be curbed;
(4) the forum has no particular interest in the case; the
parties may either be citizens or residents; the subject
matter of the litigation had evolved somewhere else;
(5) other courts are open: certainly, the case may be better
tried in said courts. (See Stimson, Conflict of Laws, pp.
348-352)
In the case of Cuba Railroad Co. v. Crosby, 222 U.S. 473,
the Supreme Court of the United States, thru Mr. Justice
Holmes, said that when we get right down to the grass-roots
of the matter, the litigants should not really complain when
the courts to which they have come apply the principle of
forum non conveniens. These are the words of Mr. Justice
Holmes:
“It should be remembered that parties do not enter
into civil relations in foreign jurisdictions in reliance upon
our own courts. They could not complain if our courts
refused to meddle with their affairs and remitted them
only to the place that established and would enforce their
rights . . . The only just ground for complaint would be
if their rights and liabilities, when enforced by our courts,

should be measured by a different rule from that under
which the parties dealt.”
Upon the other hand, Prof. Goodrich believes that the
principle should sparingly, if at all, be used. He says:
“It may be argued that some courts are crowded,
and that foreign suits are burdensome, while the fees
paid do not cover the cost of the suit. However, if one
state shuts its courts to residents of another state, there
may be retaliation by the other state. In the long run,
there will probably be no gain but a loss, and it would
seem more desirable on the whole, to allow free flow of
litigation.” (Goodrich, Conflict o f Laws, pp. 15-16).
Be that as it may, it would seem clear that our own
Philippine Courts, even at the risk of retaliation by foreign
states, may at times profitably and legally make use of the
principle of forum non conveniens. Certainly, our country is a
sovereign state, and there is nothing in our civil or procedural
legislation that would militate against the proposition that in
the exercise of our own discretion, we may at times refuse to
assume cognizance over a certain case.
However, be it remembered that the doctrine should
generally apply only if the defendant is a corporation. After
all, if the defendant is an individual, it may be difficult for
the convenient or proper forum to acquire jurisdiction over
him — thus leaving the plaintiff without any remedy. (See
Stimson, Conflict of Laws, p. 349).
Application o f the Principle
(1) If neither the plaintiff, nor the defendant, nor the cause
of action is related to the forum, the action will not be
heard.
(2) Courts of equity and of law occasionally decline, in the
m interest of justice, to exercise jurisdiction, where the suit
is between aliens or non-residents, or where for kindred
reason, the litigation can more appropriately be conducted
in a foreign tribunal. (Canada Malting Company v.
Patterson Steamship, 285 U.S. 413, 423).
Heine v. New York Insurance Co.

45 Fed. (2d) 426 (1940)
FACTS: Several German citizens brought insurance
claims against the New York Life Insurance Company
on insurance contracts and policies issued in Germany.
Although the plaintiffs were citizens and residents of
Germany, and although the defendant was a New York
corporation, suit was brought not in Germany nor in
New York, but in Oregon, U.S.A. The Oregon court had
undoubtedly jurisdiction over the subject matter; over
the plaintiffs (on account of their pleadings); and over
the defendant (service of summons having been made on
its resident or statutory agent in Oregon.) However, the
following facts stood out:
(a) The cause of action did not arise in Oregon.
(b) The material witnesses were not residents of Oregon.
(c) The records of the defendant company were either
in the home office in New York or in its German
office.
(d) The plaintiffs were not citizens or residents of
Oregon; the defendant was a New York corporation.
(e) The courts of New York and of Germany were open.
The plaintiffs, fearful that the Oregon court would
dismiss the case on the ground of forum non conveniens,
argued that inasmuch as the court had jurisdiction over
the subject matter and over the parties, it had no
alternative, except to decide the case on the merits,
notwithstanding, the alleged non-accrual of the cause of
action in OregSh, the non-residence of the parties, and
possible inconvenience and difficulty in deciding the case.
ISSUE: May the Oregon court, in the exercise of its
discretion, still refuse to take cognizance of the case?
HELD: Yes, the Oregon court may still validly refuse
to assume jurisdiction over the case on the ground of
forum non conveniens. The court said:
“This is a matter resting in a court’s discretion. It
may retain jurisdiction, or it may, in the exercise of sound
discretion, decline to do so, as circumstances suggest.
The courts have repeatedly refused, in their discretion,

to entertain jurisdiction, where both parties are ‘non
residents of the forum . . . It is unthinkable that residents
and citizens of Germany may import bodily into this court
numerous actions against a non-resident defendant, on
contracts made and payable in Germany, and insist as a
matter of right that, because it has obtained jurisdiction
over the defendant by service on its statutory agent, the
taxpayers, citizens, and residents of the district having
business in the court should stand aside and await the
conclusion of the case, where as here, the courts of
Germany and the home state of the defendant are open
and functioning.
“The courts of Germany and New York . . . are
competent to take jurisdiction of the controversies, and
service can be made on the defendant in either of such
jurisdictions. To require the defendant to defend the action
in this district would impose upon it great and
unnecessary inconvenience and expense, and probably
compel them to produce here (3,000 miles away from its
home office) numerous records, books, and papers, all of
which are in daily use by it in taking care of current
business. In addition, it would no doubt, consume months
of the time of this court to try to dispose of this case,
thus necessarily disarranging the calendar, resulting in
delay, inconvenience, and expense to other litigants who
are entitled to invoke its jurisdiction.”
ASSUMPTION OF JURISDICTION
When the forum assumes jurisdiction over a case, it may,
under proper circumstances:
(1) apply the internal or domestic law (lex fori); or
(2) apply the proper foreign law (lex causae).
APPLICATION OF THE INTERNAL OR DOMESTIC LAW

JThere are at least three (3) instances, when the forum has to
apply the internal or domestic law (lex fori) in adjudicating a conflicts
problem set before it. These instances are the following:
(1) when the law of the forum expressly so provides in its
conflicts rules;
(2) when the proper foreign law has not been properly
pleaded and proved;
(3) when the case involves any of the exceptions to the
application of the proper foreign law (exceptions to
comity):
(a) when the foreign law, judgment, or contract is
contrary to a sound and established public policy of
the forum;
(b) when the foreign law, judgment, or contract, is
** contrary to almost universally conceded principles
of morality (contra bonos mores);
(c) when the foreign law, judgment, or contract involves
procedural matters;
(d) when the case involves penal laws, contracts,
judgments;
(e) when the case involves purely fiscal (that is, revenue-
producing) or administrative matters;
(f) when the application of the foreign law, judgment,
or contract, may work undeniable injustice to the
citizens or residents of the forum;
(g) when the application of the foreign law, judgment,
or contract, may work against the vital interests
and national security of the state of the forum;
(h) when the case involves real or personal property
situated in the forum. (See Art. 17, par. 3, and Art.
16, par. 1, Civil Code. See also Minor, Conflict of
Laws, pp. 9-26; Goodrich, Conflict o f Laws, pp. 21-
24, 30). ^
WHEN THE LAW OF THE FORUM EXPRESSLY PROVIDES

FOR THE APPLICATION OF THE INTERNAL LAW
Our Civil Code cites certain instances when our courts in
resolving a conflict problem have no course except to apply our own
internal law. Among them are the following:
(1) When, for example, a Filipino father, with a Chinese
child, dies, the estate of said father shall be distributed
in accordance with Philippines law. The reason is simple:
the deceased is a Filipino national. (Art. 16, par. 2, Civil

Code). Similarly, the capacity of the Chinese child to
inherit from his Filipino father is governed, not by
Chinese law, but by Philippine law. Again the reason is
obvious: the deceased is a Filipino. (Art. 1039, Civil Code).
(2) 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, Civil Code).
(3) Regarding matrimonial property relations, Art. 80 of our
Family Code says:
“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 o f the celebration o f the marriage and their
residence.
“This rule shall not apply:
“(1) Where both spouses are aliens;
“(2) With respect to the extrinsic validity of contracts
affecting property not situated in the Philippines
and executed in the country where the property is
located; and
“(3) With respect to the extrinsic validity of contracts
entered into in the Philippines but affecting property
situated in a foreign country whose laws require
different formalities for its extrinsic validity.”
Examples:
(a) A Filipino gentleman marries an American. In the
Philippines, in the absence of a marriage settlement, it
is presumed that the matrimonial property relations shall
be the absolute community of property. (Art. 75, Family
Code). Let us assume that in America the general rule is
“complete separation of property.” Now, then, if the
husband earns twenty thousand pesos a month, who will
„ be its owner — the husband alone, or both of the spouses
as common owners?
Answer: The property should be considered as owned
in common by the spouses. Since the husband is a Filipino,
their property relationship shall be governed by the
regime referred to in our law as “the regime of absolute

community.” (Art. 75, Family Code).
[NOTE: It will be observed here that the forum, i.e.,
the Philippine court, has no alternative except to apply
our own internal law, since this is the explicit provision
of our conflicts rule. (Art. 80, Family Code) on the matter.]
An American gentleman marries a Filipina. During the
marriage, the husband earns P5 million with which he
purchases a house located in the Philippines. (Under the
•Parity Amendment, a U.S. citizen may not purchase
Philippine land — Republic v. Quasha, L-30299, Aug. 17,
1971); while a house is real property, it is not land, so
same may be validly purchased by an alien. Question:
Should the house be considered the separate property of
the husband, or must we regard the same as conjugal?
Answer: The house must be considered as separate
property of the husband. Under Art. 80 of the Family
Code, there is no doubt that the husband, being an
American, the matrimonial property regime in his country
must be followed, and consequently, their property
relations shall be governed by the “separation of property”
regime. Therefore, the P5 million earned by him solely
shall be his exclusive property; thus, also, whatever is
substituted therefor shall be deemed as his separate
property. This is true both iinder Philippines and
American laws. (See Art. 109, par. 4, Family Code).
[NOTE: Under Presidential Decree No. 713, three
(3) types of American citizens, who had acquired private
residential lands for family dwelling purposes before July
3, 1974, are allowed to continue holding such lands (up
to 5,000 square meters only, however) and to transfer
their ownership to qualified persons or entities:
1) those who were formerly Filipino citizens;
2) those who have become permanent residents of the
Philippines; and
3) those who have resided in the Philippines
continuously for at least twenty (20) years.]
OBJECTION: Art. 80 of the Family Code, among
other things states: “This rule shall not apply: (1) Where
WHAT THE TRIBUNALS OP THE FORUM MUST DO 43
both spouses are aliens; (2) With respect to the extrinsic

validity of contracts affecting property not situated in
the Philippines and executed in the country where the
property is located; and (3) With respect to the extrinsic
validity of contracts entered into in the Philippines but
affecting property situated in a foreign country whose
laws require different formalities for its extrinsic validity.”
Now, then, since the subject matter here is a Philippine
house, should we not apply here the regime of absolute
community, since after all this is the general rule in the
Philippines?
ANS.: The objection is untenable:
1) Firstly, the matrimonial property regime is governed
by the national law of the husband, not by the
location of the property. (Art. 80, Family Code).
2) Secondly, the phrase alluded to refers not to the
ownership of the property but to the requisites and
the manner of its disposition, alienation, and
encumbrancing. For instance, if the husband wishes
to donate the house to a friend, he must comply
with the formalities not of American law but of
Philippine law, since the house is situated in our
country. (Art. 16, par. 1, Civil Code). Hence, to be
valid even as between the immediate parties to the
transaction, a public instrument is essential. (Art.
749, Civil Code). If instead of donating to a friend,
he desires to donate the house to his wife during
the existence of their marriage, the donation would
generally be VOID under Art. 87 of our Family Code,
unless the gift be a moderate one considering the
financial circumstances of the husband. (See Harding
v. Commercial Union Assurance Co., 28 Phil. 464.)
WHEN THE PROPER FOREIGN LAW HAS NOT BEEN

PROPERLY PLEADED AND PROVED
The second case when our internal law shall control presents
itself when the proper foreign law, which should ordinarily govern
the litigation, is not properly pleaded and proved. There is NO
judicial notice of any foreign law. A foreign law must be properly
pleaded and proved as a fact. (Adong v. Cheong Seng Gee, 43 Phil.
43; Sy Joe Lieng v. Syquia, 16 Phil. 137). If the foreign law involved
is not properly pleaded and proved, our courts will presume that
the foreign law is the same as our local or domestic or internal law.
(Lim v. Collector, 36 Phil. 472; Fluemer v. Hix, 54 Phil. 610; In re
Testate Estate o f Suntay, 95 Phil. 500).
Philippine Trust Co. v. Bohanan, et al.

L-12105, Jan. 30, 1960
FACTS: In the probate of a will made by a Nevada
citizen, Nevada law was properly presented in evidence.
However, in a hearing (held subsequently) of the proposed
project of partition of the estate, said foreign law was not
introduced anymore. In the partition, was it still necessary
to reintroduce the proved Nevada law?
HELD: No more, in view of its prior satisfactory
proof during the probate proper. The answer would have
been different had there been no prior allegation and
proof.
Proof o f Foreign Law

(1) If the foreign law is WRITTEN LAW (such as a statute
or a constitution), it may be proved by:
(a) an official publication thereof; or
(b) by a copy attested by the officer having the legal
custody of the record, or by his deputy, and
accompanied with a certificate that such officer has
custody.
[NOTE: The certificate may be made by a
secretary of an embassy or a legation, consul general,
consul, vice-consul, or consular agent or by any
officer in the foreign service of the Philippines
stationed in the foreign country in which the record
is kept, and authenticated by the seal of his office.
(Rule 132, Sec. 25, Rules o f Court).
Fluemer v. Hix
54 Phil. 610
FACTS: Hix died with a will allegedly executed in
accordance with the formalities of West Virginia law. To
prove the existence of said foreign law, the proponent of
the will presented in evidence a copy of said law found

in a book (West Virginia Code) in our National Library.
The corresponding certificate was signed by the Director
of the National Library. Issue: Has the existence of said
law been properly proved?
HELD: No, because the legal requisites for proof of
a written foreign law have not been properly complied
with. There was no proof that the book referred to was
an official publication of the State of West Virginia; there
was no certification by the officer having custody of the
original; finally, there was no proof that said alleged law
was still in force at the time of the execution of the will.
(2) If the foreign law is UNWRITTEN LAW as customs or
traditions, it may be proved by:
(a) the oral testimony of expert witnesses; or
(b) by printed and published books of reports of
decisions of the country involved, if proved to be
commonly admitted in such courts. (Rule 130, Sec.
45, Rules of Court).
In re: Testate Estate of Suntay

95 Phil. 500
FACTS: To prove Chinese law, the proponents of a
will presented in evidence written answers (to certain
written questions) of the Chinese consul-general. Issue:
Has the existence of said law been proved?
HELD: No, firstly, because the witness should have
been presented for the purpose of confrontation and cross-
examination; and secondly because, a Chinese consul-
general is not necessarily an expert on the matter.
How a Proved Foreign Law Must be Interpreted by Our Courts

It is believed, as a general proposition, that a foreign law
that has been duly pleaded and proved in our courts of justice
Thust receive the same interpretation given to said law by the
foreign tribunals concerned. An exception, however, to this
rule may be stated: if somewhere in our laws we find a statute
worded identically, we cannot be blamed if we disregard the
foreign interpretation, and instead use our own previous
interpretation of the same.
EXCEPTIONS TO THE APPLICATION OF THE PROPER

FOREIGN LAW (EXCEPTIONS TO THE APPLICATION
OF COMITY)
(1) First Exception to the Proper Foreign Law — When the

foreign law, judgment, or contract is contrary to a sound
and established public policy of the forum:
(a) Codal Provision Involved
^ “Prohibitive laws concerning persons, their acts
or property, and those which have for their object
public order, public policy and good customs shall
not be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions
agreed upon in a foreign counrty.” (Art. 17, par. 3,
Civil Code).
(b) Public Policy Defined
Public policy is simply the manifest will of a
state, that which it desires on account of its own
fundamental principles of justice, its own conception
of morals, and its deep-rooted traditions for the
common-weal. (See Chaffee v. Farmer’s Cooperative
Elec. Co., 39 N.D. 585; Loucks v. Standard Oil
Company of New York, 224 N.Y. 99.)
(c) Query: When is a foreign law, judgment or contract
contrary to our public policy?
ANSWER:
(1) When we already have a conflicts rule on the
matte# (a rule governing a situation where a
foreign element is involved) this rule is the
expression of our public policy on the matter.
Therefore, any foreign law, judgment, or
contract that contravenes our conflicts rule on
the matter is clearly VIOLATIVE of our public
policy.
(2) While we do not have a conflicts rule on the
matter, the mere fact that a foreign law is
different from or dissimilar to our own internal
law on the matter does not mean that said
foreign law is contrary to our public policy.
Otherwise stated, while the foreign law may

be contrary to our law, it is not necessarily
contrary to our public policy. In a case like
this we have to discover our public policy in
the history of our legislations on the matter,
in the clear intent and purpose of the law
concerned, in the internal jurisprudence we
have developed thereon. Indeed, if we are to
disregard every foreign law that is NOT
IDENTICAL with ours on the pretext that our
public policy would otherwise be violated, there
would surely be no necessity for conflict of laws.
On this point, Prof. Goodrich furnishes
us with the following comment: “The mere fact
that the law of the forum and the law of the
place of the foreign operative facts differ is
CLEARLY NOT a sufficient reason for the
former to deny enforcement. If it were, rules
in conflict of laws calling for the application of
foreign law in a particular set of facts would
be practically nullified.” (Goodrich, Conflict o f
Laws, p. 22).
On his part, Mr. Justice Benjamin
Cardozo, in Loucks v. Standard Oil Company
of New York, 224 N.Y. 99, eloquently says: “Our
own scheme of legislation may be different. We
may even have no legislation on the subject.
That is not enough . . . We are not so provincial
as to say that every solution of a problem is
wrong, because we deal with it otherwise at
home. Similarity of legislation has indeed this
importance: its presence shows beyond question
that the foreign statute does not offend local
policy. But its absence does not prove the
contrary.”
(d) Examples Where We Have Conflicts Rules

1) Two Filipinos made joint wills (wills made in
the same instrument) while they were in
Germany. In said country joint wills are valid.
May the joint wills be successfully probated in
the Philippines?
ANS.: No, because they are contrary to

Philippine public policy. The Civil Code
provides:
“Art. 818. 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.”
“Art. 819. Wills, prohibited by the
proceeding article, executed by Filipinos in a
foreign country shall not be valid in the
Philippines, even though authorized by the
laws of the country where they may have been
executed.”
“(NOTE: If the joint wills in Germany,
had been executed by Germans, they may be
considered valid in our country, for it is clear
that the prohibition indicated in Art. 819 refers
exclusively to Filipino citizens.)
2) An American dies, leaving properties in the
Philippines. In his will, he gave nothing to his
children (inasmuch as in his own state, there
are no compulsory heirs). Can his will be given
effect in the Philippines, despite the fact that
in the Philippines it is our policy to grant
children their legitimes?
ANS.: Yes, his will can be given effect.
After all, since he was an American our public
policy on the matter is enunciated in Art. 16,
par. 2w?of the Civil Code (a conflicts rule).
Inasmuch as under his national law, children
are not entitled to any legitime we should
respect said law. (See also Testate Estate of
Amos G. Beilis, et al. v. Edward A. Beilis, L-
23678, June 6, 1967. Facts are found in the
Chapter on Renvoi.)
3) May a decree of absolute divorce obtained
abroad a Filipinos today be given effect in the
Philippines?
ANS.: No, because the decree would run
counter to an important public policy of our
forum. Filipinos today are incapacitated to

obtain a judgment for absolute divorce. The
incapacity alluded to hereinabove follows
Filipinos wherever they may go. The Civil Code
provides:
“Art. 15. 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.”
Querubin v. Querubin
L-3693, 47 O.G. (Supp. 12) p. 316
FACTS: A Filipino married an American

lady, with whom he subsequently had a
daughter. The man later obtained a California
divorce on account of his wife’s adultery with
another man. The custody of the daughter was
awarded to the innocent husband. However,
the court said that the child could not be
brought out of California without judicial
permission. A year later, the Filipino came back
to the Philippines bringing the child with him
to his residence in Ilocos Sur. In the meantime,
the wife had married her former paramour and
had been able to obtain an amendment of the
divorce decree, this time, granting the custody
of the child to her. To obtain enforcement of
this amendment in the Philippines she brought
a petition for the writ of habeas corpus in Ilocos
Sur. The lower court denied her petition, hence,
this appeal to the Supreme Court. Issue: May
she be awarded the custody of the child?
HELD: No, she should not be given the
child’s custody. Under Philippine law, two
important things stand out, namely:
(a) Preference in parental author
ity is given to the father, not to the
mother.
(b) The guilty spouse generally
loses parental authority.
The law, good customs, and the interests

of public order imperatively demand that a
child must not be placed under the care of a
faithless wife. We should not therefore comply
with the decree of a foreign tribunal: said
decree undermines our social order, violates
indeed sound principles of morality.
[NOTE: The case discussed above was
decided under the old law. Under the new Civil
Code, the rule is the same, except that if the
child be under 7 years of age, there should be
no separation from the mother, unless there
be compelling reasons therefor (Art. 363). (Note:
Art. 117 of the Child and Youth Welfare Code
provides that “in case of separation of his
parents, no child under five years of age shall
be separated from his mother, unless the court
finds compelling reasons to do so.”) Even the
commission, is not a compelling reason. For
her moral dereliction will not have any effect
upon the baby who is as yet unable to
understand the situation.” (Report of the Code
Commission, p. 12).]
4) Two Filipino first cousins got married in
California, where the marriage is considered
valid. May the marriage be recognized in the
Philippines?
ANS.: No, the marriage is not regarded
as effective here, for while it is valid in the
place of celebration it is considered incentuous
under Philippine law.
[NOTE: Marriages between first cousins
are considered in incestuous under our law.
(Art. 38(1), Family Code).]
5) QUERY: If a Filipino step-brother marries his
Filipino step-sister in California, and the
marriage is considered valid there, will their
marriage be recognized in the Philippines?
ANS.: It is submitted that the marriage
will be considered as valid here, for the simple
reason that it is not bigamous, polygamous, or

incestuous. Statutes which restrict natural
rights, sich as the right to marry must be
construed restrictively or strictly; that is, if a
marriage does not fall under enumerated
exceptions, it should come under the general
rule.
OBJECTION: How about Art. 15 of the
Civil Code, which states that the capacity of a
Filipino is governed by Philippine laws even if
he should be abroad? If a Filipino step-brother
cannot marry his step-sister here, should not
this incapacity follow him wherever he may
go? And how about Art. 17 of the Civil Code,
which state that prohibitive Philippine laws
shall not be rendered ineffective by foreign laws
or conventions? Is not the prohibition of
marriage between a step-brother and a step
sister a prohibitory Philippine law? Finally, if
we render nugatory said Articles of the Civil
Code, are we not encouraging the parties to
“evade” our laws by the simple expedient of
marrying abroad?
REPUTATION: It is humbly believed that
in the particular problem presented — a
marriage between Filipinos in a foreign country
— the abovecited Arts, of the Civil Code, should
NOT apply because:
1) Said articles, compared with Art. 26 of
the Family Code which is our ONLY law
on foreign marriages, are merely general
provisions. It is well known that in case
o f conflict between general and particular
provisions, the particular provisions)
should prevail.
2) As has already been intimidated, any law
restricting a natural right should be re
strictively construed. What the law does
not include, it excludes. Inclusio unios,
exclusio est alterius. Since the marriage
is neither bigamous nor polygamous nor
incestuous under Philippine law, it is clear

that applying Art. 26, the marriage must
be regarded as completely valid.
3) If Art. 26, does not control the case, what
would be its use? It is a cardinal rule in
legal hermeneutics that every provision
in a statute must be construed to give
some effect to it.
4) In case of doubt, the doubt must be
resolved in favor of the validity of a mar
riage. Under Art. 149 of the Family Code,
“the family, being the foundation of the
nation, is a basic social institution which
public policy cherishes and protects.
Consequently, fam ily relations are
governed by law and no custom, practice
or agreement destructive if the family
shall be recognized or given effect.” Also,
Art. XV, Sec. 2 of the 1987 Philippine
Constitution provides that “marriage, as
an inviolable social institution, is the
foundation of the family and shall be
protected by the State.” In other words,
every intendment of law or facts leans
toward the validity of marriage.
Regarding the charge of “evasion,” how
can the parties be guilty of evasion when they
are IMPLICITLY ALLOWED to marry under
the provisions of Art. 26, which, it is reiterated,
is the only applicable article on the subject?
[NOTE: What has been said about a
foreign valid marriage between a Filipino step
brother and his Filipino step-sister applies also
to all the marriages referred to in Art. 38
(quasi-incestuous marriages) of the Family
Code, Art. 38 reads as follows:
“The following marriages shall be
void from the beginning for reasons of
public policy:
(1) Between collateral blood rela-
tions, whether legitimate or illegitimate,

up to the fourth civil degree;
(2) Between step-parents and
step-children;
(3) Between parents-in-law and
children-in-law
(4) Between the adopting parent
and the adopted child;
(5) Between the surviving spouse
of the adopting parent and the adopted
child;
(6) Between the surviving spouse
of the adopted child and the adopter;
(7) Between an adopted child and
a legitimate child of the adopter;
(8) Between adopted children of
the same adopter; and
(9) Between parties where one,
with the intention to marry the other,
killed that other person’s spouse, or his
or her own spouse.”]
(e) Examples Where We Do Not Have Explicit Conflicts
Rules
1) Under our Usury Law, the maximum interest
that may lawfully be charged are 14% per
annum if the debt is unsecured, and 12% per
annum if the debt is secured by a mortgage on
registered land — land protected by a Torrens
Title (Secs. 2 and 3, Usury Law). Now, then, if
a contract of loan is entered into in a foreign
country at 16% interest per annum, a rate
considered usual and lawful in said country,
should the stipulation concerning the interest
be enforceable in our courts?
ANS.: Yes, since evidently the parties
intended to follow the law prevailing in the
place where the transaction had been con
summated. And this is true, regardless of
whether the parties are Filipinos or not. While

it is true that the rate of interest stipulated
differs from the maximum fixed in our Usury
Law, still not every deviation from our internal
rules should be considered a violation of our
public policy on the matter. It cannot be denied,
of course, that usury is almost universally
abhorred by all civilized men, but as to when
exactly an interest charged is considered
usurious is something the nations of the world
still have to agree upon. It should be noted
that although maximum rates are fixed in our
Usury Law, the same law does not say that
said rates apply even when the contract had
been agreed upon in a foreign state. Stated
differently, Secs. 2 and 3 of the Usury Law
can hardly be considered conflict rules.
[NOTE: Under Central Bank Circular No.
905, effective January 1, 1983, there are no
more maximum rates for loans. In effect,
therefore, the Usury Law has already been
repealed; in Liam Law v. Olympic Sawmill Co.
& Elino Lee Chi, L-30771, May 28, 1984, the
Supreme Court held that “for sometime now,
usury has been legally non-existent. Interest
can now be charged as lender and borrower
may agree upon.”]
Sec. 1 of the Negotiable Instruments Law enu
merates the requisites for a negotiable
instrument. Now, then, suppose the instrument
is a Japanese negotiable one, does it have to
adhere to our own local requirements for
negotiability?
ANS.: It would seem that we have no
explicit conflicts rules on the matter. Therefore,
it is suggested that the negotiability of the
paper be tested by the criterion imposed under
Japanese laws. Under the American Restate
ment of Private International Law, however,
the law of the place where the note was
contracted upon is the law that will govern its
negotiability or non-negotiability. (American

Restatement, Sec. 348).
(2) Second Exception to the Application of the Proper Foreign
Law — When the foreign law, judgment, or contract, is
contrary to almost universally conceded principles of
morality, (contra bonos mores).
Man, being a rational animal, has a two-fold exist
ence: the physical and the moral. These are the two
distinctive features of every human being: in case of
conflict the moral nature must prevail.
There are things so inherently vicious, so demo
ralizing to civilized existence that almost everywhere they
are condemned: the sale of human flesh for human
pleasure (prostitution); contracts to corrupt the fair
administration of justice; agreements to reward crime;
transactions that ultimately lead to human slavery or
involuntary servitude. All these even if valid in the place
where agreed upon — surely will not be countenanced in
any civilized forum.
The question has been asked: are the standards of
morality immutable? We believe a distinction must be
made; objectively, the standards of morality can never
change — for anything that militates against man’s
rational nature is inherently, and will forever be, contrary
to the natural moral law; subjectively, standards of
morality can, and do, change — for what may appear as
pleasant and natural to one state may be regarded with
abhorrence in another; it may even be unabashedly
shunned or repudiated by the first state in succeeding
generations.
(3) Third Exception to the Application of the Proper Foreign
Law — When the foreign law, judgment, or contract
involves procedural matters:
(a) Basis
There are no vested rights in the rules of
procedure; one must take the procedural formalities
of a forum in the state in which he finds them,
otherwise he would arrogate unto himself the
herculean task of remaking the forum’s judicial
machinery to suit his particular whims.
(b) Examples:
1) An American, used to trials by jury in the
United States (e.g., the 1995 murder case of
O.J. Simpson that attracted a worldwide
audience for at least one lull year), cannot insist
on a jury trial in the Philippines in case he is
accused of a crime he has committed in our
country.
v* 2) An English lady will be completely unjustified
in demanding an application of English rules
of court in a litigation which she may commerce
before our tribunals.
3) In general, it may be stated that the following
are governed by the internal rules of the forum:
a) forms of the proper action
b) joinder and misjoinder of parties
c) admissibility and probable effect of
evidence
d) certain defenses
e) periods within which to appeal
f) cost of the suit
g) the various modes of discovery
(NOTE: There are certain rules which
although regarded as purely procedural in one
forum are considered substantive in another.
How this problem is usually resolved will be
dealt qp in a subsequent Chapter.)
Fourth Exception to the Application of the Proper Foreign
Law — When the case involves penal laws, judgments,
contracts:
(a) “Penal laws, judgments, contracts” Defined
In conflict of laws, when is a law, judgment, or
contract considered penal in character? The answer
is vital: for if it be penal, the law, judgment or
contract that arises in a foreign jurisdiction will
ordinarily be rejected (not enforced) in our forum.
The answer to the question is not easy: nonetheless,
an attempt shall be made:
1) Criminal statutes and judgments are no doubt

penal.
2) In all other cases, if the purpose of the “penalty”
is to remedy an act of injustice against the
general public, it clearly should be regarded as
“penal” in character; if, upon the other hand,
what is sought to be corrected is merely an
injustice against a particular individual, the
“penalty” is not penal, [see Huntington v. Attrill,
146 U.S. 657 (1892).]
(b) Examples:
1) Criminal statutes
If a Filipino murders a friend in New
York, he cannot be prosecuted in the
Philippines for the crime he committed in a
foreign state. The criminal statutes of New
York are deemed penal, even in an interna
tional sense; hence, they will be denied
enforcement in the local forum. It will be noted
that in our country, as in many other states,
we believe in the principle of territoriality as a
cardinal maxim of criminal law.
2) Contracts with a Penalty Clause
A enters into a contract with B in State
C. The contract among other things,
categorically stipulates that in the event of
default, forfeiture of any advance payment
would ensue. One of the parties defaulted.
Issue: May the “penalty clause” be
enforced in our own courts of justice?
ANS.: Yes, because in the international
sense, the “penalty clause” should not be
considered a penalty. Hence, its enforcement
in a foreign forum is proper.
(c) Rules Regarding Penalties in Divorces
1) If the prohibition to remarry within a certain
period is directed only against the GUILTY
spouses, the prohibition is PENAL in character
and therefore will not be enforced in a foreign

forum.
2) If the prohibition is directed against both the
GUILTY and the INNOCENT spouse, the same
— cannot be deemed penal in character; it will
be regarded merely as an expression of the
policy of the forum which decreed the divorce:
hence, the prohibition will ordinarily be
enforced in a foreign jurisdiction unless the
same will come under any of the other
exceptions to the application of the proper
foreign law.
Examples:
1) A citizen of State X was divorced in said state
by his wife on account of concubinage. In the
divorce decree, he was prohibited to remarry
within a period of one year, because he was
the GUILTY party. No prohibition was imposed
on his former wife. If he should come to the
Philippines, and should desire to remarry here
within the prohibited period, do you believe
that he will be granted a marriage license in
this country?
ANS.: Yes, because the prohibition is
PENAL in character, and will thus be refused
enforcement in our forum.
OBJECTION: But is it not a fact that
inasxx|ach as he is a foreigner in our shores he
must first obtain a certificate of legal capacity
from his diplomatic or consular official in. the
Philippines — a certificate attesting to his legal
capacity to marry? Now, then, since the
certificate has to state the prohibition
hereinabove alluded to, should he be not
considered INCAPACITATED under our laws?
REFUTATION: The prohibition stated in
the certificate will be disregarded in view of
its penal character. Hence, he should be consid
ered capacitated.
2) In problem No. 1, if both the guilty and the

innocent spouses has been prohibited, would
the answer be the same?
ANS.: No, because this time, the inca
pacity should be given effect in our forum, since
the same is NOT PENAL in character. , ,
(d) Observations on the Principle o f Territoriality in

Criminal Law.
As has already been commented on, criminal
law is territorial in character: thus, when crimes
are committed outside our territorial jurisdiction,
the criminals are generally exempted from penal
liability in our country. The reason why we
ordinarily refuse enforcement of a penal law has
been aptly stated by Mr. Chief Justice Marshall:
“No society takes concern in any crime but what is
hurtful to itself’ (The Antelope, 10 Wheat, 66 123).
How valid is this principle of “territoriality?”
It is believed that:
1) if a person has already been convicted in State
A but has fled to State B, the latter state should
be given the right to hold him liable, even in
the absence of an extradition treaty between
the two states. After all, State B has the right
to protect its own citizens from the danger
posed by the intruder; moreover, if rape is
committed for instance in California, is this
not a virtual rape against the whole of
womankind? If. robbery takes place in
Argentina, is this not a virtual transgression
against the rights of property owners all over
the world?
2) if, upon the other hand, there has a yet been
no trial and conviction, it would be very hard
to disregard the principle of territoriality in
view of the difficulty of obtaining for instance
the proper evidence or proofs that can validly
sustain a conviction. However, so long as this
obstacle of proof can be overcomed, it is
suggested that the principle be relaxed for the
reasons stated in the preceding paragraph:

thus, if a Filipino commits bigamy for instance
in Arizona, he should be held liable therefor as
soon as he returns to our country. Under our
present penal statutes, he escapes criminal
punishment.
(5) Fifth Exception to the Application of the Proper Foreign
Law — When the case involves purely fiscal (that is
revenue-producing) or administrative matters:
,* The Philippines has every right in the world to
refuse enforcement of foreign laws and judgments that
involve purely fiscal or revenue-producing matters, for
after all we should not be burdened with the task of
implementing the financing activities of other countries.
Hence, if a Filipino doing business in New York is
assessed for his income tax liability there, and he decides
to abandon his business and instead comes back to the
Philippines to escape from the New York tax, the state
of New York cannot successfully sue him in our courts
for said liability. After all, a tax liability does not arise
from a contract entered into with the government
concerned: it is a unilateral demand, a legal imposition
which can be successfully enforced only so long as he
remains withiun the territorial jurisdiction of the foreign
state.
Similarly the administrative codes of alien govern
ments are of no use to us: moreover, we cannot be
expected to assist in the implementation of foreign
governmental functions.
(6) Sixth Exception to the Application of the Proper Foreign
Law — When the application of the foreign law, judgment,
or contract may work undeniable injustice to the citizens
or residents of the forum:
To give justice is the most important function of
law; hence, a law or judgment or contract that is obviously
unjust negates the fundamental principles of Conflict of
Laws. Let us assume that in country X, all contract
entered into by persons under 25 years of age are
considered void. Now, then, if two Filipinos, sojourning
in country X, enter into a contract there despite the fact
that both are only 24 years old, should our tribunals give
effect to such a contract? When we consider the fact that

in our country, the age of 18 (under RA 6809, approved
on Dec. 13, 1989) is the age of majority; and when we
consider the further fact that when the parties agreed on
the transaction, they evidently did not have in mind the
laws of country X, we are faced with no alternative except
to recognize the efficacy of the meeting of the minds. A
contrary answer would presuppose that the parties did
not seriously intend to comply with their stipulations.
Let us now take another example. In State Y, a
person 15 years of age can validly contract. A Filipino
boy, 15 years old, contracts with another in said state. If
we assume the contract to be binding on the boy, we
shall be doing violence to our sense of justice.
Upon the other hand, if a just liability is incurred,
we ought not to hesitate on its enforcement. Prevailing
circumstances should naturally determine the justness
of a claim. (See Minor, Conflict of Laws, pp. 13-14.)
(7) Seventh Exception to the Application of the Proper
Foreign Law — When the application of the foreign law,
judgment, or contract may work against the vital interests
and national security of the state of the forum:
The national interests of the forum should not be
jeopardized; thus, any foreign law, judgment, or contract
that may result in the undermining of our governmental
processes will obviously be refused enforcement in our
forum:
Examples:
(a) A contract entered into between a Filipino employee
and an alien government by virtue of which the
former is supposed to furnish the latter with secret
or classified military maps involving the defense of
the Philippines cannot conceivably be countenanced
by our courts even if in the country where the
agreement was entered into the contract is regarded
”a as valid.
(b) An agreement that may inevitably corrupt our
officials and employees places our democracy in a
precarious position.
(c) A judgment, the enforcement of which will lead our

country to war, can have no validity in our forum.
Eighth Exception to the Application of the Proper Foreign
Law — When the case involves real or personal property
situated in the forum:
Traditionally and necessarily, REAL property has
always been governed by the “LEX SITUS” (that is, if
the land is situated in the Philippines, Philippine law
controls its alienation, its disposition, its encumbrance).
Tfre reasons are obvious; the land is part and parcel of
our country; to apply foreign law to it would generally
render nugatory our own territorial sovereignty; moreover,
in view of our patrimonial interest in the property, good
sense dictates the enforcement not of any foreign law but
of our own peculiarly chosen law.
With reference to PERSONAL property, our rule
used to be “mobilia sequuntur personam” (the thing
follows the law of the owner). (Art. 10, old Civil Code.)
The old rule grew up in the Middle Ages when movable
property .could easily be carried from place to place.
(Pullman’s Palace Car Co. v. Comm, o f Pennsylvania,
141 U.S. 18-22). However, 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 (Wharton, Conflict o f Laws, Secs. 297-311), it
was deemed advisable by the Congress of the Philippines
to adopt the doctrine of lex situs or lex rei sitae also in
the case of movables. (Report o f Senator Lorenzo Tanada,
Chairman, Special Committee on the new Civil Code).
Examples:
(a) With respect to real property
If a Chinese sells his Philippine land (acquired
prior to the 1935 Constitution) to a Filipino,
Philippine law governs the formalities and the
intrinsic validity of the sale, even if for example,
the contract is entered into in Japan.
(b) With respect to personal property
Shares of stock of a foreigner, even if personal
property, can be taxed in the Philippines so long as
the company was incorporated in this country. [Wells

Fargo Bank v. Coll. o f Int. Rev., 40 O.G. (85) No. 12,
p. 159; 70 Phil. 325]. Thus, taxes may be imposed
on dividends from shares in a gas corporation
situated in the Philippines even if the stockholders
do not reside here. (Manila Gas Corporation v. Coll,
62 Phil. 895).
Chapter III
THEORIES ON WHY THE FOREIGN LAW
INTRODUCTION
As already discussed, when the forum assumes jurisdiction
over a conflict case, it will apply either the internal law or the
proper foreign law. We have seen the various instances where we
have to apply the local law; we shall eventually consider the various
cases where we shall use the foreign law. A preliminary question,
however, arises: why should we ever apply the foreign law? Is not
our internal law sufficient? Various theories have attempted to
give the answer. Among them are the following:
(1) The Theory o f Comity

Under this theory, we apply the foreign law because of
its convenience, and finally, because we want to give protection
to our citizens, residents, and transients in our land.
(2) The Theory o f Vested Rights

Here we seek to enforce not the foreign law itself but the
rights that have been vested under such foreign law.
(3) The Theory o f Local Law

The adherents of this school of thought believe that we
apply foreign law not because it is foreign, but because our
own laws, by applying similar rules, require us to do so; hence,
it is as if the foreign law has become part and parcel of our
own local law.
64
THEORIES ON WHY THE FOREIGN LAW 65
(4) The Theory o f Harmony o f Laws

The theorists here insist that in many cases we have to
apply the foreign laws so that wherever a case is decided, that
is, irrespective of the forum, the solution should be
approximately the same: thus, identical or similar solutions
anywhere and everywhere. When the goal is realized there
will be a “harmony of laws.”
(5) The Theory o f Justice

The purpose of all laws, including Conflict of Laws, is
the dispensing of justice; if this can be attained in many cases
by applying the proper foreign law, we must do so.
THE THEORY OF COMITY

Definition o f Comity
In the case of Hilton v. Guyot, 159 U.S. 113, the Supreme
Court of the United States said that “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 nation 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, of other persons who are
under the protection of its laws.”
Defects of the Theory o f Comity

The theory has been criticized on various grounds:
(1) The theory presupposes the existence of an inter
national duty. There is no such duty. Theoretically,
every state may apply its own internal law exclu
sively.
(2) The theory assumes, although in a minimal sense,
a desire to show courtesy to other states. This is not
true. The real reason for the application of the proper
foreign law is the avoidance of “gross inconvenience
and injustice to litigants, whether natives or
foreigners.” (Dicey, Digest of the Law of England
with Reference to Conflict of Laws, pp. 10-11).
Prof. Minor has aptly pointed out that the basis

of Conflict of Laws is “something more than comity
to the litigants. It is in answer to the demands of
justice and enlightened policy.” (Minor, Conflict of
Laws, p. 5).
(3) The theory apparently leaves the application of the
foreign law to the discretion of the forum. Clearly,
this will prevent the adoption of definite rules and
principles for Conflict of Laws. (Goodrich, Conflict
o f Laws, p. 11).
Justification o f the Theory of Comity

(1) No law has any effect, of its own force, beyond the
limits of the sovereignty from which its authority is
derived. Thus, only by the “comity of nations” may
we allow the enforcement in our country of foreign
laws and judgments. (Hilton v. Guyot, 159 U.S. 113).
(2) The recognition of foreign laws cannot be claimed
as a right, but only as a favor or courtesy. It is
permitted and accepted by all civilized communities
from mutual interest and convenience, from a sense
of the inconvenience which would otherwise result,
and from moral necessity to do justice, in order that
justice may be done in return. Comity, being
voluntary and not obligatory, rests in the discretion
of the tribunals of the forum, and is governed by
certain more or less recognized rules. (American
Jurisprudence, Vol. II, p. 229).
Kinds o f Comity ^
There are two kinds of comity: comity that is based

on reciprocity, and comity based on the persuasiveness of
a foreign judgment.
Comity based on reciprocity is simple: if the laws
and judgments of the forum are recognized in a foreign
state,the forum in turn will recognize the laws and
judgments emanating from said foreign state. (Hilton v.
Guyot, 159 U.S. 113).
Upon the other hand, com ity based on the
persuasiveness o f the foreign judgment is precisely what
it says: if the forum is persuaded that a foreign judgment

is meritorious and has been rendered by a court of
competent jurisdiction, it will not hesitate to enforce that
foreign judgment in the forum even if the foreign forum
does not reciprocate. (Johnston v. Companie Generale
Transatlantique, 242 N.Y. 381, U.S. Court o f Appeals).
Case Illustrating Comity Based on Reciprocity
Hilton v. Guyot
159 U.S. 113
FACTS: A French national sued an American in a

French tribunal. Judgment was rendered in
favor of the Frenchman. Later, suit was filed
in America to enforce the French judgment.
The American court discovered that:
(a) The French trial was indeed fair and im
partial;
(b) French courts do not give full faith and
credence to decisions o f American
tribunals.
Issue: Should the American court enforce
the French judgment?
HELD: No, because after all, French tribunals do not
regard American decisions with finality, even
though the American courts had jurisdiction
and even if there had been a fair and impartial
trial in America. The Court, applying the
principle of RECIPROCITY said:
“The reasonable, if not the necessary,
conclusion, appears to us to be that judgments
rendered in France, or in any other foreign
country, by the laws of which our own
judgments are reviewable upon the merits,, ARE
NOT ENTITLED to full credit and conclusive
effect when sued upon in this country, but are
only prima facie evidence of the justice of the
plaintiffs claim.”
Case Illustrating Comity Based on the Persuasiveness o f a

Foreign Judgment
Johnston v. Companie Generate Transatiantique

242 N.Y. 381
FACTS: An Am erican sued in France a French
corporation. Judgment was rendered by the
French tribunal in favor of the defendant.
Defeated, the American tried again, but this
time, in an American court. The American
** judge found the French decision to be a final
judgment on the merits and devoid of fraud.
Issue: Will the French ruling be enforced in
America?
HELD: Yes. “Comity rests, not on the basis of recip
rocity, but rather upon the persuasiveness of
the foreign judgment. When the facts of the
whole appear to have been inquired into by
the French courts, judicially, honestly, and with
full jurisdiction and with the intention of
arriving at the right conclusion, and when they
have heard the facts and come to a conclusion,
it shall no longer be open to a party invoking
the foreign court against a resident of France
to ask the American court to sit as a Court
of Appeal from that which gave the judgment
. . . Here, the plaintiff, an American citizen,
was the actor in the French court. After having
sought the jurisdiction of the foreign tribunal,
brought the defendant into that court and
litigated the question there, he now seeks to
impeach the judgment rendered against him.
The principles of com ity should give
conclusiveness to such a judgment as a bar to
the present action.”
THE THEORY OF VESTED RIGHTS

Definition of the Theory
The theory of vested rights, simply put, is this: “We seek
to enforce not the foreign law or the foreign judgment itself,
but simply the vested rights that have been vested under such
foreign law or judgment.”
In MacDonald v. Railway, 71 N.H. 448, the theory was
stated by the Court in this manner:
“When a right is claimed upon acts occurring in another
country, courts look to the law of the country, not to
extend the binding force of a foreign law beyond the
territorial limits of sovereignty to which it belongs . . . It
isnot the foreign law but the rights acquired under it
which are enforced by the courts of another country.”
Prof. Goodrich states the justification of this theory in
the following manner:
“No law exists as such except the law of the land.
Principles of Conflict of Laws are “law’ in the true sense
and involve no departure from the theory that the
territorial law is supreme. But it is a principle of civilized
law that rights once vested under the law continue until
destroyed or cut off by law, and that such rights are
recognized and enforced in one state though they have
come into being in another, unless such enforcement is
for good reason, though contrary to the public policy of
the jurisdiction where enforcement is sought.” (Goodrich,
Conflict of Laws, p. 14).
In King v. Sarria, 69 N.Y. 24, the Court held that “a
right having been created by the appropriate law, the
recognition of its existence follows everywhere.”
Basis o f the Theory of Vested Rights
In a sense we may state that the theory of vested rights

is based on the cardinal principle of territoriality. Under the
territoriality principle, a judge cannot directly recognize or
sanction foreign laws and judgments: it is his own territorial
law which must exclusively govern all problems demanding
his decision. Under the vested rights theory, extraterritorial
effect is given not to foreign laws and judgments as such but
Merely to the rights they have created. This seems to be the
basis of the theory adopted in recent years by:
(a) Profs. Beale and Goodrich of the United States; and by
(b) Messrs. Schmithoff and Dicey of England.
Case Illustrating the Vested Rights Theory
Loucks v. Standard Oil Co. of New York

225 N.Y. 448
FACTS: New York resident, Mr. Loucks, was killed in

Massachusetts through the reckless impru
dence of the defendant’s driver. The adminis
trators of Loucks’ estate sued in New York to
recover damages on the basis of a Massa
chusetts statute granting a monetary award
"* in a case like this. The defendant alleges that
New York cannot apply the Massachusetts law
on the matter.
Issue: May the New York court award
damages on the basis of the Massachusetts
law?
HELD: Yes, not necessarily because the Massachusetts
statute will be applied in New York, but
because the vested right created under the
Massachusetts law should be recognized and
rendered efficacious in New York. After all,
there is nothing in the Massachusetts statute
that outrages the public policy of New York.
The fundamental policy is that there shall be
some atonement for the wrong. Rights lawfully
vested shall be every where maintained. Only
exceptional circumstances should prevent the
enforcement of a vested right.
Defects o f the VestedRights Theory
(1) The advocates of the theory insist that they do not really
apply the foreign law; instead, they merely enforce the
vested rights created by said foreign law. But then, in
recognizing said vested rights, they implicitly recognize
the foreign law, for how else can they determine whether
or not there has been a vesting of rights? (Nussbaum,
Principles of Private International Law, p. 28).) Indeed,
there has to be first a choice of proper applicable foreign
law; then, and only then, may there be an examination
of the rights involved.
(2) The theory is based on a mistaken notion of the concept

of “territoriality.” “Territorial law,” which to the advocates
of the theory seems very desirable, means not only the
internal law of the territory but also its conflicts rules
(which embody necessarily a constant reference to the
proper foreign law).
(3) Sometimes the forum is not faced with the problem of
“vested rights”; instead, the problem is whether or not to
apply certain foreign disabilities or incapacities.
Example: Two citizens of State X (who are
second cousins) desire to marry in Manila.
Unfortunately, in the certificate of legal capacity to
marry which they must obtain from their diplomatic
or consular officials in the Philippines (Art. 21,
Family Code) they are INCAPACITATED under
their own national law. Will they be allowed to
marry in our country? The answer is obviously in
the negative. Here, we do not apply any “vested
rights.” (See Wolff, Private International Law, p. 3.)
THE THEORY OF LOCAL LAW

Statement o f the Theory:
The adherents of this school of thought believe that
we apply foreign law not because it is foreign, but because
our own rules by applying similar rules require us to do
so: hence, it is as if the foreign law has become part and
parcel of our own local law.
Elaboration of the Theory:

Prof. W. W. Cook, one of the firmest advocates of
the theory, explains it in the following words:
“The forum, when confronted by a case
involving foreign elements, always applies its own
law to the case; but in doing so, adopts and enforces
as its own law a rule of decision identical, or at
» least highly similar though not identical, in scope
with a rule of decision found in the system of law
in force in another state or country with which some
or all the foreign elements are connected, the rule
so selected being in many groups of cases, the rule
of decision which the given foreign state or country

would apply, not to this very group of facts now
before the court of the forum, but to a similar but
purely domestic group of facts involving no foreign
element. The rule thus ‘incorporated’ into the law of
the forum may for convenience be called the
‘domestic rule’ of the foreign state, as distinguished
from its rule applicable to cases involving foreign
right, but a right created by its own law.” (Cook,
Legal and Logical Bases o f the Conflict o f Laws, pp.
20 -21).
Example o f the Application o f the Theory:

A Chinese national dies, leaving properties located
in the Philippines. Under Art. 16, par. 2 of our Civil
Code, the successional rights to his estate are governed
by Chinese law, in view of his nationality. Ordinarily,
therefore, our forum here applies the Chinese or foreign
law. According to the advocates of the theory, however,
we do not apply the Chinese law itself; instead we simply
apply Art. 16, par. 2 of our own Civil Code (and therefore
Philippine law) which for the purpose of the instant
litigation automatically incorporates unto itself the
Chinese internal law on succession.
THE THEORY OF HARMONY OF LAWS

The Theory Stated:
In many cases we have to apply the foreign law so
that wherever a case is decided, that is, irrespective of
the forum, the solution should approximately be the same:
thus, identical or similar problems must have identical
or similar solutions anywhere. When the goal is realized
there will be a “harmony of laws.” [See Goodrich, 36 W.
Va. L. Q. (1930), pp. 156-164.] The theory is ideal:
paradoxically, it goes against reality.
THE THEORY OF JUSTICE

Statement o f the Theory:
The purpose of all laws, including Conflict of Laws,
is the dispensing of justice: if this can be attained in
many cases by applying the proper foreign law, we must

do so.
Criticism o f the Theory:

There is no dispute that justice is the final end of
law; nonetheless, exactly what is just and what is unjust?
Almost every man has his own notion of fairness and
equity: to leave the adjudication of conflicts problems to
the varying whims of judicial fancy may in itself symbolize
the highest form of injustice.
THE RIGHT THEORY

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 apparently 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.
COLLATERAL MATTERS
Before we discuss the proper foreign law which is to be applied,
we would do well to first examine the following collateral matters:
(1) The Nature and Proof of Foreign Judgments
(2) The Nature and Composition of Conflicts Rules
(3) The Characterization or Classification of Conflict Rules
and Judgments
(4) The Various Theories on Status and Capacity
<45) The Problem of the Renvoi
Chapter IV
THE NATURE AND PROOF
OF FOREIGN JUDGMENTS
NATURE OF FOREIGN JUDGMENTS

A foreign judgment does not of itself have any extra-territorial
application. Thus, it may ordinarily be enforced only within the
territory of the tribunal issuing it. For a foreign judgment to be
ever made effective in our country, it is imperative that it be proved
in accordance with our prescribed rules on the matter. (See Goodrich,
Conflict o f Laws, pp. 600-601).
RECOGNITION AND ENFORCEMENT OF FOREIGN

JUDGMENTS DISTINGUISHED
(1) Recognition of a foreign judgment — means that our
courts will allow said foreign judgment to be presented
as a defense to a local litigation (the defense of res
adjudicata); enforcement, upon the other hand, exists
when a plaintiff wants the courts to positively carry out
and make effective in the Philippines a foreign judgment.
(See Perkins v. Benguet Consolidated Mining Co., G.R. L-
1981, 1982, May 28, 1954).
(2) Recognition involves merely the sense of justice;
enforcement virtually implies a direct act of sovereignty.
(Perkins v. Benguet Consolidated Mining Co., supra).
(3) Recognition does not require either action or a special
proceeding; enforcement necessitates a separate action
or proceeding brought precisely to make the foreign
judgment effective. (See Gorayeb v. Hashim, 50 Phil. 23;
Perkins v. Benguet Consolidated Mining Co., supra.).
74
THE NATURE AND PROOF OF FOREIGN JUDGMENTS 75
(4) Recognition may exist without enforcement; enforce

ment necessarily carries with its recognition. (See
Nussbaum, Principles o f Private International Law,
p. 229.) For instance, when an American in Manila who
is sued for bigamy, presents in defense a foreign divorce
decree dissolving his prior marriage, what he wants is a
recognition of the foreign judgment, not its enforcement.
NOTE: It must be borne in mind, however, that for BOTH
recognition and enforcement, proof of the foreign
judgment has to be presented. Moreover, the
requisites or conditions for the recognition or
enforcement of foreign judgments must be present.
These requisites and conditions will be discuss
ed subsequently after a few more preliminary
details.
REASONS FOR THE RECOGNITION AND ENFORCEMENT

OF FOREIGN JUDGMENTS
The reasons for the recognition and enforcement of foreign
judgments are basically the same as the theories given earlier for
the application of the proper foreign law; furthermore, the exceptions
to the application of the foreign law, also already discussed, are
generally applicable to foreign judgment.
REASONS WHY NOT ALL FOREIGN JUDGMENTS CAN BE

RECOGNIZED OR ENFORCED IN OUR COUNTRY
There are various reasons why not all foreign judgments can
be enforced or recognized in the Philippines:
(1) Firstly, the requisite proof thereof may not be adequate;
(2) Secondly, they may contravene our established public
policies;
”»(3) Thirdly, they may contradict one another: obviously, we
cannot be guided by contradictions;
(4) Fourthly, in some countries the administration of justice
may be shockingly corrupt. (See Nussbaum, Principles of
Private International Law, p. 232).
CONDITIONS AND REQUISITES BEFORE FOREIGN

JUDGMENTS MAY BE RECOGNIZED AND ENFORCED
IN THE PHILIPPINES
(1) There must be p roof of the foreign judgment; for
recognition, there is no necessity for a separate action or
proceeding; enforcement requires such separate action or
proceeding. (See Perkins v. Benguet Consolidated Mining
Co., G.R. L-1981, 1982, May 28, 1954.)
(2) TJie judgment must be on a civil or commercial matter
(because if on a criminal or revenue or administrative or
remedial matter, the same would fall under the
exceptions to the application of the foreign law). (See
Goodrich, Conflict o f Laws, pp. 623-624.)
(3) There must be no lack of jurisdition, no want of notice,
no collusion, no fraud, no clear mistake of law or fact.
(Sec. 50 (b), Rule 39, Rules o f Court).
NOTE:
(a) Fraud here means EXTRINSIC FRAUD; that is,
fraud based on facts not controverted or resolved in
the case where the judgment was rendered. (Labayen
v. Talisay-Silay Milling Co., 40 O.G., 2nd Supp..
No. 3, p. 109). In other words, INTRINSIC fraud or
fraud which goes to the very existence of the cause
of action such as fraud in obtaining the consent to
a contract is deemed already adjudged and,
therefore, such fraud can no longer militate against
the recognition or enforcement of the foreign
judgment. (See Beale, Conflict o f Laws, Vol. II, p.
1403). #
(b) Regarding “clear mistake of law or fact,” the
Supreme Court of the United States, reversing the
Supreme Court of the Philippines, held that even if
there is a clear mistake of law or fact, this alone
will not prevent the recognition or the enforcement
of a foreign (Hongkong) judgment which otherwise
fulfills all the other requisites. (Ingenohl v. Walter
E. Olsen and Co., 273 U.S. 541, reversing 47 Phil.
189).
(4) The judgment must not contravene a sound and
established public policy of the forum. (Querubin v.

Querubin, 47 O.G. 315, [Supp. 12]).
NOTE:
(a) An unfaithful mother, awarded by a U.S. court
custody of her child, was denied said custody by o u i
Philippine courts. (Querubin v. Querubin, supra).
(b) A litigant, not satisfied with the decision of a
Philippine court, resorted to a foreign court to obtain
another remedy. Failing in this foreign venture, he
now seeks the enforcement of the Philippine decision
which he had formerly abandoned.
HELD: “The litigants, whether they are citizens or
foreigners, should respect the decisions of Philippine
courts; but if they choose to resort to a foreign court,
asking for a remedy that is incompatible with the
execution of a decision obtained in the Philippines
and obtain a decision that is adverse, they should
not be permitted to repudiate the decision of the
foreign court and to ask the enforcement of the
decision of the Philippine court which they have
abandoned. To permit them to litigate in that
manner is contrary to the order and public interest
of the Philippines because it disturbs the orderly
administration of justice.” (Perkins v. Benguet
Consolidated Mining Co., G.R. L-1981, 1982, May
28, 1954).
(5) The judgment must be RES JUDICATA in the state that
rendered it. (Beale, Conflict of Laws, Vol. II, p. 1390).
NOTE:
The requisites for RES JUDICATA are the following:
(a) The judgment must be FINAL;
(b) The court rendering the judgment must have
JURISDICTION over the subject matter and the
parties;
(The forum judges its own jurisdiction by its
own law on the matter; the forum also decides
whether or not the foreign tribunal had jurisdiction.
In determining this question, the forum apparently
is free to adopt any reasonable and just standard or

criterion.) (See Ramirez v. Gmur, 42 Phil. 855.)
(c) The judgment must be on the MERITS;
(d) There must be IDENTITY o f parties, of subject
matter, and of cause of action — except that with
reference to the last, the real cause of action is now
the recognition or enforcement of the foreign
judgment on the original cause of action. (See San
^ Diego v. Cardona, 70 Phil. 281; Aguirre v. Atienza,
G.R. No. L-10665, Aug. 30, 1958.)
ILLUSTRATIVE CASES ON THE RECOGNITION

AND ENFORCEMENT OF FOREIGN JUDGMENTS
Sawyer v. Maine Insurance Co.

12 Mass. 291
FACTS: For alleged violation of a blockade, a vessel

was condemned and declared forfeited in favor
of the government. There were no judicial
proceeding instituted, no notice, no opportunity
for defense. All that was done was a forfeiture
declaration made by a high government official.
Issue: Should the forfeiture be given effect?
HELD: No, in view of the lack of judicial proceedings.
This is not the foreign final judgment referred
to in Private International Law.
Cousins Hix v. Fluemer

^ 54 Phil. 610
FACTS: A husband and his wife were living apart thru
their mutual consent. The matrimonial domicile
was in the Philippines. The husband, in order
to get a foreign divorce, left the Philippines,
pretended to reside in the foreign country,
obtained a divorce decree, returned to our
country, continued to live here engaging
himself in business. The divorce was considered
valid in a foreign country, the husband having
alleged in his petition for divorce his intent to
obtain a permanent residence in said foreign
state. Issue: Should we consider the foreign

court as possessed of jurisdiction?
HELD: While the foreign state may consider that it
had jurisdiction, we are inclined to regard the
foreign tribunal to be without jurisdiction.
Under the facts, the residence in the foreign
state was certainly not bona fide; therefore,
the foreign court had no jurisdiction.
Barretto Gonzales v. Gonzales

58 Phil. 67
FACTS: A Filipino husband and wife, in collusion with
each other obtained a Reno decree of absolute
divorce, after the husband had obtained a Reno,
Nevada “residence” for divorce purposes. Issue:
Should the foreign divorce be given effect here?
HELD: No, in view of the collusion, and in view of the
fact that the Reno court had really acquired
no jurisdiction. The Reno residence of the
husband was not bona fide.
NOTE: This was decided under the old
law, when we still had the absolute divorce
law Act 2710. Incidentally, under the old law,
foreign divorces between Filipinos were
recognized only if the following conditions were
present:
(a) the foreign court granting the divorce
must have had JURISDICTION;
(b) the cause of the divorce must have been
adultery on the part of the wife or
concubinage on the part of the husband.
No other ground was recognized (obiter
dictum of the Supreme Court in this case
of Gonzales).
PROVISIONS OF THE RULES OF COURT

ON FOREIGN JUDGMENTS
“SEC. 50. Effect of foreign judgments. The effect of a judgment
of a tribunal of a foreign country, having jurisdiction to pronounce
the judgment is as follows:
(a) In case of a judgment against a specific thing, the

judgment is conclusive upon the title to the thing;
(b) In case of a judgment against a person, the judgmentis
presumptive evidence of a right as between the parties
and their successors in interest by a subsequent title;
but the judgment 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.” (Rule 39, Revised Rules
o f Court).
s
WHOSE JUDGMENT IS REALLY ENFORCED
It would seem that when our courts enforce a foreign judgment
by allowing it, the effect is that it is really our own court’s judgment
that we enforce.
Chapter V
NATURE AND COMPOSITION
OF CONFLICTS RULES
NATURE OF CONFLICTS RULES

(1) D efinition: Conflicts rules (or rules o f Private
International Law) are the provisions found in a country’s
own law which govern factual situations possessed of a
foreign element. According to Dean Falconbridge, “a
conflict rule of the forum, as distinguished from domestic
or local rule of the law of the forum, is usually expressed
in the form of an abstract proposition that a given legal
question is ‘governed’ by the “law’ of a particular countiy,
which is to be ascertained in the manner indicated in the
rule.’ (Falconbridge, Essays on the Conflict o f Laws,
(1954), pp. 37-38).
(2) Examples:
(a) Art. 815, Civil Code:
When a Filipino is in a foreign country, he is
authorized to make a will in any of the forms
established by the law of the country in which he
may be. Such w ill may be probated in the
Philippines.
(b) Art. 1039, Civil Code:
Capacity to succeed is governed by the law of
the nation of the decedent.
** (c) Art. 1753, Civil Code:
The law of the country to which the goods are
to be transported shall govern the liability of the
81
common carrier for their loss, destruction, or dete

rioration.
(3) Compared With Purely Internal Rules
A purely internal rule governs a purely domestic
problem, one without any foreign element; a conficts rule
applies when the factual situation involves a foreign
element. The former directly answers a given problem;
the latter merely indirectly responds by indicating whether
internal or foreign law is to be applied.
r*
Examples:
(a) A Filipino girl, anxious to donate her land in
Greenhills, wants to know whether she must execute
for the conveyance thereof of a private or a public
instrument. She turns to Art. 749 of the Civil Code
and finds her question DIRECTLY answered: Art.
749 is a purely internal rule.
(b) The same girl wants to know what her successional
rights would be in case her father, a German citizen,
dies. She discovers that Art. 16, par. 2 of the Civil
Code answers her question INDIRECTLY: the
successional rights are governed by the national law
of her father, namely, German law. So that to know
what precisely are her rights, she has to consult
German law. Art. 16, par. 2 is, therefore, a conflict
rule.
KINDS OF CONFLICTS RULES

There are two (2) kinds of conflicts rules:
(1) the one-sided rule (which indicates when Philippine
internal law will apply); and
(2) the all-sided rule (which indicates when foreign law is to
be applied).
Examples:
(1) the one-sided rule (unilateral rule)
Art. 15, Civil Code: “Laws relating to family rights
and duties, or to the status, condition, and legal capacity
NATURE AND COMPOSITION OF CONFLICTS RULES 83
of persons are binding upon citizens of the Philippines,

even though living abroad.”
NOTE: Under this Article, the capacity, etc. of a
Filipino shall be governed generally by Philippine law;
what law governs the capacity, etc. of a German? This is
NOT expressly answered by the Article. The matter will
be discussed in the succeeding pages.
(2) the all-sided rule (multilateral rule)
Art. 16, par, Civil Code:“However, intestate and
testamentary successions, both with respect to the order
of succession and to the amount of successional rights
and to the intrinsic validity of testamentary provisions,
shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the
nature of the property and regardless of the country
wherein said property maybe found.”
NOTE: It is obvious under this Article that if the
deceased is a German, German law governs; if a Cuban
law applies Cuban law governs, and so forth. Clearly,
therefore, the Article is all sided.
Observation:
Art. 15 (supra, concerning family rights, etc.) is
literally one-sided as already explained; nonetheless, the
Supreme Court has invariably given it a more extensive
application and today, by judicial construction, it has
become an all sided conflicts rule. Analogy, reciprocity,
and convenience are the reasons for this interpration.
Thus, the status, capacity, etc. of foreigners are generally
governed by their own national law. In Gibbs v. Gov’t, 49
Phil. 293, the Supreme Court made the observation that
“we should resort to the law of California, the nationality
and domicile of Mrs. Gibbs, to ascertain the norm which
would be applied here as law were there any question as
to her status.” (See also Babcock Templeton v. Rider
& Babcock, 52 Phil. 130; In Re Estate o f Johnson, 39 Phil.
156.) As a matter of fact, the Court categorically stated
in Recto v. Harden, L-6897, Nov. 29, 1956, that where
the spouses are citizens of the United States, their marital
and personal status, and their dissolution, are governed
by the laws of the United States, which sanction divorce.

This, according to the Court, is pursuant to Art. 15 of the
Civil Code.
COMPOSITION OF CONFLICTS RULES

Every conflicts rule consists of two parts:
(1) the factual situation (the set of facts presenting a conflicts
problem);
(2) -tfie point of contact or the connecting factor (the law of
the country with which the factual situation is most
intimately connected).
Prof. Rabel, in his Conflict o f Laws (Vol. 1, p. 42), says
that “the first part of the rule defines its object, that is, certain
operative facts, the legal consequences of which are determined
in the second part. From another point of view, the first part
raises, and the second part answers, a legal question.”
Examples:
(1) In the conflicts rule “capacity to succeed is governed by
the law of the nation of the decedent.” (Art. 1039, Civil
Code):
(a) “Capacity to succeed” — is the factual situation
indicating that a person is dead, and someone alleges
a right or capacity to inherit from the former.
(b) “Law of the nation o f the decedent” (or national law
of the deceased) is the point of contact. More
accurately, it is the nation o f the decedent which is
the point of1contact. It is evident that in our law,
we consider the decedent’s nation or country as the
place which in life he was most intimately connected.
(2) In the conflicts rule “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.” (Art. 1753, Civil Code):
(a) “The liability o f the common carrier for their loss,
destruction, or deterioration” is the factual situation;
(b) “The law of the country to which the goods are to be
transported” is the point of contract.
NATURE AND COMPOSITION OF CONFLICTS RULES
NOTE: In abbreviated form we may say that:

(a) “loss, destruction, or deterioration o f goods
transitu” is the factual situation;
(b) “Law of the destination” is the point of contact.
Chapter VI
THE CHARACTERIZATION
OF CONFLICTS RULES
INTRODUCTION TO THE CONCEPT OF CHARACTERI

ZATION OR CLASSIFICATION
Should one day the Supreme Court declare that “bright law
students” will be exempted from the bar examinations, the important
question comes up: who will determine who these “bright law
students” are? Should it be the Supreme Court itself, the
Department of Education, Culture and Sports, the Commission on
Higher Education (CHED), the various schools and universities
involved, the various professors? The process of determining who
these students are is called classification or characterization.
In the same way, in the subject of Conflict of Laws, the problem
may crop up. While, for instance, it is almost universally admitted
that the validity of a marriage depends upon whether or not there
has been compliance with the law of the place where it was
performed, the following questions may be asked: Firstly, by whose
law should we judge whether or not a certain factual situation is
indeed a marriage? SeconcUy, assuming that everybody agrees on
the fact that there indeed has been a marriage, where exactly is
the “place where it was performed” if, say, the marriage took place
at the border of two states, with the man on one side, and the
woman, on the other? Which law shall we consider in determining
this point: the law of the state where the man was, or the law of
the state where the woman was, or should we apply our own internal
law as the yardstick? Then, again, suppose we have a rule that we
recognize all valid foreign marriages except “incestuous ones.” Whose
definition of “incestuous” marriages shall we use ours, or the
definition of the place where the marriage was contracted? The
86
THE CHARACTERIZATION OF CONFLICTS RULES 87
answers to all these are given by what we refer to as characterization

or classification in Conflict of Laws.
' CHARACTERIZATION DEFINED

Characterization as used in our subject is simply the 'process
of determining under what category a certain set of facts or rules
fall. Falconbridge in his “Essays on the Conflict of Laws (p. 50)
defines it as the “process of deciding whether or not the facts relate
to the kind of question specified in a conflicts rule.”
Characterization was first discussed by Franz Kahn in 1891;
then by Bartin who referred to it as the “doctrine of qualification.”
Falconbridge admits that its synonyms are classification and
qualification, but in view of the many legal meaning of these two
terms, he candidly professes an affection for the term
“characterization.” According to Falconbridge, “one of the notably
controversial features of the discussion of characterization relates
to the problem of whether the characterization should be based on
the concepts of the law of the forum or upon the concepts of the
proper foreign law, or upon concepts derived from the study of
comparative law.” (Falconbridge, Essays on the Conflict o f Laws,
p. 58).
The ultimate purpose, of course, of characterization is to enable
the forum to select the proper law.
FACTORS WHICH GIVE RISE TO THE PROBLEM

OF CHARACTERIZATION
According to Dean R. H. Graveson of the University of London,
the problem of characterization arises from three (3) main factors:
“(1) Different legal systems attach to the same legal term
with different meanings, that is, an identity of name covers a
difference of nature or content of a legal idea. The conception of
domicile in Common Law countries and Civil Code countries is a
typical example. It does not follow that one definition is right, and
the others wrong-, it merely involves the need to find a principle for
the ascertainment of which definition shall apply either generally
or in any particular case.
“(2) Different legal systems may contain ideas or conceptions
completely unknown to one another . . . .
“(3) Different legal systems apply different principles for the
solution of problems which, in general terms, are of a common

nature.” (Graveson, Conflict of Laws, p. 31).
STEPS IN CHARACTERIZATION
Falconbridge suggests three (3) im portant steps in
characterization:
(1) Characterization of the questions;
(2) êlection of the proper law; and
(3) Application of the proper law. (Falconbridge, Essays on
the Conflict o f Laws, p. 50).
On our part, We believe that the following should be the steps
taken in the application of the proper foreign law:
(1) The determination of the facts involved;
(2) The characterization of the factual situation;
(3) The determination of the conflicts rule which is to be
applied;
(4) The characterization of the point of contact or the
connecting factor;
(5) The characterization of the problem as procedural or
substantive;
(6) The pleading and proving of the proper foreign law; and
(7) The application of the proper foreign law to the problem.
It will be noticed, however, that in this enumeration only
steps (2), (3), (4) and (5) concern themselves with characterization
proper.
FIRST STEP — THE DETERMINATION

OF THE FACTS INVOLVED
In every case, the law that will be applied will have to depend
upon the facts involved. Thus, the facts have to be ascertained. If,
for instance, it is clearly determine that no foreign element is
involved, no problem in Conflict of Laws arises. To determine what
the facts are, the forum has to be guided necessarily (but only
preliminary) by its own rules of pleading and proof. We, of course,
cannot as yet make use of any foreign criterion or rule; we do not
even know at this stage what the problem is all about.
SECOND STEP — THE CHARACTERIZATION

OF THE FACTUAL SITUATION
After we have preliminary uncovered the facts in the situation
presented, we are now faced with the duty of determining whether
the problem before us is one, say, of succession or of conjugal marital
rights; one of tort or of contract. This process is called the
characterization of the factual situation. We may define the process
as the assigning o f the proven facts into their particular category
(that is, do the facts constitute a problem of succession or a problem
of marital property rights;or do they constitute a problem in torts
or a problem in contracts)?
Examples:
(1) A Californian wife dies. Her Californian husband claims
the entire conjugal property as his, alleging that under
California law on marital property, the entire conjugal
property is his and that this is so not because of
succession, but because of accretion. Under our own law,
this is clearly a problem, not of accretion, but of
succession. Issue: Whose characterization of the factual
situation shall apply California or Philippine law? This
is a problem in the characterization of a factual situation.
(2) Under Art. 26 of the Family Code, a marriage celebrated
abroad is valid in the place of celebration, EXCEPT when
the marriage is bigamous, or polygamous, or incestuous.
Now, then, in our country a marriage between first cousins
is incestuous. Suppose in the foreign country where the
marriage took place, the same marriage is not incestuous,
whose definition or classification or characterization of
“incestuous marriage” should we follow: the characte
rization in the Philippines, or the characterization in the
foreign country? This, again, is an example of a problem
in the characterization of a factual situation.
Suggested Solution:
(1) In the absence of an express conflicts rule on the matter,
o it is suggested that the characterization of the forum
should be adhered to, unless there would result a clear
case of injustice. Hence, in the first example given, the
Supreme Court of the Philippines (without, however,
discussing the question of characterization) apparently
considered the problem, not one of accretion to conjugal
property, but as one involving succession, inasmuch as

the conjugal properties referred to were lands located in
the Philippines. (See Gibbs v. Government o f the
Philippine Islands, 59 Phil. 293). Parenthically, it should
be observed that inasmuch as the case was held to be
one of succession, inheritance taxes could properly be
collected. Obviously, the Court must have been swayed
by the financial benefit that would accrue to our
government,' if it would consider, as it really did, the
matter as one involving succession.
(2) If we have an express conflicts rule on the matter of
characterization, there is no question that we have to
abide by such characterization. Thus, in the second
example given (concerning the incestuous marriage), Art.
26 of our Family Code specifically provides:
“All m arriages solemnized outside the
Philippines in accordance with the laws in force in
the country where they were performed, and valid
there as such, shall also be valid in this country,
except those prohibited under Articles 35 (1), (4),
(5) and (6), 36, 37 and 38.”
It is, therefore, clear that the marriage abroad of
the Filipino first cousins, even if valid where celebrated,
shall be considered VOID in our country, because under
OUR characterization, a marriage between first cousins
is INCESTUOUS. (Art. 38, par. 1, Family Code).
THIRD STEP — THE DETERMINATION OF THE CONFLICTS

RULE WHICH IS TO BE APPLIED
After having properly classified the factual situation into its
legal category, the next question that will be asked is: what conflicts
rule must we follow — the conflicts rule that we have on the matter,
or some foreign conflicts rules? The question has been made
necessary in view of the existence in the world today not only of
conflicting internal laws, and conflicting internal judgments, but
also of conflicting conflicts rules. However, there can be little debate
on this matter; it is clear that our own conflicts rule, that is, the
conflicts rule of the forum, should indubitably be applied. There
are two good reasons for this: firstly, this is precisely the purpose
of a conflicts rule; secondly, at this stage, we still have to definitely
ascertain the precise foreign country that has the nearest or the
most intimate connection with the facts that have been brought
out.
FOURTH STEP — THE CHARACTERIZATION OF THE POINT

OF CONTACT OR THE CONNECTING FACTOR
On the assumption that we have determined the proper
conflicts rule which we are going to follow, a new problem confronts
us: whose characterization of the point of contact should be adhered
to?
Examples:
(1) X dies in the Philippines, with personal and real

properties situated here. Under Art. 16, par. 2 of the
Civil Code, the successional rights to his estate shall be
governed by his national law. During his lifetime, X had
become a naturalized Filipino citizen, but inasmuch as
he had failed to comply with certain requisites of Chinese
law (he was a Chinese, when he sought Philippine
naturalization), China up to the time of his death still
considered him a Chinese national. Now, then, under
Art. 16, par. 2, the point of contact is his NATIONALITY.
The trouble is what was his nationality at the time of his
death? Applying Chinese characterization, he was a
Chinese; applying our characterization, he was already a
Filipino. Whose characterization must we follow? This is
an example of a problem in the characterization of the
point of contact.
(2) Aboard a ship of Philippine registry, anchored at a pier
in country X, two Filipinos were married. Art. 26 of the
Family Code, provides that the validity of the marriage
depends generally on the observance of the lex loci
celebrationis (the law of the place of celebration). The
question, however, is: where is the locus celebrationis
(place of performance or celebration) is it the Philippines,
•a because the ship is of Philippine registry; or is it country
X, because it was certainly performed within the
territorial boundaries of said country? This again is an
example of a problem involving the characterization of
the point of contact.
Suggested Solution:
In case of doubt, the characterization of the forum must
certainly prevail. This seems to be the prevailing weight of
authority. (Lorenzen, Selected Essays, p. 135). Hence, in the
first example, FX should be considered a Filipino. This also
accords with the time-honored principle that nationality is a
matter exclusively determinable by the country concerned. As
it happens in this case, the forum considers him its own citizen.
In the second example, the marriage should be considered to
have been performed in the Philippines.
To the general rule that the characterization of the forum
determines the point of contact, we must give at least two (2)
exceptions:
(1) If the problem deals with real or personal property, it is
virtually futile to speak of characterization, particularly
if the question deals with the validity of their disposition
or alienation, or the capacity of the contracting parties.
In so far as Philippine Conflict of Laws is concerned, it
is the lex situs that will govern. If the property is situated
at the boundary of two states, the law that should apply
in case of conflict (as when, applying the law of the first
state, the contract will be considered valid; but, applying
the law of the second state, the contract will be deemed
void) is the lex situs of the portion of the land directly
involved.
(2) If the forum is merely an incidental place of trial, the
characterization of the forum has to give way to any
common characterization that may exist in the foreign
countries involved.
Examples'. A enters into a contract with B, although
at the time of agreement they are in different countries.
Let us assume that under the law of the two countries
involved, the locus celebrationis is State X; let us also
assume, that under our own characterization, the locus
celebrationis is State Y. If our forum has no substantial
connection with the case (as when, for instance, the
parties are neither citizens nor residents of our country,
and the transaction has no connection whatsoever with
the Philippines), we may very well refuse to assume
jurisdiction over the case on the ground of forum non
conveniens. However, should we decide to consider the
THE CHARACTERIZATION OP CONFLICTS RULES 93
case on the merits, we should cast aside our own

characterization; instead we should consider State X as
the true locus celebrationis. After all, this is the common
characterization of the two countries essentially involved.
(See Lorenzen, Selected Essays, p. 135). If, upon the other
hand, there is no common characterization, We are of
the b elief that we may avail ourselves of the
characterization that will uphold the efficacy of the
contract. If this may be attained by making use of our
own characterization, by all means, we must do so.
FIFTH STEP — THE CHARACTERIZATION OF THE

PROBLEM AS SUBSTANTIVE OR PROCEDURAL
The Basis o f the Problem:
At the outset, it must be stated that the problem of
characterization of the matter as one pertaining to “substantive
law” or “procedural law” is not met in ALL kinds of conflicts
cases; the question is relevant only in some of them. Secondly,
the problem itself does not seem so important inasmuch as
the distinction between what is “substantive” and what is
“procedural” treads dangerously on a very thin line: in many
instances a denial of certain remedial processes often results
in the negation of substantial justice; and all too often what
may appear to be “substantial rights” are really nothing but
“procedural processes” thickly disguised.
There is no question that procedural matters are governed
by the law of the forum. This was discussed under the heading
of “Exceptions to the Application of the Proper Foreign Law.”
Therefore, such matters as service of process, joinder or
splitting of a cause of action, periods within which to appeal,
requisites for the perfection of an appeal, and so forth are
governed by the lex fori. All states regard them as purely
procedural questions. This is true even if the action is based
upon a foreign substantive law. (Restatement o f the Conflict o f
Laws, Sec. 685; Salonga, Private International Law 131 [1979]).
A law on prescription of actions is sui generis in Conflict of
Laws in the sense that it may be viewed either as procedural
or substantive, depending on the characterization given such
a law. However, the characterization of a statute into a
procedural or substantive law becomes irrelevant when the
country of the forum has a “borrowing statute.” Said statute
ILIPPINE CONFLICT OF LAWS
has the practical effect of treating the foreign statute of

limitation as one of substance. (Goodrich, Conflict of Laws
152-153 [1938]). A “borrowing statute,” directs the state of the
forum to apply the foreign statute of limitations to the pending
claims based on a foreign law. (Siegel, Conflicts 183 [1975]).
While there are several kinds of “borrowing statutes,” one
forum provides that an action barred by the laws of the place
where it accrued, will not be enforced in the forum even though
the local statute has not run against it. (Goodrich and Scoles,
Conflict o f Laws, 152-153 [1938]). Section 48 of our Code of
Civil Procedure is of this kind. Said Section provides: “If by
the laws of the state or country where the cause of action
arose, the action is barred, it is also barred in the Philippine
Islands.” Section 48 has not been repealed or amended by the
Civil Code of the Philippines. Article 2270 of said Code repealed
only those provisions of the Code of Civil Procedure as to
which were inconsistent with it. There is no provision in the
Civil Code of the Philippines, which is inconsistent with or
contradictory to Section 48 of the Code of Civil Procedure.
(Paras, Philippine Conflict o f Laws 104 [7th ed.]). In light of
the 1987 Constitution, however, Section 48 cannot be enforced
ex proprio vigore insofar as it ordains the application in this
jurisdiction of Section 156 of the Amiri Decree No. 23 of 1976.
The courts of the forum will not enforce any foreign claim
obnoxious to the forum’s public policy. (Canadian Northern
Railway Co. v. Eggen, 252 U.S. 553, 40 S. Ct. 402, 64 L. ed.
713 [1920]). To enforce the one-year prescriptive period of the
Amiri Decree No. 23 of 1976 as regards the claims in question
would contravene the public policy on the protection to labor.
(Cadalin v. POEA; 57 SCAD 260 [1994]). However, in matters
like the Statute of Frauds and periods of prescription, some
states view them as pertaining to “Substantive Law”; others
treat them as part of “Procedural Law,” and still others, just
cannot seem to make up their mind on the subject. Now, then,
if the forum considers them as substantive, and the foreign
state designated in the forum’s conflicts rule chooses to view
them as procedural (or vice versa), whose characterization shall
prevail? It is obvious that an arbitrary selection one way or
the other may prove unjust.
Suggested Solution:
It would seem that the modern trend today would be to
consider the prescriptive period or the Statute o f Frauds that
the parties had in mind at the time the transaction took place.
For instance, if Englishmen in England undertook a contract,
all of the elements of which are in England, it is obvious that
they intended English law to completely govern their
actuations; it is also evident that they intended the English
law on prescription and the English Statute of Frauds to control
their rights and obligations. This, in nutshell form, is what is
referred to as the “totality approach” of Prof. Rabel. According
to this eminent authority, we have to:
(1) first get the law intended by the parties to govern
the contract;
(2) then, proceed to apply that intended law in its
“TOTALITY” including its periods of prescription
and its Statute of Frauds.
It is evident, however, that the “totality approach” must
admit at least one exception; namely, if the subject matter
governs property located in the Philippines, our own law on
prescription and our own Statute of Frauds must apply. This
is the clear import of Art. 16, par. 1 of the Civil Code: “Real
property as well as personal property is subject to the law of
the country where it is situated.”
By way of resume of our position on the subject, we
hereby restate our suggested rule on the matter: The forum
must apply the periods of prescription and the Statute of
Frauds which the parties evidently had in mind at the time
they entered into the transaction; however, when the subject
matter deals with real or personal property located in the
forum, the forum has no alternative except to apply its own
periods of prescription and its own Statute of Frauds, unless
of Course the forum’s conflicts rules provide otherwise.
Example: A , an Englishman, borrowed a sum of
money in England from B, another Englishman. The
contract was evidenced by a written document, a
promissory note. The contract subsequently matured. Six
(6) years after maturity, suit was brought in the
Philippines by B against A for the recovery of the amount
•a borrowed. Let us assume that in England, the prescriptive
period to sue on a written contract is four (4) years; in
the Philippines, ten (10) years is the period of prescription
(Art. 1144, Civil Code). Issue: Has the cause of action
prescribed? If we apply English law, there is no doubt
that the action has already prescribed; if we apply

Philippine law, we can still entertain the cause of action.
ANSWER: Regardless of the Philippine or English
characterization of prescription (as to whether it is
substantive or procedural), the answer is: the action has
already prescribed. English law was evidently intended
by the parties to govern the case; therefore, we should
apply the English law on prescription.
NOTE: If the suit had been for the recovery of a
parcel of land in the Philippines, or for the recovery of a
cai"situated here, there is no question that our own law
on prescription must control. (See Art. 16, par. 1, Civil
Code).
The rule that we have just discussed is apparently the
rule that we have in Sec. 48 of our own Code of Civil Procedure.
This section has not yet been repealed; there is no contradictory
legislation in our Civil Code or anywhere else in our laws.
Said section says:
“Sec. 48. I f Barred at Place Where Cause of Action
Arose, Barred Here. — If, by the laws of the state or
country where the cause of action arose, the action is
barred, it is also barred in the Philippine Islands.”
Unfortunately, in the case of D’ Almeida v. Hagedorn,
(1080, May 22, 1957), the Supreme Court did not apply said
Sec. 48. In said case, an action was brought in 1945 in the
Philippines on two demand notes executed in 1942 and 1943
in Hongkong where both the debtor and the creditor were
residing until the Philippines was liberated from the Japanese
Occupation Forces. The Court, in applying the rule that the
Moratorium Laws (Exec. Qrders Nos. 25 and 32; Rep. Act No.
342) suspended the running of the prescriptive period, ruled
that prescription is governed by the law o f the forum; it,
therefore, concluded that the action had not yet prescribed. It
would seem from this ruling that even if the cause of action
accrued in Hongkong, and has already prescribed under
Hongkong law, still the action has not yet prescribed under
the law of the forum, that is, the law of the Philippines. Sec.
48, therefore, of the Code of Civil Procedure was never taken
into consideration. However, one important fact must be stated:
in the I f Almeida case, there was NO PROOF that the claim
was barred under Hongkong law; it is well-settled that in the
THE CHARACTERIZATION OP CONFLICTS RULES 97
absence of proof of the proper foreign law, it is presumed to

be the same as Philippine law.
Regarding Sec. 48 of the Code of Civil Procedure, a query
may be asked: suppose the cause of action accrued in TWO or
MORE foreign states, the prescriptive law of which state must
we consider? It is submitted that if the cause of action is
divisible, that is, if one part of it accrued in State A (where
the action has prescribed) and another part accrued in State
B (where the action has not yet prescribed), we may still
entertain in our jurisdiction that part which has not not
prescribed. Upon the other hand, if the cause of action be
indivisible, we are not allowed to split it; in such a case, we
shall have no alternative except to consider again the law
intended by the parties (in its totality, including the period of
prescription) unless, of course, in the implementation of said
law our judicial processes may be unduly hindered or
inconvenienced. (See Goodrich, Conflict of Laws, p. 189).
SIXTH STEP — THE PLEADING AND PROVING

OF THE PROPER FOREIGN LAW
How the proper foreign law is pleaded and proved has already
been discussed. It is understood that any previous characterization
already made may be rendered practically useless unless there is
competent evidence of the existence of the foreign law on the matter,
for in such a case, we shall have to use our own internal law. It will
not be amiss at this point to reiterate that if a duly proved foreign
law has already been given a judicial interpration in the country of
origin, it must generally be given an identical interpration in the
Philippines, unless, of course we already have a similar or identical
internal law, and said internal law has received a diametrically
opposite construction before our own tribunals.
SEVENTH STEP — THE APPLICATION OF THE PROPER

FOREIGN LAW TO THE PROBLEM
Once we have ascertained the pertinent facts, characterized
the situation and the point of contact, made up our mind as to the
proper conflicts rule, and been satisfied with the relevancy,
competency, and admissibility of the foreign law or laws involved,
nothing else remains except the application of the selected proper
law to the problem at hand.
- THEORIES ON CHARACTERIZATION
There are at least six (6) different theories on characterization
or classification: the lex fori theory, the lex causae theory, the
universal analytical theory, the dual theory of lex fori and lex causae,
the autonomous theory, and the totality theory.
(1) The lex fori theory — this is the most common theory:
here, the forum merely considers its own concepts its
own characterization, otherwise, according to the
adherents of this theory (Bartin and Kahn) there will be
’A virtual surrender of sovereignty right in the forum’s
own home. (See Graveson, Conflict o f Laws, p. 32;
Lorenzen, Selected Essays, p. 92). This theory has one
outstanding defect; unless the characterization of the
foreign state is considered, grave injustice may apply.
(Robertson, Characterization in the Conflict of Laws, p.
33). This theory is, however, apparently adhered to in
the Philippines. (See Gibs v. Government o f the Philippine
Islands, 59 Phil. 293).
(2) The lex causae theory — This is the exact opposite of the
lex situs theory: here, we are supposed to follow the
characterization of the foreign state which is the principal
point of contact. Advocated by the Frenchman Despagnet,
this theory has one important drawback — it begs the
question, for the simple reason that we do not know
exactly what the principal point of contact (the lex causae)
is UNTIL AFTER we shall have made a characterization
of the factual situation. (See Lorenzen, Selected Essays,
p. 135).
(3) The universal a n a ly tica l theory (also called the
comparative approach theory) — Here, common factors
both in the lex fori and the lex causae are taken into
consideration in order to avoid unjust results; stated
differently, characterization comes only after a general
comparative analytical study of the jurisprudence of all
the states involved. (See Graveson, Conflict of Laws, p.
33). Indeed, “this operation includes comparative research.
Thoughtful courts have always employed this method,
but systematic efforts are needed to free national conflicts
rules from undue dependence on internal conceptions.”
(Rabel, Conflict o f Laws, Vol. I, pp. 49-50). The theory,
also called the com parative approach theory, is

championed notably by Rabel, Robertson, and Beckett.
(4) The dual theory o f lex fori and lex causae — This is
similar to the comparative approach theory except that
instead of considering worldwide conceptions, only two
concepts enter into the picture the characterization of
the lex fori and that of the lex fori and that of the lex
causae. (See Graveson, Conflict o f Laws, p. 33).
(5) The autonomous theory — This theory sponsored by Dr.
M artin W olff wants the forum to consider the
characterization o f the country referred to in the conflicts
rule of the lex causae. Hence, if the characterization in
the forum State A points to State B as the lex causae,
and the conflicts rule in State B refers to State C as the
proper point of contact, it is the characterization in State
C which must be used by State A. This theory has hardly
any follower. (See Wolff, Private International Law, p.
155).
(6) The totality theory — This is a very simple theory: get
the characterization intended by the parties; or to put it
more elaborately, get the law intended by the parties to
apply, and then proceed to apply the characterization
given by that intended law. The trouble with this theory
is that sometimes it is hard to discover exactly what law
was intended by the parties.
'* V * 'V ' ' . ' , "y . ■ ,/
Chapter V3I
THE VARIOUS THEORIES
ON STATUS AND CAPACITY
STATUS DEFINED
When an individual is referred to as being married, widowed,
divorced, or single; when his relationship with his parents is spoken
of as legitimate or illegitimate we concern ourselves with what is
generally referred to as his status. How is status defined?
Status, in our opinion, is the place o f an individual in society,
and consists of personal qualities and relationships, more or less
permanent, with which the state and the community are concerned.
Among the things which make up the status of a person are the
following: his being married or unmarried, widowed, or divorced;
his being a legitimate or an illegitimate child of his parents; his
being a minor or his having reached the age of majority; his capacity
to enter into various transactions.
Our definition is primarily based on that given by Prof. Beale
of Harvard University. Prof. Beale says that status —
“is a personal quality of relationship, not temporary in nature
nor terminable at the mire will of the parties, with which third
persons and the state are concerned.” (Beale, Conflict of Laws, Vol.
11, p. 649).
CAPACITY DEFINED
Capacity is merely a part of status, and may be defined as the
sum total of his rights and obligations. (See Graveson, Conflict of
Laws, p. 96).
100
THE VARIOUS THEORIES ON STATUS AND CAPACITY 101
Our Civil Code distinguishes two (2) kinds of capacity: capacity

to act and juridical capacity:
(1) capacity to act — (active capacity) — power to do acts
with legal effects;
(2) juridical capacity — (passive capacity) — the fitness to
be the subject of legal relations. (See Art. 37, Civil Code).
CHARACTERISTICS OF STATUS
(1) Status is conferred principally by the state not by the
individual.
(However, in certain forms, such as the status
of husband and wife, or of adopter and adopted,
conferment by the state is predicated upon some
voluntary act of the individual: for instance, his
entering into a marriage, or his petitioning for an
adoption.) (See Graveson, Conflict of Laws, p. 93.)
(2) Status is a matter of public or social interest.
[Thus, marriage, for example, is considered as a special
contract. (Art. 1, Family Code)].
(3) Status being a concept of social order, cannot easily be
terminated at the mere will or desire of the parties
concerned. (See Beale, Conflict o f Laws, Vol. II, p. 649).
(4) Status is genernlly supposed to have a universal
character: when a certain status is created by the law of
one country, it is GENERALLY judicially recognized all
over the world. (Lord Justice Scott in Re Luck, 1940 1.
Ch. 864).
PERSONAL LAW
As a consequence of the generally universal imprint of status,
the phrase “personal law” has come into being: the “personal law"
of an individual may be defined as the law that attaches to an
individual, wherever he may go — a law that generally governs his
status, his capacity, his family relations, and the consequences of
his actuations; this “personal law” may be his “national law” or his
“domiciliary law” or the “law of the situs,” depending upon the
theory applied and enforced in the forum.
JUSTIFICATION OF PERSONAL LAW

Prof. Graveson writes that: “The idea of personal law is based
on the conception of man as a social being, so that those transactions
of his daily life which affect him most closely in a personal sense,
such as marriage, divorce, legitimacy, many kinds of capacity, and
succession may be governed universally by that system of law most
suitable and adequate for the purpose.” (Graveson, Conflict of Laws,
p. 66). In the absence of such uniformity, grave uncertainty will
result. (Rabel, Conflict o f Laws, Vol. I, pp. 107-108).
DEFECT*OF PERSONAL LAW

“Personal law” is understood differently in various countries
and even when there is uniformity in the concepts, still varying
theories as to the determinative law have come up into play: some
states consider NATIONALITY as the connecting factor; others,
the DOMICILE; and still others, the SITUS. Moreover, the
characterization of nationality, domicile, and situs has always been
variable.
THE THEORIES ON PERSONAL LAW OR THE LAW THAT

SHOULD GOVERN STATUS AND CAPACITY IN GENERAL
There are at least three (3) theories on what the personal law
should be:
(1) The NATIONALITY theory — by virtue of which the
status and capacity of an individual are generally
governed by the law of his nationality. (This is also called
the PERSONAL theory).
(2) The DOMICILIARY theory — which regards the law of
the domicile as the proper determinative law on status
and capacity. (This is also known as the TERRITORIAL
theory.)
(3) The SITUS theory — which views the particular place or
situs of an event or transaction as generally the
controlling law. (This has also been referred to as the
ECLECTIC theory).
Each theory has its own merits and demerits: we cannot be
dogmatic on this point. Much certainly depends on the social,
economic, religious, and political background of the individual
THE VARIOUS THEORIES ON STATUS AND CAPACITY 103
country involved: some countries even try to combine the theories

without any harmful effect. (See Graveson, Conflict o f Laws, p. 66).
Thus, some quarters have suggested that citizens should be governed
by their national law, and aliens, by their domiciliary law.
The theories will be analyzed and discussed in the succeeding
chapters: obviously, the NATIONALITY theory will be considered
first in as much as in our country, the same generally prevail, on
account, among others, of the following provisions of the Civil Code
and the Family Code, respectively.
(1) Art. 15 of the Civil Code. Laws relating to family rights
and duties, or to the status, conditions and legal capacity
of persons are binding upon citizens of the Philippines,
even though living abroad.
(2) Art. 16, par. 2 o f the Civil Code. Intestate and testa
mentary succession, both with respect to the order of
succession and to the amount of successional rights and
to the intrinsic validity of testamentary provisions, shall
be regulated by the national law of the person whose
succession is under consideration, whatever may be the
nature of the property and regardless of the country
wherein said property may be found.
(3) Art. 21, o f the Family Code. When either or both of the
contracting parties are citizens of a foreign country, it
shall be necessary for them before a marriage license can
be obtained, to submit a certificate of legal capacity to
contract marriage, issued by their respective diplomatic
or consular officials. Stateless persons or refugees from
other countries shall, in lieu of the certificate of legal
capacity herein required, submit an affidavit stating the
circumstances showing such capacity to contract marriage.
(4) Art. 1039, o f the Civil Code. Capacity to succeed is
governed by the law o f the nation of the decedent.
NOTE: The capacity to inherit is not governed by
the national law of the heirs, devisee, or legatee, but by
the national law of the decedent. This is true whether
the succession be testate or intestate.
Chapter VIII
THE NATIONALITY THEORY
THE THEORY RESTATED

As has already been said, the NATIONALITY THEORY is the
theory by virtue of which the status and capacity of an individual
are generally governed by the law of his nationality. This is the
theory which we have principally adopted in the Philippines. (Arts.
15, 16, 1039, Civil Code; Art. 21, Family Code).
NATIONALITY AND CITIZENSHIP

While nationality is membership in an ethnic, social, racial,
and cultural group, citizenship is membership in a political society.
This is the classic distinction between the two in political science,
international business, and sociology classes. Thus, as a political
unit, the state may consist of several nations, e.g., United States
citizens may really be composed of English, French, German,
Bulgarian, Japanese, Chinese, Filipino, and other nationals. From
another viewpoint the term national includes not only citizenship,
but all those owing allegiance to a particular state, like subjects, or
the inhabitants of colonies. However, in this treatise on Philippine
Conflict of Laws, we shall consider nationality and citizenship as
SYNONYMOUS terms: thus, when we say that successional right
to the estate of a person shall be governed by his national law, we
really mean the law of the state of which the deceased was a citizen
at the time of his death.
DEFECTS OF THE NATIONALITY THEORY

The nationality theory poses certain defects:
(1) Sometimes, change of nationality or citizenship is
hard to effectuate: thus, a person who may no longer
104
THE NATIONALITY THEORY 105
wish the law of his country to follow him whenever

he may go (because he has found it undesirable,
e.g., refugees from Communist or Socialist countries)
may find it difficult to be naturalized elsewhere.
(2) Some individuals, for varying reasons are STATE- ,
LESS. What will be their personal law?
(3) As will be discussed later, there are persons
possessed of DUAL or MULTIPLE nationalities.
Which citizenship will control?
(4) It is not always desirable to apply to aliens their
national law.
THE THREE KINDS OF CITIZENS OF THE PHILIPPINES

(a) Natural-born citizens — those who are citizens of the
Philippines from birth without having to perform any act
to acquire or perfect their Philippine citizenship. (Art.
TV, Sec. 2, The 1987 Philippine Constitution). (This must
be distinguished from the native born citizen, one born
in the country of which he is a citizen. Hence, a child
born to a Filipino mother in Germany is a natural born,
but not native born citizen).
[NOTE: Under the 1987 Constitution, certain
government officials must be natural-born Filipinos, e.g.
the Chief Justice and Associate Justices of the Supreme
Court, the Senate president and members of the Senate,
the speaker and members of the House of Representatives,
the chairmen and members of the Constitutional
Commissions — Civil Service, Audit, Elections.]
(b) Naturalized citizens — citizens who are not natural-born
citizens; those who become such through ju d i
cial proceedings. (See Art. TV, Sec. 1 [4], the 1987 Phil.
Const.).
M Citizens by election — citizens who by virtue of certain
legal provisions, become such by choosing (or electing)
Philippine citizenship at the age of twenty-one (21) or
within a reasonable time thereafter. (See In Re Petition
of Zita Ngo Burca, L-24252, Jan. 30, 1967).
TWO THEORIES ON WHETHER PLACE OR ANCESTRY

DETERMINES CITIZENSHIP
(1) Jus soli — If both in a country, a person is a citizen of
the same. (This is not applied in the Philippines today).
(Tan Chong v. Sec. o f Labor, G.R. 47616, Sept. 16, 1947;
Tio Tian v. Rep., L-9602, April 25, 1957).
(b) Jus sanguinis — One follows the citizenship of his
parents; this is citizenship by blood. (This is the rule
followed in the Philippines).
THE PROBLEM OF DUAL AND MULTIPLE NATIONALITIES

Strictly speaking, the problem of dual or multiple nationalities
or citizenships can hardly arise because citizenship is a matter to
be exclusively determined by a country’s own law. In other words,
Philippine law are only allowed to determine who are Filipino
citizens and who are not. They may not ordinarily state that a
person is, for example, a Chinese or a German; they may only
decree that said person is NOT a Filipino. The determination by
our tribunals of a person’s particular foreign citizenship cannot, of
course, be regarded as binding by other courts.
Thus, Art. 2 of the Hague Convention on Conflict of Nationality
Laws (April 12, 1930) says:
“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.”
EXAMPLE: A Chinese applicant for naturalization in the
Philippines had all the qualifications and none of the
disqualifications. However, the Solicitor-General objected on
the ground that he had not previously obtained permission to
renounce Chinese citizenship from the Chinese Ministry of
the Interior, which permission was indispensable under
Chinese Law. The Philippine Court, in the case of Johnny
Chaustinek v. Republic, (G.R. L-2275, May 18, 1851), held
that the applicant can be naturalized, because insofar as our
country is concerned it is insignificant that he disobeyed
Chinese law. What matters is his compliance with our laws.
Now, then, it is clear that in so far as we are concerned, the
applicant is now a Filipino. Suppose that in China, for failing
to follow Chinese rules, he is still regarded as a Chinese citizen
— will this not be a case of DUAL CITIZENSHIP?
ANSWER: Strictly speaking, this is not a case of dual

citizenship. In so far as the Philippines is concerned he is only
a Filipino, not a Chinese. And insofar as China is concerned,
he may be only a Chinese, not a Filipino.
However, from the viewpoint of a third state, dual or multiple
citizenship may really exist. Thus, in the example given, Japan, a
third state, may view the applicant as BOTH a Filipino and a
Chinese the moment he is naturalized. It is therefore, in this sense
that we shall now try to solve the problem of personal law in
connection with multiple or dual citizenship. Suggested instances
and their solutions:
(a) A testator, considered a Filipino citizen under our law,
and a Chinese under Chinese law, died in France, leaving
properties in the Philippines. How should a Filipino judge
in a Philippine court of justice determine the successional
rights to the estate of the decedent?
ANSWER: Inasmuch as we regard him as a Filipino
citizen, there is no doubt that applying Art. 16, par. 2 of
our Civil Code, Philippine law shall control the
successional rights to his estate. (Rule — get the law of
the forum if the forum is one of the countries of which
the deceased was a national).
(b) A testator, considered a Chinese under Chinese law, and
a Japanese under the Japanese law, died in Manila,
leaving properties in the Philippines. Prior to his death,
the deceased was domiciled in Japan. How should a
Filipino judge presiding over a Philippine tribunal
adjudicate successional rights to the estate of the
deceased?
ANSWER: Japanese law shall be applied because
the deceased was BOTH a citizen and a domiciliary of
Japan. Japanese law, obviously is preferred over Chinese
law, for the DOMICILE was also in Japan. In a case like
this, it has been said that the domiciliary theory. (Rule
— If the deceased is not a citizen of the forum, we must
get the law of the nation of which he was both a national
and a domiciliary. This is the theory of effective
nationality: it is evident that here the deceased himself
considered the domicile as the more effective connecting
factor for his personal law. This rule does not militate
against Art. 16, par. 2 of the Civil Code — for after all,
it cannot be denied that indeed the deceased was a

national of Japan at the moment of death.) (See Rabel,
Conflict o f Laws, Vol. II, p. 121). (NOTE: The solution
given is in accordance with Art. 5 of the Hague Convention
on Conflict of Nationality Laws:
“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
most closely connected.”
(c) A testator, considered a Cuban under Cuban law, and a
Singaporean under Singaporean law, was domiciled at
the moment of his death in Italy. He died in Alaska,
leaving properties in the Philippines. How should a
Philippine court dispose of the successional rights to his
estate?
ANSWER: To properly apply Art. 16, par. 2, of our
Civil Code, it is believed that in a case like this our rule
should be:
1) first, get the Cuban and the Singaporean law on
succession, and apply them insofar as they are
consistent with or identical to each other;
2) secondly, in so far as there is a conflict, we must
refer to the law of Italy, the law of the domicile, to
resolve the conflict.
Before concluding this discussion on dual or multiple
citizenship, let us enumerate chiefly the various ways (c?
modalities) in which this situation might arise:
(a) Through a Naturalized Citizen’s Failure to Comply with
Certain Legal Requirements in the Country of Origin
Example: A Chinese may become a naturalized
Filipino citizen under our law, but if he had not previously
obtained from the Chinese Ministry of the Interior
permission to renounce Chinese citizenship, China may

still consider him a Chinese citizen. (See Johnny
Chaustinek v. Republic, G.R. L-2275, May 18, 1951).
(b) From a Combined Application o f Jus Soli and Jus Soli ■
and Jus Sanguinis
Example: While a married Filipino couple was in
the United States, a child was bom to the wife. The child
is an American citizen under American law, by virtue of
the principle of jus soli. At the same time under Philippine
law, he is a Filipino citizen because of jus sanguinis.
(c) By the Legislative Act of States
Example. A Filipino citizen may by the legislative
act of a foreign state be considered by such state also as
its citizen. The reason for the award may of course, vary.
(d) By the Voluntary Act of the Individual Concerned
Example: A citizen of State X may become a
naturalized citizen of State Y, but at the same time, he
may have received permission from State X to remain a
citizen of State X . (See Wolff, Private International Law,
p. 128).
DUAL ALLEGIANCE OF CITIZENS
Aznar v. Comelec & Emilio Osmeiia

G.R. No. 83820, May 25, 1990
Justice Edgardo Paras:
The statement in the 1987 Philippine Constitution that

“dual allegiance of citizens is inimical to the national interest
and shall be dealt with by law” (Art. IV, Sec. 5) has no
retroactive effect.
09 And while it is true that even before the 1987 Consti
tution, our country had already frowned upon the concept of
dual citizenship or allegiance, the fact is it actually existed.
Be it noted further that under the aforecited proviso, the effect
of such dual citizenship or allegiance shall be dealt with by a
future law. Said law has not yet been enacted.
THE PROBLEM OF STATELESS INDIVIDUALS

(a) How statelessness is brought about:
A person may become stateless by any of the follow
ing means:
1) He may have been deprived of his citizenship for
any cause, such as the commission of a crime;
2) He may have renounced his nationality by certain
acts, express or implied;
3) He may have voluntarily asked for a released from
his original state;
4) He may have been born in a country which recog
nizes only the principle o f ju s sanguinis —
citizenship by blood, of parents whose law recognizes
only the principle of jus soli — citizenship by birth
in a certain place. Thus, he is neither a citizen of
the country where he was born, nor a citizen of the
country of his parents.
(b) Personal law of stateless individuals:
The Hague Conference of 1928 on International
Private Law suggested that the personal law of stateless
individuals shall be:
1) the law of the domicile (habitual residence); or
2) secondarily the law of the place of temporary residence.
(See Rabel, Conflict of Laws, Vol. 2, p. 123.)
(NOTE: The query has been asked — What
rule shall govern if a stateless person has no
domicile? The question assumes an impossible
premise; as will be seen in the Chapter on domicile,
no natural person can ever be without a domicile.)
SUCCESSIONAL RIGHTS
Under Art. 16 of the Civil Code, the rights to the succession
of a person are governed by his national law. Suppose the deceased
had no nationality or citizenship, what should apply?
ANS.: The law of the domicile. (Suppose there is no domicile?
This cannot be, for no person can ever be without a domicile.)
WHERE A DECLARATION OF PHILIPPINE

CITIZENSHIP MAY BE MADE
A judicial declaration that a person is a Filipino citizen cannot
be made in a petition for naturalization for the reason that in this
jurisdiction, there can be no independent action for the judicial
declaration of the citizenship of an individual. Courts of justice
exist 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 remedy, granted by law for said breach
of said right. As an INCIDENT only of the adjudication of the
rights of the parties to a controversy, the court may pass upon, and
make a pronouncement relative to their status. Otherwise such
pronouncement is beyond judicial power. This holding OVERRULES
the holding in Pablo y Sen, et al. v. Republic, L-6868, April 30,
1955 and other previous cases to the effect that the court can make
a declaration that an applicant for naturalization is already a
Filipino citizen in the same naturalization proceedings if the
evidence so warrants. (Tan Yu Chin v. Republic, L-15775, April 29,
1961; Tan v. Republic, L-16108, Oct. 31, 1961; Dionisio Palaran v.
Republic, L-15047, Jan. 20, 1962; Reyes, et al. v. Republic, L-17642,
Nov. 27, 1964; Lao Yap Han Diok v. Republic, L-19107-19109, Sept.
30, 1964.) Indeed a declaration of Philippine citizenship CANNOT
be validly made in an action for declaratory relief (In Re Villa
Abrille v. Rep., L-7096, May 31, 1956) or in a summary action for
a change or correction in the Civil Registry under Art. 412 of the
Civil Code. (Tin v. Rep., L-5609, Feb. 5, 1964). One instance when
a declaration of Philippine citizenship may be made is a petition
for injunction (to restrain for instance the Alien Control Officer,
acting under orders from an Associate Commissioner of Immigration,
from compelling certain people, allegedly Filipinos, to register as
aliens). (Lorenzo Lim, etc. v. De la Rosa, L-17790, March 31, 1964).
In case a person claims to be a Filipino, doubts must be resolved
in favor of the Government and against the claimant. (Commissioner
o f Immigration, et al. v. Garcia, L-28082, June 28, 1974).
Lorenzo Lim & Juana Alvarez Lim v.

De la Rosa, etc.
L-17790, March 31, 1964
FACTS: Lorenzo Lim alleges that he is a citizen of the

Philippines, but the Department of Justice, in
three separate opinions rendered in 1955, 1956
and 1958, denied said claim. Pursuant to said

opinions, respondent Alien Control Officer,
upon orders from respondent Associate
Commissioner of the Bureau of Immigration,
required said petitioner to register as an alien
within ten (10) days upon receipt of the notice
in accordance with the provisions of the Alien
Registration Act under which all aliens residing
in the Philippines must register with the
T* Bureau of Immigration. Petitioner Lorenzo Lim
and his wife, the other petitioner thereupon
filed an injunction suit with the Court of First
Instance (now Regional Trial Court) of Manila
to enjoin respondents from requiring or
compelling them (the spouses) to register as
aliens. The lower court, after hearing, rendered
judgment holding that the said spouses are
Filipino citizens, and enjoining respondents
from requiring their registration as aliens.
Respondents brought this appeal on the
principal ground that petitioners’ citizenship
cannot be determined under the petition.
HELD: What would be the remedy of a citizen or an
inhabitant of the country claiming to be a
citizen thereof, who is being required or
com pelled to register as an alien by
administratrative officers of the Government,
who, relying upon rulings or opinions of
superior administrative officers, are in turn
complying with their duty? If the person
claiming to be a citizen of the country who is
being required or compelled to register as alien
can show, establish or prove that he is such
citizen, the remedy of injunction to prevent the
officers from requiring or compelling him to
register as alien is certainly the proper and
adequate remedy to protect his right. The
finding of the trial court that petitioner Lorenzo
Lim is such a citizen being supported by the
evidence presented, the judgment appealed
from is affirmed. In the case at bar, the
following were proved:
(a) After the passage of Commonwealth Act

No. 625, Lim elected Philippine citizen
ship.
(b) In 1955, he was a registered voter.
(c) In 1957, he was issued a Filipino passport.
(d) In 1957, also, the Court of First Instance
(now Regional Trial Court) of Zamboanga
City, in granting a petition for a change of
name stated that Lim is a Filipino citizen.
(e) Lim has never been registered as an alien.
(f) The certificate of registration of his busi
ness name recites that Lim is a Filipino
citizen.
In re: Petition for correction of entry

of certificate of birth of the minor
Chua Tan Chuan
L-25439, March 28, 1969
FACTS: An illegitimate child of a Chinese father and a
Filipino mother was registered in the Civil
Registry as a Chinese. She filed a petition for
the correction o f the entry to make her
citizenship read as “Filipino” in view of the
absence of a marriage between her parents.
Will the petition prosper?
HELD: (Thru Mr. Justice Enrique M. Fernando, later
to become Chief Justice):
No, the petition will not prosper, because
although ostensibly this is a mere petition for
a clerical correction, still in substance, what is
sought is a judicial declaration of Philippine
citizenship. (See Reyes v. Republic, L-17642,
Nov. 27, 1964).
Republic v. Hon. Manolo L. Maddela

L-21664, March 28, 1969
FACTS: Miguela Tan Suat, a Chinese woman married
to a Filipino, went to court to seek a declaration
of Philippine citizenship and to compel the
Commissioner of Immigration to cancel the
certificate of registration in view of her mar

riage. Will the petition prosper?
HELD: (Thru Mr. Justice Querube Makalintal, later
No, because generally, no person claiming
to be a citizen can get a judicial declaration of
citizenship.
(NOTE: The proper remedy would have
<■* been for her to file a petition for citizenship or
naturalization under the Burca ruling).
Dugcoy Jao v. Republic

G.R. No. 29397, March 29, 1983
FACTS: An illegitimate daughter of a Filipino mother
was erroneously registered as an alien. She
further claimed that she lost her citizenship
upon marriage to an alien. Her alien husband
died later. She petitioned the Regional Trial
Court for “judicial repatriation” and which the
court did declaring her such.
ISSUE: Was there proper repatriation?
HELD: No, for the simple fact that there is no law
authorizing “judicial repatriation.” The woman
in this instance only has to take the necessary
oath of allegiance and to register said oath in
the civil registry.
Regarding the petitioner’s claim of
Philippine citizenship prior to the marriage,
such may not be established in an action where
the mother or his heirs are not partners
thereto. Clearly, in a non-adversarial suit
where affected persons are not made parties,
Philippine citizenship may not be declared.
CITIZENSHIP OF A FILIPINO WOMAN

WHO MARRIES A FOREIGNER
(1) Rule Prior to the 1973 Constitution
If she acquired his nationality, she lost Philippine
citizenship otherwise she remained a Filipino.
(2) Rule 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
citizenship. (Art. Ill, Sec. 2, 1973 Constitution).
(3) Rule 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 it. (Art. TV, Sec. 4,
1987 Constitution).
CITIZENSHIP OF A FOREIGN WOMAN

WHO MARRIES A FILIPINO
(1) Rule Prior to the MOY YA Case

If she has all the qualifications and none of the
disqualifications for Philippine citizenship she becomes a
Filipino, PROVIDED, that she is able to prove these facts in
a proper proceedings. If she is unqualified (lacks qualifications)
or disqualified (possesses disqualifications), she cannot be
considered a Filipino citizen. This is so even if by virtue of
said diverse citizenship, the husband and the wife will not be
able to live together. This apparent subversion of family
solidarity, and the consequent violation of the duty to live
together, according to the Supreme Court, are irrelevant to
the issue of citizenship an issue which concerns only the right
of a sovereign state to determine what aliens can remain within
its territory and under what conditions, they can stay therein.
(Chay v. Galang, L-19977, Oct. 30, 1964). The ruling
abovestated applied also to the wife of a naturalized Filipino.
While it is true that under Sec. 15 of the Naturalization Law,
“Any woman who is now or may hereafter be married to a
citizen of the Philippines . . . shall be deemed a citizen of the
Philippines,” still the law requires that she “might herself be
„ lawfully naturalized” implying that she must first prove that
she has all the qualifications and none of the disqualifications
for naturalization. This rule is in line with the national policy
of selective admission to Philippine citizenship, which after
all, is a privilege granted only to those who are found worthy
thereof, and not indiscriminately to anybody at all on the
basis alone of marriage to a man who is a citizen of the

Philippines, irrespective of moral character, ideological beliefs,
and identification with Filipino customs and traditions. (Choy
King Tee v. Emilio L. Galang, L-18351, March 26, 1965;
Agustin de Austria, et al. v. Conchu, L-20716, June 22, 1965;
Olegario Brito, et al. v. Commissioner, L-16829, June 30, 1965).
In the case of Zita Ngo Burca (L-24252, Jan. 30, 1967),
the Supreme Court thru Mr. Justice Conrado Sanchez,
categorically held that the proper proceeding in which an alien
woman married to a Filipino can be herself declared a Filipino
citizen is a citizenship (naturalization) proceeding.
In re: Petition to declare Zita Ngo Burca to

possess all the qualifications and none
of the disqualifications for naturalization
L-24252, Jan. 30, 1967
FACTS: This was a petition to declare Zita Ngo Burca,
a Chinese citizen and wife of Francisco Burca,
a Filipino citizen, as possessing “all the
qualifications and none of the disqualifications”
for naturalization under Commonwealth Act
473 — The Naturalization Law — for the
purpose of cancelling her alien registry with
the Bureau of Immigration.
Notice of hearing was sent to the Solicitor-
General and duly published. The Solicitor-
General opposed and moved to dismiss the
petition on two grounds:
(a) firstly, that “there is no proceeding
established by law or the rules for the
judicial declaration of the citizenship of
an individual”; and
(b) secondly, that an an application for
Philippine citizenship, Burca’s petition “is
fatally defective for failure to contain or
mention the essential allegations under
Sec. 7 of the Naturalization Law,” such
as, among others, the petitioner’s former
places of residence. Moreover, there was
the absence of the affidavits of at least
two supporting witnesses.
The trial court granted the petition, but the Solicitor-

General appealed the case to the Supreme Court.
HELD: (a) “By constitutional and legal precepts, an
alien woman who marries a Filipino
citizen, does not by mere act o f marriage
— autom atically become a Filipino
citizen.” Reason: She must possess all the
qualifications and none of the disquali
fications for naturalization. (Ly Giok Ha,
et al. v. Galang, et al., L-31332, March
31, 1966).
[NOTE: The court observed that if it
is enough to have none of the disqua
lifications (without requiring the presence
of qualifications), there is a danger that a
person such as a maintainer of a bawdy
house, who has not been previously con
victed by a competent court, could become
a Filipino — since it is the conviction that
could disqualify.]
(b) “The rule heretofore adverted to is to be
observed whether the husband be:
“(1) a natural-born Filipino. (Austria, et
al. v. Conchu, L-20716, June 22,
1965);
“(2) a naturalized Filipino. (Lao Chay,
et al. v. Galang, L-19977, Oct. 30,
1964); or
“(3) a Filipino by election.”
(c) “If an alien woman married to a Filipino
does not ipso facto become a Filipino
citizen, she has to file a petition for
citizenship (a petition for naturalization).”
This petition must:
(1) recite that she possesses all the
qualifications set forth in Sec. 2, and
none of the disqualifications under
Sec. 4 of the Revised Naturalization
Law;
1X8 PHILIPPINE CONFLICT OF LAWS
(2) be filed in the Court of First Instance

(now Regional Trial Court) where the
petitioner has resided at least one
year immediately preceding the
filing of the petition.
(d) “Any action by any other office, agency,
board or official, administrative or
otherwise — other than the judgment o f a
competent court o f justice — certifying or
declaring that an alien wife of a Filipino
citizen is also a Filipino citizen, is hereby
declared null and void.”
The Supreme Court, after treating Burca’s petition as
one for naturalization, then went to the merits of the petition
and denied the same on the ground that not all of her former
places of residence had been stated therein, and on the further
ground that the petition was not supported by the affidavit of
at least two credible persons.
Some Observations on the Burca Ruling
(a) If the Court insists on the presence of all qualifications,

would this not be unfair? For instance, why demand a
10-year residence period of an alien woman married to a
Filipino, when only a 5-year residence is required for an
alien man married to a Filipino woman? Besides, how
many alien wives can own real estate (prior to becoming
a Filipino) or exercise a lucrative trade or profession
independently of their Filipino husband, when their
principal function is to act as housewives?
(b) It is unfortunate that in referring to an alien woman
married to a Filipino the Court used the phrase “ipso
facto,” that is, the Court said that “she does not ipso
facto become a Filipino citizen.” Because of the use of the
phrase the Court had to conclude that since the woman
does not automatically (ipso facto) become Filipino, it
follows that she has to do something, namely, ask for
naturalization in a naturalization proceeding. It is
believed that the more appropriate legal and accurate
term is necessarily.” Hence, the alien wife does not
“necessarily” become a Filipino by the mere fact of
marriage, since it may turn out that indeed she should
not be. In other words, it is submited that the condition

should be resolutory, not suspensive. In other words, upon
the occurrence of a bona fide marriage to a Filipino, the
alien woman should be presumed immediately as a
Filipino. Should she turn out to be disqualified by reason
of legal disqualification, she should be stripped of
Philippine citizenship. Unfortunately, under the present
ruling, the filing of naturalization proceedings on her
part has been made a condition precedent. It is even
more unfortunate that since the advent of the
Naturalization Law, foreign wives of foreign petitioners
for naturalization have herefore scarcely been required
to file petitions (joint or separate) for naturalization.
(2) R ule A fter the MOY YA Case
In Moy Ya Lim Yao v. Com. of Immigration, G.R. No. L-

21289, 41 SCRA 292, the Supreme Court reversed the Burca
ruling and held that “under Sec. 15 of Com. 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. Moreover, “an alien
woman married to an alien who is subsequently naturalized
here follows the Philippine citizenship of her husband the
moment he takes his oath as a Filipino citizen, provided she
does not suffer from any of the disqualifications under said
Section 4.” The decision in effect ruled that it is not necessary
for an alien citizen to prove in a judicial 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. (Yap v. Republic, L-27430, May 17, 1972).
CITIZENS OF THE PHILIPPINES

Before the advent of Spain in our country, there were no
Filipino citizens. Our inhabitants dwelt in isolated barangays under
varfous headsmen. When Spain came, she made all our people
“subjects of Spain,” thus, there were still no Filipino citizens. With
the coming of the Americans, our political status was clarified by
the U.S. Congress, conformably with the provisions of the Treaty of
Paris on December 10, 1898 (this treaty transferred our country
from Spanish to American sovereignty).
The Philippine Bill of 1902 (U.S. Act of July 1, 1902) provided

in Section 4 thereof —
“That all inhabitants of the Philippine Islands continuing
to reside therein who were Spanish subjects on the eleventh
day of April, eighteen hundred and ninety-nine, and then
resided in said Islands, and their children born subsequent
thereto, shall be deemed and held to be citizens of the Philippine
Islands and as such entitled to the protection of the United
States, except such as shall have elected to preserve their
allegiance to the Crown of Spain in accordance with the
provisions of the treaty of peace between the United States
and Spain signed at Paris, December tenth, eighteen hundred
and ninety-eight.”
This was the very first document (actually, a fundamental
law then) which declared who Filipino citizens were.
Now then, did the Philippine Bill of 1902 recognize Filipino
citizenship on the mere basis of jus soli, that is, simply because of
birth in the Philippines? Actually no, for there is nothing in this
Bill which referred to jus soli, however, in an obiter dictum in the
case of Roa v. Collector o f Customs, 23 Phil. 321, the Court thru
Mr. Justice Street said that ju s soli was recognized in the
Philippines.
Roa v. Collector of Customs

23 Phil. 321
FACTS: Roa was born in the Philippines of a Chinese

father and a Filipino mother. He was a
legitimate child. After his father’s death, he
went t8 China to pursue his studies, but later,
when he returned to the Philippines (still a
minor), he was not allowed entry on the ground
that he was a Chinese. Issue: should he be
allowed re-entry?
HELD: (thru Mr. Justice Street). Yes, he should be
allowed to re-enter the Philippines in view of
his Filipino citizenship. Upon his father’s death,
his mother reacquired Philippine citizenship.
And because he was a minor, Roa followed his
mother’s citizenship. Besides (and this is now
the obiter), Roa was born in the Philippines;
resultantly, by the doctrine of jus soli, he is a

Filipino citizen. [N.B. In the cases of Tan Chong
v. Sec. o f Labor - GR-L-47616, Sept. 16, 1947,
Lam Swee Sang v. Commonwealth, 45 O.G.
1269, and Tio Tian v. Republic, L-9602, April
25, 1957, the Supreme Court ruled that jus
soli by itself was never recognized in the
Philippines].
CITIZENS OF THE PHILIPPINES UNDER THE 1935

CONSTITUTION AND NEW CIVIL CODE
(1) Those who were citizens of the Philippines at the time of
the adoption of the Constitution of the Philippines.
(2) Those born in the Philippines of foreign parents who,
before the adoption of said Constitution, had been elected
to a public office in the Philippines.
(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 the law.
(Art. TV, 1935 Constitution, Art. 48, Civil Code).
CITIZENS OF THE PHILIPPINES UNDER

THE 1973 CONSTITUTION
(1) Those who are citizens of the Philippines at the time of
the adoption of this Constitution.
(2) Those whose fathers or mothers are citizens o f the
Philippines.
(3) Those who elect Philippine citizenship pursuant to the
provisions of the Constitution of nineteen hundred and
thirty-five.
(4) Those who are naturalized in accordance with law. (Art.
Ill, Sec. 1, 1973 Constitution).
(NOTE: It would seem that children born after the
effective date of the 1973 Constitution, January 17, 1973, of
mothers who are citizens of the Philippines are Filipinos
without need o f election to be such. (See No. 3, Sec. 1, Art. Ill,
1973 Constitution). One important question, however, may

arise: was the 1973 Constitution already effective in the
MORNING of January 17, 1973? We personally heard then
President Marcos say over the radio that day — January 17,
1973: “It is now NOON, January 17, 1973. I am now signing
the new Constitution”. How about the children bom of Filipino
mothers that morning? To be Filipinos, do they have to elect
Philippine citizenship? When they were born that morning,
was the 1973 Constitution already effective?
CITIZENS OF THE PHILIPPINES UNDER

THE 1987 CONSTITUTION
(1) 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 bom before January 17, 1973, of Filipino mothers,
who elect Philippine citizenship upon reaching the age of
majority.
(4) Those who are naturalized in accordance with law.
CITIZENS AT THE TIME OF THE ADOPTION OF THE

PHILIPPINE CONSTITUTION (MAY 14, 1935)
The following were the citizens of the Philippines at the time
of the adoption of the Philippine Constitution on May 14, 1935;
(a) Persons bom in the Philippines who resided therein
on April 11, 1899, and were Spanish subjects on
that date, unless they had lost their citizenship on
or before the adoption of the Philippine Constitution
on May 14, 1935 (as inferred from the Philippine
Bill of 1902, the Jones Law, and the Philippine
Constitution itself);
(b) Natives of Peninsular 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 Oct. 11, 1900,
unless they had lost their citizenship by May 14,
1935 (as inferred from the Philippine Bill of 1902,
the Jones Law, and the Philippine Constitution);
(c) Spanish naturalized citizens (subjects 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 Oct. 11,
1900, unless they had lost their citizenship by May
14, 1935). (Carlos Palanca v. Republic o f the
Philippines, No. L-301, April 7, 1948, and the
Philippine Constitution);
(d) Children born of (1), (2) and (3) subsequent to April
11, 1899, unless they had lost their citizenship by
May 14, 1935. (Phil. Bill o f 1902, Jones Law o f
1916 and the Philippine Constitution);
(e) Persons who became naturalized citizens of the
Philippines in accordance with the formal procedure
set forth in the Naturalization Law since its
enactment on March 22, 1920, unless they had lost
their citizenship by May 14, 1935 (by inference from
the N aturalization Law and the Philippine
Constitution);
(f) Children of persons embraced under (e), unless they
had lost their citizenship by May 14, 1935;
(g) Filipino women who, after having lost Philippine
citizenship by m arriage to foreigners, had
subsequently becom e widows and regained
Philippine citizenship on or before May 14, 1935.
(Roa v. Collector o f Customs, 23 Phi. 321; Talaroc v.
Uy, G.R. L-5397, Sept. 26, 1952);
(h) Children of No. (7) who were still under 21 years of
age at the time their mothers regained Philippine
citizenship. (Roa v. Collector, supra; Talaroc v. Uy,
supra);
(i) Foreign women who married Filipino citizens on or
before May 14, 1935, provided that they themselves
could be lawfully naturalized, provided further that
they had not lost Philippine citizenship by May 14,
1935. [See Sec. 13 (a) o f Act 3448, as amended] and
provided finally that their Filipino citizenship had
been so declared by judgment of a court of justice in
the proper naturalization or citizenship proceedings.
(In Re Burca, L-24252, Jan. 30, 1967);
(j) All other persons born in the Philippines who on

the strength of the erroneous recognition of the “jus
soli” doctrine in the Roa case were mistakenly
declared by the courts to be Filipino citizens, unless
they had lost their citizenship by May 14, 1935,
(See Tan Chong v. Sec. o f Labor, G.R. L-47616, Sept.
16, 1947; Talaroc v. Uy, G.R. L-5397, Sept. 26, 1952).
[NOTE: In an obiter dictum in Roa v. Collector,
23 Phil. 321, the Supreme Court declared that during
the advent of American sovereignty in the Philippines,
h* we recognized here in our country the doctrine of jus
soli — the theory applied in the United States. This
dictum was applied in many subsequent cases. (Vano
v. Collector, 23 Phill. 41; Go Julian v. Government,
45 Phil. 286; Haw v. Collector, 59 Phil. 612, etc.).
The error was discovered and the doctrine was thus
. repudiated in subsequent cases, like Tan Chong v.
Sec. o f Labor, G.R. 47616, Sept. 16, 1947, and Lam
Swee Sang v. Commonwealth, 45 O.G. 1269.
Unfortunately, in an obiter in Talaroc v. Uy, G.R. L-
5397, Sept. 26, 1952, the Court apparently misled by
an obiter in the Tan Chong case, supra, reverted to
the Roa doctrine. In Tio Tian v. Republic, L-9602,
April 25, 1957, the Court, however apparently
returned to the Tan Chong ruling.]
[NOTE: With the advent of the 1987 Constitution, the
new proviso reads: “Those who are citizens of the Philippines
at the time of the adoption of this (1987) Constitution.”]
CITIZENS BY VIRTUE OF HAVING BEEN ELECTED

TO A PUBLIC OFFICE INjTHE PHILIPPINES
The law says: “Those born in the Philippines of foreign parents
vho before the adoption of the Philippine Constitution, had been
:lected to a public office in the Philippines” (Art. IV, Sec. 1, No. 2,
1935 Constitution; Art. 48, No. 2, Civil Code). (NOTE: This proviso
las been eliminated in the 1973 and 1987 Constitutions. It is
mderstood however that those falling under No. 2 of the 1935
Constitution may now be classified under No. 1 of both the 1973
tnd 1987 Constitutions.)
(a) This provision does not rely on jus soli exclusively;
service should have been rendered.
(b) If “born OUTSIDE the Philippines,” the article does

not apply.
(c) If “appointed” and not “elected” the article does not
apply.
(d) If “private” instead of “public” office, the article does
not apply.
(e) Who is considered the Philippine citizen, the “parent”
or the “child”?
Answer. The child himself in view of his service.
Of course, the children of the child himself would
also be citizens of the Philippines because of No. 3
of Art. 48 of the Civil Code, and No. 3, Sec. 1, Art.
IV of the 1935 Constitution. In other words, this
paragraph on citizens by virtue of their election
benefits not only the individual himself who was
elected, but also his children; hence, this would allow
derivative citizenship. (See Chiongbian v. De Leon,
G.R. L-2007, January 31, 1949).
(f) Reason for the Provision: Fermin Caram, a delegate
to the Constitution Convention, was born in the
Philippines o f Syrian parents. Before the
Constitution Convention, he had previously been
elected to the Provincial Board of Iloilo, although
he was not a Filipino citizen, since his parents were
foreigners, and he him self had never been
naturalized as a Filipino. There was, therefore, the
anomalous situation of a non-Filipino having been
elected to a public office in the Philippines, an
anomaly that obviously was caused by the then
prevailing belief that mere birth in the Philippines
was sufficient to make one a Filipino citizen. (See
Roa Case, supra). Curing this anomaly had been
apparently the principal motive of this provision.
Otherwise, a non-Filipino would have participated
in the drafting of the Philippine Constitution. (See
Caram v. Montinola, IV Lawyer's Journal, p. 850).
Despite this apparent intent to favor a particular
individual, namely, the person who had been elected
to a public office in the Philippines although not yet
a Filipino, the Supreme Court had given to the
proviso not only a personal connotation but also a
derivative implication, hence even his own children

had been given the benefits. (See Chiongbian v. De
Leon, supra).
Chiongbian v. De Leon
G.R. L-2007, Jan. 31, 1949
FACTS: An alien married couple had a son Victoriano

Chiongbian, who had been born in the
Philippines. Victoriano, although a foreigner,
was elected to the position of municipal
i* councilor (of Plaridel, Occidental Misamis) in
1925. Victoriano himself had his own son,
William Chiongbian, who was still a minor at
the time of the adoption of the Philippine
Constitution. William was able to register
certain vessels in his own name when he
became of age. Customs officials, however,
wanted to cancel the registration on the theory
that while Victoriano may be considered a
Filipino (by virtue of his election to a public
office prior to the adoption of the Constitution),
still William should not be so considered, for
the grant in this provision is strictly personal,
that is, it should not benefit Victoriano’s
descendants. Issue: Should William be also
considered a Filipino citizen, although he
himself had not held public office prior to the
adoption of the Philippine Constitution?
HELD: Yes, William Chiongbian is a Filipino The
parents of Victoriano are certainly not Filipinos;
but Victoriano himself was a Filipino because
he was born in the Philippines of foreign
parents, and before the adoption of the
Philippine Constitution he had been elected to
a public office in the Philippines. (Par. 2, Sec.
1, Art. TV, 1935 Const.). Therefore, William
Chiongbian, who was then a minor, also became
a Filipino citizen, his father, being a Filipino.
(Par. 3, Sec. 1, Art. IV, 1935 Constitution).
QUERY: In the above case of Chiongbian,
when did Victoriano himself become a Filipino
upon the adoption of the Constitution, or from

the time of his election?
ANSWER: Although the Supreme Court
said:
“It is conclusive that upon the
adoption of the Constitution, Victoriano
Chiongbian, father of herein petitioner,
having been elected to public office in the
Philippines before the adoption of the
Constitution, became a Filipino citizen by
virtue of Art. IV, Sec. 1, Subsection 2 of
the Constitution.”
Still it is believed that “upon the adoption”
should be constrv mean “by virtue o f
adoption.” In othu.. 3, Victoriano became
a Filipino, not upon the adoption, but because
of the adoption of the Constitution; and
precisely because of this Constitution, he should
be deemed a Filipino from the time o f his
election. Otherwise, we would legally sanction
the spectacle of a non-Filipino holding a
Filipino public office prior to the adoption of
the Philippine Constitution. (See Mr. Justice
Claro M. Recto’s opinion in Caram v. Mon-
tinola, TV L.J. 850).
CHILDREN OF FILIPINO FATHERS

(a) This paragraph enunciates the principles of JUS
SANGUINIS.
(b) The rule applies whether the mother is a Filipino or not;
and whether the child is born in the Philippines or
outside.
(c) The rule certainly is applicable if the father is a natural-
born Filipino citizen; does it also apply if the father is a
naturalized Filipino'?
To answer this question, let us first examine the pertinent
provisions of the Naturalization Law on the matter. Sec. 15 of
the law says:
“1. Minor children of persons naturalized under this

law who have been in the Philippines shall be consid
ered citizens thereof.
2. A foreign-born minor child, if dwelling in the
Philippines at the time of the naturalization of the
parent, shall automatically become a Philippine
citizen, and a foreign-born minor child who is not in
the Philippines at the time the parent is naturalized,
shall be deemed a Philippine citizen only during his
minority, unless he resides permanently in the
Philippines when still a minor, in which case he'
will continue to be a Philippine citizen even after
becoming of age.
“3. A child born outside the Philippines, after the
naturalization of his parents shall be considered a
Philippine citizen, unless within one year after
reaching the age of majority, he fails to register
himself as a Philippine citizen at the Philippine con
sulate of the country where he resides and to take
the necessary oath of allegiance.”
The question may now be properly answered in the
following manner:
(a) a minor child born BEFORE naturalization
1) if born in the Philippines — is a Filipino
2) if bom outside the Philippines
a) if dwelling in the Philippines at the time of
the parent’s naturalization — is a Filipino;
b) if dwelling outside the Philippines at the time
of parent’s naturalization — is a Filipino only
during his m inority unless he resides
permanently in the Philippines when still a
minor, in which case he will continue to be a
Philippine citizen even after becoming of age.
(b) a minor child born AFTER naturalization
1) if bom in the Philippines — is a Filipino
2) if bom outside the Philippines — shall be considered
a Philippine citizen, unless within one year after
reaching the age of majority he fails to register
himself as a Philippine citizen at the Philippine con

sulate of the country where he resides and to take
the necessary oath of allegiance.
It will be observed that:
(a) in the case of children already of age at the time of the
parent’s naturalization, they do not become Filipino
citizens unless they themselves be naturalized;
(b) in the case of minors, who were born IN the Philippines
before the parent’s naturalization, and in the case of a
minor, born OUTSIDE the Philippines but already
dwelling IN the Philippines at the time of the parent’s
naturalization — no condition is imposed by the law:
they are FILIPINO CITIZENS;
(c) in the case of minors bom OUTSIDE the Philippines, the
law is more strict on the child born BEFORE natural
ization because he is compelled to reside here, whereas in
the case of the child born AFTER naturalization, all that
the law requires is registration. Both of these requisites
appear to be unconstitutional, since the fundamental law
makes no distinction; nonetheless it would seem that
these requirements are proper, and unless complied with
could result in loss of Philippine citizenship, a loss which
under the Constitution itself can properly be provided
for by law.
CHILDREN OF FILIPINO MOTHERS

(a) Provision o f the 1935 Constitution — “Those whose
mothers are citizens of the Philippines upon reaching
the age of majority elect Philippine citizenship” [Art. IV,
Sec. 1(4), 1935 Const.] [Be it noted that under the 1973
and 1987 Constitutions, the “election” is no longer
required. (See Art. Ill, Sec. 1, No. 2, 1973 Constitution
and Art. TV, Sec. 1, No. 2, 1987 Constitution).]
(b) Requisites under the 1935 Constitution
** 1) The father here must not be a Filipino citizen,
otherwise, another provision (already discussed)
applies;
2) The mother must be a Filipino citizen;
3) Upon reaching the age of majority, the child, to be

a Filipino, must elect Philippine citizenship.
(c) Query. As of what moment must the mother be a citizen
of the Philippines?
Theories:
1) The first theory is that the mother must be a citizen
of the Philippines at the time of the birth of the
child.
2) The second theory is that the mother must be a
,J* Filipino citizen at the time the child elects Philippine
citizenship.
3) The third theory is that it is sufficient for the mother
to have been a Filipino citizen at the time of her
marriage to a foreigner.
The Correct Theory:
It would seem that the third theory — that the
mother is a Filipino at the time of her marriage to an
alien — is the CORRECT theory. (See Matter o f Robert
Cu, G.R. L-3018, July 18, 1951), for two (2) cogent reasons:
1) If the first or the second theory is to be applied,
very few children can avail themselves of the option,
for in many instances, the mother would follow the
husband’s nationality and thus lose Philippine
citizenship;
2) Also, unless we apply the third theory, the right to
elect Philippine citizenship will depend in many
cases on the husband’s national law — a law which
may vary from time to time, even to the extent of
denationalizing its own citizens. (See Hudson, Cases
on International Law, p. 201). (NOTE: In the case
of Villahermosa u. Commissioner o f Immigration,
L-1663, March 31, 1948), however, the Supreme
Court seemed to imply that the second should be
adhered to. In said case the Court made the
observation that the child can elect Philippine
citizenship only if at the time of such election the
mother has already reacquired Philippine citizen
ship.
(d) Query: Within what period after attaining the age of

majority must the child elect Philippine citizenship?
Answer: The option must be exercised within a
REASONABLE period after having attained the age of
majority. (Opinion o f the Secretary o f Justice, Aug. 12,
1945; June 26, 1947.) What is reasonable is a question of
fact, depending upon the peculiar circumstances of each
case. In one instance, three years was still considered a
reasonable period. (Opinion o f the Secretary o f Justice,
No, 20, s. 1948). But generally five years would be
unreasonable. (Lim Teco v. Com. o f Customs, 24 Phil.
84.)
(e) Query: Before the child elects Philippine nationality, what
is his nationality?
Answer: Generally, this would be the nationality of
the father, if the child is a legitimate child. But of course
this would depend on the father’s national law.
(f) Query: Suppose a Filipino mother is not married to a
Chinese but is merely cohabiting with him, is the child
still a Filipino?
Answer: Yes, a child bom outside a lawful marriage
of an alien father and a Filipino mother, being illegitimate,
follows the mother’s citizenship. However, if the parents
should marry each other later, the legitimated child
should generally follow the father’s citizenship. (Kok Hua
v. Rep., G.R. L-5047, May 8, 1952; Zamboanga
Transportation Co. v. Lim, L-10975, May 27, 1959).
(g) Law on the Option to Elect Philippine Citizenship
COMMONWEALTH ACT NO. 625
AN ACT PROVIDING THE MANNER IN WHICH THE

OPTION TO ELECT PHILIPPINE CITIZENSHIP
SHALL BE DECLARED BY A PERSON WHOSE
MOTHER IS A FILIPINO CITIZEN
Section 1. The option to elect Philippine citizenship in
accordance with subsection (4), Sec. 1, Art. IV of the
Constitution shall be expressed in a statement to
be signed and sworn by the party concerned before
any officer authorized to administer oaths, and shall

be filed with the nearest Civil Registry. The said
party shall accompany the aforesaid statement with
the oath of allegiance to the Constitution and
Government of the Philippines.
Sec. 2. If the party concerned is absent from the
Philippines, he may make the statement herein
authorized before any officer of the Government of
the United States (now before embassy and consular
officials of the Philippines abroad save in those cases
* where there are no officials yet, in which case the
party concerned has to do so before the embassy or
consular officials of the United States in the country
where he may be), and he shall forward such
statement together -with his oath of allegiance, before
the Civil Registry of Manila.
Sec. 3. The Civil Registrar shall collect as filing fees of
the statement the amount of ten pesos.
Sec. 4. The penalty of prision correccional, or a fine not
exceeding ten thousand pesos or both shall be
imposed on anyone found guilty of fraud or falsehood
in making the statement herein prescribed.
Sec. 5. This Act shall take effect upon its approval.
Approved, June 7, 1941.
(h) Query. If a Filipino woman marries a foreigner, she gets
her husband’s nationality or citizenship, if the laws of
her husband’s country so provide. In such a case, she
loses Philippine citizenship. Now then, upon the husband’s
death, does she îmmediately reacquire Philippine
citizenship? "'s‘
ANSWER: It depends:
1) If she became a widow before the effectivity of Com.
Act No. 63 (Oct. 21, 1936), she immediately
reacquired Philippine citizenship without any need
of repatriating herself, since it would be unfair to
require repatriation (reacquisition of citizenship by
a formal act) before there existed any Act requiring
her to do so. There is one exception, however, and
this would be if she, by outward or external acts,
decided to continue being a citizen of her husband’s

country. (Talaroc v. Uy, G.R. L-5397, Sept. 26, 1952).
2) If she became a widow on or after Oct. 21, 1936, she
has to repatriate herself, otherwise she remains a
foreigner. (Talaroc v. Uy, supra; Villahermosa v.
Commissioner o f Immigration, G.R. L-l 663, March
31, 1948).
(NOTE: If the woman repatriates herself, does
her repatriation carry with it the repatriation of
her minor child?)
ANSWER: No, for repatriation means reac
quisition. Since the child never was a Filipino
previously, it is obvious that he cannot reacquire
that which he never had. (See Villahermosa v. Com.
o f Immigration, G.R. L -l663, March 31, 1948). It
should be observed, however, that if instead of
repatriation (for repatriation, there must be a
FORMAL ACT) the widow had automatically
regained Philippine citizenship, the nationality of
her minor child would follow hers. (Talaroc v. Uy,
L-5397, Sept. 26, 1952).
Laureto Talaroc v. Alejandro D. Uy

G.R. L5397, Sept. 26, 1952
FACTS: Uy was elected municipal mayor. Talaroc, a
defeated candidate for said office, brought quo
warranto o proceedings against Uy, alleging
the latter’s Chinese citizenship, and consequent
disability. Uy was born in Lanao in 1912 of a
Chinese father and a Filipino mother. While
Uy was still a minor, his father died in 1917.
The mother died in 1949, without expressly
repatriating herself. Uy had voted in previous
Philippine elections, and on some occasions he
had even been allowed to hold public offices.
HELD: When Ursula Diabo, Uy’s mother became a
widow, Com. Act No. 63 had not yet been
enacted; therefore, without need of repatriation
he automatically followed the nationality of the
mother. Hence, Uy became a Filipino. Uy is,
therefore, eligible.
NATURALIZED FILIPINO CITIZENS

Under Art. 49 of the Civil Code, “naturalization and the loss
and reacquisition of citizenship of the Philippines are governed by
special laws.” Our Naturalization Laws is Com. Act No. 473, as
amended by Rep. Act No. 530. Loss and reacquisition of Philippine
citizenship are governed by Com. Act No. 63, as amended. In the
1987 Constitution, we have the following provision:
(1) “Philippine citizenship may be lost or reacquired in the
manner provided by law.” (Art. TV, Sec. 3, Constitution).
NATURALIZATION DEFINED
Naturalization is the process of acquiring the citizenship of
another country.
(a) In the strict sense, it is a judicial process, where
formalities of the law have to be complied with
including a judicial hearing and approval of the
petition.
(b) In the loose and broad sense, it may mean not only
the judicial process but also the acquisition of
another citizenship by such acts as marriage to a
citizen, and the exercise of the option to elect a
particular citizenship.
NOTE: Be it remembered that with the advent of
martial law, Philippine citizenship had been granted by:
Direct Presidential Decree (as recognition of work done
by alien for the Philippines) or thru Naturalization by
Presidential Degree (where less rigorous requirements
were demanded, and the applicants were screened by
certain committees in the Department of Justice, and
later by a National Presidential Committee. The latter
in turn, made the recommendations to the President of
the Philippines. This more rapid way of granting
Philippine Naturalization was brought about by the
Chinese nationality problem which came about as a direct
resultant of the opening of diplomatic relations between
our country and Red China (People’s Republic of China),
and the severance of our diplomatic ties with Taiwan
(Nationalist China).
Under Letter of Instructions (LOI) No. 270 (later amended

by LOI No. 283, dated June 5, 1975, which extended the
deadline for the filing of applications, and by LOI’s No. 280,
June 5, 1975 and No. 491, Dec. 29, 1976) the special committee
created by the President had the following composition:
(1) Solicitor-General — Chairman
(2) Undersecretary of Foreign Affairs — Member
(3) Director General of the National Intelligence Security
Administration (NISA) (now National Intelligence
Coordinating Agency [NICAj) — Member.
It will be noted that actually the Naturalization Law of
1940 was not amended. However, the Committee was
instructed by the President to take the preliminary steps that
would be needed —
“in order that aliens permanently residing in this
country who, having developed and demonstrated love
for and loyalty to the Philippines and affinity to the
customs, traditions and ideals of the Filipino people, as
well as contributed to the economic, social and cultural
development of our country, may be integrated into the
national fabric by the grant of Philippine citizenship.”
(See Official Gazette 3037, May 26, 1975).
There were basic differences between the Naturalization
Law and LOI No. 270 as amended:
(1) The Naturalization Law provided for a judicial process;
the LOI dealt with an administrative inquiry;
(2) The first called for separate cases heard by the trial
court; the second also separately dealt with each
applicant, but the investigation was summary in
character;
(3) The first resulted in a finality of court decision (although,
of course, denaturalization proceedings could later be
instituted); the second only dealt with a recommendation
as to whether or not the alien was to be included in the
list of persons to be naturalized by Presidential Decree;
(4) With respect to the language requirements, the first
stated that the applicant “must be able to speak and
write English or Spanish and any one of the principal

Philippine languages;” the second required that he “must
be able to speak and write Pilipino; or English or Spanish,
and any of the principal Philippine languages” (thus if
the applicant could speak and write Pilipino, he need not
know English or Spanish or any other principal Philippine
language);
(5) While the first allowed no waiver of the income requisite,
the second authorized the Committee to waive the income
requirement, if the applicant was a bona fide college
student, is above 18 years of age, and was capable of
becoming a useful citizen on the basis of his qualifications
and potentials;
(6) While the first made no express mention of the effect of
being born in a foreign country, the second specifically
provided that if the applicant was born in a foreign
country, he should been legally admitted into the
Philippines either as an immigrant or non-immigrant.
Finally, it should be borne in mind that under Presidential
Decree No. 1379, made effective on May 17, 1978, it was no
longer the President who signed Decree granting naturalization
to those recommended by the Special Committee; rather,
Presidential Decree No. 1379 already granted naturalization
to those whose applications were pending with the Committee
as of said date PROVIDED that the Committee found the
applicants possessed of all the qualifications and none of the
disqualifications enunciated in the pertinent LOIs.
PRESIDENTIAL DECREE NO. 1379
GRANTING CITIZENSHIPTO DESERVING ALIENS WHO HAVE

APPLIED FOR.NATURALIZATION AND FOR OTHER PUR
POSES.
WHEREAS, pursuant to Letters of Instructions Nos. 270 and
491 applications for naturalization by decree were received by the
Special Committee on Naturalization created under LOI 270 for
processing and evaluation.
WHEREAS, while a substantial number of applications thus
filed have already been passed upon resulting in the naturalization
of 16,399 alien applicants, there remain 22,439 more applicants
whose applications are still pending consideration;
WHEREAS, on the basis of its performance resulting in the

approval of its recommendations with respect to alien applicants
whose application for naturalization should be granted there is
ground to entrust the approval of the remaining applications for
naturalization to the Special Committee on Naturalization under
the guidelines provided in LOI 270 and 491;
WHEREAS, it is necessary to grant naturalization to such
alien applicants as may be found by the Special Committee on
Naturalization to possess the qualifications and not suffering from
any disqualifications to obviate the need of approving separate
recommendations by the Committee and promulgating the
corresponding decree as has heretofore been done;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President
of the Philippines, by virtue of the powers in me vested by the
Constitution, do hereby provide as follows:
SECTION 1. The Special Committee on Naturalization created
under Letter of Instruction No. 270, as amended by LOI Nos. 283
and 491, shall from time to time determine who of the individuals
of foreign nationality, who have pending applications for
naturalization by decree, possess the qualifications and do not suffer
from any of the disqualifications provided in LOI 270, as amended
by LOI Nos. 283 and 491, until all applications for naturalization
filed with it shall have been disposed of.
SEC. 2. Philippine citizenship is hereby granted to such
individuals of foreign nationality who have pending applications
for naturalization by decree as may be determined by the Special
Committee on Naturalization to have all the qualifications and
none of the disqualifications, as provided in section 1.
Citizenship granted under this Decree shall take effect upon
the applicant taking the oath of allegiance as Philippine citizen
and the issuance to him of the corresponding certificate of
naturalization by the Special Committee. The Commission on
Immigration and Deportation (now the Bureau of Immigration)
shall thereupon cancel his certificate of registration as alien and
issue to him the corresponding identification certificate as citizen.
SEC. 3. If an applicant is granted naturalization but dies
before taking the oath of allegiance as Filipino citizen and the
issuance to him of the certificate of naturalization, his widow, if
residing in the Philippines and found by the Special Committee to
have none of the disqualifications specified in said LOI 270, may
take the oath of allegiance as Filipino citizen, after which the minor
children of said deceased alien and his wife, subject to the provisos
of the next succeeding sections, shall follow the acquired Filipino
citizenship of their mother.
SEC. 4. Alien wives and minor children of persons naturalized
under this Decree shall be deemed Philippine citizens provided
that:
(a) The alien wife shall, in all cases, not suffer from
any of the disqualifications for naturalization under Letter of
Instryption No. 270;
(b) The alien wife and minor children of persons
naturalized under this Decree reside permanently in the
Philippines at the time of his naturalization;
(c) If the alien wife does not reside in the Philippines
at the time of the naturalization of her husband, she shall
come to the Philippines and reside in this country in good
faith within one year from the naturalization of her husband;
(d) If minor children do not reside in the Philippines at
the time of the naturalization of their father they shall, within
one (1) year from the naturalization of their father, in good
faith reside in this country and, if of school age, enroll in
Philippine schools. The fact that any such minor child of school
age fails to graduate from a Philippine school, except for valid
reasons shown, shall be considered prima facie evidence of
failure in good faith to enroll in Philippine schools.
SEC. 5. In case the alien naturalized under this Decree is a
woman, her minor children may elect Philippine citizenship
pursuant to existing law upon reaching the age of majority.
SEC. 6. The Special Committee may cancel certificates of
naturalization issued under this Decree in the following cases:
(a) If it finds that the naturalized persons or his duly
authorized representative made any false statement or
misrepresentation or committed any violation of law, rules
and regulations in connection with the petition for natural
ization, or if he otherwise obtained Philippine citizenship,
fraudulently or illegally, the certificate of naturalization shall
be cancelled;
(b) If the naturalized person or his wife, or any of his
minor children who acquire Filipino citizenship by virtue of
his naturalization shall, within five (5) years next following

the grant of Philippine citizenship, establish permanent
residence in a foreign country, that individual’s certificate of
naturalization or acquired citizenship shall be cancelled or
revoked; provided that the fact of such person’s remaining for
more than one year in his country of origin, or two years in
any other foreign country, shall be considered prima facie
evidence of intent to permanently reside therein;
(c) If the naturalized persons or his wife or child with
acquired citizenship allows himself or herself to be used as a
dummy in violation of any constitutional or legal provision
requiring Philippine citizenship as a condition for the exercise,
use, or enjoyment of a right, franchise, or privilege, the
certificate of naturalization or acquired citizenship shall be
cancelled or revoked;
(d) If the naturalized person or his wife or child with
acquired citizenship commits any act inimical to national
security, the certificate of naturalization or acquired citizenship
shall be cancelled or revoked.
SEC. 7. In case the naturalized person holds any hereditary
title, or belongs to any order of nobility, he shall make an express
renunciation of his title or membership in this order of nobility
before the Special Committee or its duly authorized representative,
and such renunciation shall be included in the records of his
application for citizenship; and
SEC. 8. The Special Committee shall promulgate such rules
and regulations as may be necessary for the effective and expeditious
implementation of the provisions of this Decree.
SEC. 9. Any person who shall fraudulently make, falsify, forge,
change, alter, or cause or aid any person to do the same, or who
shall purposely aid and assist in falsely making, forging, falsiflying,
changing or altering an application for naturalization under LOI
270 and its amendments, or a naturalization certificate issued under
this Decree for the purpose of making use thereof, or in order that
theja m e may be used by another person or persons and any person
who shall purposely aid and assist another in obtaining a
naturalization certificate in violation of this Decree, shall be
punished by a fine of not more than Five Thousand Pesos (P5,000.00)
and by imprisonment for not more than five years, and in case that
the person convicted is a naturalized citizen his certificate of
140 PHILIPPINE CONFLICT OF LAW£i
naturalization shall, if not earlier cancelled by the Special

Committee, be ordered cancelled.
SEC. 10. All laws, decrees and instructions inconsistent with
this decree shall be deemed repealed.
SEC. 11. This Decree shall take effect immediately.
Done in the City of Manila, this 17th day of May in the year
of Our Lord, nineteenth hundred and seventy eight.
ATTRIBUTES OF NATURALIZATION
(a) Citizenship is not a right, it is a privilege. (Ching Leng
v. Galang, L-l 1931, Oct. 27, 1958). Indeed, a highly
regarded privilege requiring full and strict compliance
with legal requisites (Dy v. Rep., L-21958, Sept. 28, 1970).
Thus, to acquire Philippine citizenship by naturalization
is merely a privilege granted to certain aliens under
certain conditions. (Kin v. Republic, L-6894, April 27,
1955).
“The Naturalization Law grants to aliens the
privilege of obtaining Philippine citizenship under certain
conditions; the conditions must be complied with.” (Kin
v. Republic, supra). Said law must, therefore, be strictly
construed against the applicant. (Lim v. Republic, 16
SCRA 25).
Petitions for naturalization involve public interest;
hence, even if objections to a defective petition had not
been raised in the trial court, the higher tribunal may
subject the entire records of the case to scrutiny.
Citizenship thru naturalization must not be easily given
away. (Chua v. Republic, 15 SCRA 170). Naturalization
being a privilege and not a right, the burden is on the
applicant to show clearly that he has complied with every
condition that the law imposes. (Kwan Kwock How v.
Republic, L-18521, Jan. 30, 1964; see also Lee Ng Len v.
Republic, L-20151, March 31, 1965). Thus, for instance,
the government is not estopped by failure to object at the
hearing to presentation of evidence regarding the
character of the applicant. (Rep. v. Barcelona, 58 SCRA
169). Indeed, the state can at all stage of the proceeding
raise the issue of noncompliance w ith the legal

requirements even without filing a formal opposition to
the application. (Tan Teng Hen v. Rep., 58 SCRA 500).
Tan Ching v. Republic

L-33216, June 28, 1983
J. Vicente Abad Santos:

Even if applicant is about to take his oath the state
may still object to his qualifications.
(b) The requisite conditions for naturalization are laid down
by Congress; courts cannot change or modify them.
(Bautista v. Republic, L-3353, Dec. 29, 1950). Strict
compliance with the requirements of the Naturalization
Law is therefore essential for the acquisition of Philippine
citizenship by an alien. (Orestoff v. Gov’t., 71 Phil. 240;
Que Tiac v. Republic, L-20174, Jan. 31, 1972). A judge
must not, therefore, grant naturalization simply because
the applicant happens to be harrassed by certain
employees at the Office of the Solicitor-General (against
whom applicant was a complaining witness in a criminal
complaint) for a naturalization case is not a private contest
between the applicant and the Office of the Solicitor-
General but a matter impressed with the highest public
interest in view of the important consequences that would
follow a grant of naturalization. (Rep. v. Cloribel, L-27281,
June 30, 1970; Sy v. Rep., 55 SCRA 724).
(c) Only foreigners may be naturalized. (Palanca v. Republic,
45 O.G. 204, Sept. 1949). If the petitioner turns out to be
already a Filipino, the petition for naturalization as such
must be turned down. (Yan Tu v. Republic, L-15775, April
29, 1960).
(d) Just as a state may denationalize its own citizens, so
may naturalization be revoked, by the cancellation of the
certificate of naturalization. In this sense, a final
„ judgment for naturalization can never be truly final. (Rep.
v. Co Bon Lee, L-11499, April 29, 1961).
(e) Naturalization demands allegiance to our Constitution,
laws, and government. (Sec. 11, Com. Act No. 473, as
amended).
(f) Naturalization is a proceeding in rem, and therefore

jurisdiction over the entire world is acquired by
publication. (Tan Teng Hen v. Rep., 58 SCRA 500).
QUALIFICATIONS FOR NATURALIZATION

Our Naturalization Law requires the petitioner for natural
ization to have ALL the qualifications and NONE of the
disqualifications referred to therein. (Ly Hong v. Rep., L-14630,
Sept. 30, 1960). In fact, the petitioner himself must take the witness
stand so th&t he may be examined regarding his qualifications. It
is NOT for the “character witnesses” to show that the petitioner
has all the qualifications and none of the disqualifications. (Palaran
v. Republic, L-15047, Jan. 30, 1962). Upon the other hand, it is not
sufficient for the petitioner to undertake this task alone. The sworn
assertions made by him must be supported by the affidavits of at
least two credible witnesses (Ny v. Rep., L-16302, Feb. 28, 1962) as
well as by their sworn TESTIMONY. (Yap v. Republic, L-13944,
March 30, 1962). Parenthetically, the qualifications must be
possessed at the time the petitioner applies for naturalization, not
subsequently. (Pablo Lee v. Republic, L-20148, April 30, 1965). The
testimony of petitioner’s witnesses to the effect that petitioner is
not in anyway disqualified simply “because he possesses all the
qualifications to become a Filipino” does NOT prove affirmatively
that the petitioner does not possess any of the disqualifications. To
possess the qualification is one thing, and it is another not to
possess any of the disqualifications. (Kho Eng Poe v. Republic, L-
17146, June 20, 1962).
The following are the QUALIFICATIONS for naturalization:
(a) The petitioner must not be less than 21 years of age on
the date of the hearing of the petition;
(b) He must have, as a rule, resided in the Philippines for a
continuous period of not less than ten years;
(c) He must be of good moral character, and believe in the
principles underlying the Philippine Constitution, and
must have conducted him self 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;
(d) He must own real estate in the Philippines worth not

less than P5,000, Philippine currency, or must have some
lucrative trade, profession, or lawful occupation;
(e) He must be able to speak and write English or Spanish
and any one of the principal Philippine languages; and
(f) He must have enrolled his minor children of school age
in any of the public schools 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. (Sec. 2, Com. Act
No. 473, as amended).
[NOTE — An alien wife cannot independently of her husband
apply for naturalization for assuming that she would
become a Filipino, she would still be under her husband’s
law, an alien (or non-Filipino), and there would be the
dual citizenship which is not allowed under our laws. (Po
v. Rep. L-30669, July 31, 1970)].
THE FIRST QUALIFICATION — AGE

(a) Minors do not have to file a petition for naturalization;
if their father is naturalized, they generally also become
Filipino citizens. (See Dee v. Republic, L-3683, Jan. 28,
1953).
(b) At the time applicant files a bona fide declaration of
intention to become a Filipino, he does not have to be 21
years of age. The age requirement is as of the date of the
hearing of the petition; not the date of the declaration of
intention, nor even the date of the filing of the petition.
(c) It will be noted that the age of majority in the country
of the petitioner does not matter.
THE? SECOND QUALIFICATION — TEN YEARS RESIDENCE

(a) The residence contemplated is not mere legal residence,
but ACTUAL and SUBSTANTIAL residence in order that
the purpose of the law be obtained:
1) firstly, to enable the government and the community

to observe the conduct of the applicant; and
2) secondly, to ensure his having imbibed sufficiently
the principles and the spirit of our institutions. (Dy
v. Republic, L-4548, Nov. 26, 1952).
(b) The residence requirement is REDUCED to five years in
any of the following cases:
1) If the applicant has honorably held office under the
Government of the Philippines or under that of any
'•* of the provinces, cities, municipalities, or political
subdivisions thereof;
2) If he has established a new industry or introduced
a useful invention in the Philippines;
3) If he is married to a Filipino woman;
4) If he had been engaged as a teacher in a public or
recognized private school not established for the
exclusive instruction of children of persons of a
particular nationality or race in any of the branches
of education or industry for a period of two years;
and
5) If he was born in the Philippines. (Sec. 3, Com. Act
No. 473, as amended).
(c) If the petitioner wants to avail himself of the reduced
period of five years, he has the burden of proving that he
comes under any of the instances enumerated in (b). The
reason is obvious: the shorter period is an exception to
the general rule. (Ng Sin v. Rep., L-7590, Sept. 20, 1955).
(d) Although the residence BOTH for ten years or five years
must be ACTUAL, SUBSTANTIVE, and CONTINUOUS
(and not mere legal residence) still PHYSICAL presence
is not necessarily required for the entire period of
residence required of the petitioner. Not every absence is
fatal to continuous residence. So long as there is an intent
to return (animus revertendi) the residence may still be
considered continuous. The temporary absence must,
however, be of short duration: certainly an absence of
say six years is not of a short duration. (Dargani v.
Republic, G.R. L-11525, Dec. 24, 1959).
THE THIRD QUALIFICATION GOOD MORALS

AND CONDUCTS AND BELIEF IN THE PRINCIPLES
UNDERLYING THE PHILIPPINE CONSTITUTION
(a) Regarding good morals, there is NO NECESSITY for a
criminal conviction for a crime involving moral turpitude.
True such a conviction is required to show a
DISQUALIFICATION, but lack of a conviction does not
necessarily mean that the petitioner is of good moral
character. (See Tio Tek Chay v. Republic, L-19112, Oct.
30, 1964). One who GAMBLES in violation of Arts. 195-
199 of the Revised Penal Code (as repealed and modified
by Presidential Decrees Nos. 449, 483, and 1602, as
amended by Letter o f Instructions No. 816), even if for
some reason or another he is not criminally convicted, is
a person who lacks good moral character, and is, therefore,
lacking in one of the necessary qualifications. (Ly Hong
v. Republic, L-14630, Sept. 30, 1960). But a mere violation
of a municipal ordinance against the playing of “mahjong”
is a minor moral transgression involving no moral
turpitude or wilful criminality, and the petitioner
therefore is not by that fact alone disqualified. (Chiong
v. Republic, L-10976, April 16, 1958). Upon the other
hand, the use of a meter stick without the seal of the
Internal Revenue Office, involves moral turpitude because
it manifests an evil intent on the part of the applicant to
defraud purchasers. (AO Un v. Republic, No. L-18506,
Jan. 30, 1964). Query: If because of certain specified acts,
a petition is denied because of lack of irreproachable
conduct, is there a chance that the alien can later on be
granted naturalization upon proof of having reformed?
YES, provided that a sufficient number of years has
elapsed. A second petition filed less than a year after the
denial of the first application would not comply with the
number of years required. (Sy Chut v. Republic, L-17960,
Sept. 30, 1964). But if for a reasonable number of years
after the denial of one’s application, the petitioner proves
in the requisite proceeding to have reformed and has
« observed irreproachable conduct, the bar may be lifted.
(Sy Chut v. Republic, L-17960, Sept. 30, 1964).
(b) What constitutes “proper and irreproachable conduct”
must be determined, not by the law of the country of
which the petitioner is a citizen (China, for sometime,
allowed polygamy) but by the standard of morality

prevalent in this country, and this in turn, by the religious
beliefs and social concepts existing here. (Yu Singco v.
Republic, 50 O.G. 104). In the case of Chua Pun v. Rep.,
(L-16825, Dec. 22, 1961), the Supreme Court, through
Mr. Justice J.B.L. Reyes, had occasion to point out that
“morally irreproachable conduct” imposes a HIGHER
standard of morality than “good moral character.” Hence,
merely being “very good” or a “law-abiding citizen” will
not be enough for naturalization purposes. In the case of
r*Ly Lam Go v. Republic, L-15858, July 31, 1962, the Court
speaking through Mr. Justice Sabino Padilla, said that
evidence of irreproachable conduct may be proved by
competent evidence other than the testimony of the two
vouching witnesses. Evidence, for example that no
derogatory policy and court record exists against him
would corroborate the testimony of the applicant as
regards his proper and irreproachable conduct. (See Mo
Yuen Tsi v. Republic, L-17137, June 29, 1962).
If the petition does not allege that the petitioner is
of good moral character and that he is not suffering from
any mental alienation, it (the petition) contains a serious
infirmity which cannot be disregarded. (Yao Mun Teck v.
Republic, 37 SCRA 55; Lim Biak Chiao v. Republic, 55
SCRA 8; Sy v. Republic, 55 SCRA 724). The infirmity is
jurisdictional. (Republic v. Barcelona, 58 SCRA 698).
(c) Examples of improper conduct are the following:
1) Illicit and open cohabitation with a woman other
than one’s own wife (Yu Lo v. Rep., 48 O.G. 4334),
even if later on petitioner marries the mother of his
13 children six months before applying for
naturalization. (Sy Kian v. Republic, 54 O.G. 3902).
However, in one case, the Supreme Court, while
dismissing the petition of an alien who married his
common — law wife during the pendency of petition,
nonetheless made the dismissal, “without prejudice
to the filing of another petition for naturalization.”
(Sy Tian Lai v. Rep., L-5867, April 29, 1945).
2) Failure to register oneself as an alien even if he
erroneously believed himself to be already a Filipino.
(Cu v. Republic, L-16073, March 27, 1961).
3) Failure to file an income tax return. (Co v. Rep., L-

12150, May 26, 1960; Justino O. Cu alias Justo Dee
v. Rep., L-1334, July 21, 1962), as well as deliberate
and fraudulent non-payment of income tax. (Yao v.
Rep., L-5074, March 3,1953). If the tax return shows
a lower income than the true one, naturalization
will be denied. (Lim Siong v. Rep., 56 O.G. 5041).
Misrepresenting oneself to be married, just to be
able to obtain an income tax deduction will also
result in the denial of the petition. (Deetuanka v.
Rep., L-12981, Jan. 29, 1960).
4) Suppression of a material fact in the petition, a fact
which, if revealed, would result in the denial of the
application. (Dy Chan Tiao v. Rep., L-6430, Aug.
31, 1954).
5) Desertion of a common-law wife and children simply
to be able to marry another. (Yu Singco v. Rep., L-
6162, Dec. 29, 1954).
6) Engaging in the retail business in violation of the
Retail Trade Nationalization Law. (Ong v. Rep., L-
14625, Oct. 24, 1960).
7) Frequenting of gambling dens and playing prohibited
games, even if the applicant has not been convicted
of this crime against public morals. (Sy Hong v.
Rep., L-14630, Sept. 30, 1960).
8) Signing of his name as Robert Dee Koa Gui in his
Marriage Certificate although his name is only Koa
Gui in the Alien Certificate of Registration and in
the Immigrant Certificate of Residence (Koa Gui v.
Republic, L-13717, July 31, 1962). (In this case, he
explained that he used the additional name “Robert
Dee” because this was the Christian name given
him when he was BAPTIZED preparatory to his
canonical marriage. He also explained that he had
never used said additional name in his social or
business dealings. This explanation was NOT
considered satisfactory by the Court, which held that
the use of the additional Chinese name “Dee” was
likely to confuse his identity as a contracting party
to the marriage. The Court said further that in this
country, marriage is a sacred institution that

requires full and accurate disclosure of the identity
of the contracting parties). The use of an alias
without proof that the same is an authorized
exception under the Anti-Alias Law, does not speak
well of petitioner’s moral norms. (Hiok v. Rep., L-
17118, Nov. 17, 1964). Besides, the use of various
names makes impossible the full identification of
the petitioner in the necessary notices, thereby
preventing possible oppositors from setting up valid
objections to the naturalization. (Andres Ong Khan
v. Republic, L-19709, Sept. 30, 1964). Upon the other
hand, when the petitioner described himself in his
petition as “Ong Bon Kok alias Uy Sae Tin,” this
does not necessarily mean that he used this alias. It
merely indicates that Ong Bon Kok is the same
person formerly known as Uy Sae Tin. This alias
appears in his declaration of intention and petition
for naturalization because the law requires it and
because failure to comply with said requirement
would have been a ground for the denial of said
petition. In other words, if the records do not show
that in his activities he really used such an alias,
and if the government has no proof on this matter,
the petition ought to be granted. (See Ong Kok v.
Republic, L-19583, Sept. 30, 1964).
9) An attempt to circumvent the Constitution by
purchasing a parcel of land thru his mother-in-law,
a Filipino citizen. (Fong v. Republic, L-15991, May
30, 1961).
10) Membership in “Hiat Kan Luan,” the most active
Chinese guerilla unit affiliated with the Chinese
Communist Party is a ground for denial of
naturalization for the applicant would then be a
communist suspect. (Qua v. Rep., L-16975, May 30,
1964).
11) Pleading guilty to a violation of the Price Tag Law
simply to avoid troublesome court proceedings
betrays a lack of faith in the administration of justice
in this country. (Chai v. Rep., L-19112, Oct. 30,
1964).
12) Conniving with another businessman to agree on a

common price at which to offer for lumber being
requisitioned by a city so that the two conspirators
can get the higher price and thus be able to split
the difference. (Ong Giok Tin v. Republic, L-18212,
Dec. 8, 1964).
13) Discrepancy in stating his gross income in the
income tax return and in the statement needed for
the issuance of Residence Tax B (now Community
Tax Certificate). (Harry Ong Ping Seng v. Republic,
L-19575, February 26, 1965).
14) Offering P500 to a municipal mayor for the repeal
of a certain municipal ordinance. (Watt v. Rep., L-
20718, Aug. 30, 1972).
15) Falsely stating that he had never previously filed
any petition for naturalization. (Ang To v. Rep., L-
26952, Aug. 30, 1972).
16) Conducting a business without a renewal of the
required permit. (Yoy On v. Republic, 38 SCRA 486).
(d) Examples of conduct that will NOT PREVENT natural
ization:
1) Justifiable discrepancy in the use of petitioner’s
surname. (Cheng v. Rep., L-12791, Feb. 23, 1960).
2) Failure to present alien certificate of registration of
his wife and minor children, so long as they were
really registered. The Court held here that
compliance with the law of the country need not be
enumerated as in a bill of particulars. (Lim v. Rep.,
57 O.G. 1032).
3) Running a properly licensed cabaret, for such
conduct is not necessarily immoral, otherwise the
government would not have allowed the cabaret to
exist. (Sy Chiuco v. Rep., L-7545, Oct. 25, 1955).
4) Formerly, the use of unauthorized aliases, when
03 after all no prejudice has been caused other people,
inasmuch as in such a case, this would be a minor
transgression. (Hao Bing Chiong v. Rep., L-13526,
Nov. 24, 1956). But later, the court ruled in many,
many cases that the use of other names or aliases
deliberately by him, without prior judicial approval

is unlawful, and reflects the absence of a good moral
character. (Uni Bun v. Rep., L-12822, April 26, 1961;
Yap v. Rep., L-26820, July 31, 1970, Chua Bong
Chiong v. Rep., L-29200, May 31, 1971; Watt v. Rep.
and other cases, Aug. 30, 1972).
(e) Belief in the principles underlying the Constitution:
1) The law requires a belief in said principles, not the
ability to enumerate them expressly (Lim v. Rep.,
s 57 O.G. 1032). Thus, even if petitioner testifies that
he knows them, and even names some of said
principles, knowledge is not equivalent to belief. One
thing is to know and another, to believe in what one
knows. Thus, evidence of knowledge is no evidence
of belief. (See Qua v. Republic, L-16975, May 30,
1964). An ability to recite the preamble of the
Philippine Constitution and to sing our National
Anthem in the national language would, of course,
be desirable.
2) A belief in the principle embodied in Philippine laws
does NOT necessarily mean a belief in the principles
of the Philippine Constitution, for according to the
unduly strict interpretation by the Court here, the
scope o f law in ordinary parlance does not
necessarily include the Constitution. (Co v. Rep., L-
12150, May 26, 1960). The omission in the petition
of the assertion by the petitioner of the assertion by
the petitioner that he believes in the principles of
the Philippine Constitution “is NOT cured by a mere
statement at the hearing of the petitioner’s belief in
the IDEALS of the Filipino people. (Ching v.
Republic, L-15955, Oct. 26, 1961).
3) Failure to state the customs, traditions, and ideals
of the Filipinos which the applicant desires to
embrace is not a fatal defect, for his knowledge of
these things can be presumed if he has studied in
high school. (Pang Kok Hua v. Rep., L-5047, May 8,
1952).
4) The possibility that the applicant expects to receive
certain benefits from naturalization should not
prevent approval of the petition: the expectation is
natural, for if he does not have such expectation, he

will not even apply for naturalization. (Co. v. Rep.,
56 O.G. 3036). BUT if the applicant declares that
he is NOT willing to embrace Philippine citizenship
if he would not be allowed to acquire real estate
and engage in retail business, the sincerity of the
petitioner in becoming a citizen is put in serious
doubt by this declaration, and, therefore, the petition
should be denied. The Naturalization Law, according
to the Court must be rigidly enforced and strictly
construed in favor of the government and against
the applicant. (Chan Chen v. Rep., L-13370, Oct. 31,
1960).
THE FOURTH QUALIFICATION — REAL

ESTATE OR OCCUPATION
(a) In the absence of credible proof regarding allegations of
property ownership, the Court will be constrained to
conclude that petitioner has not met the requirement of
ownership of property. One good proof is the certificate
of assessment or a declaration of real estate property
ownership. (Justino O. Cu alias Justo Dee v. Republic, L-
13341, July 31, 1962). However, the requirement as to
the ownership of real estate in the Philippines OR the
possession of some lucrative trade, profession, or lawful
occupation is in the ALTERNATIVE. This has to be so in
the face of the constitutional prohibition in general against
landholdings by aliens. (Krivenko v. Reg. o f Deeds, 79
Phil. 461). In our country, aliens may hold land if
ownership thereof had been acquired prior to the adoption
of the Constitution (Art. XIII, Sec. 1, 1935 Constitution)
or if he purchased land after the effectivity of the
Constitution by virtue of the exercise of the right of
repurchase which had already been vested in him even
prior to the adoption of said Constitution. In the case of
Vasquez v. Li Seng Giap, 51 O.G. 717, however, it would
seem that the Court held that if an alien after the
adoption of the Constitution, unlawfully acquired land,
"* the acquisition can be considered valid and effective so
long as the alien later on becomes a naturalized Filipino
citizen. The Court in this case held that inasmuch as the
purpose of the Constitution “is to preserve the nation’s
land for future generations of Filipinos, the aim or
purpose would not be thwarted but achieved by making

lawful the acquisition of real estate by aliens who become
Filipino citizens by naturalization.” In the case of King
v. Republic, L-2687, May 23, 1951, the Court stated the
rule that as long as the alien already owns the land, the
requirement in the law is satisfied even if at the time of
the filing of the petition, the certificate of title has not
yet been issued in his name.
(b) In the absence of real estate worth P5,000, the alien may
^present evidence that he has some “known lucrative trade,
profession, or lawful occupation.” While apparently the
word “lucrative” modifies only “trade,” it has been held
to also apply to “profession” and ‘lawful occupation”; thus,
while to be a “student” is a “lawful occupation”; still it is
not by itself a “lucrative” one, and therefore comes short
of the legal requirement. (Lim v. Republic, L-3920, Nov.
20, 1951). The term “lucrative” implies substantial or
gainful employment, or the obtaining of tangible receipts.
(Lim v. Republic, supra). In Felix Tan v. Republlic, L-
19580, April 30, 1965, the Court stated that for lucrative
employment to be present there must be an appreciable
margin of income over expenses in order to provide for
adequate support in the event of unemployment, sickness,
or disability to work. The object is to forestall one’s
becoming an object of charity. (See also Watt v. Republilc,
46 SCAD 683; Ong v. Rep., 57 SCAD 684). The financial
capability of a petitioner for naturalization must be
determined as of the time of the filing of the application.
(Yu v. Republic, 52 O.G. 6511). The following have been
held NOT sufficiently lucrative:
1) an annual thcome of P8,687.50 when the petitioner
has no real estate and has a wife and five children
to support. (Keng Giok v. Rep., L-13347, Aug. 31,
1961). In this case, the applicant was the manager
of a jewelry store, and his salary appeared to be
declining every year.
2) a monthly salary of P150.00, received by the
petitioner as a salesman in his father’s grocery store.
(Que Choc Cui v. Rep., L-16184, Sept. 30, 1961).
[NOTE:The fact that the petitioner’s father is
his employer, and that he still lives with him makes
doubtful the truth of his employment, and gives

rise to the suspicion that he was employed by his
father only for the purpose of the petition. (Justino
O. Cu v. Republic, L-13341, July 21, 1962).]
3) A yearly income of PI,000 when the petitioner has
a wife and 12 children to support (Hao Su Siong,
etc. v. Republic, L-13045, July 30, 1962), or even
P5,000. This is so notwithstanding the fact that the
petitioner may have NO children. (Kao Gui v.
Republic, L-13717, July 31, 1962).
4) An annual income of P4,200 for a married applicant
with three children. This is so even if the wife herself
receives income from her coconut lands because the
petitioner, not his wife, is the applicant. (Uy v. Rep.,
L-19578, Oct. 27, 1964).
5) An annual income of P5,234 in 1961, and P8,067 in
1962, petitioner having a wife and 5 children to
support, it being immaterial that his income
increases every year. (Yap Bun Pin v. Republic,
L-19577, Oct. 30, 1964).
6) An annual income of PI,800 as a purchasing agent
even if petitioner is unmarried and without a family,
and even if occasionally, he receives substantial
commissions as an insurance underwriter, because
such income may be considered speculative in
character. (Felipe Tochip v. Republic, L-19637, Feb.
26, 1965). Bonuses must not be considered part of
the income because they are speculative. (Ong v.
Republic, L-19418).
7) An annual income of P4,800 for a married man,
even if allowances and bonuses are periodically given
to him because said additional amounts, given in
case of profit, are purely contingent, accidental, or
incidental. (Yu Kian Chie v. Rep., L-20169, Feb. 26,
1965).
8) An annual income of P8,000 proved by evidence
introduced in court when the income alleged in the
petition is only PI,800 per annum. This is because
qualifications are determined as o f the date of the
filing of the petition. Here the increased income
subsequent to the filing was due to additional

earnings produced by property inherited subsequent
to the filing. (Watt v. Rep., L-20718, Aug. 30, 1972).
9) An annual income of P8,168.91 where an applicant
has a wife and five children, ranging in age from 10
years to 5 months. (Felix Ong v. Republic, L-34995,
June 28, 1974).
10) An annual income of P6,500.00 (in 1961) when the
petitioner had 10 children, 5 of whom were still
* dependent upon him for support. Such income is
not adequate to enable him and the members of his
big family “to live with reasonable comfort, in
accordance with the demands of human dignity at
this stage of civilization.” (Chua Kian Lai v. Rep.,
L-37443, Sept. 11, 1974, 59 SCRA 40).
11) The mere fact that the applicant is an assistant
manager and paymaster in a business owned and
controlled by his brother does not necessarily make
him possessed of a lucrative income. (Lee Ong v.
Republic, 37 SCRA 169).
Upon the other hand, the following have been held to
satisfy the statutory requirement:
1) A monthly salary of P250.00 of an unmarried and
childless applicant. (Rep. v. Lim, L-3030, Jan. 31,
1951).
2) A monthly salary of P80.00, with free board and
lodging, of an unmarried, childless, and working
student. (Lim v. Rep., 49 O.G. 122).
•V#
So long as the income is sufficiently lucrative, it is not

important that the petitioner should be the registered owner
of the business from which he derives his income. The business
may be registered in the name of his Filipino wife. This is
conduct worthy of emulation because “it shows esteem of
family, and this in turn, is an indication that he is a moral
and law-abiding citizen.” (Ong Sang v. Rep., L-4609, Oct. 30,
1952). It is understood of course that his wife should not be
used as a mere dummy to cover up illegal business.
A “lucrative income” has been defined as “a gainful
employment.” It is not only that the person having the
employment gets enough for his ordinary necessities in life. It

must be shown that the employment gives one an income
such that there is an appreciable margin of his income over
his expenses as to be able to provide for an adequate support
in the event of unemployment,, sickness, or disability to work
and thus avoid one’s becoming the object of charity or a public
charge.” [See Lim Biak Chiao v. Republic, (L-28541, Jan. 14,
1974) citing Swee Din Tan v. Republic, 109 Phil. 287 (I960).]
Tan Ching v. Republic

L-35216, June 28, 1983
Justice Vicente Abad Santos:

If the applicant does not present his income tax
returns because the fiscal does not ask for them, the
applicant cannot be blamed.
FIFTH QUALIFICATION — LANGUAGE REQUISITES

(a) The law says that the petitioner must “be able to speaks
and write English or Spanish and any one of the principal
Philippine languages.” (Sec. 2, Naturalization Law).
(b) A deaf-mute cannot speak, therefore, he cannot be
naturalized. (Orestoff v. Government, 40 O.G. 37, 13th
Supp.). The ability to write may be inferred from the
ability to speak in business and society. (De Sero v. Rep.,
53 O.G. 3425). If the applicant can understand, but cannot
speak and write the requisite languages, he is not
qualified. (Te Chao Ling v. Rep., L-7346, Nov. 25, 1955).
The finding by the trial court that the petitioner does not
speak, read, and write Tagalog (the dialect or language
he claims to know) must be given weight and value unless
its finding is clearly erroneous. (Lao Teck Sing v. Republic,
L-14735, July 31, 1962). Upon the other hand, faultless,
fluent, and idiomatic language is not essential; it is
sufficient that in the petitioner’s association with Filipinos
in daily life he can understand them. (Zuellig v. Rep., 83
Phil. 768). This is particularly so if he was able to get
along with his guerrilla comrades during the hazardous
resistance movement during the Japanese occupation
(Kookooritchkin v. Sol. Gen., 81 Phil. 435). However, if
the applicant when asked to write the words “Good
morning sir, how are you?” wrote the following “Good
morning sir, who ras you?” petitioner committed two

mistakes, showing that he cannot write in the English
language in a sufficient and intelligent manner which
would warrant the conclusion that he possesses a working
knowledge thereof. (Lim Bun v. Rep., L-12822, April 26,
1961).
c) The law does not require a speaking and writing
knowledge of BOTH English and Spanish, for the law
says “OR” with reference to these two. The legal
requirement regarding the alternative knowledge of
English has NOT been abrogated with the adoption of
Tagalog as an official language of this country, for after
all Tagalog or Pilipino has not been declared the exclusive
official language. (Bautista v. Rep., 87 Phil. 818).
(d) The law, in addition to English OR Spanish requires
“any one of the principal Philippine languages.” Any
dialect spoken by a substantial portion of the population
of the country comes under the category of “principal
Philippine languages.” To this class, among others, belong
TAUSIG, which is the Moro dialect in the province of
Sulu; CHAVACANO, spoken in Cavite and Zamboanga.
(Wu Siock Boon v. Republic, 49 O.G. 489); and
HILIGAYNON. (Yap v. Solicitor-General, 81 Phil. 486).
The ability to speak and write any of the principal
Philippine languages may be inferred from the lengthy
residence in a city where the petitioner has been doing
business. (Ong Ho Ping v. Rep., L-9712, April 27, 1957)
or from his birth and residence all his life in the
Philippines (Leelin v. Rep., 84 Phil. 352) or even from a
technical and fluent command of English. (Kookooritchkin
v. Sol. Gen., 81 Phil. 455). However, if there is nothing
in the record to wlkrrant the presumption of knowledge
of native dialect, and if no question in any dialect was
even propounded to him in order to demonstrate his
knowledge thereof, the Court cannot just simply presume
such speaking and writing ability. (Lorenzo Go v.
Republic, L-20019, Feb. 26, 1965).
SIXTH QUALIFICATION — ENROLLMENT OF MINOR

CHILDREN OF SCHOOL AGE
(a) The reason for this provision is for the children of the
applicant (prospective Filipino citizens themselves) to
«
learn and imbibe the customs, traditions, and ideals of

Filipinos: this is preparatory to a life of responsible and
law abiding citizenship. (Dee v. Rep., L-3683, Jan. 28,
1953). Since under the law, naturalization generally gives
the wife and minor children of the petitioner Philippine
citizenship, it is necessary that the petitioner prove the
filiation of his alleged children. (Yu Kay Guan v. Rep., L-
12628, July 28, 1960).
(b) Compliance with this provision must be competently and
affirmatively shown, otherwise the application will have
to be denied. (Chan Su Hok v. Rep., L-3470, Nov. 27,
1951). The educational requirement cannot be exacted
from those whose children are not of school age. (Yu Kay
Oh v. Rep., L-10084, Dec. 19, 1957. See also Que Tiac v.
Republic, 43 SCRA 56). Enrollment of the minor children
of school age in the designated schools is sufficient; their
completion of primary and secondary education is not
demanded under this provision. (Yrostorza v. Rep., 83
Phil. 727). Enrollment in an exclusive Chinese school
does hot satisfy the law. (Chua Pieng v. Rep., 48 O.G.
4349. See also Rep. v. Barcelona, 58 SCRA 698), unless
of course the Government recognizes it and Philippine
history, government, and civics are taught therein or are
prescribed as part of the curriculum. (Uy Yu v. Rep., L-
5592, Dec. 21, 1953). Failure to identify the school
concerned is fatal to the application for naturalization.
(Po v. Republic, 40 SCRA 37; Sy Chuang v. Rep., 40
SCRA 411).
(c) All the children concerned should have been enrolled;
this is completely mandatory. Failure to enroll even one
of them will result in a denial of the petition even if:
1) he happens to be out of the Philippines and he could
not be brought to the Philippines because of
insufficient finances. (Tan Hi v. Rep., L-3354, Jan.
25, 1951). If, of course, it is physically impossible to
bring back the child to the Philippines, this would
be a justifiable excuse. (Hao Lian Chu and Haw
Pusoy v. Rep., L-3265, 48 O.G. 1780). However, the
mere outbreak of the Civil War in China is not an
adequate ground. (Koe Sengkee v. Rep., L-3863, Dec.
27, 1951).
2) the absent child was bom and grew up in China

and is already married (Dy Chan Tiao v. Rep., L-
6430, Aug. 31, 1954), or has already reached the
age of majority. (Quing Ku Chay v. Rep., L-3265,
Dec. 27, 1951).
3) the child died before or during the pendency of the
proceedings. (Chua Pieng v. Rep., 48 O.G. 4349).
4) and finally, even if the child is adopted by a Filipino
(Tan Hoi v. Rep., L-15266, Sept. 30, 1960) since
,* after all said adopted child by virtue of the adoption
does NOT become a Filipino (Ching Leng v. Galang,
L-11931, Oct. 27,1958) but remains a Chinese child,
one who stands to become a Filipino himself should
his father by nature be granted naturalization. (Tan
Hoi v. Rep., supra). However, if the child of the
petitioner resided in a place where there is no school
for a deaf and mute children, failure to enroll said
child may be considered justified. (Garchitorena, etc.
v. Rep., L-15102, April 20, 1961).
(d) The denial of the first petition for naturalization by
reasons of applicant’s failure to bring to the Philippines
his child of school age is a bar to the grant of a subsequent
petition even if at the time the new petition is presented,
the child is no longer of school age. (Yap Chun v. Rep.,
L-l 8516, Jan. 30, 1964).
DISQUALIFICATIONS FOR NATURALIZATION

Sec. 4. Naturalization Law. The following cannot be naturalized
as Philippine citizens:
(a) Persons opposed**to organized government or affiliated
with any association or group of persons who uphold and
teach doctrines opposing all organized governments;
(b) Persons defending or teaching the propriety of violence,
personal assault, or assassination for the success and
predominance of their ideas;
(c) Polygamists or believers in the practice of polygamy;
(d) Persons convicted of a crime involving moral turpitude;
(e) Persons suffering from mental alienation or incurable
contagious diseases;
(f) 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;
(g) Citizens or subjects of nations with whom the United
States and the Philippines are at war; and
(h) 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 subject thereof.
COMMENT:
(a) The burden of proof as to qualifications is on the applicant;
the; burden of proceeding with respect to the
disqualifications is ordinarily on the state. The state is
not, however, bound by what are contained in the
pleadings relating to qualifications and disqualifications.
(Yap Chin v. Rep., L-4177, June 29, 1952). However, in
Singh v. Rep., 51 O.G. 5172, the Court held that a
petitioner must establish by proof that he has NONE of
the disqualifications. This ruling was reiterated in Ly
Hong v. Rep., L-14630, Sept. 30, 1960. The reason,
according to the Court is that the Naturalization Law
should be strictly construed, and doubts resolved, against
the applicant. As a matter of fact, even without any
objection on the part of the Government (Solicitor-
General’s Office), the Court may motu proprio (on its
own accord) DENY the application if the evidence fails to
prove that all the requirements have been met. (Pe v.
Republic, L-16980, Nov. 29, 1961; Hao Su Siong, etc. v.
Republic, L-13045, July 30, 1962).
(b) Re Par. (c) —Mere belief in polygamy without practising
it is enough to disqualify. “Polygamy” is the marriage of
one man to several wives at the same time or vice-versa.
(<Q Re Par. (d) —Moral turpitude is that which shows in a
person the presence of injustice, dishonesty, immodesty,
or immorality. (An act o f moral turpitude is one of
business, vileness, or depravity in the private and social
duties which a man owes his fellowmen, to society in
general, contrary to the accepted and customary rule of
right and duty between man and woman or conduct

contrary to justice, honesty, modesty, or good morals. It
implies something immoral in itself, regardless of the
fact that it is punishable by law or not. It must not
merely be mala prohibita, but the act itself must be
inherently immoral. The doing of the act itself, and not
its prohibition by statute fixes the moral turpitude. [Zari
v. Flores, 94 SCRA 317]). Crimes involving moral
turpitude include estafa (Villasanta v. Peralta, 54 O.G.
954), concubinage (In re Isada, 60 Phil. 915), and
profiteering. (Tak Ng v. Rep., L-13017, Dec. 23, 1959)\
but not “speeding” (Daniel Ng Teng Lin v. Rep., L-10214,
April 28, 1958) nor the playing of “mahjong” during the
prohibited hours. (Chiong v. Rep., L-10976, April 16,
1958).
(d) Re Par. (e) — The disease must be BOTH incurable and
contagious to constitute a disqualification.
(e) Re Par. (f) — This may be rebutted by a complete (from
grade school to college) education in the proper Philippine
schools. (Joaquin Yap v. Rep., L-11178, April 23, 1958).
The law requires, however, that an applicant should
“mingle socially” with Filipinos as a fact, and is not
content with personal beliefs to that effect. The burden
laid on an applicant to affirmatively show that he
maintains social relations with the Filipinos be shown by
concrete instances (with dates, places, names). The law
demands that the “social mingling” takes place during
the ENTIRE period of residence in the Philippines in
order to preclude any temporary sporadic social
intercourse set up only for naturalization purposes.
Receipts for contributions to charitable organizations will
not suffice for these contributions may have been made
without any significant social intercourse to mingle
socially, an applicant must deal with and receive Filipinos
in his home, and visit Filipino homes in a spirit of
friendliness and equality without discrimination. (Chua
v. Rep., L-19775, Sept. 29, 1964) Enrollment of the
children at a Chinese school, even if it is recognized by
the Government, argues against the alleged sincere desire
of the petitioner to embrace Filipino customs and
traditions, as well as to mingle socially with the Filipinos,
for he could have enrolled his children in a school owned
or run by Filipino citizens. In the Chinese school referred

to, most of the students are Chinese or foreigners, with
the Filipinos forming the minority. (Uy Ching Ho v.
Republic, L-19582, March 26, 1965).
(f) Re Par. (h) — The petitioner must prove that his country
allows the naturalization of Filipino citizens. (Singh v.
Rep., 51 O.G. 5172). Among the countries already shown
to grant reciprocal naturalization rights to Filipinos are
the United States by Pub. Act No. 483 of the 79th U.S.
Congress. (Pritchard v. Rep., 81 Phil. 244), Nationalist
China (Taiwan) (Yap v. Sol. Gen., 85 Phil. 217), and
Spain (Delgado v. Rep., L-2564, Jan. 28, 1950). Formerly,
it was not necessary for petitioner to show that the laws
of Nationalist China allow Filipinos to be citizens of that
country, it being sufficient that he submits proof of
Chinese citizenship. The reason then given by our Court
is that in a number of decisions, it has been found that
indeed Filipinos may be naturalized in Nationalist China.
(Cu v. Republic, 51 O.G. 5625; Ng Liam Keng v. Rep., L-
14146, April 29, 1961). HOWEVER, the Court reversed
this dictum on the ground that laws may be repealed at
anytime, and the applicant must, therefore, fully establish
that his nation grants reciprocal rights to our citizens at
the time his application is heard. The burden of proof is
on petitioner. (Chua v. Republic, L-19775, Sept. 29, 1964).
Upon the other hand, the applicant does not have to
obtain permission from his country to renounce his
original citizenship or nationality. It is enough that our
rules are complied with; to seek compliance with the
rules of other countries would be in a case such as this
“a brazen encroachment upon the sovereign will and
power of the people of this Republic.” (Pardo v. Rep., 86
Phil. 340). In the case of stateless individuals, they may
be naturalized without proving that their original country
grants reciprocal rights to Filipinos on this matter.
(Kookooritchkin v. Rep., 81 Phil. 435; Bermont v. Rep., L-
3323, July 18, 1951).
STEPS IN NATURALIZATION PROCEEDINGS

(a) A declaration of intention to become a Filipino citizen
must first be filed, unless the applicant is exempted from
this requirement. (Secs. 5 and 6, Com. Act No. 473).
(b) The petition for naturalization must then be filed. (Sec.

8, Com. Act No. 473).
(c) After publication in the Official Gazette, the petition will
be heard. (Sec. 9, Com. Act No. 473, as amended).
(d) If the petition is approved, there will be a rehearing two
years after the promulgation of the judgment awarding
naturalization. (Sec. 1, Rep., Act No. 530).
(e) The last step will be the taking of the oath of allegiance
to support and defend the Constitution and the laws of
the Philippines. (Sec. 11, Com. Act No. 473, as amended.)
THE DECLARATION OF INTENTION

(a) The Codal Provision
“One year prior to the filing of his petition for the
admission to Philippine citizenship, the applicant for
Philippine citizenship shall file with the Office o f the
Solicitor-General a declaration under oath that it is his
bona fide intention to become a citizen of the Philippines.”
(Sec. 5, Naturalization Law).
(b) Mandatory Character
Unless the applicant is exempted by law, the filing
of this intention is mandatory, and failure would be fatal.
(Chua Pieng v. Republic, L-4032, Oct. 25, 1952; Ong Khan
v. Rep., L-4866, Oct. 28, 1960). A filing fee is paid
simultaneously with the filing of the declaration as
provided for in a regulation issued by the Secretary of
Justice.
Even if the declaration is filed one year prior to the
filing of the petition for naturalization, still if the filing
fee for such declaration is paid later, say, 51/2 months
prior to the petition for naturalization, the filing of the
declaration produces NO legal effect (Lee v. Republic, L-
15027, Jan. 31, 1964, where the Court applied a pari
materia ruling in Lazaro v. Endencia, 57 Phil. 552).
(c) Reasons for the Provision
The period of one year is intended to give the state
a reasonable time to screen and study the qualifications
of the applicant. (Chua v. Rep., L-4112, Aug. 28, 1952);
secondly, it is a means by which good intention and

sincerity of purpose may be gauged. (Kiat v. Rep., L-
4802, April 29, 1953)
(d) Contents o f the Declaration
Aside from the bona fide intention to become a
Filipino, the declarant must also set forth his name and
personal circumstances, and that “he has enrolled his
minor children if any, in any of the public schools or
private schools recognized by the Bureau of Private
Schools of the Philippines (now the Department of
Education, Culture and Sports), where Philippine history,
civics, and government are taught or prescribed as part
of school curriculum, during the entire period of residency
in the Philippines required of him prior to the hearing of
his petition for naturalization as Philippine citizen. Each
declarant must furnish two photographs of himself. (See
Sec. 5, Naturalization Law).
(e) Persons Exempt from the Requirement to Make a
Declaration o f Intention:
1) Persons born in the Philippines and who have
received their primary and secondary in public
schools or private schools recognized by the
Government, and not limited to any race or
nationality;
2) Those who have resided continuously in the
Philippines for a period of thirty years or more before
filing their application; and
3) The widow and minor children of an alien who has
declared his intention to become a citizen of the
Philippines and dies before he is actually
naturalized.
NOTE: In the cases abovementioned, it is also
necessary that the applicant has given primary and
secondary education to ALL his children in the public
schools or in private schools recognized by the government
o and not limited to any race or nationality. (Sec. 6,
Naturalization Law). See also Tan Ten Koc v. Republic,
No. L-18344, Feb. 28, 1964 where the Court ruled that a
petitioner whose children stopped schooling merely
because of marriage and illness, is NOT exempt from
filing the declaration of intention if he is not able to

present satisfactory proof that said marriage and illness
made it ABSOLUTELY necessary for the children to stop
going to school. In this case, the petitioner, despite his
30-year residence was NOT granted the benefit of the
exemption.
(f) Strict Interpretation o f the Exemptions:
1) Regarding number (1) in the preceding number,
aside from birth in the Philippines, the applicant
who wishes exemption from the declaration of
intention must have COMPLETED his secondary
course. This is the interpretation given by the Court
to the phrase “received their primary and secondary
education.” (Pidelo v. Rep., L-7796, Sept. 29, 1955).
Thus, finishing a part of the fourth year course in
high school is not enough (Dy v. Rep., 49 O.G. 939)
unless at the time of the filing and hearing of the
petition, he is still enrolled in said fourth year, in
which case, the law does not demand an
impossibility. (King v. Rep., L-3264, Nov. 29, 1950).
In the King case, the Court ruled that substantial
com pliance was sufficient, considering the
circumstances of the case; in Uy Boco v. Rep., 85
Phil. 320, the Court held that, in general, there
should be a strict, not a mere substantial compliance
with the law. In Lee Ng Len v. Republic (L-20151,
March 31, 1965), the Supreme Court stressed that
the burden lies on the applicant to satisfactorily
show that all schools attended by him are NOT
LIMITED to students of particular nationality, and
are regularly attended by a sizable number of
Filipino students from whom applicant could have
imbibed Filipino customs and traditions. In case of
failure to prove this, applicant cannot be considered
exempt from filing the declaration of intention. (See
also Chong King Keh Yeng v. Rep., 61 SCRA 531).
The fact that the school is not limited to any race
or nationality cannot be presumed merely from the
fact that the school is recognized by the Government.
Deficiency of proof here is FATAL to the claim for
exception. (Lim Cho Koan v. Republic, L-21198, Jan.
22, 1966; Tan Kian Sy v. Republic, L-31376, July
25, 1972). Upon the other hand, the bare un

supported testimony o f the applicant o f the
nonlimitation of the school is not sufficient. (See
Guan v. Rep., L-26196, July 31, 1970). However,
while the petitioner him self m ust have
COMPLETED his secondary education, his children
need not have finished the same; it is sufficient
that they are enrolled (Tan v. Rep., L-1551, Oct. 31,
1949), unless they are not yet of school age. (Gotauco
v. Rep., 55 O.G. 2247). The best evidence to show
the respective ages of the children would be their
birth certificates. Failure to submit said certificates
would be FATAL. (Hao Su Siong, etc. v. Rep., L-
13045, July 30, 1962). All the children of school age
must have been enrolled however, or finished. (Ny
Sin v. Rep., L-7590, Sept. 20, 1955). The fact that
one of the children was living in Hongkong does not
justify failure to send him to school here in the
Philippines. (See Tan v. Rep., L-20604, May 29,
1970). Needless to say, the enrollment does not have
to be during the entire period of residence for
otherwise the children would be in school forever so
long: absurd or impossible situations were never
intended by the drafters of the law. (Pritchard v.
Rep., 81 Phil. 244). For one of the children not to be
given secondary education simply because she got
married is not a valid excuse. (Lee Cho v. Rep., L-
12408, Dec. 28, 1958). However in Ong Kue v. Rep.,
L-14550, July 26, 1960, the Court allowed marriage
as a justifiable excuse for not continuing with the
proper studies, inasmuch as by virtue of such
marriage, the girl was released from the parental
authority of the applicant. (Art. 399, Civil Code). In
the same case, the Court also considered ill-health,
attested to by a medical certificate of another child
as a valid reason for not completing her secondary
education. In Sy Kiap v. Rep., 44 O.G. 3362, the
Court had occasion to say that the enrollment in
government-approved schools of the Philippines, in
addition to other requisites was required since such
is one of the tests of the bona fide intention of the
applicant to become a citizen: this would forestall
aliens and their minor children from becoming
citizens of this country without knowing its insti

tutions and the duties of citizenship.
2) Regarding number (2) in the preceding number, it
has been held that for the person to be exempt from
the filing of the declaration of intention, the
residence here of thirty years must be actual and
substantial not a mere legal residence. (By v. Rep.,
48 O.G. 4813; Kiat Chun Tan v. Rep., L-4802, April
29, 1953; Co Cho v. Republic, L-17917, April 30,
1964). A mere six-month absence from our country,
with, however, intent to return here does not
interrupt the 30-year “continuous” residence. (Ting
v. Rep., 54 O.G. 3496). A residence here, however,
of only 29 years is not enough to exempt petitioner
from filing the declaration of intention. (Chua v.
Rep., L-4112, Aug. 28, 1952). If the applicant did
not file a declaration of intention because he thought
that while a minor, he could be considered a resident
here because of the Philippine residence of his father
— although said minor was actually in China, he
will be denied naturalization. The rule that a minor
follows his father’s residence does NOT apply when
the residence required is ACTUAL. (See Yek Tek v.
Rep., L-19898, June 28, 1965).
3) Regarding number (3), it has been held that while
the right given to the widow and the minor children
of the petitioner who has died, to continue the
proceedings APPLIES whether the petitioner dies
before or after final decision is rendered, but before
judgment becomes executory, the widow may be
allowed to take the oath of allegiance once the
naturalization proceeding of her deceased husband
shall have been completed on her own behalf and of
her children, if she herself might be lawfully
naturalized. (Tan Lim, et al. v. Republic, L-13786,
May 31, 1961).
(g) QUERY'. Is it ajurisdictional requirement for the petition
for naturalization to state that the applicant has filed a
declaration of intention or is exempt from making such
a declaration?
ANSWER: If the ruling enunciated by the Supreme
Court in the case of Sy Ang Hoc v. Rep., L-12400, March

29, 1961, is to be strictly adhered to, the answer is a
resounding yes. This would be a veritable legal bombshell;
it would destroy, on the ground of lack of jurisdiction, so
many “fiscal decisions” on the matter of naturalization.
In the Sy Ang Hoc case, while the declaration of intention
was really filed with the Office of the Solicitor-General
within the proper period still this fact of compliance was
NOT AVERRED in the PETITION for citizenship. The
Court ruled that this was a JURISDICTIONAL DEFECT.
The Court observed:
“Sec. 7 of Com. Act 473 requires that there
should be an averm ent in the petition for
naturalization that the petition has complied with
the requirements of Sec. 5 of said Act, which refers
to the filing of the declaration of intention to become
a Filipino citizen, one (1) year prior to the filing of
the petition for naturalization, in this particular
case, June 16, 1954. Petitioner has not averred in
his petition that ‘he has complied with the
requirements of Sec. 5 of this Act. It is TRUE that
on May 22, 1953, within the reglamentary period,
the petitioner filed with the Office of the Solicitor-
General a declaration of intention (Exh. D). But the
law provides specifically that the filing of the
declaration of intention must be averred in the
petition. The declaration of intention is so essential
in cases of naturalization that its incorporation in
the petition has become jurisdictional.”
If by “incorporation” is meant that attaching of the
declaration of intention as an integral part of the petition,
not much damage will be done to the decided cases on
naturalization. But if the word means that the averment
must be made in the petition itself, even though the
declaration of intention is already attached, this appears
to be a little absurd and trivial. To say that lack of such
an averment is a JURISDICTIONAL defect would rend
into pieces many “final judgments” on naturalization. It
need not be pointed out that all too often, such an
averment has NOT been done. As has been previously
intimated, the Court held in the case of Rep. v. Co Bon
Lee, L-11499, April 29, 1961, that:
“Unlike final decisions in actions and other

proceedings in court, a decision or order granting
citizenship to the application does not really become
executory; and a naturalization proceeding, not being
a judicial adversary proceeding, the decision
rendered therein is not res judicata as to any of the
reasons or matters which would support a judgment
cancelling the certificate of naturalization for illegal
or fraudulent procurement. As a matter of fact, it is
settled in this jurisdiction that a certificate of
naturalization may be cancelled upon grounds or
conditions subsequent to the granting of the
certificate of naturalization.”
The Sy Ang Hoc case has however been
repeatedly reiterated. Thus it has been ruled that
“the failure . . . of the petitioner to make a statement
in his original petition about his having filed, or his
being exempt from that requirement, constitutes a
FATAL DEFECT in his petition and rendered the
same VOID.” (Tan v. Republic, L-19897, June 24,
1965; Tan Kian Sy v. Republic, L-31376, July 25,
1972; Ong Khan v. Rep., 109 Phil. 855).
FILING OF THE PETITION FOR NATURALIZATION

(a) Where petition is to be filed
After the lapse of one year from the time the
declaration of intention is filed, the petition for
naturalization may be presented in court. Under Sec. 8
of the Naturalization Law —
“The Court of First Instance (now The Regional
Trial Court) of the province in which the petitioner
has resided, for at least one year immediately
preceding the filing of the petition shall have
exclusive original jurisdiction to hear the petition.”
Let it be noted that the law says “preceding the
filing” not “preceding the hearing.” (Squillantini v.
Republic, L-2785, Jan. 31, 1951). The petition must
indicate specifically or one by one the fact that applicant
has all the qualifications. Thus a blanket allegation that
. he has “all the required to Commonwealth Act No. 473”
is not sufficient. Hence if the petition fails to state that

the petitioner has good moral character, the petition is
nullified. (Chua Kian Lai v. Republic, L-37443, Sept. 11,
1974). The “residence” required under this particular
provision is not physical, actual, or substantial residence;
mere LEGAL residence is sufficient. (King v. Rep., L-
72687, May 23, 1951). Thus, in one case, an applicant
residing in one province, had to temporarily stay in
another province during the entire period of the Japanese
occupation. The Court held that for the purpose of the
provision now under consideration the petition must be
filed in the first province. (Chan Kim Lian v. Rep., 49
O.G. 128). In another case, a Pasay resident who had to
leave his damaged house in Pasay and stay temporarily
in Manila was deemed by the Court not to have
abandoned his Pasay residence. (Zuellig v. Republic, 83
Phil. 786). Indeed, the intent to return (animus revertendi)
must always be taken into account in the determination
of one’s domestic residence. (King v. Rep., supra). The
purpose of the one-year residence. (King v. Rep., supra).
The purpose of the one-year residence is to facilitate the
determination by official authorities of the different
activities of the applicant, specially with regard to his
qualifications. (Chieng Yen v. Republic, L-18885, Jan.
31, 1964). It has been held that petition must be denied
when the applicant fails to state in his petition his present
and former places of residence. (Koa Gui v. Republic, L-
13717, July 31, 1962). The omission in the petition of
some of applicant’s former places of residence is in itself
a sufficient disqualification. (Yeng v. Rep., L-18885, Jan.
31, 1964; Tan Tiu v. Rep., L-21550, Jan. 30, 1970; Dy v.
Rep., L-21958, Sept. 28, 1970; Ang To v. Rep., L-26952,
Aug. 30, 1972). And this is so even if the applicant was
only a minor at the time of stay at those former
residences. (Rep. u. Ko Keng, L-19829, Aug. 31, 1970; Dy
v. Rep., L-21958, Sept. 28, 1970). Good faith in omitting
the places of residence is immaterial. (Rep. v. Barcelona,
58 SCRA 698). Likewise the deficiency of the petition is
not cured by testimony of applicant during the hearings
re his present and former places of residence. (Chua Kian
Lai v. Rep., 59 SCRA 40). The purpose of indicating all
former places of residence is to facilitate a checking up
of applicant’s activities. (Long v. Rep., L-18758, May 30,
1964). An omission of this requirement, therefore, in effect

falsifies the truth and indicates a lack of good moral
character. (Giok v. Rep., L-13347, Aug. 31, 1964). Evidence
of additional residences presented during the trial will
not cure the original defect. (Qua v. Rep., L-19834, Oct.
27, 1964; Chua Kian Lai v. Republic, L-37443, Sept. 11,
1974). The failure of the applicant to mention the name
he had been baptized with is FATAL because persons
who might have derogatory information against such
name might not come forward with it in the belief that
the applicant is a different person. (Kwan Kwock How v.
Republic, L-18521, Jan. 30, 1964).
(b) The Supporting Affidavit
The affidavit of two credible persons must support
the petition for naturalization. Said persons must state:
1) That they are citizens of the Philippines;
2) That they personally know the petitioner to be a
resident of the Philippines for the period of time
required by the Naturalization Law;
3) That the petitioner is a person of good repute and
is morally irreproachable; and
4) That he has, in their opinion, all the qualifications,
and none of the disqualifications for naturalization.
(Sec. 7, Naturalization Law).
Within the purview of the Naturalization Law, a
“credible person” is one who is not only a Filipino citizen
(Watt v. Rep., L-20718, Aug. 30, 1972) but who also has
a good standing in the community, one known to be honest
and upright. Evidence must be presented on this point,
however. (Dy Shin Sheng v. Rep., L-13496, April 27, 1960).
The two “credible persons” which the law demands are
in a sense insurers of the applicants qualifications, and
hence in themselves, must be individuals of probity and
good standing in the community, with their words taken
at face value. (O Ku Phuan v. Rep., L-23406, Aug. 31,
1967; Hao Guan Seng v. Rep., L-23936, Sept. 13, 1967).
Thus, an employment as a bookkeeper in a Chinese firm
for over thirty years is not necessarily satisfactory proof
of probity and good standing in the community; neither
is mere membership in the police force, particularly if
the policeman character-witness had once upon a time

been accused, although acquitted, of a violation of our
opium laws. (Teh v. Republic, L-19831, Sept. 30, 1964).
Where the character witness’ knowledge cannot be
considered competent, because said business dealings
afford little room for personal matters and do not provide
a reliable basis for gauging a person’s moral character.
(Uy v. Rep., L-19578, Oct. 27, 1964). A mere customer of
the applicant’s store cannot act as such witness, neither
a person who is a mere neighbor who meet the petitioner
every day and possesses a nodding acquintance with him.
(Tse v. Rep., L-19542, Nov. 9, 1964). The relationship
must not be merely on the business level; there must be
social relations — friendship more or less with the
petitioner’s parents, brothers, and sisters. (Saw Cen v.
Republic, L-20310, April 30, 1965). A witness who resides
in a place far from where the applicant lives is likewise
disqualified to be witness for him. (Lara v. Rep., L-18203,
May 29, 1964). What must be “credible” is not necessarily
the testimony itself, but the person giving it. (Si Ng v.
Republic, L-16828, May 30, 1962; Ong Ling Chuan v.
Republic, L-18550, Feb. 28, 1964). Ordinarily, the affiants
must be the very ones presented during the hearing
(Singh v. Rep., 51 O.G. 5172), unless, of course, good
reasons exist for a substitution as in the of death (Pe v.
Rep., 5855) or unexpected absence. (Ong v. Rep., 55 O.G.
3290). With reference to (2), it should be noted that the
witnesses are not required to attest and testify to the
conduct of the applicant during the ENTIRE period of
his residence in the Philippines; it is enough that the
knowledge is for the period of time REQUIRED under
the Naturalization Law. Upon the other hand, the period
of infancy or childhood is NOT included in the phrase
“during the entire period o f his residence in the
Philippines.” Such period refers to that time when a
person become conscious and responsible for his acts and
conduct in the community where he lives. (Dy Lam Go v.
03 Republic, L-15858, July 31, 1962). The witness, however,
must NOT be under the authority or influence of the
petitioner. (Lo v. Republic, L-15919, May 19, 1961). Hence,
the circumstance that one of the witnesses was the lawyer
of petitioner’s father lends doubt as to the veracity of his
testimony, and leads one to conclude that his declarations
are biased and untrustworthy. (Ong Ling Chua v.

Republic, L-18550, Feb. 28, 1964). The father-in-law of
petitioner’s counsel is not a reliable character witness.
(Chong King Keh Yeng v. Rep., 61 SCRA 521). Hence,
also employees or persons in the service of the petitioner,
or of the business enterprise owned or operated by him
or his family, are not competent to be the attesting
witnesses here. (See Watt v. Rep. and other cases, L-
20718, Aug. 30, 1972). Thus, the driver of the applicant’s
brother cannot be the credible witness needed. (Yoy On
v. Rep., 38 SCRA 485). To prove the “good repute” of the
petitioner, the personal opinion of the two witnesses that
the applicant is a hard-working, law-abiding and a credit
to the community is NOT sufficient. For “good repute”
primarily means the opinion of the community about the
petitioner, not just the opinion of two individuals. (Kwan
Kwock How v. Republic, L-18521, Jan. 30, 1964).
THE HEARING OF THE PETITION

After proper publication once a week for three consecutive
weeks in the Official Gazette, and in one of the newspapers of
general circulation in the province where the petitioner resides,
and proper posting of the petition, the same shall be heard by the
:ourt. (Sec. 9, Naturalization Law). Failure of the appellant to
publish his petition “once a week for three weeks" is fatal to the
petition because this affects the jurisdiction of the trial court. This
s so even if at the time publication was made the Official Gazette
:ame out once only every MONTH. What should be done in this
:ase would be to publish the same once a month for three consecutive
MONTHS. Failure on the part of the government to object is
mmaterial for the defect is fatal, impairing as it does the very root
ir foundation of the authority to decide the case regardless of
whether the one to blame therefor is the Clerk of Cour or the
letitioner or his counsel. (Cy Quing Reyes v. Republilc, L-10761,
'Jov. 29, 1958; Tan Cona v. Republic, L-13224, April 27, 1960). To
ivoid unfairness however, the abovementioned ruling was
iIODIFIED in the Gan Tsitung v. Rep. case, GR-20819, Nov. 29,
965, in the sense that the doctrine o f lack o f jurisdiction in the
ituation given should apply only to certificates of naturalization
cquired after May 29, 1957, when the Ong Son Cui case was
ecided. Prior certificates are therefore to the considered valid des
ite the defective publication. (Yao Mun Tec v. Rep., 37 SCRA 55).
The purpose of the publication is to apprise the public of the

pendency of the petition so that those who know of any legal
objection to it may come forward with said information. (Yu Seco
v. Rep., L-13441, June 30, 1960). What should be published is the
petition itself; publication merely of the notice of the filing of the
petition is not enough. (Po v. Rep., L-27443, July 19, 1971, 40
SCAD 37). Nor is the publication of a mere synopsis of the petition
be regarded as sufficient. The entire petition must be published
verbatim or textually. This is because Sec. 9 of CA 473 says the
petition must be published. Each of the six qualifications needed
for naturalization must be specifically alleged (Chua Bon Chiong v.
Rep., 39 SCRA 318). The proceeding being one is rem, the publication
requirement must be strictly enforced (Tan Teng Hen v. Rep., L-
31862, Aug. 21, 1974) for it is jurisdictional. (Chua Bon Chiong v.
Rep., 39 SCRA 318; Sy v. Republic, 55 SCRA 724). The Office of the
Solicitor-General (not the complainant himself) may the properly
speak for the Government. (Anti-Chinese League v. Felix and Lim,
L-998, Feb. 20, 1957; Go v. Anti-Chinese League and Fernandez, 84
Phil. 468). Be it noted that notice to the Solicitor-General of the
naturalization proceedings, the orders and steps leading to the oath-
taking, is essential to the validity of such proceedings. (Lim v. Rep.,
L-27126, May 29, 1970; Tan Ngo v. Rep., L-30934, Jan. 31, 1972;
Watt v. Rep., L-20718, Aug. 30, 1972; Uy Giok Chiu v. Rep., L-
28579, Aug. 30, 1972; Rep. v. CFI ofAlbay, 60 SCFA 195). The non
inclusion of the alias of the petitioner in the publication of the
petition is FATAL, for it deprives a person, knowing the petitioner
by said alias, of the opportunity to come forward, the inform the
authorities of anything that may effect the petitioner. The defect is
therefore JURISDICTIONAL. (Saw Cen v. Republic, L-20310, April
30, 1965; Chua Bon Chiong v. Rep., 39 SCRA 318; Go Chiu Beng
v. Rep., 46 SCRA 617). (Of course, if the alias was without judicial
authority, this defect by itself would result in the denial of the
petition for the use of said alias is illegal). (Dy v. Republic, L-
21958, Sept. 28, 1970). If the records do not show that the copies
of the petition, and the general notice of the hearing of the petition
were posted at a public and conspicuous place in the municipal
building, this discrepancy constitutes a jurisdictional defect. (Tan
Kong Kiat v. Rep., L-19915, June 23, 1965). The requirement that
the certificate o f arrival be made part of the petition is mandatory.
Failure in this regard is fatal. (YuTiv. Republic, L-19913, June 23,
1965). If after due hearing it is proved that the applicant has all
the qualifications and none o f the disqualifications, it is
MANDATORY for the court to grant the petition. What the law
grants, the court are not allowed to deny. (Go v. Anti-Chinese League,
supra). In case of an appeal, the period of thirty days must be
counted from the date the Solicitor-General had previously directed
the fiscal or the city attorney to appear in behalf of the Solicitor-
General, and even if said fiscal or attorney had received his own
copy of the decision earlier. This is so because the authorization
cannot be construed to have divested the Solicitor-General of his
control of the stand or defense of the state. (See Sec. 10, Revised
Naturalization Law; Republic v. Chiu and Hon. Abbas, etc. L-20846,
Oct. 31, 19Jp4). Thus, the period must not be counted from the time
notice was received by the Fiscal. (Rep. v. Maddela, 42 SCAD 151).
If the State appeals from the judgment of the CFI granting
naturalization, and the applicant fails to file the appellee’s brief,
the petition for naturalization will be dismissed for lack of interest.
(Tiu v. Republic, 61 SCRA 518). Upon the other hand, even if there
is an appellee’s brief, the State’s appeal subjects the entire case to
scrutiny by the Supreme Court even if the subject of scrutiny was
not touched upon in the briefs or pleadings of the parties. (Chua v.
Rep., 39 SCRA 318).
REHEARING AFTER TWO YEARS IN CASE

OF APPROVAL OF THE PETITION
(a) Even if the Court approves the petition the decision will
not be executory until after two years from its
promulgation. Certain conditions will have to be fulfilled
and proper proof thereof must be presented. The pertinent
law on this matter is Rep. Act No. 530 amending the
Naturalization Law. Said Rep. Act was approved on June
16, 1950, it was published in 46 O.G. 4729.
,v3j f
REPUBLIC ACT NO. 530

AN ACT MAKING ADDITIONAL
PROVISIONS FOR NATURALIZATION
Section 1. The provisions of existing laws

notwithstanding, no petition for Philippine
citizenship shall be heard by the courts until after
six months from the publication of the application
required by law, nor shall any decision granting the
application become executory until after two years
from its promulgation and after the court, on proper
hearing with the attendance of the Solicitor General

or his representative is satisfied and so finds that
during the intervening time the applicant:
(1) has not left the Philippines,
(2) has dedicated himself continuously to a lawful
calling or profession,
(3) has not been convicted of any offense or
violation of government promulgated rules,
(4) or committed any act prejudicial to the nation
or contrary to any Government announced
policies.
(b) Comment:
The purpose of the two-year period is to place the
petitioner on probation. (Dee Sam v. Rep., L-9097, Feb.
29, 1956). The period starts from the time the judgment
becomes final: thus, if the government does NOT appeal,
the starting period begins from the time the judgment of
the trial court is promulgated; if the government appeals,
the period starts from the time the appellate court
promulgates its judgment awarding naturalization. These
rules are obvious, for it is only upon final judgment that
the authorities concerned will know the naturalization is
about to be granted; hence, from that time, a close
scrutiny of the petitioner’s conduct will be made. (Rep. v.
Makalintal, 48 O.G. 4346; Chaustinek v. Anti-Chinese
League and Fernandez, 50 O.G. 1499; Pisingan Chiong v.
Rep., L-15313, March 25, 1961). During the hearing on
the petition to take oath, any question affecting the
qualification of the applicant may be invoked. (Lim Hok
Albano v. Republic, L-10912, Oct. 31, 1958). On appeal
therefore, the appellate court can inquire whether or not
applicant is not disqualified for naturalization. (Ong
Ching Guan v. Republic, L-15691, March 27, 1961). The
failure of an applicant to pass successfully (without
violation of the requirement) the two-year probationary
period results in the loss of whatever rights he may have
acquired under the decision authorizing his naturalization
inasmuch as said decision was rendered nullified by a
subsequent one denying the grant of the certificate of
naturalization (denied because the applicant had been
convicted during the probationary period for the violation

of a municipal ordinance).
(c) Comment: Re — Leaving the Philippines
During the two-year probation period, the physical
presence of the petitioner in the Philippines is required
not mere legal residence, otherwise the government will
not have the opportunity to observe and scrutinize his
conduct. Unless he be actually in our country, how can
he dedicate himself to a lawful calling and profession?
Moreover, if he be allowed to stay abroad, he may commit
in a foreign soil acts inimical to our interests. (Uy v.
Rep., 52 O.G. 5874). Should he leave our shores, the fact
that he intends to return or that he has no desires of
establishing a domicile elsewhere is immaterial. The law
on this matter does not speak of residence or domicile; it
says: “left.” (Te Tek Lay v. Rep., 51 O.G. 5154). In certain
cases, however, the physical absence from the Philippines
may be excused: if the petitioner leaves for abroad on a
government mission; if he has been kidnapped or forcibly
removed from the country; if he has to go and stay abroad,
for sometime not too long to undergo an operation to
save his life (Uy v. Rep., supra); but not if the purpose is
to obtain a medical checkup, or to strengthen business
connections (Uy v. Rep., supra), or to help in the settle
ment of the estate of a relative (Dee Sam v. Rep., L-9097)
or to help his wife obtain medical treatment abroad (Isasi
v. Rep., 53 O.G. 6529), or to gather information abroad
on insurance matters in behalf of his firm, even if
incidentally, he may be able to obtain a presidential
. appointment to act as a representative of the Philippine
government, particularly when such appointment has
been given merely to accommodate him and to give some
official color to the trip. (See Yvanovich v. Republic,
L -l5998, May 26, 1964).
Yvanovich v. Republic
L-15998, May 26, 1964
FACTS: On March 20, 1957, petitioner was allowed by

the trial court to become a Filipino citizen in
a resolution promulgated for that purpose
subject to the provisions of R.A. No. 530. During
the two-year probationary period, he requested

permission from the lower court to leave the
Philippines for business reasons. Although his
request was denied, he went abroad just the
same. Petitioner now contends that he went
abroad to gather information on insurance and
reinsurance schemes being used in other
countries in the interest of the company he
represents but at the same time he was
appointed by the President of the Philippines
“as representative of the Republic of the
Philippines to observe economic trends in
connection with social security system and
insurance treaties in foreign countries.” With
this connection, he desires to convey the
impression that he left the Philippines not of
his own volition but at the instance of the
government.
HELD: This contention is belied by his own evidence.

Thus, in his own letter to the Solicitor General
mentioned elsewhere, he indicated that his
purpose in going abroad was principally for
the benefit of the Fieldmen’s Insurance
Company, Inc. of which he is the Executive
Vice President, General Manager, and Chief
Administrative Officer elected by its Board of
Directors to make the necessary contact with
its reinsurers abroad in the shortest time
possible. He emphasized that as such official
it was his duty to establish fresh contact in
the world reinsurance market for the world
reinsurer’s requirement of said company and
that “he is going to journey in Europe and also
in America, which trip is scheduled to be during
the middle part of August 1, 1957 and expected
not to exceed three months,” all in behalf of
the Fieldmen’s Insurance Company, Inc.
It is true that petitioner is invoking in
his behalf a letter of former President Carlos
P. Garcia wherein apparently he was given
authority to go abroad as a representative of
the Republic of the Philippines “to observe
economic trends in connection with social

security system and insurance treaties in
foreign countries.” But this letter cannot give
him comfort, for there it appears that he was
to be given a formal appointment for that
purpose but that his trip would be at his own
expenses. It also appears that such appointment
was never extended. At any rate, even if the
required authority were given by our
government still it could not erase the
impression that his trip abroad was in the
interest of his business concern, for it is to be
presumed that his designation was extended
merely to accommodate him just to give some
official color to his trip. Certainly, such trip
cannot furnish any valid justification for
infringing the letter and spirit o f Republic Act
No. 530.
(d) Comment: Re — Dedication to Lawful Calling or
Profession
Said calling or profession must be exercised in the
Philippines during the two-year period (Uy v. Rep., supra).
(e) Comment: Re — Non-Conviction or Violation
The law says “not been convicted.” Hence, it is not
essential that the offense or violation was “committed”
during the two-year period. If the commission was before
the two-year period, but the conviction was within said
time, the petitioner will not be allowed to take his oath
(Tiu San v. Rep,, L-7301, April 20, 1955). On the other
hand, if the commission was within the time specified in
the law, but conviction has not yet taken place because
of the pendency of the case in court, the oath taking will
be postponed until after the final adjudication of the
charge: if acquitted, oath taking will come next; if
convicted, it is clear that the oath will never be taken.
(Ching Leng v. Rep., L-6268, May 10, 1954).
Be it noted also that the law says “has not been
convicted of any offense or violation of government
promulgated rules.” Hence, a conviction for the violation
of a municipal ordinance during this period of two years
will effectively prevent the oath taking. A municipal
ordinance is after all a government promulgated rule;

moreover, here the law makes no distinction between
acts mala in se and acts mala prohibita. (Tiu San v.
Rep., L-7301, April 20, 1955).
(f) Comment: Re — Commission of Prejudicial Act or One
Contrary to Public Policy
The law says “committed any act prejudicial to the
interest of the nation or contrary to any government
announced policies.” Because of the use o f the word
“committed” it follows that here it is not essential that
the petitioner be “convicted.” If criminal proceedings have
been instituted, the Court may postpone the taking of
the oath until the criminal case has been decided. (Ching
Leng v. Rep., L-6268, May 10, 1954). The execution of
the petitioner of an “agreement to sell” and his consenting
to the placing of his nationality as a “Filipino” (although
he was not yet one) comes under this provision, and he
will not be allowed to take his oath. (Tan Tiam v.
Republic, L-14802, May 30, 1961).
In the case of Antonio Kay See v. Republic, G.R. L-
17318, Dec. 28, 1962, the Supreme Court thru Mr. Justice
Alejo Labrador disqualified an alien from taking his oath,
because during the two-year probationary period, he failed
to still register as an alien. The fact that his failure to
still register was due to an honest belief that he was
exempted therefrom is of no moment.
(g) Effectivity of Rep. Act No. 530
Under Sec. 4 of the Act, effectivity will take place
upon its approval. Said approval took place on June 16,
1950. And although it was signed at the last hour of
June 16, 1950, it is considered to be effective from the
first hour of said date, in other words, it took effect not
on the midnight of June 16 but at midnight, June 15,
1950. To count the effectivity of a law from the moment
of actual signing would make such effectivity depend upon
the fallible memory of man. The law specifies the date,
not the hour or the minute of effectivity. (Rep. vs.
Encarnacion, et al., 87 Phil. 843).
(h) Applicability to Pending Cases and to Those Where the
Petitioner Has Not Yet Taken the Oath
“This Act shall take effect upon its approval, and

shall apply to cases pending in court, and to those where
the applicant has not yet taken the oath o f citizenship:
Provided, however, that in pending cases where the
requisite of publication under the old law had already
been complied with, the publication herein required shall
not apply.” (Sec. 4, Rep. Act No. 530).
THE TAKING OF THE OATH

After due hearing (after two years) by the same court that
granted the naturalization, the order of the court granting
citizenship shall be registered, if the court is convinced that the
conditions imposed for the two-year probation period have been
duly fulfilled and proved. (Anselmo Lim Hok Albano v. Rep., 56
O.G. 4750; Sec. 2, Rep. Act No. 530). The filing of the petition to
take the oath must be done within a reasonable time after the
expiration of said two-year period. A delay of more than 6 years in
this regard reveals petitioner’s lack of interest in the matter. If his
right to take the oath, in view of the attending circumstances, is an
extremely doubtful one, the doubt ought to be resolved in favor of
the state, and against the petitioner. (Cheng Kiat Giam v. Republlic,
-16999, June 22, 1965). A copy of the petition to take the oath, as
well as the notice of hearing thereof, must be served on the office
Df the Solicitor-General, even if previously, the Solicitor-General
had already authorized the Provincial Fiscal to represent the state
at the hearing of the application for naturalization. Authority to
represent at the latter hearing is NOT authority to represent at
;he hearing for the taking of oath. This defect is FATAL. (Lee Luan
Jo v. Jarencio, -21521, Oct. 29, 1965). In case all requisites have
jeen complied with, the petition to take the oath will be granted.
The oath will then be taken £y the applicant, whereupon, and NOT
BEFORE, he will be entitled to all the privileges of a Filipino
:itizen. (Sec. 2, Rep. Act No. 530). The taking of allegiance
letermines the beginning of his new status as a regular member of
iur citizenry. (Tiu Peng Hong v. Rep., 52 O.G. 782). Thus, the act
if a trial judge in allowing the applicant to take the oath even
5EFORE the two-year period is highly irregular. (Ong So v. Repubic,
20145, June 30, 1965). Incidentally, the renunciation of titles or
rders of nobility must also be registered or recorded in the court.
See Sec. 17, Naturalization Law). If at the time the petitioner
akes his oath his former minor children have already become of
ge, such children naturally do not automatically become Filipinos,
because at the time of the naturalization of the parent, (that is, the
attainment of Filipino citizenship by the parent) said children are
no longer minors. (Sec. 15, Naturalization Law; Tiu Peng Hong v.
Rep., 52 O.G. 782). If the records of the naturalization proceedings
and the certificate of naturalization issued have been destroyed or
lost, a petition for the reconstitution of the records may be filed
within the prescription period fixed by law. (Rep. Act No. 441). In
said petition, mere oral evidence would be utterly insufficient and
unsatisfactory. A contrary rule would throw the door wide open for
the commission of fraud against the state. (Procopy Moscal v.
Republic, L-10836, Nov. 29, 1960).
CANCELLATION OF THE NATURALIZATION

Sec. 18 of the Naturalization Law provides:
“Upon motion made in the proper proceedings by the Solicitor-
General or his representatives, or by the proper Provincial Fiscal,
the competent Judge may cancel that naturalization certificate
issued and its registration in the Civil Registry:
(a) If it is shown that said naturalization certificate was
obtained fraudulently or illegally;
(b) If the person naturalized shall, within the five years next
following the issuance of said naturalization certificate,
return to his native country or to some foreign country
and establish his permanent residence therein: Provided,
that the fact of the person naturalized remaining for
more than one year in his native country or the country
of his former nationality, or two years in any country,
shall be considered as prima facie evidence of his intention
of taking up his permanent residence in the same;
(c) If the petition was made on an invalid declaration of
intention;
(d) If it is shown that the minor children of the person
naturalized failed to graduate from public or private high
school recognized by the Bureau of Private Schools, where
Philippine history, government, and civics are taught or
** prescribed as part of the school curriculum, through the
fault of their parents either by neglecting to support them
or by transferring them to another school or schools. A
certified copy of the decree cancelling the naturalization
certificate shall be forwarded by the Clerk of the Court
to the Office of the President and the Office of the

Solicitor-General;
(e) If it is shown that the naturalized citizen has allowed
himself to be used as a dummy in violation of the Consti
tution or legal provisions requiring Philippine citizenship
as a requisite for the exercise, use or enjoyment of a
right, franchise, or privilege.”
The Solicitor-General personally or through his
delegate and the provincial fiscal are the only officers or
persons authorized by law to appear on behalf of the
Government to ask for the cancellation of a naturalization
certificate already issued. (Anti-Chinese League of the
Philippines v. Felix, et al., 77 Phil. 1012). An alien who
misrepresents his length of residence in the Philippines
(Bell v. Atty. Gen., 56 Phil. 667), or who conceals the fact
that he is disqualified to become a Filipino citizen deserves
to have his naturalization certificate cancelled because
such certificate may be considered to have been obtained
fraudulently or illegally. (Gurbuxani v. Government, 69
Phi. 280). Should it turn out that the naturalized citizen
was already a Filipino even before he was naturalized,
the naturalization certificate should naturally be cancelled
because said certificate is unnecessary. (Palanca v. Rep.,
80 Phil. 578). A decision in a naturalization case can
never be res judicata as to any of the reasons or matters
which would support a judgment cancelling the certificate
of naturalization for illegal or fraudulent procurement.
As a matter of fact, it is settled in this jurisdiction that
a certificate of naturalization may be cancelled upon
grounds or conditions subsequent to the granting of the
certificate of naturalization. (Rep. v. Co. Bon Lee, L-11499,
Apri 29, 1961). The reason why the decision in a
naturalization case is not res judicata is because the case
is not a judicial adversary proceeding. (Tan Teng Hen v.
Rep. L-31862, Aug. 21, 1974). Indeed it is settled that
the doctrine of estoppel or of laches does not apply against
the government suing in its capacity as sovereign or
asserting government rights. It has been held that the
government is never estopped by mistake or errors on
the part of its agents. (Pineda v. CFI o f Tayabas, 52 Phi.
803, 807). Estoppel cannot give validity to an act that is
prohibited by law or is against public policy. (Benguet
Consolidated v. Pineda, 52 O.G. No. 4, p. 1961; Eugenio

v. Perdido, L-7083, May 18, 1955).
HOW IN GENERAL CITIZENSHIP MAY BE LOST

(a) By Substitution of a New Nationality
Comment:
1) One example is by becoming a naturalized citizen of
a foreign state. (Com. Act No. 63, as amended by
Rep. Act No. 106).
2) Another example is in the case of a Filipino woman
who marries a foreigner. If she acquires her
husband’s nationality, she loses Philippine citizen
ship. (Sec. 1, Com. Act No. 63, as amended by
Republic Act No. 106).
NOTE: If a Filipino woman married a stateless
citizen she retains Philippine citizenship for the
simple reason that she has not acquired any new
nationality. (Commonwealth v. Baldello, 37 O.G.
2080).
(b) By renunciation of citizenship
Comment:
1) This is also known as EXPATRIATION. In Roa v.
Collector o f Customs, 23 Phil. 321, the Supreme
Court defined expatriation as the voluntary
renunciation or abandonment of nationality and
allegiance. The right has been said to be a natural
and inherent right of individuals. (U.S. v. Karuth,
19 F. Supp. 581).
2) The renunciation may be EXPRESS or IMPLIED
(Secs. 2 and 3, Com. Act No. 63, as amended by
Republic Act No. 106). A form of IMPLIED
renunciation exists in the following provisions:
“By subscribing to an oath of allegiance
to support the constitution or laws or a foreign
country upon attaining 21 years of age or
more.” (Sec. 3, Com. Act No. 63, as amended
by Rep. Act No. 106).
3) Renunciation, whether express or implied, cannot

be lawfully done while the Philippine Republic is at
war with any country. (Sec. 3, Com. Act No. 63, as
amended by Rep. Act No. 106). (See also People v.
Manayao, 44 O.G. 4867), where the defendant in a
case of treason against our government
unsuccessfully pleaded that inasmuch as he had
renounced Philippine citizenship during the war,
he cannot be held guilty of treason.
(c) By deprivation
Comment:
1) Deprivation exists when a person is deprived of his
citizenship as a sort of punishment.
2) Deprivation may take any of the following forms:
a) cancellation of the certificate of naturalization.
(Sec. 4, Com. Act No. 63, as amended by Rep.
Act No. 106).
b) cancellation of citizenship for having been
declared by competent authority a deserted of
the Philippine Armed Forces in time of war,
unless subsequently, a plenary pardon or
amnesty has been granted. (Sec. 1, No. 6, Com.
Act No. 63, as amended by Rep. Act No. 106).
In case of pardon or amnesty, citizenship may
be reacquired by repatriation. (Sec. 2, No. 2,
Com. Act No. 63, as amended by Rep. Act No.
106).
c) forfeiture of citizenship by rendering service
to, or accepting a commission in the armed
forces of a foreign country.
NOTE: The law on this point, however,
provides that the rendering of a service, to, or
the acceptance of a commission in, the armed
forces of a foreign country, and taking of the
oath of allegiance incident thereto, with the
consent of the Republic of the Philippines, shall
NOT divest a Filipino of his Philippine
citizenship if either of the following circum
stances is present:
1) The Republic of the Philippines has a defensive and/

or offensive pact of alliance with the said foreign
country; or
2) The said foreign country maintains armed forces on
Philippine territory with the consent of the Republic
of the Philippines;
PROVIDED, that the Filipino citizen concerned, at
the time of rendering said service, or acceptance of said
commission, and taking the oath of allegiance incident
thereto states that he does so ONLY in connection with
his service to said foreign country; and PROVIDED
FINALLY, with reference to (1) and (2) the citizen
concerned shall NOT be permitted to participate or vote
in any election of the Republic of the Philippines during
the period of his service to, or commission in, the armed
forces of said foreign country. Upon his discharge from
the service of the said foreign country he shall be
automatically entitled to the full employment of his civil
and political rights as a Filipino citizen. (Sec. 1, No. 4,
Com. Act No. 63, as amended by Rep. Act No. 106).
(d) By release
Comment:
As distinguished from deprivation, release is
VOLUNTARY in the sense that a person asks the
permission of his country to be freed from citizenship
therein. This is NOT expressly provided for by our law
so no prior permission is essential. All the citizen is
required to do is to renounce. (See Sec. 1, No. 1, Com. Act
No. 63, as amended by Rep. Act No. 106).
(e) By Expiration
Comment:
1) Here citizenship is lost in view of a long stay abroad.
The principle is ordinarily NOT applicable to
Filipinos.
2) However, if a naturalized citizen, within five years
from the time he is issued the naturalization
certificate, permanently resides in a different
country, his naturalization certificate may be
cancelled on this ground. This is our equivalent of
EXPIRATION. (See Sec. 18, etter (a), Com. Act No.

473, as amended by Com. Act No. 535).
HOW PHILIPPINE CITIZENSHIP MAY BE LOST

Under Commonwealth Act No. 63, as amended by R.A. No.
106, a Filipino citizen may lose his citizenship in any of the following
ways:
(1) By naturalization in foreign countries;
A2) 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 or more: Provided, however, That a
Filipino may not divest himself of Philippine citizenship in
any manner while the Republic of the Philippines is at war
with any country;
(4) By rendering service to, or accepting commission
in, the armed forces of a foreign country: Provided, That the
rendering of service to, or the acceptance of such commission,
in the armed forces of a foreign country, and the taking of an
oath of allegiance incident thereto, with the consent of the
Republic of the Philippines, shall not divest a Filipino of his
citizenship if either of the following circumstances is present:
(a) The Republic of the Philippines has a defensive
and/or offensive pact of alliance with the said foreign
country; or
(b) The said foreign country maintains armed
forces on Philippine territory with the consent of the
Republic of the Philippines: Provided, That the Filipino
citizen concerned, at the time of rendering said service,
or acceptance of said commission, and taking the oath of
allegiance incident thereto, states that he does so only in
connection with his service to said foreign country: And
provided finally, That any Filipino citizen who is
rendering service to, or is commissioned in, the armed
forces of a foreign country under any of the circumstances
mentioned in paragraph (a) or (b), shall not be permitted
to participate nor vote in any election of the Republic of
the Philippines during the period of his service to, or
commission, in the armed forces of said foreign country.
Upon his discharge from the service of said foreign
country, he shall be automatically entitled to the full

enjoyment of his civil and political rights as a Filipino
citizen;
(5) By cancellation of the certificate of naturalization;
[N.B. This cancellation is not barred by estoppel nor
by res judicata for the judgment directing issuance of
the certificate of naturalization is a mere grant of a
political privilege. (Yao Mun Tek v. Rep., 37 SCAD 55;
Tan Teng Hen v. Rep., 58 SCAD 500).
(6) By having been declared by competent authority, a
deserter of the Philippine armed forces in time of war, 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.
N.B. — Under the 1987 Constitution said female
RETAINS her Philippine citizenship unless by her act or
omission she is deemed under the law, to have renounced
her citizenship. (Art. IV, Sec. 4).
The provisions of this section notwithstanding, the
acquisition of citizenship by a natural born Filipino citizen
from one of the Iberian and any friendly democratic Ibero-
American countries or from the United Kingdom shall not
produce loss or forfeiture of his Philippine citizenship if the
law of that country grants the same privilege to its citizens
and such had been agreed upon by treaty between the
Philippines and the foreign country from which citizenship is
acquired. (As amended by Rep. Act No. 2639 and by Rep. Act
No. 3834, approved June 22, 1963).
Willie Yu v. Miriam Defensor Santiago

G.R. No. 83882, Jan. 24, 1989
By declaring him self as a Portuguese citizen in
commercial documents, in addition to securing a Portuguese
passport, petitioner has clearly renounced his Philippine
citizenship.
While normally the question of whether or not a person
has renounced his Philippine citizenship shoud be heard before
a trial court of law in adversary proceedings, this has become
unnecessary as this Court, no less, upon insistence of petitioner,

had to look into the fact and satisfy itself on whether or not
petitioner’s claim to continued Philippine citizenship is
meritorious.
Frivaldo v. Comelec
174 SCRA 245
Claiming his naturalization as an American citizen as
involuntary (stating that it was the ony way he coud stay in
the U.S. and thereby protect himself from Marcos), he avers
that the filing of his certificate of candidacy in the Philippine
elections is an act of renouncing his U.S. citizenship and
concomitantly his reacquiring of Philippine citizenship.
His claim that he is a Filipino is absurd. Similarly
situated Filipinos stayed on the U.S. but never found it
necessary to abandon Philippine citizenship nor pledged
allegiance to the U.S.. His participation in the Philippine
elections would have rendered him Stateless, at best. If he
really wanted to require Philippine citizenship, he could have
easily done so via the process of repatriation. But the truth is,
he never did.
Jose B. Aznar v. Comelec

and Emilio Mario Renner Osmena
G.R. No. 83820, May 25, 1990
J. Edgardo L. Paras:
In the case of Osmena, the Certification that he is an
American does not mean that he is not still a Filipino,
possessed as he is, of both nationalities or citizenships. Indeed
there is NO express renunciation here of Philippine citizenship,
truth to tell, there is even NO implied renunciation of said
citizenship.
When we consider that the renunciation needed to lose
Philippine citizenship must be “express,” it stands to reason
that there can be no such loss of Philippine citizenship when
there is no renunciation, either “express” or “implied.”
DENATURALIZATION PROCEEDINGS
Denaturalization proceedings (to cancel one’s naturalization
certificate for instance) must be commenced upon motion by the
Solicitor-General or by his representative or by the Provincial Fiscal

(now called Prosecutor). The Judge cannot therefore motu proprio
declare null and void the grant of citizenship by a competent court.
(See Sec. 18, C.A. No. 473; see also Gueto v. Catolico, L-25204 and
L-25219, Jan. 23, 1970). A requirement not existing at the time
naturalization was applied for and granted is not a proper ground
for denaturalization. (Chan Teck Lao v. Rep., 55 SCRA 1).
HOW PHILIPPINE CITIZENSHIP MAY BE REACQUIRED

Under C.A. No. 63 as amended by R.A. No. 106, Philippine
citizenship may be reacquired as follows:
“Sec. 2.How citizenship may be reacquired — Citizenship
may be reacquired:
“(1) By naturalisation: Provided, That the applicant
possesses none of the disqualifications prescribed in Section
two of Act Numbered Twenty-nine hundred and twenty-seven;
“(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).
“Sec. 3. Procedure incident to reacquisition for Philippine
citizenship — The procedure prescribed for naturalization
under Act Numbered Twenty-nine hundred and twenty-seven,
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;
09 “(2) That he shall have conducted himself in a proper
and irreproachable manner during the entire period of his
residence in the Philippines, in his relations with the
constituted government as well as with the community in
which he is living; and
“(3) That he subscribes to an oath declaring his intention

to renounce absolutely and perpetually all faith and allegiance
to the foreign authority, state or sovereignty of which he was
a citizen or subject.
“Sec. 4. 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.”
U.S. NATURALIZATION LAW

VIS-A-VIS^FILIPINO VETERANS
The U.S. Immigration and Nationality Act of 1990 provides
the naturalization of Filipino war veterans who served in an active
duty status under the command of the United States Armed Forces
in the Far East (USAFFE), or within the Army, the Philippine
Scouts, or recognized guerilla units.
Under Section 113 of the United States Naturalization Law,
veterans need not go to the United States after their US
naturalization in Manila in order to petition members of their
families. Petitions for spouse and minor children may be filed with
the embassy and processed in four to six months from the time of
filing, if there are no problems with their petitions and applications
for visa. Adult sons and daughters must wait at least 10 to 20
years before depending on the rate of movement of the immigration
visa priority dates. Even illegitimate children who are unmarried
and below 21 years old may be petitioned by veterans as long as
they can substantiate their relationship with their fathers.
“Unmarried” includes single, divorced or widowed.
In the case of naturalized veterans who may wish to go the
U.S., their relatives may apply for a tourist visa in order to
accompany them in their travel provided they can convince the
consular officer that they have strong family ties and financial
reasons to compel them to return to the Philippines.
Benefits provided to veterans by the different States are
independent of federal benefits and differ from State to State. Most
of the time, eligibility is dependent on the State being the place of
residency or home of record at the time of enlistment or induction.
Chapter IX
THE DOMICILIARY THEORY
THE DOMICILIARY THEORY RESTATED

The domiciliary theory in conflict of laws is the theory that in
general the status, condition, rights, obligations, and capacity of a
person should be governed by the law of his domicile.
DEFECTS OF THE DOMICILIARY THEORY

Firstly, various countries have varying concepts as to the real
meaning of domicile: hence, the characterization itself of domicile
may present quite a big problem. Secondly, domicile is comparatively
easier to change than nationality; thus an individual dissatisfied
with the law of his particular domicile may simply effectuate a
change of domicile so as to have a different "personal law.” Thirdly,
for ulteriour motives, persons may pretend to be domiciliaries of
one state when in truth their domicile may be elsewhere.
DOMICILE DISTINGUISHED FROM CITIZENSHIP

OR NATIONALITY
Domicile speaks of one’s permanent place of abode, in general;
upon the other hand, citizenship and nationality indicate ties of
allegiance and loyalty. A person may be a citizen or national of one
state^ without being a domiciliary thereof; conversely, one may
possess his domicile in one state without necessarily being a citizen
or national thereof.
191
IMPORTANCE OF KNOWING DOMICILE

Although the Philippines generally adheres to the nationality
theory it is also worthwhile to know something about the domiciliary
theory because:
(a) Firstly, our own law makes in some cases the law of the
domicile as the controlling factor in the solution of
conflicts problems rather than the national law of the
person involved. This is particularly true in the revocation
o,£ wills. Thus, Art. 829 of the Civil Code says:
“A revocation done outside the Philippines, by a
person who does not have his domicile in this country, is
valid when it is done according to the law of the place
where the will was made, or according to the law of the
place in which the testator had his domicile at the time;
and if the revocation takes place in this country, when it
is in accordance with the provisions of this Code.”
(b) Secondly, in some codal provisions, both the domiciliary
and the nationality theories are used. For instance, Art.
816 of the Civil Code provides that:
“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.”
(c) Thirdly, as already intimated in previous chapters, the
domiciliary theory often runs to the rescue of the
nationality theoryin solving conflicts problems posed by
stateless individuals, and by those possessed of a dual or
multiple citizenship.
(d) Fourthly, during the years when we were under the
control and jurisdiction of the United States, many
domiciliary rules prevalent then were engrafted into our
jurisprudence.
(e) Some very important nations of the world have adopted
almost invariably the domiciliary theory: a comparative
study of the approaches of both theories is, therefore,
imperative.
THE DOMICILIARY THEORY 193
DEFINITION OF DOMICILE
Domicile is that place where a person has certain settled,
fixed, legal relations because:
(a) it is assigned to him also by the law AT THE MOMENT
OR BIRTH (domicile o f origin)', or
(b) it is assigned to him also by the law AFTER BIRTH on
account of a legal disability caused for instance by
minority, insanity, or marriage in the case of a woman
(constructive domicile or domicile by operation o f law)', or
(c) because he has his home there — that to which, whenever
he is absent, he intends to return (domicile o f choice),
(See American Restatement, Sec. 9; Story, Conflict o f Laws,
Sec. 41).
THE THREE KINDS OF DOMICILE

As indicated in the definition, there are usually three types or
kinds of domicile classified according to the manner it has come
about: the domicile o f origin, the constructive domicile (or the domicile
by operation of law), and the domicile o f choice.
(a) The domicile of origin is acquired at birth', constructive
domicile is given after birth.
(b) Domicile of origin applies only to infants', constructive
domicile refers to all those who lack capacity to choose
their own domicile', infants, married women, idiots, and
the insane. Legal disabilities prevent their making a
choice.
(c) Domicile of origin never changes; for a person is born
only once; constructive domicile may change from time
to time, depending upon circuinstances which will be
subsequently discussed.
(d) While both the domicile of origin and the constructive
domicile are fixed by LAW, domicile of choice is a result
of the VOLUNTARY WILL AND ACTION of the PERSON
CONCERNED.
RULES FOR THE DOMICILE OR ORIGIN

(DOMICILIUM ORIGINS)
The domicile of origin of:
(a) a legitimate child — is the domicile of choice of his

father at the moment of the birth of the child.
Example: If a Filipino child is bom in France at the
time that his father is domiciled in Japan, the domicile
of origin of the child is in Japan.
However, if the child is posthumous (one born after
the death of the father) its domicile of origin is the
domicile of choice of the mother.
(b) an illegitimate child — is the domicile of choice of the
.mother at the time of the birth of the child.
(c) a legitimated child (an illegitimate child who subsequently
is granted the status of a legitimate child by the process
called legitimation) — is the domicile of the father at the
time of the birth (not the legitimation) of the child. This
is so because “the effects of legitimation shall retroact to
the time of the child’s birth.” (Art. 180, Family Code).
(d) an adopted child — is not the domicile of the adopter
(for generally adoption takes place sometime after the
birth of the child) but the domicile of the real parent or
the parent by consanguinity.
(e) a foundling (an abandoned infant whose parents are
unknown) is the country where it was found.
Query: Suppose the parents become known, what
will be the domicile of origin of the foundling?
Answer: It is NOT a foundling, and therefore cannot
have a domicile of origin as a foundling. If legitimate, we
follow the rules hereinabove given; if illegitimate, follow
the indicated rules.
v# '
RULES FOR THE CONSTRUCTIVE DOMICILE

(DOMICILIUM NECESARIUM)
(a) Rules for Infants:
1) If legitimate — the domicile of choice of either the
father or the mother.
Example : If at the time the child is say six
years old, the domicile of choice of either the father
or the mother is in the United States (California)
then California will be the constructive domicile of

the child at that age. If by the time the child say
becomes eleven years old, the father or mother is
already domiciled in China, China will be the
constructive domicile of said child at the age of
eleven.
(NOTE: In case of death of either parent, the
parent present shall continue exercising parental
authority over the child. (Art. 212, Family Code))
hence, this time the constructive domicile is the
domicile of choice of the surviving parent. The
following articles of the Family Code are in point:
“Art. 211. The father and the mother shall
jointly exercise parental authority over the persons
of their common children. In case of disagreement,
the .father’s decision shall prevail, unless there is a
judicial order to the contrary.”
“Art. 212. In case of absence or death of either
parent, the parent present shall continue exercising
parental authority. The remarriage of the surviving
parent shall not affect the parental authority over
the children, unless the court appoints another
person to be the guardian of the person or property
of the children.”
It would seem, therefore, that in our country
the legitimate child follows the domicile of both the
father and the mother who jointly exercise parental
authority over him.)
[NOTE: If both parents of the legitimate child are
dead, the constructive domicile of the child will be
that of the parent who died later. (See Goodrich,
Conflict of Laws, p. 90p3).]
2) If illegitimate — the domicile of choice of the mother
(after all she is supposed to take care of the child).
(See Minor, Conflict o f laws, pp. 92-93). Under Art.
176 of the Family Code, “illegitimate children shall
be under the parental authority of their mother.”
3) If adopted — the domicile of choice of the adopter
(Restatement, Sec. 35).
4) If a ward — the domicile of choice of the guardian

(over the person of the ward). (See Beale, Vol. I,
Confict of Laws, p. 220).
(b) Rules for Married Women:
1) If the marriage is VALID — the constructive
domicile of a wife is the domicile of choice of both
husband or the wife. Art. 69 of the Family Code
states that “the husband and wife shall fix the family
domicile. In case of disagreement the court shall
decide.” In certain instances, however, the wife is
* allowed to have a separate domicile; in this case,
her domicile will not be a constructive one any more;
it will be her domicile of choice. In the following
instances, among others, the wife may be allowed
to have a separate domicile:
a) If the husband lives abroad, or there are other
valid and compelling reasons for the exemption.
However, such exemption shall not apply if
the same is not compatible with the solidarity
of the family. (Art. 69, id.).
b) If they are legally separated. (Art. 63, par. 1,
Family Code).
c) If the husband forcibly ejects the wife from the
conjugal home so that he may have illicit
relations with another. (De la Vina v. Villarea,
41 Phi. 13).
d) If there is a separation de facto of the spouses.
(See De la Vina v. Villareal, supra). However,
it must be noted that under Art. 221 (Par. 1)
of th&4 Civil Code, “any contract for personal
separation between husband and wife shall be
void and of no effect.”
2) If the marriage is VOIDABLE, the marriage is
regarded as valid until annulled; therefore, prior to
annulment the constructive domicile of the wife is
the domicile of choice of both the wife and the
husband, unless she is permitted under the
circumstances to select her own domicile of choice.
After the marriage is annulled, the woman ceases
to be a wife; hence, being no longer under any legal
I
disability, she no longer has any constructive

domicile. If she decides to remain in the domicile of
her former husband, this would be her own freely
selected domicile o f choice, not her constructive
domicile. (See Minor, Conflict of Laws, pp. 97-105).
3) If the marriage is VOID, it is as if there was no
marriage, and the “wife” is not really one. Hence,
she is not laboring under any legal disability;
consequently, she had no constructive domicile.
Should she continue being domiciled in the same
place as where her “husband” is a domiciliary, such
place would not be her constructive domicile, it
would be her domicile of choice. (See Goodrich,
Conflict of Laws, p. 77). If a marriage is null and
void its existence is generally not recognized at all
by the law, therefore, there is no necessity of
declaring such a marriage nidi and void. (People v.
Mendoza, L-5877, Sept. 28, 1954; People v. Aragon,
L-10016, Feb. 28, 1957). However, in case damages
are sought, it is obvious that the void marriage must
be declared as such by the courts.
(c) Rules for Idiots, Lunatics, and the Insane:
Idiots, lunatics, and the insane are generally devoid
of any intelligence that may enable them to freely select
their own domicile of choice; hence the law assigns to
them their domicile:
1) If they are below the age of majority — they are
still considered infants under the law; thus, the rules
for infants are applicable to them.
2) If they are above the age of majority a distinction
must be made: if they have guardians over their
persons, they have to follow the domicile of choice
of their guardians; if they have no guardians over
their persons, their constructive domicile is in the
place where they had their domicile of choice shortly
before they became insane.
It should be remembered, however, that a voluntary
domicile of choice may be acquired by insane individuals
if at the time of the choice they were in their lucid
intervals. Furthermore, the choice of a voluntary domicile
does not require as much intelligence as would normally

be essential for binding oneself in a CONTRACT; to enter
into an agreement respecting a contract one must possess
capacity to assume a burden; upon the other hand, the
choice of a domicile does not necessarily carry with it the
assumption of obligations. As Goodrich so aptly puts it:
“In changing domicile, the actor merely subjects himself
to the operation of the legal system of the new jurisdiction
— a system that must be presumed to guard rights and
privileges and to operate equally upon all. So that the
t£st is said to be whether the party had sufficient reason
and understanding to choose his place of residence.”
(Goodrich, Conflict of Laws, p. 94).
Query. If the husband is insane or otherwise
incapacitated^ what is the constructive domicile of his
wife?
Answer: Prof. Minor believes that in a case like this
the wife is free from all legal disability insofar as domicile
is concerned; therefore, she is free to select her own
domicile of choice. (Minor, Conflict of Laws, p. 100).
RULES FOR DOMICILE OF CHOICE

Domicile of choice is that which is voluntarily chosen by a sui
juris — as his more or less permanent home that to which, whenever
he is absent, he intends to return. (See Story, Conflict o f Laws, Sec.
14). (See also Utengsu v. Rep., 50 O.G. 4781, October, 1954). In the
Civil Code, Art. 50 refers to what we call the “domicile of choice.”
Said Article reads: “For the exercise of civil rights and the fulfillment
of civil obligations, the domicile of natural persons is the place of
their habitual residence.” In the case of Corre v. Tan Corre, L-
10128, Nov. 13, 1956, the tJourt had occasion to define domicile of
choice as “the permanent home, the place to which whenever absent
for business or pleasure, one intends to return, and depends on
facts and circumstances, in the sense that they disclose intent.”
These are certain fundamental principles governing domicile
of choice:
(a) No natural person must ever be without a domicile.
(b) No person can have two or more domiciles at the same
time, except for certain purposes, and from different legal
viewpoints.
(c) Every sui juris may change his domicile.

(d) Once acquired, it remains the domicile unless a new one
is obtained:
1) by a capacitated persons;
2) with freedom of choice;
3) with actual physical presence in the place chosen;
4) and a provable intent that it should be one’s fixed
and permanent place of abode — one’s home — that
is, there should be “animus manendi” (intent to
remain) or “animus nonrevertendi” (intent not to
return to the original abode). (See Velilla v. Posadas,
62 Phil. 624; Zuellig v. Rep., 64 O.G. (Supp. No. 11,
p. 220); L-1550, May 30, 1949; Quetulio v. Ruiz,
C.A. 46 O.G. 155; Gallego v. Vera, 73 Phi. 453).
Comment — Re: Principle (a) ONE domicile

Every natural person has a domicile; he cannot be without
one. If he never leaves his domicile of origin, the same becomes
his domicile of choice after attaining the age of majority or
after being otherwise emancipated. (Minor, Conflict of Laws,
pp. 67-72).
Comment — Re: Principle (b) ONLY ONE domicile
Generally, no natural person can have more than one

domicile at a time. (Minor, Conflict of Laws, p. 68). While a
person may have more than one residence (vacation or summer
residence, legal residence) the Civil Code recognizes only one
domicile: the place of habitual residence. (Art. 50, Civil Code).
Otherwise the law supposed to follow the person in certain
cases would be indeterminate. (Beale, Vol. I, Coflict o f Laws,
p. 124). However, since domicile serves different purposes, it
has been suggested that a man may possibly have one domicile
(say, for the purpose of taxation) and another domicile (say,
for the purpose of obtaining a legal separation). (Cook, Legal
**and Logical Bases o f the Conflict of Laws, pp. 194-210).
Moreover, the characterization of domicile presents a big
problem; the general rule, however, is for the forum to
characterize the domicile of the litigant before it. (See In Re
Dorrance’s Estate, 309 Pa. 151; 115 N.J. Eq. 268).
Illustrative Cases:
(a) From Pennsylvania
In Re Dorrance’s Estate
309 Pa. 151
FACTS: Mr. Dorrante, a resident of New Jersey, bought
a large estate in Pennsylvania, where he began
to live with his wife and children, and where
eventually a daughter of his was married.
r* HOWEVER, at the time, he maintained his
house in New Jersey, going there once in a
while; and in his will be stated that he was a
resident of New Jersey (to avoid paying certain
taxes in Pennsylvania). The issue was whether
or not he was domiciled in Pennyslvania for
the tax appraisement of his estate.
HELD: The Pennsylvania court held that he was
domiciled in Pennsylvania as shown by his
CONDUCT, notwithstanding his expressed
desire to still have New Jersey as his domicile
for purposes of taxation. His declaration as to
New Jersey is utterly self-serving, and contrary
to his actual conduct of living in Pennsylvania.
(b) From New Jersey (the same case)
In Re Dorrance’s Estate
115 N.J. Eq. 268
FACTS: Same as in the Pennsylvania case. The issue
was v|Jiether or not the Pennsylvania decision
was binding on the courts of New Jersey.
HELD: The domicile of the deceased was in New Jersey
as evidenced by his INTENTION to return
there, notwithstanding actual residence in
Pennsylvania. In view of the animus manendi,
he never lost his New Jersey domicile. A man
may choose his own domicile; the motive that
may prompt him is immaterial. As between
two residence, a man may select which one is
his true domicile. Hence, the Pennsylvania
decision does not bind New Jersey courts.
Comment — Re: Principles (c) and (d) — CHANGE and

RETENTION of domicile
(a) For a change of domicile intention to reside elsewhere

without actual residence in the place chosen will not be
sufficient; upon the other hand, actual residence in the
new place without the intention to make it the permanent
abode will also not be enough. In other words, to effect
a change of domicile both the ACTUAL STAY and the
INTENT must concur.
(b) For a retention of the old domicile — there need NOT be
a concurrence of the two: for unless a new domicile is
acquired, the old one is retained. Hence, one may retain
his old domicile so long as he resides there OR even if
not, so long as he intends to return. (See Cheshire, Private
International Law, pp. 215-216).
(c) As Prof. Cheshire puts it:
“Intention without residence or residence without
intention will not suffice for the acquisition of a domicile,
but will be sufficient for the retention of an existing
domicile.” (Cheshire, ibid.).
Velilla v. Posadas
62 Phil. 624
FACTS: Mr. Moody lived and worked in Manila for more

than 25 years. However, he wandered around
in various countries until he died in Calcutta.
Issue: Where was his domicile at the time of
death?
HELD: His domicile at the time of his death was in
the Philippines, because he never acquired any
new domicile in a foreign country, despite his
wandering abroad. To effect the abandonment
of one’s domicile, there must be a deliberate
and provable choice of a new domicile, coupled
with actual residence in the place chosen, with
a declared or provable intent that it should be
one’s fixed and permanent place of abode, one’s
home. This was NOT proved.
Gallego v. Vera
73 Phil. 453
Questions: To acquire a new domicile of choice what things

must concur?
HELD: There must concur:
(1) residence or bodily presence in the new
locality;
(2) an intention to remain there; and
(3) an intention to abandon the old domicile.
In other words there must be an animus non
revertendi or an animus manendi. The intent to remain
in or at the domicile of choice must be for an indefinite
period of time. The acts of the person must conform with
his purpose. The change of residence must be voluntary,
the residence at the place chosen for the domicile must
be actual-, and to the fact of residence there must be
added the animus manendi.
Testate Estate of Bohanan

L-2105, January 30, 1960
FACTS: The testator was born in Nebraska, had

properties in California, and had a temporary,
although long, residence in the Philippines. In
his will executed in Manila, he stated that he
had selected as his domicile and permanent
residence, the state of Nevada.
HELD: His permanent domicile in the United States
depended upon his personal intent or desire,
and as he selected Nevada as his domicile, he
was at the time of his death a domiciliary of
Nevada. (Incidentally, in the United States, a
person is a national or a citizen, not of the
state where he was born, but of the state in
which he is domiciled). Nobody else but the
testator can choose his own domicile or
permanent residence for him, because such
choice is his exclusive and permanent right.
The Cases of Imelda Marcos and

Agapito “Butz” Aquino.
Two celebrated cases reaching the Supreme Court
(SC) hit the headlines recently. These cases have a
bearing on future election disputes, vis-a-vis “conflict of
laws” issues.
These are Imelda Romualdez Marcos v. the Com
mission on Elections, (COMELEC), G.R. 119976, en banc
resolutions of Sept. 12 and Oct. 25, 1995 and Agapito A.
Aquino v. Comelec, G.R. 120265, en banc resolutions of
Sept. 12 and Oct. 25, 1995.
The first made final the proclamation of Imelda
Marcos as the duly elected representative of the first
congressional district of Leyte over respondent (private)
Cirilo Roy Montejo.
The case started when Montejo asked Comelec to
disqualify Marcos for allegedly lacking the one-year
residency requirement mandated under the 1987
Philippine Constitution. Montejo claimed the former First
Lady placed her residency in the first district of the
province at seven months preceding the balloting (i.e.,
five months short of the required residency). Marcos
argued, however, that she has been a resident of the
area since childhood and has not abandoned her residency.
After the poll body disqualified her, she took the case to
the SC.
In an en banc resolution dated Sept. 12, 1995, the
SC, voting 8 to 5, granted Marcos’ petition that she be
declared qualified to run and be elected to a congressional
seat.
Chief Justice Narvasa and Justice Mendoza voted
to grant the petition on the ground that neither the
Comelec nor the SC has competence over the issue of
disqualifications of candidates for representatives,
exclusive jurisdiction over such an issue being vested in
the House of Representatives Electoral Tribunal (HRET),
in accordance with Section 17, Article VI of the 1987
Philippine Constitution.
Justices Romero, Bellosillo, Melo, Puno, Kapunan,
and Francisco voted to grant the petition on the basic
theory that the petitioner was qualified to run and be

voted for as representative.
Justices Padilla, Regalado, Davide, and Hermosi-
sima, Jr. voted to dismiss the petition on the ground that
the petitioner was not qualified to run and be voted for.
Justice Vitug voted to dismiss the petition on the ground
that there was no grave abuse of discretion on the part
of Comelec in disqualifying the petitioner.
The SC resolved that the conclusions herein reached
did not preclude the issue of the petitioner’s qualification
in an appropriate proceeding before the HRET.
Acting on the Motion for Reconsideration filed by
private respondent Montejo on Sept. 27, 1995, the Court
resolved, by a vote of 9 to 6, to deny the motion with
finality, for lack of merit last Oct. 25, 1995.
Two of the nine justices who voted to deny the
motion maintained their view that the challenged
resolutions of the Comelec are null and void for lack of
jurisdiction.
In the second case, Supreme Court (SC), in its Sept.
12, 1995 resolution, has barred petitioner Agapito A.
Aquino from assuming the post of representative for the
second district of Makati.
This is the case of Aquino vs. Commission on
Elections (Comelec) GR 120265, en banc resolution of
Sept. 12, 1995 and Oct. 25, 1995.
In an eight to five vote, the congressional aspirant
was disqualified ^ the ground that he is ineligible for
the post.
Justices Padilla, Regalado, Melo, Puno, Kapunan,
Francisco, and Hermosisima voted to dismiss Aquino’s
petition, while Justice Vitug said the Comelec committed
no grave abuse of discretion when the body disqualified
him.
The five justices who voted in Aquino’s favor were:
Chief Justice Narvasa and Justice Davide, Romero,
Bellosillo, and Mendoza. Narvasa and Mendoza pointed
out that the House of Representatives Electoral Tribunal
has exclusive jurisdiction to hear cases questioning the

eligibility of candidates for the lower chamber.
The disqualification case against the former senator
stemmed from a complaint filed by the “Move Makati”
group, which alleged that he fell short of the required
residency. He elevated the issue before the SC, after the
poll body found him ineligible to run in the May polls.
He won by a margin of around 2,500 votes against political
rival Augusto Syjuco Jr.
Acting on the Motion for Partial Reconsideration
filed by private respondents Move Makati and Mateo P.
Bedon on Oct. 6, 1995, the SC resolved, by a vote of 10
to 4, with one abstention, to deny the motion with finality,
for lack of merit, last Oct. 25, 1995.
Two of the 10 justices who voted to deny the motion
maintained their view that the challenged resolutions of
the Comelec were null and void for lack of jurisdiction.
The Court further resolved to note the opposition
to the Motion for Partial Reconsideration filed by
counsel for the petitioner, and the Motion to Compute
the Period to Fille Motion for Reconsideration dated
Sept. 27, 1995.
Be it noted that the SC’s basis in denying with
finality Syjuco’s motion to proclaim him a duly elected
representative of the second district of Makati (following
the disqualification of Aquino for lack of the one-year
residency requirement), is merely a reiteration of its
earlier doctrine that a candidate who got the second-
highest number of votes cannot be proclaimed winner,
since he is not the choice of the electorate.
(d) In view of their legal disability, infants, idiots, lunatics
and the insane cannot acquire any domicile of choice.
Because of lack of voluntariness, the following cannot
also acquire a new domicile of choice:
&
1) A convict or a prisoner. Here, his domicile of choice

is the one previously possessed by him, unless he
deliberately makes the new locality his permanent
home, after he gets out of prison. (See Minor, Conflict
of Laws, pp. 111-112).
2) Involuntary exiles — those compelled by the com

mand of a superior political power to abandon their
country (Here, the domicile of choice is still the
previously existing domicile since there was no
freedom of choice).
NOTE: Voluntary exiles deliberately choose
their new domicile, unless of course they intend to
eventually return to their native land.
3)^ Soldiers — since they are compelled to follow the
dictates of military exigencies. (Their domicile of
choice is their domicile at the time of their
enlistment in the armed forces.) (See Harris v.
Harris, 205 Iowa 108).
4) Public officials and employees, diplomats, and
consular officers since their stay abroad is in an
official, not personal capacity. (Their domicile, of
choice, is therefore, their previously existing
domicile, unless they manifestly desire to take up
permanent residence in the place of employment.)
DOMICILE DISTINGUISHED FROM RESIDENCE

The principal distinction is this: while residence is more or
less temporary, domicile is more or less permanent. Secondly, while
a person can have several places of residence, he can have generally
only one domicile. As a matter of fact, under the Civil Code, domicile
carries a note of habituality. (Art. 50). In Utengsu vs. Republic, 50
O.G. 4781, Oct. 1954, the Supreme Court held:
“There is a difference between domicile and residence.
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 the intention to
remain for an unlimited time. A man can have but one domicile for
one and the same purpose at any time, but he may have numerous
places of residence. His place of residence generally is his place of
domicile, but is not by any means, necessarily so since no length of
residence without intention of remaining will constitute domicile.”
'See also Kennan on Residence and Domicile, pp. 26, 35, 36).
NOTE: The distinctions given hereinabove apparently reverse

the opinions given by the same Supreme Court in at least two
cases. In Larena v. Teves, 61 Phil. 36, the Court said that “the term
‘residence’ is synonymous with home or domicile denoting a
permanent dwelling place, to which the party when absent intends
to return.” In Nuval v. Guray, 52 Phil. 645, the Court said that
“the term residence is synonymous with domicile which imports not
only intention to reside in a fixed place, but also personal presence
in that place, coupled with conduct indicative of such intention.”
NOTE : Incidentally it should be pointed out that the place of
obtaining a residence certificate and the data contained therein are
NOT CONCLUSIVE as to the real residence or domicile of a person
owning said certificate. (Zuellig v. Rep., 83 Phil. 768).
CONSTITUTIONAL AND PENAL SAFEGUARDS

ON DOMICILE
(a) Constitutional Provisions
“The liberty of abode and of changing the same
within the limits prescribed by law shall not be impaired.”
(Art. Ill, Sec. 1, No. 4, 1935 Constitution).
“The liberty of abode and of travel shall not be
impaired except upon lawful order of the court, or when
necessary in the interest of national security, public
safety, or public health.” (Art. Ill, Sec. 6, 1987
Constitution).
“The liberty of abode and of changing the same
within the limits prescribed by law shall not be impaired
except upon lawful order of the court.” (Art. Ill, Sec. 6,
1987 Constitution).
NOTE: The right includes freedom to live and work
where the individual desires (Meyer v. Nebraska, 262
U.S. 360), subject only to reasonable restraint by general
law for the common good. (Blackstone, Constitutional Law,
«a pp. 535-536; Lorenzo v. Dir. of Health, 50 Phil. 55).
(b) Penal Provisions for the Crime o f EXPULSION
Under Art. 127 of the Revised Penal Code if a public
officer or employee without legal authority expels a person
from the Philippines or compels a person to change his
residence, the penalty of prision correccional (six months

and one day to six years) shall be imposed upon him.
(c) Under Art. 32 o f the Civil Code
“Any public officer or employee, or any private
individual (who) directly or indirectly obstructs, defeats,
violates or in any manner impedes or impairs the liberty
of abode and of changing the same shall be liable for
damages . . . Whether or not the defendant’s act or
omission constitutes a criminal offense, the aggrieved
party has a right to commence an entirely separate and
distinct civil action for damages, and for other relief. Such
civil action shall proceed independently of any criminal
prosecution (if the latter be instituted), and may be proved
by a preponderance of evidence. The indemnity shall
include moral damages. Exemplary damages may also be
adjudicated. The responsibility herein set forth is not
demandable from a judge unless his act or omission
constitutes a violation of the Penal Code or other penal
statute.”
Chapter X
THE SITUS OR ECLECTIC THEORY
THE SITUS OR ECLECTIC THEORY RESTATED

The situs or eclectic theory in general states that the capacity,
legal condition, or status of an individual should be governed not
necessarily by the law of his nationality nor by 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, the theory distinguishes between two (2) kinds of
participation of the individual concerned:
(1) If the participation is active (as when he does the act vol
untarily) — the governing law is the law of the ACTUAL
SITUS (the place of the transaction or event); and
(2) If the participation is passive (as when the effects of the
act are set forth in the law) — the governing law is the
law of the LEGAL SITUS (the legal situs of an individual
is supposed to be his DOMICILE).
EXAMPLES:
(1) Problem: Two Filipinos, domiciled in Japan, get married
in California. What law governs:
(a) the validity of the marriage?
(b) the marital obligations of husband and wife?
Answer: If we apply the SITUS THEORY, the answers
will be as follows:
(a) The act of getting married is a voluntary one; hence
•<» the participation of the man and the woman is
ACTIVE. Since the marriage took place in California,
California is the ACTUAL SITUS, hence California
law governs the validity of the marriage.
209
(b) Generally, the marital obligations of husband and

wife are not fixed by them; they are regulated or
imposed by the law. Hence, their participation in
this matter may be said to be merely-PASSIVE.
The governing law is, therefore, the law of the
LEGAL SITUS, which is the DOMICILE of the
parties. Since they are domiciled in Japan, their
marital rights and obligations are governed by
Japanese law.
s NOTE: The problem given above has been answered in
accordance with the SITUS THEORY. However, the theory
that we follow in the Philippines on the same matter is
DIFFERENT. Applying our conflicts rules on the matter, our
answers are:
(a) If the marriage is valid in California, the marriage
is also valid in the Philippines (SITUS THEORY)
except if the marriage be bigamous, polygamous, or
incestuous as determined by Philippine law
(NATIONALITY THEORY since the parties are both
Filipinos).
(b) Their PERSONAL marital obligations are governed
by Philippine law under Art. 15 of the Civil Code
(NATIONALITY THEORY). Their property relations
are also governed by Philippine law (NATIONALITY
THEORY) by virtue of Art. 80 of the Family Code,
which can be applied by analogy.
(2) Problem: What law governs the capacity of a German to
alienate his lands and cars located in the Philippines?
Answer.Âpplying the SITUS THEORY to the
problem, said capacity is governed by the law of the place
where the property is located. Since the properties are in
the Philippines, the law of the Philippines shall govern.
NOTE: Incidentally, it will be observed that as to
this matter, the rule in the Philippines is identical because
of Art. 16, par. 1 of the Civil Code, which stresses the
principle of “lex situs” or the principle of “lex rei sitae.”
From this viewpoint, we apply in this matter also the
SITUS THEORY, and not the NATIONALITY THEORY.
Chapter XI
THE PROBLEM OF THE RENVOI
INTRODUCTION TO THE RENVOI PROBLEM

If all states would adopt uniformly the NATIONALITY
THEORY, or if all would agree to apply the DOMICILIARY
THEORY, the problem often referred to as the “renvoi” will hardly
arise. Yet we must be realistic: various countries have variant
theories and concepts; therefore, the problem of the “renvoi” has
come, apparently to stay.
Renvoi literally means a referring back; the problem arises
when there is a doubt as to whether a reference to a foreign
law —
(a) is a reference to the INTERNAL law of said foreign
law; or
(b) is a reference to the WHOLE of the foreign law,
including its CONFLICTS RULES.
In the latter case, if one state involved follows the
NATIONALITY theory, and the other, the DOMICILIARY theory,
there is a possibility that the problem may be referred back to the
law of the first state.
Illustrative Example: An English domiciliary of the Philippines
dies in Manila leaving his English child. Under Art. 16, par. 2 of
the Civil Code, successional rights to the estate of the deceased
Englishman are governed by his national law, that is, English law.
If what is meant by English law is the English internal law on
succession, it is clear that such law will govern the successional
rights of the child. If upon the other hand, what is meant by English
law is the whole law of England, including English conflicts rules,
then the successional rights of the child shall be governed according
211
to English conflicts rules, by the law of the domicile of the deceased,

namely, Philippine law, since according to the problem the deceased
was domiciled in the Philippines at the moment of death. In short,
the issue is: should the successional rights of the child be governed
by English internal law on succession, or by the Philippine internal
law on succession?
PROPOSED SOLUTIONS
Various solutions have been proposed for the problem:
(1) we may reject the renvci
[This means that we do not want the problem to be
sent back to us; that we do not want the matter to be
referred back to us. In other words, v/e consider the
reference in Art. 16, par. 2 of the Civil Code to be a
mental reference to the INTERNAL law of England on
succession. Conclusion: we apply the ENGLISH internal
law on successional rights of the child. (See Goodrich,
Conflict o f Laws, pp. 18-20). j
(2) we may acccept the renvoi
[Here, the reference is to the WHOLE of English
law, including its conflicts rules. Inasmuch as English
conflicts rules refer the matter back to the law of the
domicile, namely, the Philippines, the successional rights
of the child shall be determined by our internal law on
succession. This clearly illustrates the "single renvoi” or
the “single remission”: we mentally referred the matter
to England because of Art. 16, par. 2 of the Civil Code;
English conflicts rules in turn referred back the matter
to us. Conclusion: The Philippine internal law on
succession will apply. (See Beale, Conflict of Laws, Vol.
Ill, pp. 1930-1939).]
(3) we may follow the theory of desistment (also referred to
as the mutual-disclaimer o f jurisdiction theory)
[Under this theory, we desist or refrain from
applying the English law because we tell ourselves: under
Art. 16, par. 2 of the Civil Code, we are asked to apply
the English or national law, but how can we apply English
law when said law is based, NOT ON NATIONALITY
but on the domicile? Since, therefore, we ought not to
THE PROBLEM OF THE RENVOI 213
apply English law, we have no alternative except to apply

Philippine law. Conclusion: the successional rights o f the
English child shall be governed by the Philippine internal
law on succession. It will be observed that under both
theories of “accepting the renvoi” and “desistm ent,”
Philippine internal law on succession applies. T h e
conclusion is the same but the process is different. In
accepting the renvoi, we referred the matter (mentally)
to English law, and England referred it back to us; in
desisting, we found English law inadequate because it is
founded on a different basis, and so we desisted from
applying it, hence, we had to apply Philippine interned
law.J
(4) we may make use of the “foreign court theory”
[This simply means that our Philippine court, in
deciding the case, will put itself in the position of the
English (or foreign court); and whatever the English court
will do respecting the case the Philippine court will
likewise do. Kence, if the English judge in England, when
confronted with the same problem, would apply English
internal law, the Philippine judge in the Philippines would
also use English internal law. If the English judge decides
the case in accordance with the Philippine internal law
on succession, the Filipino judge will also follow suit by
making use of Philippine internal law on succession. It
is a sort of “follow the leader.” There in one clear
advantage in this system; regardless of Forum, the
applicable law will be the same. However, there appears
to be one drawback, namely, if we follow the “foreign
court theory’ and England follows also the same theory,
the result would be — we would do what England would
do but England would do what we do but we would do
what England would do, etc. This phenomenon has been
referred to as “international pingpong,” “international
football,” “revolving doors,” and “inextricable circle,” etc.
(Griswold, 51 Harvard Law Review 1183; see aso Testate
Estate of Edward Christensen, L-16759, Jan. 31, 1963).]
NOTE: If we adopt the “foreign court theory” we
may discover that the foreign court may:
(a) reject the renvoi;
C&) accept the renvoi;
2l4 PHILIPPINE CONFLICT OF LAWS
(c) follow the desistment theory; or

(d) follow the “foreign court theory” itself.
HENCE:
(a) If the foreign court “rejects the renvoi,” the ultimate
result is that we will apply OUR internal law on
succession.
(b) If the foreign court “accepts the renvoi,” the ultimate
**■ end is or us to apply ENGLISH internal law on
succession. This results in what is generally referred
to as the DOUBLE RENVOI.
Definition o f “double renvoi”: It is that which
occurs when the local court, in adopting the foreign
court theory, discovers that the foreign court accepts
the renvoi.
Example: In the original example we gave in
the problem of renvoi, the double renvoi works out
in the following manner: The Philippine court adopts
the foreign court theory and, thefore, will do what
the English court would do. But the English court,
let us say, accepts the renvoi — that is, it refers the
matter to the Philippines (domicile) which in turn
refers the matter to England (nationality). Since
England in the problem accepts the referring back
to England (acceptance of the renvoi), it will in
deciding the matter apply the English internal law
on succession. Since under the premises, we have
adopted tîe foreign court theory, the Philippine
court, in deciding the case will do what the English
judge has done, namely, apply also the English
internal law on succession. [See in Re Annesley
(1926) Ch. 692.]
(c) If the foreign court follows the “desistment theory,”
the inevitable conclusion is that we will apply the
English internaliaw on succession.
(d) If the foreign court also follows the “foreign court
theory” the result will be the vicious circle already
adverted to as “international pingpong.”
Th e p r o b l e m o f t h e r e n v o i 215
TRANSMISSION
Transmission is the process of applying the law of a foreign
state thru the law of a second foreign state.
Example-. An Italian domiciled in the Philippines dies in
England. If the case is tried in England, the English court (following
the DOMICILIARY THEORY) refers to the law of the Philippines,
but discovers that the Philippines, in turn; refers the matters to
Italy (following our NATIONALITY THEORY). Hence, England,
thru Philippine law, ultimately applies Italian law. If this is done,
what has occurred is a TRANSMISSION; Trouble will begin,
however, if Italy (for example) will provide in its conflicts rules
that the successional rights to the estate of an Italian shall be
governed by the law of the state where he actually was at the time
of death, namely, England. England will be faced with the problem
of what it should do regarding the transmission of the matter back
to it.
DOUBLE RENVOI DISTINGUISHED FROM TRANSMISSION

(1) Double renvoi deals with TWO countries; transmission,
with THREE or MORE countries.
(2) Double renvoi deals with a “referring back”; transmission,
with a “transmitting.”
IMPLICATIONS OF RENVOI AND TRANSMISSION

(1) Both renvoi and transmission may apply not only to
successional rights; they may refer also to marriage, to
other contracts and agreements, in fact, to almost
anything covered by Conflict of Laws.
(2) Both problems may occur even if (in RENVOI) the two
countries BOTH adhere, say, to the NATIONALITY
THEORY or BOTH to the DOMICILIARY THEORY.
Examples:
(a) Two citizens of State X (which follows the
Nationality Theory) get married in State Y (which
also adheres to the Nationality Theory.) In State X
the conflicts rule is: “If our citizens marry in a
foreign country, and the marriage is valid there, it
will also be valid in our country.” Note that there is
a reference here to a foreign law — the law of State

Y. Upon the other hand, the conflicts rule in State
Y is: “If foreigners get married here their marriage
will be considered as valid here provided that it will
also be considered as valid in the country of which
they are citizens, if the marriage had been celebrated
in their country.” Observed that here there is a
reference to a foreign law — the law of State X.
Thus, the courts in State X will be confronted by
the problem of renvoi', is the reference in their
conflicts rule to the foreign law a reference to the
foreign INTERNAL law on marriage, or a reference
to the whole of the foreign law, including the foreign
conflicts rules?
(b) Transmission in marriage problems may be
illustrated thus: Two Filipinos domiciled in China
get married in England. Under our law, if the
marriage is valid where celebrated, it will generally
be* valid also here in the Philippines. However, let
us grant that in England the law is: “Marriages
here in England between foreigners shall be
considered as valid here only if they are recognized
as valid in the law of their DOMICILE.” Now, then,
our Philippine courts may eventually have to apply
Chinese law, thru the law of another state, England.
This would be a clear case of TRANSMISSION.
ARGUMENT IN FAVOR OF EACH OF THE

PROPOSED SOLUTIONS FOR RENVOI
(1) Rejection o f the Renvoi
Unless we reject the renvoi, we shall in a sense be
surrendering our legislative sovereignty, or we shall be
applying not our own conflicts rules but the conflicts rules of
foreign states. (See Cheshire, Private International Law, p.
93).
CONTRA: Our conflicts rules say merely that a certain
foreign law will be applied: it does not distinguish whether
said foreign law is an internal rule or conflicts rule. Hence,
the argument given BEGS THE QUESTION. (Griswold,
(2) A cceptance o f the Renvoi

We should accept the renvoi because this would result in
a harmony of decisions, irrespective of forum. (See Rabel,
Conflict of Laws, Vo. I, p. 81).
CONTRA: If all countries accept the renvoi, the result
will not be harmony, but discord — for ultimately, each country
will apply its own internal law. (See Cheshire, Private
International aw., p. 91). Indeed, harmony would result only if
one state accepts the renvoi, and the other rejects it. (Ibid.)
(3) The D esistm ent Theory

This has exactly the same advantages and the same
disadvantages as the acceptance of the renvoi.
(4) The Foreign Court Theory

As already intimated, this generally produces a harmony
of decisions; as a matter of fact, it was specifically designed to
combat the defects of the single renvoi (acceptance of the
renvoi).
CONTRA: As also already explained, the theory if adopted
by both the forum and the foreign court will cause what we
have already referred to as “international ping-pong.”
SUGGESTED CONCLUSION
In the absence of more definitive rules on the matter 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 o f 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.
PHILIPPINE LAW ON THE MATTER

Perhaps the very first case where our Supreme Court has
been able to expound at length on what we ought to do when
confronted by the renvoi problem is the case entitled “In the Matter
o f Testate Estate of the Deceased Edward E. Christensen, Deceased;

Adolfo C. Aznar and Lucy Christensen v. Helen Christensen Garcia,”
penned by Justice Alejo Labrador, the decision, which was
promulgated on January 31, 1963 as G.R. No. L-16759, in effect
held that if a California citizen dies domiciled in the Philippines,
our courts are under Art. 16, par. 2 of the Civil Code compelled to
apply the National law of the deceased (California law); but since
said California law itself refers back the matter to the Philippines
(the place of domicile), we have no alternative except to accept the
referring back to us (substantiality, this is the theory of the single
renvoi or the theory of acceptance of the renvoi). To do otherwise
(i.e., to refer back again the matter to the foreign country, with the
possibility that once again the problem will be rumed to us) would
in the Court’s opinion to give rise to “international football.”
The salient acts of the Christensen case are these: Edward E.
Christensen, though born in New York, migrated to California,
where he resided (and consequently was a California citizen) or a
period of nine years. In 1913 he came to the Philippines where he
became a domiciliary till the time of his death. However, during
the entire period of his residence in this country he had always
considered himself a citizen of California. In his will executed on
March 5, 1951, he instituted an acknowledged natural daughter,
Maria Lucy Christensen (now Mrs. Bernard Danay) as his only
heir, but left a legacy of a sum of money in favor of Helen
Christensen Garcia (who in a decision rendered by the Supreme
Court was declared another acknowledged natural daughter of his).
Counsel or the acknowledged natural daughter Helen claims that
under Art. 16, par. 2 of the Civil Code, California law should be
applied; that under California law, the matter is referred back to
the law of the domicile; that, therefore, Philippine law is ultimately
applicable; that finally, th£ share of Helen must be increased in
view of the successional rights of illegitimate children under
Philippine law. Upon the other hand, counsel or the child Maria
Lucy contends that inasmuch as it is clear that under Art. 16, par.
2 of our Civil Code, the national law of the deceased must apply,
our courts must immediately apply the internal law of California
on the matter; that under California law there are no compulsory
heirs and consequently a testator could dispose off any property
possessed by him in absolute dominion and that finally, illegitimate
children not being entitled to anything under California law, the
will of the deceased giving the bulk of the property to Maria Lucy
must remain undisturbed.
The Court in deciding to grant more successional rights to

Helen said in effect that there are two rules in California on the
matter: the internal law (which should apply to Californians
domiciled in California); and the conflicts rule (which should apply
to Californians domiciled OUTSIDE of California). The California
conflicts rule, found in Art. 946 of the California Civil Code, says
— “If there is no law to the contrary in the place where personal
property is situated, it is deemed to follow the person of its owner
and is governed by the law of his domicie.” Christensen being
domiciled outside California the law of his domicile, the Philippines,
ought to be followed. Were we to throw back the matter to California,
the problem would be tossed back and forth between the states
concerned, resulting in “international football.” (The case was
remanded to the trial court or further proceedings — the
determination of successional rights under Philippine law.)
Testate Estate of Amos G. Beilis,

et al. v. Edward A. Beilis,
L-23678, June 6, 1967
FACTS: Amos G. Beilis was a citizen and resident of
Texas at the time of his death. Before he died,
he had made two wills, one disposing of his
Texas properties, the other disposing of his
Philippine properties. In both wills, his
recognized illegitimate children were not given
anything. Texas has no conflicts rule (rule of
Private International Law) governing
successional rights. Furthermore, under Texas
Law, there are no compulsory heirs and
therefore no legitimes. The illegitimate children
opposed the wills on the ground that they have
been deprived of their legitimes to which they
would be entitled, if Philippine law were to
apply. Issue: Are they entitled to their legi
times?
HELD: (Thru Mr. Justice Jose P. Bengzon)
** (1) Said children are NOT entitled to their
legitimes — or under Texas Law which
we must apply (because it is the national
law o f the deceased), there are no
legitimes. (See Art. 16, par. 2, Civil Code).
(2) The renvoi doctrine, applied in Testate

Estate o f Edward Christensen, Aznar v.
Christensen Garcia, L-16749, Jan. 31,
1963, cannot be applied. Said doctrine is
usually pertinent where the decedent is a
national of one country, and a domiciliary
of another. In the present case, the
decedent was BOTH a national and a
domiciliary of Texas at the time of his
death. So that even assuming that Texas
has a conflict of law rule providing that
the law of the domicile should govern, the
same would not result in a reference back
(renvoi) to Philippine law, but would still
refer to Texas Law. Nonetheless, if Texas
has a conflicts rule adopting the situs
theory (lex rei sitae) calling for the
application of the law of the place where
the properties are situated, renvoi would
arise, since the properties here involved
are found in the Philippines. In the
absence, however, of proof as to the
conflict of law rule in Texas, it should not
be presumed different from ours. (Lim v.
Collector, 36 Phil. 472; In re Testate Estate
of Suntay, 95 Phil. 500).
(3) The contention that the national law of
the deceased (Art. 16, par. 2 and Art.
1039) should be disregarded because of
Art. 17, par. 3 which in effect states that
our prohibitive laws should not be
rendered nugatory by foreign laws, is
WRONG, firstly because Art. 16, par. 2
and Art. 1039 are special provisions, while
Art. 17, par. 3 is merely a general
provision; and secondly, because Congress
deleted the phrase “notwithstanding the
provisions of this and the next preceding
article” when it incorporated Art. 11 of
the old Civil Code as Art. 17 of the new
Civil Code, while reproducing without
substantial change, the second paragraph
of Art. 10 of the old Civil Code as Art. 16
of the new. It must have been its purpose

to make the second paragraph of Art. 16
a specific provision in itself, which must
be applied in testate and intestate
successions. As further indication of this
legislative intent, Congress added a new
provision, under Art. 1039, which decrees
that capacity to succeed is to be governed
by the national law of the decedent. It is,
therefore, evident that whatever public
policy or good customs may be involved
in our system of legitimes Congress has
not intended to extend the same to the
succession of foreign nationals.
(4) It has been pointed out by the oppositor
that the decedent executed two wills —
one to govern his Texas estate and the
other his Philippine estate — arguing rom
this that he intended Philippine law to
govern his Philippine estate. Assuming
that such was the decedent’s intention in
executing a separate Philippine will, it
will NOT ALTER the law, or as this Court
ruled in Miciano v. Brimo, 50 Phil. 867,
870, a provision in a foreigner’s will to
the effect that his properties shall be
distributed in accordance with Philippine
law and not with his national law, is
illegal and void or his national law, in
this regard, cannot be ignored.
Chapter XII
RULES ON STATUS IN GENERAL
SYNOPSfS OF THE RULES ON STATUS IN GENERAL
FACTUAL SITUATION POINT OF CONTACT
(1) beginning of personality (1) national law of the child

natural persons (Art. 15, Civil Code).
(2) ways and effects of eman (2) national law (Art. 15)
cipation
(3) age of majority (3) national law (Art. 15)
(4) use of names and surnames (4) national law (Art. 15)
(5) use of titles of nobility (5) national law (Art. 15)
(6) absence (6) national law (Art. 15)
(7) presumptions of death and (7) lex fori (See Arts. 43, 390,
survivorship 391, Civil Code; Rule 131,
Sec. 5 (jj), Rules of Court)
IN GENERAL
In general, the status of a person depends on his national law.
This is evident in Art. 15 of our Civil Code which states that:
“Laws relating to family rights and duties, or to the legal
capacity of persons are binding upon citizens of the Philippines,
even though living abroad.”
Although literally, Art. 15 is a one-sided conflicts rule, it has
been construed by our Supreme Court to be ALL-SIDED and,
222
RULES ON STATUS IN GENERAL 223
therefore, the nationality rule here applies to ALL nationals. (Gibbs

v. Government, 49 Phil. 293; Recto v. Harden, L-6897, Nov. 29,
1956).
THE BEGINNING OF PERSONALITY OF NATURAL PERSONS

Arts. 40 and 41 of our Civil Code give our internal rules on
the beginning of human personality:
“Art. 40. 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.
“Art. 41. 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.”
Commment:
(1) Personality does not begin at birth, it begins at conception.
(This is called presumptive personality.) (It is, of course,
essential that birth should occur later, otherwise the fetus
will be considered as never having possessed legal
personality.)
(2) If the conditions specified in Art. 41 of the Civil Code are
not complied with, the birth and the death of the child
will NOT be recorded in the Civil Registry.
(3) Two Kinds of Children
(a) Ordinary — with an intra-uterine life of at least
seven months. (Mere birth is sufficient here.)
(b) Extraordinary — if the intra-uterine life be less than
seven months. (Here the child must have lived or at
least 24 hours after its complete delivery from the
maternal womb.)
(NOTE: The term “extraordinary’ was used
instead of “premature,” or while a child with an
intra-uterine life of say eight months is still
considered premature, it is for the purpose of Art.
41 considered an ordinary child.)
(4) For Beneficial Civil Purposes

Note that the law says the fetus is considered born
only for civil purposes (Art. 41, Civil Code), which are
beneficial or favorable (Art. 40, Civil Code). Therefore, a
conceived child, thru the mother, or instance, may be the
recipient of a donation; but if the donation be onerous or
should prove burdensome, the donation will not be
considered valid. Similarly, a conceived child can be
acknowledged even before it is born. (De Jesus v. Syquia,
58 Phil. 866). It is also already entitled to be supported.
■fSee Kyne v. Kyne, 100 Pac, 806).
(5) Requirement of Human Form Eliminated
Under the old Civil Code, the law required the child
to have a human form. However, this requirement has
been eliminated because it has been proved by medical
science that no monster can be born of human beings.
(Report, Code Commission, pp. 79, 124-125).
(6) Arts. 40 and 41 of the Civil Code apply only to Filipino
babies. If the child be a foreigner, the beginning of its
personality depends upon its national law. (Art. 15, Civil
Code).
Example:
An alien mother of State X gave birth to a
child in Manila. The child had an intra-uterine
existence of only six months, and it dies three hours
after complete separation from the maternal womb.
Now then under the laws of State X (unlike our
law) the child possessed a legal personality.
Question: Should we regard the child as having
had personality? Answer: Yes, because this is a
matter that depends upon his national law. (Art.
15, Civil Code).
WAYS AND EFFECTS OF EMANCIPATION

Emancipation takes place by way of:
(1) marriage of the minor (Art. 234, Family Code)
(2) attainment of the age of minority (ibid.)
(3) parental concession (ibid.) (child must be at least 18, and

must consent). This must be thru the recording in the
Civil Register of an agreement in a public instrument
executed by the parent exercising parental authority and
the minor at least 18 years of age. Such emancipation
shall be irrevocable (ibid).
(4) judicial concession (child must be at least 18, and must
consent, and the concession must be deemed convenient
for the minor). [NOTE — Emancipation is final or
irrevocable (Art. 234, ibid).]
“Art. 404. An orphan who is a minor may, at the
instance of any relative or other person, obtain
emancipation by concession upon an order of the Court
o f First Instance (now Regional Trial Court).”
It has been held in this connection that if a minor is married,
the father cannot get her custody from the husband in view of the
emancipation. (Ching Huat v. Co Heong, 44 O.G. 1241). However if
a minor enters into a voidable marriage, and the marriage is
annulled, it is as if he was never emancipated. (See 2 Manresa, pp.
755-756).
Under Art. 234 of the Family Code, “such emancipation shall
be irrevocable,” provided, of course, there was no vitiated consent.
Regarding suing in courts it is understood that procedural rules in
our courts of justice are governed not by the national law of the
litigants but by the lex fori.
AGE OF MAJORITY
Art. 234 of the Family Code (as amended by RA 6809) states
that:
“Emancipation takes place by the attainment of majority.
Unless otherwise provided, majority commences at the age of
eighteen years.”
Problems:
«,(1) A citizen of State X wants to apply for Philippine
naturalization. In State X, he is already considered of
major age, being 19 years old.
Question: At that age may he already file his petition
to be a Filipino citizen?
Answer: Yes, provided that at the time of hearing of

the petition he is already 21 years old. If at said time he
is not yet 21 years of age, the hearing of the petition will
have to be postponed, notwithstanding the act that in
his own country, he has already reached the age of
majority. Be it noted that the Naturalization Law does
not say he must be of major age, it says explicitly that
he must be 21. Moreover even if it had said “of major
age” this must be understood to mean the age of majority
in the Philippines, because rules on naturalization and
Rationality are dependent purely on our laws.
(2) A female from State•Y marries a Filipino, but because
she is a deaf-mute she does not become a Filipino. The
marriage however is valid. Now then, assume that she is
only 18, but in State Y, marriage makes her a person of
major age. Is she still a minor? Answer: We shall consider
her a person of major age, in view of the marriage. (See
Rabel, Conflict of Laws, Vol. I, p. 173).
USE OF NAMES AND SURNAMES

Under our law, legitimate children shall principally use the
surname of the father. (Art. 364, Civil Code). An adopted child
shall bear the surname of the adopter. (Art. 365, Civil Code).
Legitimated children shall principally employ the surname of the
father. Children conceived before the decree annulling a voidable
marriage shall principally use the surname of the father. The reason
is that they are LEGITIMATE children. Illegitimate children, unless
recognized also by the father, shall bear the surname of the mother.
(See Art. 176, Family Code). A married woman may use:
(1) Her maiden first name and surname and add her
husband’s surname, or
(2) Her maiden first name and her husband’s surname, or
(3) Her husband’s full name, but prefixing a word indicating
that she is his wife, such as “Mrs.”
In this connection, in the case of Silva v. Peralta, L-13114t
Nov. 25, 1960, our Supreme Court held that the right of the wife
to use the husband’s surname is exclusive in the sense that another
woman should not misrepresent herself as the wife by using the
husband’s name with the prefix “Mrs.”
TITLES OF NOBILITY
The right to use a title of nobility depends upon the national
law of the individual concerned. (See Rabel, Conflict o f Laws, Vol.
I, p. 169) An Englishman, who may have such a title, is allowed to
use the same in our country, but if he applies or Philippine
naturalization, he must renounce any hereditary title or order of
nobility he possesses. (See 17, Naturalization Law.) Under our
Constitution such titles of royalty or nobility are not allowed. (Art.
Ill, Sec. 1(9), (1935); Art. XV, Sec. 5 (1973); Art. VI, Sec. 3 [1987]).
ABSENCE
Absence, being the legal status of a person who disappears
from his domicile, his whereabouts being unknown, is naturally
governed by the national law. (Art. 15, Civil Code; see also Rabel,
Conflict of Laws, I, p. 166). Accordingly Prof. Rabel believes that
generally in a country adhering to the nationality theory, a country’s
courts have jurisdiction to declare whether or not its nationals are
absent from theirs. (Rabel, op. cit., p. 169). While this observation
of Prof. Rabel is no doubt correct, it must be pointed out that under
our laws it would seem that our own courts also have jurisdiction
to declare an alien domiciliary in the Philippines as absent under
the conditions laid down in our Civil Code. (See Arts. 384, 385, and
386, Civil Code). Thus, before a person may be declared absent the
petition or complaint must contain allegations sufficient to indicate
that the periods of time referred to in our law before a declaration
of absence can be made have already elapsed. (See Abaling v.
Fernandez, 25 Phil. 33). Said periods are apparently applicable to
both Filipinos and foreigners. The periods are set out in Art. 384
of the Civil Code, which provides that:
“Two years having elapsed without any news about the
absentee or since the receipt of the last news, and five years
in case the absentee has left a person in charge of the
administration of his property, his absence may be declared.”
Under Art. 386 of the same Code “the judicial declaration of
absence shall not take effect until six months after its publication
in a newspaper of general circulation.”
PRESUMPTIONS OF DEATH AND SURVIVORSHIP

In our country, regardless of the nationality involved, it is the
lex fori that governs the rules on presumption of death as well as
survivorship. This is because in certain cases there may be a burden

of proof. Our periods before a person may be presumed dead are
found in Arts. 390 and 391 of the Civil Code:
“Art. 390. After the absence of seven years, it being
unknown whether or not the absentee still lives, he shall be
presumed dead for all purposes, except or those of succession.
“The absentee shall not be presumed dead or the purpose
of opening his succession till after an absence of ten years. If
he disappeared after the age of seventy-five years, an absence
of fivy, years shall be sufficient in order that his succession
may be opened.
“Art. 391. The following shall be presumed dead for all
purposes, including the division of the estate among the heirs:
“(1) A person on board a vessel lost during a sea voyage,
or an airplane which is missing, who has not been heard of for
four years since the loss of the vessel or airplane;
“(2) A person in the armed forces who has taken part in
war, and has been missing for four years;
“(3) A person who has been in danger of death under
other circumstances and his existence has not been known,
for four years.”
The absence referred to in Art. 390 is called “ordinary absence”;
while that in Art. 391 is termed “qualified absence.” In ordinary
absence, death is presumed to have occurred on the last day of the
period; in case of qualified or extraordinary absence, death is
presumed to have occurred at the beginning of the period. (See
Judge Advocate General v. Gonzales, et al., C.A. 48 O.G. No. 12, p.
5329). Our courts have held that they will NOT declare a person
presumptively dead even after the lapse of the periods indicated
above because (1) such a declaration would be useless since such a
presumption is already given in the law itself; and (2) secondly,
because such a judgment can never be final in the sense that it
may turn out that the person concerned is still alive. However, in
case property rights are involved, then in the same proceeding or
the determination and distribution of said property rights, such a
judicial declaration of presumptive death may be made. (In re
Presumption of the Death ofNecoloi Szatrow, G.R. L-1780; Lukban
v. Rep., 52 O.G. 1441; in Re William Que v. Rep., L-14058, March
24, 1960).
The rules on survivorship, upon the other hand, are found in

Art. 43 of the Civil Gode and in Rule 131, Sec. 5 (kk and jj) of the
Rules of Court:
“Art. 43. If there is a doubt, as between two or more
persons who are called to succeed each other, as to which of
them died first, whoever alleges the death of one prior to the
other, shall prove the same; in the absence of proof, it is
presumed that they died at the same time and there shall be
no transmission of rights from one to the other.”
Under the Rules of Court, Art. 43 is COPIED and is referred
to as Rule 131, Sec. 3 (kk). Immediately preceding it is Rule 131,
Sec. 3 (jj), which reads as follows:
“Sec. 3 (jj). When two persons perish in the same calamity,
such as wreck, battle, or conflagration, and it is not shown
who died first, and there are no particular circumstances from
which it can be inferred, the survivorship is presumed from
the probabilities resulting from the strength and age of the
sexes, according to the following rules:
1. If both were under the age of fifteen years, the older
is presumed to have survived;
2. If both were above the age of sixty, the younger is
presumed to have survived;
3. If one is under fifteen and the other above sixty, the
former is presumed to have survived;
4. If both be over fifteen and under sixty, and the
sexes be different, the male is presumed to have
survived; if the sexes be the same, then the older;
5. If one be under fifteen or over sixty, and the other
between those ages, the latter is presumed to have
survived.”
Art. 43 applies when the case involves two or more
persons who are “called to succeed each other” (example: father
and son). In all other cases, we should apply Rule 131, Sec. 3
*®(jj).
Neither Art. 43 nor the Rules of Court’s presumption on
survivorship can apply when there are acts, known or knowable,
from which a contrary conclusion can be inferred. In such a case,
the rule of preponderance of evidence controls. (Joaquin v. Navarro,
L-5426-28, May 29, 1953; Victory Shipping v. Workmen’s Com

pensation Commission, L-9268, Nov. 28, 1959).
END OF PERSONALITY
Under Art. 42 of the Civil Code “Civil personality is
extinguished by DEATH. The effect of death upon the rights and
obligations of the deceased is determined by law, by contract, and
by will.” The death referred to is PHYSICAL DEATH. Civil
interdiction (CIVIL DEATH) merely restricts civil personality and
capacity ttf act. (Art. 38, Civil Code). The rule enunciated in Art. 42
is universally recognized throughout the world. Incidentally, a
judicial decree in a foreign country placing a person under civil
interdiction will not be recognized in our forum: this is because
such a judgment is PENAL in character.
LEGISLATIVE JURISDICTION DISTINGUISHED

FROM JUDICIAL JURISDICTION
Judicial jurisdiction is authority to hear and determine a legal
controversy. This was discussed earlier, where we stated that the
jurisdiction of our tribunals of justice is governed by our own law
on the matter. Upon the other hand, legislative jurisdiction, aside
from the authority to enact laws (which is legislative jurisdiction in
the NARROW sense) is the competence of a person’s national law
(in countries adhering to the NATIONALITY theory) to govern his
STATUS. Thus, while under Art. 15 of our Civil Code, a foreigner’s
status is governed by his national law (legislative jurisdiction) (Recto
v. Harden, L-6897, Nov. 29, 1956) our own Philippine courts, not
the foreign courts, will have authority to decide questions concerning
said foreigner’s status (jud jpial jurisdiction) by applying his national
law. (Ybanez de Barnuevo v. Fuster, 29 Phil. 606; Beale, Conflict of
Laws, Vol. I, p. 308)
Ybanez de Barnuevo v. Fuster

29 Phil. 606
FACTS: Two Spaniards, husband and wife, obtained a

divorce from each other. The validity of the
divorce was assailed in a Philippine court.
Issue: Considering the act that this question of
status involves two Spaniards domiciled in our
country, may our own courts take cognizance
of the case despite the act that under the law

questions of status are resolved by the
application of their national (Spanish) law?
HELD: Yes, because the jurisdiction of our courts is
generally submitted to the territorial principle.
Both our citizens and aliens should endeavor
to have their rights established by the tribunals
of the State which have coercive means to
enforce their decisions; otherwise a person runs
the risk of incurring useless expenditures to
obtain a judgment that cannot be enforced. (See
Torres Campos, “Elementos del Derecho
Internacional Privado,” p. 108).
Chapter XIII
MARRIAGE AS A CONTRACT
MARRIAGE DEFINED
From the Christian viewpoint (in its literal sense, one who
professes the Christian religion [Rubi v. Provincial Board of
Mindoro, 39 Phi. 684]), marriage is a union of one man with one
woman or the reciprocal blessings of a domestic home life, and for
the birth, rearing, and education of children.
THE TWO ASPECTS OF MARRIAGE

Marriage has two (2) aspects:
(1) It is a CONTRACT;
(2) It is also a UNION, a STATUS, a LEGAL RELATION.
Under Art. 1 of the Family Code —
“Marriage is a special contract of permanent union
between a man and a woman entered into in accordance
with law or the establishment of conjugal and family life.
It is the foundation of the family and an inviolable social
institution whose nature, consequences, and incidents are
governed by law and not subject to stipulation, except
that marriage settlements may fix the property relations
during the marriage within the limits provided by this
Code.”
In this Chapter, we shall deal with marriage as a
CONTRACT.
232
MARRIAGE AS A CONTRACT 233
SYNOPSIS OF THE RULES ON MARRIAGE

AS A CONTRACT
(1) if celebrated abroad ( 1)

(a) between Filipinos (a) lex loci celebration
is without prejudice to
the exceptions under
Arts. 26, 35 (1), (4),
(5) and (6), 36, 37 and
38 of the Family Code
(bigam ous, polyga
mous, and incestuous
marriages), and consu
lar marriages.
(b) between foreigners (b) lex loci celebrationis
except if the marriage
is:
1) highly immoral (like
bigamous and poly
gamous marriages)
2) or UNIVERSALLY
considered INCES
TUOUS, i.e., between
brothers and sisters
(whole or half-blood,
whether the relation
ship is legitimate or
illegitimate); and bet
ween ascendants and
descendants.
(c) mixed (c) apply (1-b) — to uphold
the validity o f the
marriage
(2) if celebrated in the Phil (2)
ippines
(a) between foreigners (a) national law (Art. 21,
Family Code) provided
the marriage is not

highly immoral or
universaly considered
incestuous)
(b) mixed (b) national law of the Fili
pino (otherwise public
policy may be militated
against)
(3) marriage by proxy (NOTE: (3) lex loci celebrationis (with
a im yriage by proxy is prejudice to the foregoing
considered as celebrated rules)
where the proxy appears)
MARRIAGE AS A CONTRACT (IN GENERAL)

Generally marriage as any other contract has two kinds of
requisites: the formal and the essential requisites. Under our Family
Code, formalities in general do NOT affect the validity of the
marriage (example of such formalities: if a judge solemnizes the
marriage, the ceremony must be in OPEN COURT) (See Arts. 7
and 8, id); however, there are so called formalities which are now
considered as ESSENTIAL requisites under our law (example:
marriage license, except in marriages of exceptional character).
(Art. 3, id.).
FORMAL REQUISITES IN MARRIAGE

IN CONFLICT OF LAWS
Although from our viewpoint formal requisites or marriage
(as already discussed) do NOT matter much, it is worthwhile to
examine briefly the theories in Conflict of Laws on the subject of
FORMAL REQUISITES. The three (3) usual theories are:
(1) The COMPULSORY rule — here it is imperative for the
parties to follow the formalities of the place of celebration
(lex loci celebrationis — law of the place of celebration; or
locus regit actum — law of the place where the act was
done or performed). This seems to be the rule we follow
here. (See Art. 17, par. 1, Civil Code).
(2) The OPTIONAL rule — here the parties may follow
] xARRIAGE AS A CONTRACT 235
EITHER the lex loci celebrationis or their national law.

This rule is followed in MOST countries.
(3) The ECCLESIASTICAL rule - under this theory, the
formalities of BOTH the lex loci celebrationis and the
national law o f the parties (im posing religious
requirements) must be complied with. The States
following this rule include Spain and Palestine. (See
Rabel, Conflict o f Laws, Vol. I, pp. 211-214).
SUBSTANTIAL OR ESSENTIAL REQUISITES

The substantial or essential requisites or Filipinos who marry
in the Philippines are as follows:
(1) Legal capacity of the contracting parties (this refers to
the proper ages and the lack of impediments caused by
relationship or by an existing marriage);
(2) The consent of the contracting parties, freely given;
(3) Authority of the person solemnizing the marriage; and
(4) A marriage license, except in a marriage of exceptional
character. (Art. 3, Family Code).
It is, of course, understood that the parties must be of opposite
sexes (this requirement is implied in the first essential requisite);
furthermore, there must be a CELEBRATION of the marriage
(although no particular form is required here). The necessity or
celebration may be inferred from essential requisite No. 3 which
speaks of the “authority of the solemnizing officer.” (Art. 3, Family
Code). Incidentally, it has been held that the marriage ceremony
need not be in writing: signs would suffice (People v. Cotas, C.A. 40
O.G. 3154), but in no case would a common-law marriage between
Filipinos in the Philippines be considered as valid, for solemnization
must be before the proper officer. (See Cruz v. Catandes, CA. 39
O.G. 324; Enriquez, et al. v. Enriquez, et al., 8 Phil. 565). A common-
law marriage is one where the man and the woman just live together
(or cohabit) as husband and wife without getting married.
Query: Is a common-law marriage valid in the Philippines
if between foreigners, and if the relationship began abroad?
Answer: It would seem that the answer is yes, provided it
is valid according to their national law and according to the laws
of the place where the relationship began. After all, to avoid
injustice, we have to consider also the particular conceptions

of marriage in foreign jurisdictions. However, it should not be
bigamous, polygamous, or universally considered incestuous.
We shall now examine briefly the conflicts rules on the
substantial validity of a marriage.
MARRIAGES CELEBRATED ABROAD

BETWEEN FILIPINOS
For 'ftiarriages celebrated abroad between Filipinos, the
controlling rule is indicated in Art. 26 of the Family Code:
“All marriages solemnized 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 (1),
(4), (5) and (6), 36, 37 and 38. The same proviso (Art. 26)
further provides that “where a marriage between a Filipino
citizen and a foreign is validly celebrated and a divorce is
thereafter validly obtained abroad by the client spouse
capacitating him or her to remarry, the Filipino spouse shall
likewise have capacity to remarry under Philippine law.”
Be it noted that we follow in this article the rule of LEX LOCI
CELEBRATIONIS. However, there are several exceptions
(Examples: if the marriage be BIGAMOUS, POLYGAMOUS, or
INCESTUOUS). These exceptions are caused by our nationality
theory. (See Art. 15, Civil Code). It is, of course, understood that if
a marriage in a foreign country between Filipinos be celebrated or
performed inside the Philippine consulate abroad, it is as if the
marriage had been celebrated not in a foreign country, but right
here in the Philippines. *
ILLUSTRATIVE PROBLEMS
(1) Filipino first cousins got married in California, where
the marriage is considered valid. Will their marriage be
recognized in the Philippines?
Answer: No, because such a marriage is incestuous
as determined by Philippine law.
(2) A Filipino step-brother wanted to marry his Filipino step
sister in the Philippines, but because in our country, a
step-brother cannot validly marry his step-sister, the two

decided to get married in California, where let say, the
marriage is valid. Will our court recognize the validity of
their marriage abroad?
Answer. Yes, because it is valid in the place of celeb
ration and the marriage is neither bigamous, polygamous,
or incestuous as determined by Philippine law. The
controlling article of the Civil Code is Art. 26 of the Family
Code and not Art. 15 nor Art. 17, par. 3 of the Civil Code.
In case of conflict between a particular provision (Art.
26, Family Code) and general provisions (Arts. 15 and
17, par. 3 of the Civil Code) the particular provision
prevails. Art. 26 of the Family Code must be construed
restrictively because it is a statute in derogation of a
natural right, namely, the right to get married. What the
law does not include it excludes. If Art. 26, Family Code
will not be applied, it will be rendered useless, contrary
to all rules of statutory construction. Finally, in case of
doubt, we should resolve the doubt in favor of the validity
of the marriage.
[NOTE: If this marriage between the step-brother
and the step-sister had been performed inside the
Philippines consulate in San Francisco by our consul or
vice-consul, the marriage will be deemed to have taken
place in the Philippines, and will therefore be considered
VOID],
MARRIAGES CELEBRATED ABROAD

BETWEEN FOREIGNERS
If marriage between foreigners is celebrated validly abroad,
the same will be recognized as valid here (in accordance with the
principle of lex loci celebrationis), provided it is not highly immoral
(bigamous, polygamous, etc.) and provided it is not UNIVERSALLY
considered incestuous. There are two kinds of universally considered
incestuous marriages: (a) those between ascendants and descendants
(whether the relationship be legitimate or illegitimate); (b) those
between brothers and sisters (whether of the full or half blood, and
whether the relationship be legitimate or illegitimate).
Example-. A marriage in California between American first
cousins will be recognized as valid here if valid in the place of
celebration because it is neither immoral nor universally considered
incestuous. It is true that were we to apply Art. 26 of the Family

Code, it would be “incestuous” under Philippine law but then Art.
26 applies only to Filipinos, not to foreigners (despite the lack of
express distinction in the law), otherwise it is as if our Family
Code were to rule the world. (See Rabel, Conflict o f Laws, Vol. I, p.
177).
In the case of In Re Miller’s Estate, 239 Mich. 455, it was held
that a universally considered incestuous marriage is one where
there is “such a relation between contracting parties as to make
the marriage incestuous according to the general opinion of
Christendo’m, and by that test the prohibited degrees include besides
persons in the direct line of consanguinity, brothers and sisters
only, and no other collateral kindred.” (See also Minor, Conflict of
Laws, p. 161).
Query: If a Turk brings to the Philippines four wives, to
all of whom he got married validly in Turkey, should we
recognize as valid all the four marriages?
Answer: We distinguish:
(1) For cohabitation purposes in the forum, I believe that
only the first wife will be recognized as legitimate; the
rest will be deemed mere concubines. (A “concubine” is a
mistress kept by a husband in the conjugal dwelling.
[See Art. 334, Revised Penal Code].)
(2) For the purpose of dermining successional rights to the
estate of the husband in case of death, all the wives (as
well as all of the children) should be regarded as
legitimate. (See Lorenzen, Selected Essays on the Conflict
of Laws, pp. 16-17). This is because, under Art. 16, par.
2 of the Civil Code, the successional rights shall be
governed by the fJATIONAL LAW of the deceased. If a
Turk considers all his wives and all his children as
LEGITIMATE and grants them successional rights, we
have no alternative except to allow all of them to inherit.
Thus, Prof. Lorenzen aptly says: “Suppose, again, that a
Mohammedan having two wives should attempt to cohabit
with both within the limits of the forum. In this case,
there should be no doubt that the local rule should have
precedence. Upon the other hand, if a child born of the
second marriage in a country where polygamy is
recognized, should claim by descent title to real property
situated in the forum, the courts would no doubt recognize
that claim. According to the traditional view, it is

customary to say that a polygamous marriage will not be
recognized on grounds of public policy. Such a statement,
however, is inaccurate, or a judge cannot close his eyes
to the institution of polygamy in all cases, and it is only
when it reaches a certain point of contact with the law
of the forum that it can be said to come into real conflict
with its social policy. Only in these cases will the judge
be justified to regard it as of no effect.” (Lorenzen, op.
cit., pp. 16-17).
MIXED MARRIAGES CELEBRATED ABROAD

By mixed marriages in this paragraph We mean marriages
between Filipinos on the one hand and aliens or foreigners upon
the other hand. It is our opinion that if by one law the marriage
is VALID, and by another law the marriage is VOID, that which
will uphold the validity of the marriage should be followed by us.
Example: If a Filipino girl marries her American first cousin
in California and the marriage is valid in the place of celebration,
how should we regard the marriage? If we apply the rule or Filipinos,
the marriage would be void, or it is clearly incestuous. If, however,
we choose to regard it in the light of the rules for foreigners, the
marriage, not being universally considered incestuous, should be
deemed valid. To say that on the part of the girl, the marriage is
void, and on the part of the man, it is valid would result in an
absurd situation. Hence, We believe that to avoid absurdity, and to
do justice to the girl, the marriage should be regarded by Philippine
courts as completely valid, on both sides. After all the marriage
was performed in foreign shores and it is not by itself immoral. As
repeatedly stressed by Prof. Minor “it is of the utmost importance
to the very existence of society that its well-spring, the marriage
relation, should be kept pure and unpolluted.” (Minor, Conflict of
Laws, p. 19). Indeed, Art. 149 of the Family Code emphasizes the
act that “The family, being the foundation of the nation, is a basic
social institution which public policy cherishes and protects.”
MARRIAGES CELEBRATED IN THE PHILIPPINES

BETWEEN FOREIGNERS
Should foreigners decide to marry in this country, their capacity
to marry shall be governed by their national law. This is the clear
inference from Art. 21 of the Family Code which says: “When either
or both of the contracting parties are citizens of a foreign country,

it shall be necessary for them before a marriage license can be
obtained, to submit a certificate of legal capacity to contract mar
riage, issued by their respective diplomatic or consular officials.
Stateless persons or refugees from other countries shall, in lieu of
the certificate of legal capacity herein required, submit an affidavit
stating the circumstances showing such capacity to contract
marriage.” It is evident that the capacity will have to be attested
to by the officials concerned: officials of their respective nationalities
who no doubt are supposed to be well-versed in their own national
law. The most important diplomatic officials are the (a) ambassador,
(b) minister plenipotentiary and envoy extraordinary, (c) the minister
resident, and (d) the charge d’affaires — in charge of affairs. The
consular officials are the (a) consul general, (b) consul, (c) vice-consul
and (d) consular agent. Even if allowed by their respective national
laws, and even if they are armed with the needed certificate of legal
capacity, still foreigners will not be allowed to get married here if:
(1) the marriage will be highly immoral (bigamous,
polygamous, etc.);
(2) the marriage will be universally considered incestuous
(as already defined),
Example: Chinese first cousins may validly marry here
provided that such a marriage is recognized by Chinese law.
MIXED MARRIAGES IN THE PHILIPPINES

If a Filipino marries in the Philippines an American, it is
believed that the national law of the Filipino should be followed
otherwise our public policy on this point may be militated against.
Thus, a Filipino girl cannot marry her American first cousin in
Manila. Obviously they will not be able to obtain the requisite
marriage license. And even if the marriage be of an exceptional
character, as when one of the parties is at the point of death, the
marriage will still be void. True, in this case, there would be no
necessity for a marriage license, but the fact remains that they are
still incapacitated to marry each other.
MARRIAGES BY PROXY
A marriage by proxy is one where one of the parties is merely
represented at the ceremony by a friend or delegate. The rule or
such a marriage may be stated in the following manner:
(a) If performed in the Philippines — the marriage is void

because physical presence of both parties is required
under Art. 6 of the Family Code. The rule applies, how
ever, only in the case of Filipinos and in mixed marriages.
In the case of foreigners, it is believed that if such a
marriage is recognized by their national law, we should
also consider their marriage as valid here.
(Parenthetically, it must be noted that a marriage by
proxy is regarded as celebrated in the place where the
proxy appears.)
(b) If performed abroad, whether between Filipinos or
foreigners or mixed, the controlling rule is lex loci
celebrationis, subject to the exceptions already discussed,
and subject further to special provisions as may be found
in special laws (e.g., immigration laws for purposes of
immigration).
DISTINCTIONS BETWEEN THE CONTRACT OF MARRIAGE

AND ORDINARY CONTRACTS
Before We end this short chapter on marriage as a contract,
We would like to point out that there are several points of
differentiation between a marriage contract and an ordinary
contract:
(1) Ordinary contracts are mere contracts; marriage is also
an inviolable social institution;
(2) In ordinaiy contracts, the agreements entered into usually
depend on the stipulations agreed upon by the contracting
parties unless those stipulations violate the law, public
policy, public order, good customs or good morals. In
marriage, the nature and the consequences as well as
the incidents, are governed by the law — except with
reference to marriage settlements. In marriage therefore,
as a general rule, stipulations are of no value.
(3) The age requirement in ordinary contract is the age of
** majority, or marriage, the age requirements vary.
(4) An ordinary contract may end either thru the express
provision of the law, thru expiration of the term or which
the contract was agreed upon, thru fulfillment of the
purpose for which the contract was entered into, and
even thru mutual agreement. In marriage, only death or

annulment or legal causes (or absolute divorce in specified
instances for foreigners and Moslems) dissolves the
contract.
(5) The substantial or intrinsic validity of an ordinary
contract is usually resolved by an inquiry into the law
intended by the parties (lex loci voluntatis or lex loci
intentionem). The validity of a marriage contract, upon
the other hand, is verified generally by a reference to the
lex celebrationis.
Chapter XIV
MARRIAGE AS A STATUS
SYNOPSIS OR RULES FOR MARRIAGE AS A STATUS
(1) Personal Rights and Obli (1) National law of the hus
gations between Husband band.
and Wife (NOTE: Effect of subse
(mutual fidelity, cohabi quent change of national
tation, respect, assistance ity -
and support; right of wife
to use husband’s name;
duty to follow husband’s
residence)
(a) if both will have a new
common nationality
— the new one.
(b) if only one will change
— the last common
nationality.
(c) if there never was any
common nationality
— the national law of
the husband at the
time of the wedding.
(See Hague Conven
tion o f 1905 Wolff,
Private International
Law, pp. 360-361).
243
(2) Property Relations bet (2) National law o f the

ween Husband and Wife. husband, without preju
dice to what the Civil
Code provides concerning
REAL property located in
the Phil. (Art. 80) (NOTE:
Effect of change o f
nationality — NO EF
FECT. This is the doctrine
of IMMUTABILITY IN
THE MATRIMONIAL
PROPERTY REGIME.)
PERSONAL RIGHTS AND OBLIGATIONS

Marriage as a status carries with it implications in two fields:
the realm of personal rights and obligations of the spouses; and the
realm of property relations. Generally, the first field is a personal
affair between the husband and wife, and as such, will not ordinarily
be interfered with by the courts of justice; in the second, there are
several judicial sanctions applicable.
Personal relations between the spouses are in this jurisdiction
governed by the national law of the parties. (Art. 15, Civil Code)',
to avoid the possibility of conflict between two antagonistic legal
systems, the national law of the husband is usually given preference
— obviously because of a compelling reason:
That is, the nationality of the wife principally depends
upon the nationality of the husband. For instance, a Filipino
woman who marries a foreigner loses her Philippine citizenship
if by virtue of the laws of her husband’s country, she acquires
his citizenship. [Sec. 1 (7), Com. Act No. 63, as amended by
Rep. Act No. 106]. Conversely, under the Naturalization Law,
any foreign “woman who is now or may hereafter be married
to a citizen of the Philippines and who might herself be lawfully
naturalized shall be deemed a citizen of the Philippines.” (Sec.
15, par. 1, Com. Act No. 473, Naturalization Law). Obviously
under this provision marriage seemingly automatically confers
upon the wife Philippine citizenship on the alien woman,
provided she herself may be lawfully naturalized. The law
does not require her to show that she has none of the
MARRIAGE AS A STATUS 245
disqualifications: she is apparently presumed qualified, and it

is now incumbent for the Government to prove that she in fact
is disqualified. However, in at least two cases, the Supreme
Court held that the woman does not ipso facto acquire
Philippine citizenship: upon her is the burden of proving that
she has changed her status from that of alien to citizen (Ly
Giok Ha, et al. v. Galang, et al., 54 1,1g, 356) and this has
been construed to mean that she must prove she IS NOT
DISQUALIFIED to become a Filipino citizen. (Ly Giok Ha, et
al. v. Galang, et al., supra; Cua v. Board o f Immigration
Commissioners, 53 O.G. 8567, G.R. L-9997, May 22, 1957). In
the case of Lee Suan Ay v. Galang, L-l 1855, promulgated
December 23, 1960, the Supreme Court went one step further:
it held that the woman must prove that she has all .the
QUALIFICATIONS and none of the DISQUALIFICATIONS
for Philippine citizenship. As to what kind of action or
proceeding she is supposed to bring to establish this
requirement, the Court did not in said case expressly specify.
However, as already discussed in the Chapter on Nationality,
the Supreme Court, in 1967 ruled through Mr. Justice Conrado
Sanchez, that the proper action would be to file a petition for
naturalization. (Re Petition of Zita Ngo Burca, L-24252, Jan.
30, 1967).
Ly Giok Ha, et al. v. Emilio Galang, et al.

G.R. No. L-10760, May 17, 1957
FACTS: Ly Giok Ha, a Chinese woman was allowed

entry into the Philippines as a temporary
visitor on May 14, 1955. She was supposed to
stay only up to May 14, 1956. She, of course,
had to put up a cash bond of P10,000. On
March 8, 1956, however, she married a Filipino
named Restituto Lacasta. Immediately
thereafter she informed the Commissioner of
Immigration of her change of status; she
requested cancellation of her alien immigration
papers and cancellation of her bond; she also
asked for a refund of the money upon the theory
that upon her marriage to a Filipino, she had
herself become a Filipino citizen. All the
requests were denied by the Commissioner.
HELD: Since the pleadings do not allege, and since

the records do not show, that she has none of
the disqualifications for Philippine citizenship,
the case must be remanded to the trial court
for the introduction of any evidence on this
point. (Note: The remand was ordered by the
Court for this was a case of first impression,
that is, there had previously been no precedent
on the matter.)
r
Bar Question
Question: A Japanese woman came to the

Philippines and was admitted as a transient.
(A “transient” is one whose stay is of uncertain
duration, or of a short time, or for a brief period
only each time. (Magat v. CA, L-55801, Aug.
30, 1982). It was found a few days later,that
her passport had been forged. Deportation
proceedings were then started against her. Ten
days later, she married a Filipino. Could she
still be subject to deportation? Why?
Answer: Yes, the Japanese woman can
still be the subject of deportation proceedings,
because mere marriage to the filipino did not
automatically or necessarily make her a
Filipino. It is essential that she must not,
among other things, possess any of the disquali
fications for naturalization. It is clear that
entryinto the Philippines on a forged passport
disqualifies her for naturalization. (See Sec. 15,
Com. Act No. 473). Having entered the
Philippines as an alien transient, it was
incumbent for her to prove that she is not one
of those disqualified from being naturalized as
a citizen under Sec. 4 o f the Revised
Naturalization Law. Inasmuch therefore as she
is still a Japanese, she can be deported. (See
Ly Giok Ha, et al. v. Galang, et al., L-10760,
May 17, 1957; Cua v. Republic, L-9997, May
22, 1957, 53 O.G. 8567).
EFFECT OF CHANGE OF NATIONALITY

If the husband will effect a subsequent change of nationality
the following rules are believed applicable:
(1) If both the husband and the wife will have a new common
nationality — the new national law will govern their
personal relations;
(2) If only one will change nationality — the last common
nationality will be applicable;
(3) If there never was any common nationality — the
governing rule will be the national law of the husband at
the time that the marriage was entered into. (See Hague
Convention o f 1905; Wolff, Private International Law, pp.
360-361).
SCOPE OF PERSONAL RELATIONS BETWEEN

THE HUSBAND AND THE WIFE
Personal rights and obligations between the husband and the
wife, all of which are generally governed by the national law of the
husband, but subject to the principles of characterization and to
the exceptions to the application of the proper foreign law, include
the following:
(1) mutual idelity, cohabitation, and respect;
(2) mutual assistance and support;
(3) right of the wife to use the husband’s name;
(4) duty of the wife to follow the husband to his residence or
domicile. (See Rabel, Conflict o f Laws, Vol. I, p. 306).
Under Art. 68 of the Family Code, “the husband and wife are
obliged to live together, observe mutual love, respect and idelity,
and render mutual help and support.”
DUTY TO LIVE TOGETHER

*• (a) There is a duty and a right to live togher: cohabitation
or consortium (including sexual intercourse). A husband
cannot be successfully accused of rape (unless there has
been legal separation, in which case there is no more
right to have sexual intercourse). But he can be accused
of coercion if he forces his wife (not legally separated

from him) against her will.
(b) The wife may establish a separate residence or domicile
in the following cases:
(1) If the husband continually indulges in illicit relations
with others. (Dadivas v. Villanueva, 54 Phil. 92);
(2) If the husband is immoderate or barbaric in his
demands for sexual intercourse. (Goitia v. Campos,
■¥”
Rueda, 35 Phil. 252);
(3) If the husband grossly insults her (Talana v. Willis,
C.A., 35 O.G. 1369); or maltreats her. (Arroyo v.
Vasquez de Arroyo, 42 Phil. 54);
(4) If she has been virtually driven out of their home of
her husband and she is threatened with violence if
she should return. (Garcia v. Santiago and Santiago,
53 Phil. 952);
(5) If the husband continually gambles and refuses to
support the family. (Panuncio v. Sula, CA. 34 O.G.
1291);
(6) If the husband lives as a vagabond having no fixed
home. (1 Manresa 329);
(7) If the court exempts her because the husband lives
abroad. (Art. 69, Family Code).
INOTE: Such exemption shall not apply if the
same is not compatible with the solidarity of the
family. (Art. 69, Family Code).]
(c) If the wife refuses; unjustifiably to live with her husband,
the court will admonish but not order her to return; and
even if an oHer is made, contempt proceedings against
the wife will not prosper in case of disobedience. The
remedy here for the husband is to refuse to grant support.
(Arroyo v. Vasquez de Arroyo, 42 Phil. 54; Art. 127, No.
1, Family Code).
Query. If the husband is the Philippine ambassador
to a foreign land, may the court order the wife to follow
the husband?
Answer: No, or this is a personal obligation, even if
required under the law. Of course, the refusal of the wife
may be justified or not. If justified, she will still be entitled

to support; otherwise no. (See Arroyo v. Vasquez de Arroyo,
42 Phil. 54).
Query: If the wife is the Philippine ambassador to
a foreign country, is the husband required to follow her?
Where is the matrimonial domicile? Where is the
constructive .domicile or domicile of choice of the wife?
Answer: The husband is not obliged under any law
to follow his wife to the foreign State. The matrimonial
domicile is still in the domicile of the wife. The wife,
being a wife, despite her ambassadorial position, has a
domicile of choice: she has however a constructive
domicile, namely the family domicile, which she and her
husband shall fix. In the case of disagreement, the court
shall decide. (Art. 69, Family Code).
(d) The court cannot order a wife to have sexual intercourse
with the husband. Similarly, it cannot also compel a
husband to carnally possess the wife. This is impractical;
moreover, specific performance generally is NOT a remedy
in personal obligations. But support may, of course, be
denied. Moreover, the party who refuses unjustifiably to
have carnal relations may be held liable for moral
damages — In view of the denial of marital consortium.
(Tenchavez v. Escano, L-19671, Nov. 29, 1965).
(e) Damages are recoverable from a stranger if he:
(1) injures the wife and deprives the husband of
“consortium.” (Lilius v. Manila Railroad Co., 62 Phil.
56).
(2) tries to interfere with the domicile home life of the
spouses. (See Art. 26, Civil Code; Lilius v. Manila
Railroad Co., supra).
DUTY TO OBSERVE MUTUAL RESPECT

AND FIDELITY
Instead of obedience, Art. 68 of the New Family Code now
requires mutual love, respect and fidelity, mutual help and support.
A husband and a wife can chastise or reprimand each other, but
may not inflict force, except when either catches the other in the
act of sexual intercourse with a stranger. (Art. 247, Revised Penal
250 PHILIPPINE CONFLICT OF LAWS ;
Code). If according to the national law of the husband, he may

brutally treat his wife, the same cannot be given cognizance under
our law otherwise our policy would be offended. If the spouses’
national law, however, permits infidelity to be a ground for legal
separation or disinheritance for or unworthiness in matters of
succession, the same will be recognized as valid here. (See Arts. 15,
and 16, Civil Code).
DUTY TO RENDER MUTUAL HELP

AND SUPPORT
Marriage is a fifty-fifty proposition; therefore, there generally
must be mutual help and support. Mutual help includes the right
to defend the life, honor and property of the other spouse. (See Art.
11, Revised Penal Code). Support includes medical attendance, even
if the doctor was called by another person. (Pelayo v. Lauron, 12
Phil. 435).
RULES ON PROCEDURE
To enforce rights granted by the husband’s national law, resort
is had to the lex fori, hence should suits be litigated in the
Philippines our procedural rules will have to be followed. (See Rabel,
Conflict o f Laws, Vol. I, 307).
PROPERTY RELATIONS BETWEEN

THE HUSBAND AND WIFE
Art. 80 of the Family Code is our conflicts rule on the subject
of property relations between the husband and the wife:
“Art. 80. 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.
“This rule shall not apply:
(1) Where both spouses are aliens;
(2) With respect to the extrinsic validity of contracts affecting
property not situated in the Philippines and executed in
the country where the property is located; and
(3) With respect to the extrinsic validity of contracts entered
into in the Philippines but affecting property situated in
a foreign country whose laws require different formalities

for its extrinsic validity.”
Be it noted that the law chooses the matrimonial property
regime under the national law of the HUSBAND, instead of the
wife. And this is true, even if both the spouses are foreigners of
different nationalities. For in such a case, Art. 80 can clearly be
applied by analogy.
THE MATRIMONIAL PROPERTY REGIMES

Among the various matrimonial property regimes in force today
throughout the world are the following:
(a) the absolute community regime (here almost all the
properties of the marriage are owned in common by the
husband and the wife);
(b) the relative community regime (or the conjugal
partnership of gains or the ganancial system) — (here
everything earned during the marriage belongs to the
conjugal partnership);
(c) complete separation of property regimes — (here, each
owns his or her earnings);
(d) dotal or dowry system — (here, the wife before marriage
delivers a dowry or property to the husband to help out
in the marriage obligations, but later, when the marriage
is dissolved, the property or its value must be returned);
(e) complete absorption or administration by the husband
(the husband owns all the properties of the marriage,
but he is liable for all the debts); and
(f) marital administration system — each spouse still owns
his or her property, but the husband ADMINISTERS
ALL the properties.
In the Philippines the general rule is the absolute
community regime. (Art. 88, Family Code).
FAMILY CODE VIS-A-VIS CORPORATION CODE

With the advent of the Family Code, certain effects on the
Corporation Code (Batas Pambansa Big. 68, as amended) may be
discerned, inter alia, when we look into the rights of a wife to
become an incorporator of a corporation, to transfer her corporate

shares to another person and to exercise her voting rights.
Sec. 10 of the Corporation (which refers to the number and
qualifications of incorporators), has always been interpreted, in the
case of an incorporator who is a married woman, as requiring the
marital consent of her husband for her to sign the Articles of
Incorporation. This view is anchored in the presumption that a
married woman who acts as an incorporator binds conjugal funds
and since it is the husband who is presumptively the administrator
of the conjugal funds, his consent is necessary. The woman, of
course, is excused from securing the husband’s consent if she can
show that she is a widow, is using her paraphernal funds or is
otherwise no longer under the “marital care” of the husband.
Upon the other hand, Arts. 96 and 124 of the Family Code,
unequivocably vest the administration of both the community and
conjugal properties on both husband and wife jointly. Moreover,
Art. 73 of the same Code is explicit in allowing either spouse to
exercise any legitimate profession, occupation, business or activity
without the consent of the other.
If the wife thus were to exercise an ordinary occupation or
profession, the passage of the Family Code presupposes that she no
longer needs the consent of her husband. While ordinarily this
conclusion can be reached, in our problem, however, the wife will
need money to be .a subscriber or incorporator and if the money she
uses will be community or conjugal funds, the husband is required
to give his consent. Now if the money is her exclusive or separate
property, she does not need her husband’s consent. (Under the
Family Code, there is no mention of the term “paraphernal,” instead
what is used is “exclusive” or “separate” property.)
By virtue of Art. 75 of the Family Code, most marriages after
the effectivity of the Code vml be governed by the regime of absolute
community of property. Such must be so because most couples will
not even be aware that there are different property regimes available
or that they even have a choice at all.
Let us assume that both husband and wife owned shares of
stock before they got married. If they failed to agree on what
property regime to adopt, the shares of stock they used to own
individually would have to be deemed as community property now,
governed by the rules of co-ownership under Art. 90 of the Family
Code and therefore also by Sec. 56 of the Corporation Code (which
refers to voting in case of joint ownership of stock). Co-ownership
will automatically have to be the case, even if the stock certificates

are still in their respective names, including the maiden name of
the wife.
Given such a situation, would it be necessary now to require
proof o f consent (by the other spouse) to vote such shares even if
the shares appear in the name of one spouse alone? Yes, since this
is the logical consequence of holding these shares as community
property governed by the rules of co-ownership.
In the absence of such consent, the Corporate Secrary would
be saddled in the added responsibility of requiring a proxy from
any of the spouses who comes to vote at a stockholders’ meeting —
even if such shares he or she will vote upon happen to be exclusively
in his or her name alone. If the Corporate Secretary fails to demand
such proxy signed by the other co-owner/spouses, will the latter be
allowed to impugn the vote cast by the other spouse at the
stockholders’ meeting on the ground that, as a co-owner, he or she
was not consulted by the spouse who voted the shares? If so, what
effect will that have on the validity of corporate acts where the vote
cast by the spouse happens to be the determining vote? The vote
of the wife can be invalidated or her failure to secure the consent
of her husband.
Art. 52 of the Family Code states that the judgment of
annulment or of absolute nullity of the marriage, the partition and
distribution of the properties of the spouses, and the delivery of the
children’s presumptive legitimes shall be recorded in the appropriate
civil registry and registries of properties; otherwise, the same shall
not affect third persons.
The aforementioned provision of the Family Code should be
taken in conjunction with Sec. 63 of the Corporation Code (which
refers to the certificate of stock and transfer shares) because if
shares of stock are involved in the liquidation of properties after
the annulment of marriage, it is not enough to record the judgment
affecting them in the registry of property as provided in the Family
Code. As farther required by Sec. 63 of the Corporation Code, any
transfer of the shares to one or the other spouse must also be
registered in the books of the corporation (i.e., the proper entries
mu9& be made in the stock and transfer books; the old certificates
must be used in the name of the transferee).
Art. 51 of the Family Code provides that in case of partitions
following annulment, the value of the presumptive legitimes of all
common children shall be delivered in cash, property or sound
securities. In a situation such as this, the requirements of Sec. 63

of the Corporation Code regarding the proper manner of transferring
the shares of stock, if any, representing the whole or part of the
presumptive legitimes of the children must have to be complied
with. This, as already explained, refers not only to the proper
recording in the registry of property but also the endorsement of
the stock certificates, the cancellation of old certificates, and the
issuance of new ones.
PROBLEM: An American, whose national law follows
the system of comple separation of property, marries a Filipino
woman, whose national law provides, in the absence of a
contrary stipulation in a marriage settlement, or the absolute
community regime. (Art. 75, Family Code). The husband as a
technical consultant in an engineering project of the Philippine
government earns the sum of P4 million with which he
purchases a house (not the land) located in the Philippines.
Question: Who owns the house — the husband or
both of the spouse?
Answer: The husband is the exclusive owner of the
house. Applying Art. 80 of the Family Code, it is clear
that their matrimonial property relationship shall be
governed by the complete separation o f property regime.
In other words, under Art. 80, it is the national law of
the husband that designates the matrimonial property
regime to be enforced. Under the complete separation of
property regime, whatever is earned by either spouse
shall belong to him exclusively. The P4 million is therefore
clearly his exclusive individual property. Whatever is
acquired by the individual property of a spouse shall
naturally belong to him or to her exclusively. This is
true, both under American law and under Philippine law.
(Art. 109,»Family Code). Hence, the house must be
considered as the exclusive property of the husband.
[NOTE: Art. 80 of the Civil Code does not refer to the
system of marital property relationship: it refers to such
things as the alienation, or disposition of the properties
concerned.] Similarly, the husband will not be allowed
generally to donate the house in favor of his wife during
the existence of the marriage. (Art. 87, Family Code).
This is because insofar as capacity to alienate or encumber
real property in the Philippines is concerned, it is not
the national law that controls. What governs the
transaction is the lex situs. This is also true with reference

to formalities required in the alienation. (Art. 16, par. 1,
Civil Code).
[NOTE: Be it noted that the example speaks of a house
purchased by an American, not the land on which it has
been constructed. This is because, according to the
Supreme Court, the Parity Amendment does not allow
U.S. citizens to purchase land in the Philippines. (Republic
v. William H. Quasha, L-30299, August 17, 1972). A house
may be bought, however, for while a house is real
property, it is not land.]
IMMUTABILITY OF MATRIMONIAL PROPERTY

REGIME DOCTRINE
The doctrine of immutability insofar as the matrimonial
property regime is concerned is this — that regardless of change of
nationality on the part of the husband or of the wife or of both, the
original property regime at the start of the marriage remains. This
doctrine was recognized to by almost all countries adhering to the
nationality principle. (See Rabel, Conflict of Laws, Vol. I, p. 453).
Example: An American husband (whose national law
imposes generally the complete separation of property regime)
marries a Filipino woman. It is clear under Art. 80 of the
Family Code that the system that will prevail is the complete
separation of property regime. Now then, if the husband
subsequently becomes a national of State X whose law demands
the absolute community system, by virtue of the doctrine of
immutability, the original property relationship — complete
separation of property — shall remain, despite the change of
nationality on the part of the husband.
The reasons for the doctrine are as follows: marital peace in
property relationship shall be more or less guaranteed; the spouses
will not be able to prejudice creditors, who in turn cannot jeopardize
the interest of the spouses; even the spouses may protect themselves
from each other. (See Rabel, Conflict o f Laws, Vol. I, p. 354).
IMMUTABILITY OF THE REGIME DISTINGUISHED

FROM MUTABILITY OF THE LAW
While subsequent change of nationality does not affect the
original property regime (doctrine of immutability) in the marital
property relationship), it cannot be denied that when the law of the

original nationality itself changes the marital regime, the property
relationship has to change accordingly (doctrine of mutability insofar
as the law itself is concerned). This cannot be helped for law is
essentially a dynamic thing; however, vested rights must be duly
protected.
Example: In our previous example of the immutability doctrine,
we saw that the change of nationality of the American husband did
not alter the system originally entered into: the complete separation
of propertjyregime. If, however, subsequent legislation in the country
of original nationality (America) alters the system for example to
the conjugal partnership regime, this later regime must of necessity
control. However, it is understood that properties already acquired
prior to the effectivity of the new law shall still be governed by the
original system — complete separation of property regime. Otherwise
a person may be deprived of his property without due process of
law. (See Art. 32, No. 6, Civil Code).
SOME CASES
Harden v. Emilio Pena

48 O.G. 1307
FACTS: An American citizen married a Filipino

woman. Both were domiciled in Manila.
Issue: What law governs the ownership
o f the personal properties of the
marriage?
HELD: This is governed by Philippine law
înasmuch as the parties were domiciled
in Manila.
Collector of Internal Revenue v. Fisher

G.R. L>11622, Jan. 28, 1961
FACTS: In 1909, two British nationals got

married in Manila. Subsequently, they
transferred their domicile to California
where the man died in 1951. Issue:
What law governs their matrimonial
property relations?
HELD: Since both were British nationals, the

governing law is British law, provided
that the same is properly pleaded and
proved. This is so even if the marriage
had been celebrated in Manila. How
ever, since the marriage was celebrated
under the old Civil Code, our conflicts
rule on the matter is found in the old
Civil Code, not in the new Civil Code.
OBSERVATION: In this case, the Court incidentally
commented that had the new Civil
Code been applicable the governing
conflicts rule would not be Art. 16, par.
2, which deals with successional rights,
but Art. 124 of the new Civil Code (now
Art. 80 of the Family Code) which
precisely deals with property relations
between the husband and the wife —
whether the marriage be celebrated in
the Philippines or abroad.)
Chapter XV
ANNULMENT OF A VOIDABLE MARRIAGE
AND DECLARATION OF NULLITY
OF A VOID MARRIAGE
SYNOPSIS OF THE RULES ON ANNULMENT OF A

VOIDABLE MARRIAGE AND THE DECLARATION
OF NULLITY OF A VOID MARRIAGE
(1) grounds for annulment (if (1) the law alleged to have
the marriage is voidable been violated: in other
merely) and grounds for words, it is the law of the
declaration of nullity (if the place of celebration (lex
marriage is void ab initio) loci celebrationis) subject
to certain exceptions, that
furnishes the grounds.)
(NOTE: The proper court to annul the marriage or to

declare it null and void is the court of the country of which the
parties are nationals or domiciliaries.) (See Rabel, Conflict of
Laws, Vol. I, p. 530) '
ANNULMENT DISTINGUISHED FROM DECLARATION

A voidable marriage is valid until it is annulled. The remedy
here is therefore ANNULMENT. If the marriage is null and void
(void ab initio), there ordinarily is no need of a declaration of
nullity — since there obviously is nothing to annul. (People v.
258
ANNULMENT OF A VOIDABLE MARRIAGE AND DECLARATION 259
Mendoza, G.R. L-5877, Sept. 28, 1954). However, if a party wants

to obtain damages because of a void marriage, the only way to
obtain said damages would obviously be by asking the proper court
to declare the marriage null and void.
Example-. If a man forces a girl to marry him the marriage
is voidable, that is, valid until annulled; the proper remedy is
annulment, otherwise in the absence of any adverse litigation
thereon, the marriage continues to be valid. (See Art. 45, No.
4, Family Code). If, upon the other hand, a girl marries a
man, already married to somebody else the marriage is null
and void. (Art. 35, No. 4, Family Code). Ordinarily, there is no
necessity of asking for a judicial declaration that the marriage
is void; and therefore, the girl can just go ahead and get
married to someone else without incurring any criminal or
civil liability. (See People v. Mendoza, L-5877, Sept. 28, 1954).
However, should she desire to obtain damages from the man
who had deluded her into thinking that he was still a bachelor,
the only way she can legally force him to give her a monetary
settlement would be to go to court. In the proceeding which
she will institute, the court will expressly or implicitly declare
the marriage null and void.
GROUNDS FOR ANNULMENT OR DECLARATION

OR NULLITY
In Conflict of Laws, the grounds for the annulment of a
marriage alleged to be voidable, and the grounds for the declaration
of nullity of a marriage alleged to be null and void are the grounds
provided for by the law alleged to have been violated. In general,
it is the law of the place of celebration (lex loci celebrationis), subject
to certain exceptions, that furnishes the grounds. The reason is
simple: the lex loci celebrationis is usually the rule applied to
discover if a marriage is valid or not; conformably, it is the same
rule that should tell us whether a marriage is voidable or not; and
whether it is void or not.
In the Chapter on Marriage as a Contract we stated that
generally, if a marriage is valid where celebrated, it is valid in the
forum subject to designated exceptions. (Art. 26, Family Code). By
necessary implication we may say: if a marriage is voidable where
celebrated, it shall also be voidable in our country (subject to certain
exceptions where the marriage is considered VOID); and if a
marriage is void where celebrated, it has also be void in this country.
(1) Two Americans got married in State X where, or example,
sterility is a ground for annulment of the marriage.
May the marriage be annulled in Philippine courts on
the ground let us say of sterility on the part of the hus
band?
ANSWER: Yes. Since the marriage is voidable in
State X, it shall also be voidable here. This is true even
if under our internal law, sterility is not such a ground.
(2) Suppose in the preceding problem, it had been two
Filipinos who had married in State X, would the marriage
be also annulled in our country if say the husband
happens to be sterile?
ANSWER: Yes, and for exactly the same reason.
Since the marriage is voidable in State X, it is also to be
regarded as voidable by us here in the Philippines. This
is the necessary implication from Art. 26 (Family Code).
Of course, if in addition to sterility, the parties happened
to be also first cousins, then the exceptions in Art. 26
(Family Code); would apply and the marriage will be
regarded by our courts here as null and void.
[OBSERVATION: It must be borne in mind that
insofar as the grounds for annulment or nullity are
concerned it is NOT THE NATIONAL LAW that governs;
it is the LEX LOCI CELEBRATIONIS, subject to certain
exceptions. While it is true that under Art. 15 of the
Civil Code, status shall be governed by the national law,
still in this problem, it is the very existence o f the status
that is in issue, |ind the marriage contract is as we have
seen not governed by Art. 15 but by Art. 26 (Family
Code). Upon the other hand, as we shall have occasion to
point out in the Chapter on Legal Separation, the grounds
for legal separation are those indicated in the national
law of the parties concerned, and not those in the place
of celebration of the marriage. On this point, Art. 15
(Civil Code), will apply because a suit or legal separation
necessarily admits the validity of the marriage.]
(3) Two Filipinos are married by the Philippine Ambassador
to the United States inside the Philippine consulate in
Washington, D.C. In America, let us say, the Ambassador
ANNULMENT OF A VOIDABLE MARRIAGE AND DECLARATION 261
is authorized to perform marriages. Will such a marriage

be given cognizance in the Philippines?
ANSWER: No. Having been celebrated in the
Philippine consulate in Washington, the marriage is
considered to have been performed in the Philippines.
Under our law, the ambassador cannot perform a
marriage; only consul-generals consuls, and vice-consuls
can under Art. 7, par. 5, of the Family Code. Hence, it
follows that the marriage is void.
PROPER COURTS
Since we follow the nationality theory, our courts have
jurisdiction to take cognizance of annulment and nullity suits where
the litigants are Filipinos, or where they are domiciliaries of the
Philippines. (See Rabel, Conflict o f Laws, Vol. I, p. 539).
CHURCH ANNULMENTS AND DECLARATIONS

OF NULLITY
Church annulments of marriages and declarations o f their
nullity are only for religious purposes, and are not binding on the
civil laws and courts of our country, unless amendments to our
Family Code are made.
PSYCHOLOGICAL INCAPACITY
Today, there is controversy on whether or not absolute divorce
is allowed in our country.
Anent the non-existence of absolute divorce, it is theoretically
correct to say that we have no divorce law at present (except insofar
as Muslim divorces are concerned). But the startling truth is that
under Article 36 of the Family Code, there seems to be a basis for
the conclusion that we now have a semblance of absolute divorce
here in the Philippines.
Ârticle 36 of said Family Code reads: “A marriage contracted
by any party who, at the time of the celebration, was psychologically
incapacitated to comply with the essential marital obligations of
marriage, shall likewise be void even if such incapacity becomes
manifest only after its solemnization.” (As amended by Executive
Order No. 227, dated July 17, 1987).
Observe that if a marriage can be declared void by the church

(such as the Catholic Church) on the ground of “psychological
incapacity,” the same ground may be given as cause for cancellation
of a marriage in our civil courts without the necessity of prior
church cancellation. Please note cancellation of the marriage, not
legal separation, and said cancellation will allow either or both
parties to get married again to some other persons.
Under church laws, examples of “psychological incapacity” will
include inter alia, a wrong concept of marital vows and marital
infidelity,jtlcoholism, gambling, womanizing, and adamant refusal
to give support to a degree incompatible with a mature
understanding of responsible married life. This degree is of course
subject to determination by the courts, particularly, the Supreme
Court. And even if these causes should manifest themselves long
after the wedding, said causes are considered to be potentially
existing already at the time of the celebration of the marriage.
Surely, this is actual absolute divorce, although given another name.
Note that for marriages celebrated on or after Aug. 3, 1988
(date of effectivity of the Family Code) the period within which to
file the action does not prescribe, i.e., the action can be brought
before our civil courts at anytime. For marriages entered into before
said date, the period of prescription is ten (10) years counted not
from the celebration of the marriage, but from Aug. 3, 1988.
[NOTE: See, however, Leouel Santos v. CA & Julia Rosario
Bedia-Santos, G.R. 112019, Jan. 4, 1995, 58 SCAD 17, (J. Vitug,
ponente), where it was held that “until further statutory and
jurisprudential parameters are established, every circumstance that
may have some bearing on the degree, extent, and other conditions
of that incapacity must, in every case, be carefully examined and
evaluated so that no precipitate and indiscriminate nullity is
preremptorily decreed. The well-considered opinions of psychiatrists,
psychologists, and persons with expertise in psychological disciplines
might be helpful or even desirable.”]
Chapter XVI
ABSOLUTE DIVORCE
SYNOPSIS OF RULES FOR ABSOLUTE DIVORCE
(1) if sought in the Philippines (1) lex fori (therefore, will not
(whether by Filipinos or by be granted)
foreigners)
Exception; Moslem divorces
(2) if obtained abroad: (2)
(a) between Filipinos (a) national law (therefore,
not valid here even if
valid abroad; and this
is true regardless of the
cause of divorce)
(b) between foreigners (b) national law (if valid in
the State granting it,
and valid according to
the national law of the
parties, will also be
valid here) (See Art. 15,
Civil code).
(c) mixed (c) apply (a) and (b) res
pectively. See, however,
Art. 26, second par. of
the Family Code.
263
ABSOLUTE DIVORCE DISTINGUISHED

FROM ANNULMENT
While both absolute divorce and annulment dissolve the
marital ties they differ in the following respects: absolute divorce
presupposes a validly existing marriage; annulment ends a marriage
which though considered valid in the interim, nonetheless, is
defective; absolute divorce is granted for causes SUBSEQUENT to
the marriage ceremony while causes for annulment exist at the
very time the marriage is entered into.
KINDS OF DIVORCE
There are generally two kinds of divorce: absolute (divorce a
vinculo matrimoniee) — where the marital ties are dissolved; and
relative (divorce a mensa et thoro — or separation from bed and
board or legal separation) — where parties remain married, although
this time, they are allowed to live separately from each other. In
this Chapter we shall deal merely with ABSOLUTE DIVORCE.
RULES TODAY FOR ABSOLUTE DIVORCE

(a) If the divorce suit is brought here in the Philippines:
(1) between Filipinos — it will NOT prosper;
(2) between foreigner — it will NOT prosper;
(3) between a Filipino and a foreigner — it will NOT
prosper.
The reason is that our courts today have NO
jurisdiction to grant divorce to anybody for any reason.
(Raymundo v. Penas, L-6705, Dec. 23, 1954).
(b) If the action is brought in a FOREIGN COURT:
(1) Between Filipinos — the divorce decree on any
ground will NOT be recognized here even if allowed
by said foreign court. (Arts. 15 and 17, Civil Code).
(2) Between foreigners — the foreign decree of absolute
divorce will be RECOGNIZED as valid here only if
the following two conditions concur:”
a) the foreign court must have had jurisdiction to
grant the absolute divorce;
ABSOLUTE DIVORCE 265
b) the divorce must be recognized as valid by the

NATIONAL law of the parties (See Recto v.
Harden, G.R. L-6897, Nov. 29, 1956, where the
Supreme Court said: “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.”)
[NOTE: In case of CHANGE o f citizen
ship, such as for instance by NATURAL
IZATION, it is the citizenship AT THE TIME
OF THE DIVORCE that controls. (See Art. 15,
Civil Code)]
(3) Between a Filipino and a foreigner (MIXED — that
is, when the foreigner does NOT become a Filipino,
or when the Filipino does NOT become a foreigner
by virtue of the marriage) —
Here the rule is to DENY the validity of
the divorce since to rule otherwise would be
unjust to the Filipino. (Be it noted that one of
the exceptions to the application of the proper
foreign law, is when same would result in
INJUSTICE to the citizens or residents of the
forum.)
Manila Surety and Fidelity Co. v. Teodoro

L-20530, June 29, 1967
FACTS: The conjugal partnership of Jose Corominas,

Jr. and Sonia Lizares (husband and wife) was
dissolved upon their joint petition, by the
Manila Juvenile Domestic Relations Court in
1957. Previously (in 1954), Corominas had
obtained an absolute divorce in Nevada. After
the dissolution of the conjugal partnership,
Corominas married in Hongkong a girl named
Trinidad Teodoro.
ISSUES: Is the subsequent marriage valid? Are the
fruits of Trinidad Teodoro’s private properties
governed by co-ownership?
HELD: (a) The divorce decree cannot be considered

valid here, hence the subsequent marriage
is void and bigamous. The dissolution of
the conjugal partnership did not dissolve
the marriage bonds.
(b) Although the subsequent marriage is void,
Art. 144, Civil Code (now Art. 147, Family
Code) (relating to co-ownership or to quasi-
conjugal assets) cannot apply to the fruits
of Trinidad Teodoro’s private properties,
v* since they were not acquired thru the
couple’s work or industry, nor are they
wages and salaries (consequently said fruits
cannot be reached by the man’s judgment
creditors).
[NOTE: Said Art. 144 of the Civil Code
reads: When a man and a woman live
together as husband and wife, but they are
not married, or their marriage is void from
the beginning, the property acquired by
either or both of them through their work
or industry or their wages and salaries
shall be governed by the rules on co-
ownership.]
[NOTE: Art. 147 of the Family Code
reads in part: When a man and a woman
who are capacitated to many each other,
live exclusively with each other as husband
and wife without the benefit of marriage
or under a void marriage, their wages and
salaries shall be owned by them in equal
f shares and the property acquired by both
of them through their work or industry
shall be governed by the rules on co-
ownership.]
(1) A Filipino husband and a Filipino wife went to Las Vegas
where they obtained a divorce decree on account of the
wife’s adultery. Will the divorce decree be recognized in
the Philippines?
ANSWER: No, because the divorce is contrary to an

important public policy of the forum. (Arts. 15 and 17,
Civil Code).
(2) An American movie actress married an American star in
Hollywood. After several months of marriage, she obtained
a valid divorce in Hollywood. If she should come to the
Philippines, will she be allowed to get married here?
ANSWER:Yes, provided she can get a certificate of
legal capacity to contract marriage here. The certificate
must be obtained from the proper American’s diplomatic
or consular official — under Art. 66 of the Civil Code.
The divorce will be recognized as valid here because it is
valid in accordance with her national law and it is valid
in the place which granted the same. (See Recto v. Harden,
L-6897, Nov. 29, 1956).
(3) A Filipino woman got married to H, a national of X
country. Under the laws of X, the wife acquired the
husband’s nationality. Moreover, she expressly renounced
her Philippine citizenship. (See Art. IV, Sec. 4, 1987
Constitution). Later H and the wife obtained a decree of
absolute divorce, which was considered as valid in country
X. Upon the woman’s return to the Philippines, will she
be allowed to marry again here?
ANSWER: Yes, because by virtue of her acquisition
of foreign citizenship in addition to her repudiation on
renouncing of Philippine citizenship, the rules on
foreigners govern the validity of the divorce. Inasmuch
as her divorce is considered as valid in country X, her
divorce should be recognized as valid in our courts, hence
she can remarry in the Philippines.
(4) A Filipino woman W, married an American H, but
remained a Filipino. (See Art. IV, Sec. 4, 1987 Consti
tution) Later H obtained a decree of absolute divorce in
Reno, Nevada where he had a permanent domicile. Give
the effect of the divorce decree.
ANSWER: W, being a Filipino, is still a married
woman, for the divorce is not valid insofar as she is
concerned; so she cannot remarry in our country. The
same may be said of the husband. While it is true that
he is an American, still for us to uphold the validity of
the divorce insofar as he is concerned would be UNJUST

to the Filipino wife. (See exceptions to comity).
(5) QUESTION
A and B, Filipino citizens, married in Manila in
1996. Soon thereafter B, the wife committed an act of
adultery, in view of which A abandoned her. The wife
then went to Reno, Nevada, and there obtained a final
decree of divorce on the ground of abandonment on the
part of A, and immediately thereafter, married C, an
/fmerican. A, having learned of the Reno divorce decree
and of the marriage of B to C, thereafter courted D, a
Filipina, and subsequently married her in Hongkong, and
thereafter cohabited with her in Manila. Two years later
B divorced her American husband and returned to the
Philippines. She then learned of the marriage of A to D,
and she immediately instituted an action for concubinage
against the latter. Decide, touching particularly on:
(a) the validity of the Reno divorce decree in this juris
diction, and
(b) the force and effect here of the marriage of A to D
in Hongkong.
ANSWER:
(a) The Reno divorce decree CANNOT be recognized as
valid in the Philippines because the couple’s status
is governed by Philippine law (Art. 15, Civil Code)
and because our prohibitory laws on persons
(including our denial of absolute divorce) cannot be
rendered nugatory and ineffective by a contrary
foreign decree or judgment. (Art. 17, par. 3, Civil
Code; see also Recto v. Harden and Harden, L-6897,
Nov. 29, 1956; Raymundo v. Penas, L-6705, Dec. 23,
1954).
(b) The marriage of A to D in Hongkong, while
considered valid there, cannot be considered as valid
here, because it is a bigamous marriage, as
determined by Philippine law. It is clearly bigamous
because as already stated, the absolute divorce is
VOID and the previous marriage still subsists. (Arts.
15 and 17, Civil Code).
Insofar as the criminal aspects of the case are concerned,

be it noted that A cannot be prosecuted for bigamy inasmuch
as the crime, if any, was committed in Hongkong, and thus
outside of the jurisdiction of the Philippines. We follow in our
country the principle of TERRITORIALITY, as a rule, insofar
as crimes are concerned. A cannot also be convicted of
concubinage for both A and B are in pari delicto (A, having
committed concubinage, and B, adultery). The action must be
instituted by the “offended party.” In this case there is NO
offended party.
PREVAILING RULE TODAY RE: MARRIAGES CELEBRATED

ABROAD AND EFFECT OF FOREIGN DIVORCE
What is the general rule anent the validity of marriages
celebrated abroad? Are these exceptions to the rule? What about
the rule for void or voidable (valid until annulled) foreign marriages?
Under Article 26 of the Family Code, “all marriages solemnized
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 (1), (4), (5) and (6), 36, 37, and 38. Where a marriage between
a Filipino citizen and a foreigner is validly celebrated and a divorce
is thereafter validly obtained abroad by the alien spouse capacitating
him or her to remarry, the Filipino spouse shall likewise have
capacity to remarry under Philippine law.”
Simply stated, the general rule for validity of marriages
celebrated abroad is this: If valid where celebrated, it is also valid
here. This is the doctrine of lex loci celebrationis, the law of the
place of celebration.
The exceptions: those prohibited under Articles 35 (1, 4, 5 and
6), 36, 37 and 38 of the Family Code. Thus:
“Article 35. The following marriages shall be void from
the beginning: those contracted by any party below eighteen
(18) years of age even with the consent of parents or guardians;
those bigamous or polygamous marriages not falling under
Art. 41; those contracted through mistake of one contracting
party as to the identity of the other; and those subsequent
marriages that are void under Art. 53.”
“Art. 36. A marriage contracted by any party who, at the
time of the celebration, was psychologically incapacity ' ^
comply with the essential marital obligations of marriage, shall

likewise be void even if such incapacity becomes manifest only
after its solemnization.”
“Art. 37. Marriages between the following are incestuous
and void from the beginning, whether the relationship between
the parties be legitimate or illegitimate: 1) between ascendants
and descendants of any degree; and 2) between brothers and
sisters, whether of the full or half blood.
“Art. 38. The following marriages shall be void from the
beginning for reasons of public policy: 1) between collateral
blotfd relatives, whether legitimate or illegitimate, up to the
fourth civil degree; 2) between step-parents, and step-children;
3) between parents-in-law and children-in-law; 4) between the
adopting parent and the adopted child; 5) between the surviving
spouse of the adopted child and the adopter; 6) between an
adopted child and a legitimate child of the adopter; 7) between
adopted children of the same adopter; and 8) between parties
where one, with the intention to marry the other, killed that
other person’s spouse, or his or her own spouse.
Regarding the rule for void or voidable foreign marriages, be
it noted that Art. 26 is framed in the affirmative “and valid there
as such.” Now then, suppose the marriage is void in the place of
celebration, should it also be considered as void in the Philippines?
Answer: the general rule is yes. If void where celebrated, the
marriage shall be considered void in the Philippines. Similarly, if
voidable where celebrated, the marriage would also be voidable
here in the Philippines, without prejudice of, course, to the
exceptions under Art. 26.
Note that there are requirements to prove a foreign marriage.
These include: a) the existence of the pertinent provision of the
foreign marriage law, and b) the celebration or performance of the
marriage in accordance with said law. Needless to say, the foreign
law is not of judicial notice, and it must, therefore, be proved as a
fact. Hence, if there is no competent testimony on what said law is,
the court cannot be convinced morally of the existence of such a
marriage.
As to a foreign divorce obtained by a foreigner married to a
Filipino, bear in mind that the purpose of the second paragraph of
Art. 26 is to avoid unfairness to a Filipino spouse. Note that the
rule does not apply if both parties are Filipinos.
Imelda Manalaysay Pilapil v. Hon. Ibay-Somera,

Hon. Victor, and Erich Ekkehard Geiling
G.R. No. 80116, June 30, 1989
J. Florenz D. Regalado:
An ill-starred marriage of a Filipino and a foreigner which
ended in a foreign absolute divorce, only to be followed by a
criminal infidelity suit of the latter against the former, provides
us the opportunity to lay down a decisional rule on what
hitherto appears to be an unresolved jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay
Pilapil, a Filipino citizen, and private respondent Erich Ekke
hard Geiling, a German national, were married before the
Registrar of Births, Marriages and Deaths at Friedensweiler
in the Federal Republic of Germany. The marriage started
auspiciously enough, and the couple lived together for some
time in Malate, Manila where their only child, Isabella Pilapil
Geiling, was bom on April 20, 1980. Thereafter, marital discord
set in with mutual recriminations between the spouses,
followed by a separation de facto between them.
After about three and a half years of marriage, such
connubial disharmony eventuated in private respondent
initiating a divorce proceeding against petitioner in Germany
before the Schoneberg Local Court in January, 1983. He
claimed that there was failure of their marriage and that they
had been living apart since April, 1982.
Petitioner, on the other hand, filed an action for legal
separation, support and separation of property before the
Regional Trial Court of Manila, Branch XXXII, on January
23, 1983 where the same is still pending as Civil Case No. 83-
15866.
On January 15, 1986, Division 20 of the Schoneberg
Local Court, Federal Republic of Germany, promulgated a
decree of divorce on the ground of failure of marriage of the
spouses. The custody of the child was granted to petitioner.
The records show that under German law said court was
locally and internationally competent for the divorce
proceeding and that the dissolution of said marriage was
legally founded on and authorized by the applicable law of
that foreign jurisdiction.
On June 27, 1986, or more than five months after the

issuance of the divorce decree, private respondent filed two
complaints for adultery before the City Fiscal of Manila alleging
that, while still married to said respondent, petitioner had an
affair with a certain William Chia as early as 1982 and with
yet another man named James Chua sometime in 1983”.
Assistant Fiscal Jacinto A. de los Reyes, Jr., after the
corresponding investigation, recommended the dismissal of the
cases on the ground of insufficiency of evidence. However,
upon review, the respondent city fiscal approved a resolution,
date$L January 8, 1986, directing the filing of two complaints
for adultery against the petitioner. The complaints were
accordingly filed and were eventually raffled to two branches
of the Regional Trial Court of Manila. The case entitled “People
of the Philippines vs. Imelda Pilapil and William Chia”,
docketed as Criminal Case No. 87-52435, was assigned to
Branch XXVI presided by the respondent judge; while the
other case, “People of the Philippines vs. Imelda Pilapil and
James Chua”, docketed as Criminal Case No. 87-52434 went
to the sala of Judge Leonardo Cruz, Branch XXV, of the same
court.
On March 14, 1987, petitioner filed a petition with the
Secretary of Justice asking that the aforesaid resolution of
respondent fiscal be set aside and the cases against her be
dismissed. A similar petition was filed by James Chua, her co
accused in Criminal Case No. 87-52434. The Secretary of
Justice, through the Chief State Prosecutor, gave due course
to both petitions and directed the respondent city fiscal to
inform the Department of Justice “if the accused have already
been arraigned and if not yet arrainged, to move to defer
further proceedings” and to elevate the entire records of both
cases to his office for review.
Petitioner thereafter filed a motion in both criminal cases
to defer her arraignment and to suspend further proceedings
thereon. As a consequence, Judge Leonardo Cruz suspended
proceedings in Criminal Case No. 8752434. On the other hand,
respondent judge merely reset the date of the arraignment in
Criminal Case No. 87-52435 to April 6, 1987. Before such
scheduled date, petitioner moved for the cancellation of the
arraignment and for the suspension of proceedings in said
Criminal Case No. 87-52435 until after the resolution of the
petition for review then pending before the Secretary of Justice.
A motion to quash was also filed in the same case on the

ground of lack of jurisdiction, which motion was denied by the
respondent judge in an order dated September, 1987. The
same order also directed the arraignment of both accused
therein, that is, petitioner and William Chia. The latter entered
a plea of not guilty while the petitioner refused to be arraigned.
Such refusal of the petitioner being considered by respondent
judge as direct contempt, she and her she submitted herself
for arraignment. Later, private respondent entered a plea of
not guilty.
On October 27, 1987, petitioner filed this special civil
action for certiorari and prohibition, with a prayer for a
temporary restraining order, seeking the annulment of the
order of the lower court denying her motion to quash. The
petitioner is anchored on the main ground that the court is
without jurisdiction “to try and decide the charge of adultery,
which is a private offense that cannot be prosecuted de officio,
since the purported complainant, a foeigner, does not qualify
as an offended spouse having obtained a final divorce decree
under his national law prior to his filing the criminal
complaint.”
On October 21, 1987, this Court issued a temporary
restraining order enjoining the respondents from implementing
the aforesaid order of September 8, 1987 and from further
proceeding with Criminal Case No. 87-52435. Subsequently,
on March 23, 1988 Secretary of Justice Sedfrey A. Ordonez
acted on the aforesaid petitions for review and, upholding
petitioner’s ratiocinations, issued a resolution directing the
respondent city fiscal to move for the dismissal of the com
plaints against the petitioner.
We find this petition meritorious. The writs prayed for
shall accordingly issue.
Under Article 344 of the Revised Penal Code, the crime
of adultery, as well as four other crimes against chastity, cannot
be prosecuted except upon a sworn written complaint filed by
the offended spouse. It has long since been established, with
unwavering consistency, that compliance with this rule is a
jurisdictional, and not merely a formal, requirement. While in
point of strict law the jurisdiction of the court over the offense
is vested in it by the Judiciary Law, the requirement for a
sworn written complaint is just as jurisdictional a mandate
since it is that complaint which starts the prosecutory

proceeding and without which the court cannot exercise its
jurisdiction to try the case.
Now, the law specifically provides that in prosecutions
for adultery and concubinage the person who can legally file
the complaint should be the offended spouse, and nobody else.
Unlike the offenses of seduction, abduction, rape and acts of
lasciviousness, no provision is made for the prosecution of the
crimes of adultery and concubinage by the parents,
grandparents or guardian of the offended party. The so-called
exclusive and successive rule in the prosecution of the first
four offenses above mentioned does not apply to adultery and
concubinage. It is significant that while the State, as parens
patriae, was added and vested by the 1985 Rules of Criminal
Procedure with the power to initiate the criminal action for a
deceased or incapacitated victim in the aforesaid offenses of
seduction, abduction, rape and acts of lasciviousness, in default
of her parents, grandparents or guardian, such amendment
did not include the crimes of adultery and concubinage. In
other words, only the offended spouse, and no other, is
authorized by law to initiate the action therefor.
Corollary to such exclusive grant of power to the offended
spouse to institute the action, it necessarily follows that such
initiator must have the status, capacity or legal representation
to do so at the time of the filing of the criminal action. This
is a familiar and express rule in civil actions; in fact, lack of
legal capacity to sue, as a ground for a motion to dismiss in
civil cases, is determined as of the filing of the complaint or
petition.
The absence4Sof an equivalent explicit rule in the
prosecution of criminal cases does not mean that the same
requirement and rationale would not apply. Understandably,
it may not have been found necessary since criminal actions
are generally and fundamentally commenced by the State,
through the People of the Philippines, the offended party being
merely the complainant witness therein. However, in the so-
called “private crimes”, or those which cannon the prosecution
de oficio, and the present prosecution for adultery is of such
genre, the offended spouse assumes a more predominant role
since the right to commence the action, or to refrain therefrom,
is a matter exclusively within his power and option.
This policy was adopted out of consideration for the

aggrieved party who might prefer to suffer the outrage in
silence rather than go through the scandal of a public trial.
Hence, as cogently argued by petitioner, Article 344 of the
Revised Penal Code thus presupposes that the marital
relationship is still subsisting at the time of the institution of
the criminal action for adultery. This is a logical consequence
since the raison d’etre of said provision of law would be absent
where the supposed offended party had ceased to be the spouse
of the alleged offender at the time of the filing of the criminal
case.
In these cases, therefore, it is indispensable that the
status and capacity of the complainant to commence the action
be definitely established and, as already demonstrated, such
status or capacity must indubitably exist as of the time he
initiates the action. It would be absurd if his capacity to bring
the action would be determined by his status before or
subsequent to the commencement thereof, where such capacity
or status existed priot to but ceased before, or was acquired
subsequent to but did not exist at the time of, the institution
of the case. We would thereby have the anomalous spectacle
of a party bringing suit at the very time when he is without
the legal capacity to do so.
To repeat, there does not appear to be any local
precedential jurisprudence on the specific issue as to when
precisely the status of a complainant as an offended spouse
must exist where a criminal prosecution can be commenced
only by one who in law can be categorized as possessed of
such status. Stated directly and with reference to the present
case, the inquiry would be whether it is necessary in the
commencement of a criminal action for adultery that the
marital bonds between the complainant and the accused be
unsevered and existing at the time of the institution of the
action by the former against the latter.
American jurisprudence, on cases involving statutes in
that jurisdiction which are in pari materia with ours, yields
the rule that after a divorce has been decreed, the innocent
spouse no longer has the right to institute proceedings against
the offenders where the statute provides that the innocent
spouse shall have the exclusive right to institute a prosecution
commenced, a divorce subsequently granted can have no legal
effect on the prosecution of the criminal proceedings to a

conclusion.
In the cited Loftus case, the Supreme Court of Iowa held
that no prosecution for adultery can be commenced except on
the complaint of the husband or wife. Section 4932, Code.
Through Loftus was husband o f defendant when the offense
said to have been committed, he had ceased to be such when
the prosecution was began; and appellant insists that his status
was not such as to entitled him to make the complaint. We
hav§*repeatedly said that the offense is against the unoffending
spouse, as well as the state, in explaining reason for this
provision in the statute; and we are of the opinion that the
unoffending spouse must be such when the prosecution is
commenced.
We see no reason why the same doctrinal rule should not
apply in this case and in our jurisdiction, considering our
statutory law and jural policy on the matter. We are convinced
that in cases of such nature, the status of the complainant
vis-a-vis the accused must be determined as of the time the
complaint was filed. Thus, the person who initiates the adultery
case must be an offended spouse, and by this is meant that he
is still married to the accused spouse, at the time of the filing
of the complaint.
In the present case, the fact that private respondent
obtained a valid divorce in his country, the Federal Republic
of Germany, is admitted. Said divorce and its legal effects
may be recognized in the Philippines insofar as private
respondent is concerned (Recto v. Harden, 100 Phil. 427 [1956]),
in view of the nationality principle in our civil law on the
matter of status of persons.
Thus, in the case of Van Dorn vs. Romillo, Jr., et al., 139
SCRA 139 (1985), after a divorce was granted by a United
States court between Alice Van Dorn, a Filipina, and her
American husband, the latter filed a civil case in a trial court
here alleging that her business concern was conjugal property
and praying that she be ordered to render an accounting and
that the plaintiff be granted the right to manage the business.
Rejecting his pretensions, this Court perspicuously
demonstrated the error of such stance. Thus, there can be no
question as to the validity of that Nevada divorce in any of
the States of the United States. The decree is binding on
private respondent as an American citizen. For instance,

private respondent cannot sue petitioner, as her husband, in
any State of the Union. It is true that owing to the nationality
principle embodied in Article 15 of the Civil Code, only
Philippine nationals are covered by the policy against absolute
divorces the same being considered contrary to our concept of
public policy and morality. However, aliens may obtain divorces
abroad, which may be recognized in the Philippines, provided
they are valid according to their national law. Pursuant to his
national law, private respondent is no longer the husband of
petitioner. He would have no standing to sue in the case below
as petitioner’s husband entitled to exercise control over conjugal
assets.
The said pronouncements foreshadowed and are adopted
in the Family Code of the Philippines (Executive Order No.
209, as amended by Executive Order No. 227, effective on
August 3, 1988), Article 26 whereof provides that “(w)here
marriage between a Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly obtained abroad
by the alien spouse capacitating him or her to remarry, the
Filipino spouse shall likewise have capacity to remarry under
Philippine law.”
Under the same considerations and rationale, private
respondent, being no longer the husband of petitioner, had no
legal standing to commence the adultery case under the
imposture that he was the offended spouse at the time he
filed suit.
The allegation of private respondent that he could not
have brought this case before the decree of divorce for lack of
knowledge, even if true, is of no legal significance or
consequence in this case. When said respondent initiated the
divorce proceeding, he obviously knew that there would no
longer be a family nor marriage vows to protect once a
dissolution of the marriage is decreed. Neither would there be
a danger of introducing spurious heirs into the family, which
is said to be one of the reasons for the particular formulation
,a of our law on adultery, since there would thenceforth be no
spousal relationship to speak of the severance of the marital
bond had the effect of dissociating the former spouses from
each other, hence, the actuations of one would not affect or
cast obloquy on the other.
The aforecited case of United States vs. Mata (18 Phil.

490 [1911]) cannot be successfully relied upon by private
respondent. In applying Article 433 of the old Penal Code,
substantially the same as Article 333 of the Revised Penal
Code, which punished adultery “although the marriage be
afterwards declared void”, the Court merely stated that “the
lawmakers intended to declare adulterous the infidelity of a
married woman to her marital vows, even though it should be
made to appear that she is entitled to have her marriage
contract declared null and void, until and unless she actually
secured a formal judicial declaration to that effect.” Definitely,
it cannot be logically inferred therefrom that the complaint
can still be filed after the declaration of nullity because such
declaration that the marriage is void ab initio is equivalent to
stating that it never existed. There being no marriage from
the beginning, any complaint for adultery filed after said
declaration of nullity would no longer have a leg to stand on.
Moreover, what was consequently contemplated and within
the purview of the decision in said case is the situation where
the criminal action for adultery was filed before the termination
of the marriage by a judicial declaration of its nullity ab initio.
The same rule and requisites would necessarily apply where
the termination of the marriage was effected, as in this case,
by a valid foreign divorce.
Private respondent’s invocation of Donio-Teven, et al. vs.
Vamenta, 133 SCRA 616 (1984), must suffer the same fate of
inapplicability. A cursory reading of said case reveals that the
offended spouse therein had duly and seasonably filed a
complaint for adultery, although an issue was raised as to its
sufficiency but which was resolved in favor of the complainant.
Said case did not involve a factual situation akin to the one
at bar or any issue determinative of the controversy herein.
Justice Edgardo L. Paras (concurring opinion):

It is my considered opinion that regardless of whether
We consider the German absolute divorce as valid also in the
Philippines, the fact is that the husband in the instant case,
by the very act of his obtaining an absolute divorce in Germany
can no longer be considered as the offended party in case his
former wife actually has carnal knowledge with another,
because in divorcing her, he already implicitly authorized the
woman to have sexual relations with others. A contrary ruling
Ab s o l u t e d i v o r c e 279
would be less than fair for a man, who is free to have six will
be allowed to deprive the woman of the same privilege.
In the case of Recto v. Harden (100 Phil. 427 [1956], the
Supreme Court considered the absolute divorce between the
American husband and his American wife as valid and binding
in the Philippines on the theory that their status and capacity
are governed by their National Law, namely American law.
There is no decision if one of the parties say an American, is
married to a Filipino wife, for then two (2) different
nationalities would be involved.
In the book of [then] Senate President Jovito Salonga
entitled Private International Law and precisely because of
the National Law doctrine, he considers the absolute divorce
as valid insofar as the American husband is concerned but
void insofar as the Filipino wife is involved. This results in
what he cedis a “socially grotesque situation,” where a Filipino
woman is still married to a man who is no longer her husband.
It is the opinion however, of the undersigned that very likely
the opposite expresses the correct view. While under the
national law of the husband the absolute divorce will be valid,
still one of the exceptions to the application of the proper
foreign law (one of the exceptions to comity) is when the foreign
law will work an injustice or injury to the people of residents
of the forum. Consequently since to recognize the absolute
divorce as valid on the part of the husband would be injurious
or prejudicial to the Filipino wife whose marriage would be
still valid under her national law, it would seem that under
our law existing before the new Family Code (which took effect
on August 3, 1988) the divorce should be considered void both
with respect to the American husband and the Filipino wife.
The case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]),
cannot apply despite the fact that the husband was an
American with a Filipino wife because in said case the validity
of the divorce insofar as the Filipino wife is concerned was
NEVER put in issue.
RULES ON ABSOLUTE DIVORCE PRIOR TO THE NEW CIVIL

CODE AND THE FAMILY CODE
(1) The Siete Partidas provided for legal separation, not
absolute divorce. This was our law until Act No. 2710
(the old Divorce Law) became effective on March 11, 1917.

This Act allowed only absolute divorce. The provisions of
the old Civil Code on divorce, suspended as they were by
Gov. Gen. Weyler, were NEVER enforced in the
Philippines. (Benedicto v. De la Rama, 3 Phil. 34; Fran
cisco v. Jason, 60 Phil. 442).
(2) The Divorce Law (Act 2710) recognized only two grounds
for absolute divorce and implicitly ruled out relative
divorce. (Garcia Valdez v. Tuason, 40 Phil. 943).
The two grounds were:
(a) adultery on the part of the wife
(b) concubinage on the part of the husband.
NOTE: In either case, there had to be a previous
criminal conviction (Sec. 8, Act 2710). This was needed
as the only admissible proof of the above-mentioned
offenses. (Raymundo v. Pehas, L-6705, Dec. 23, 1954).
NOTE: While we were still under the old Divorce
Law, some Filipino couples went to foreign countries and
obtained their decrees of absolute divorce there. Were
said decrees ever recognized as valid in the Philippines?
ANS.: It depends.
(a) The absolute divorce would be considered as valid
here, provided that the two following conditions CON
CURRED:
(1) the foreign court must have had jurisdiction over
the parties ^nd over the subject matter;
(2) the ground for the divorce must have been one of
the two grounds provided for under the Philippine
absolute divorce law, namely adultery on the part
of the wife and concubinage on the part of the
husband. (See Barretto Gonzales v. Gonzales, 58 Phil.
57; Area v. Javier, 50 O.G. 3538 (1954]).
(b) If either or both of the above-mentioned conditions were
absent, the divorce would not be considered as valid here
in the Philippines. (See Barretto Gonzales v. Gonzales, 58
Phil. 57; Area v. Javier, 50 O.G. 3538 [1954]).
BAR EXAMINATION PROBLEM

FACTS: X is a male Filipino. He married Y, an American
woman in Nevada, U.S.A. They live together as husband and wife
for a period of five years in the same state. X returned to the
Philippines alone, leaving his wife in Nevada. After staying two
years in the Philippines, X was sued for divorce in Nevada by Y,
and she obtained a decree of divorce. Three years after the divorce
decree had been granted, X married in the Philippines in the year
1952.
QUESTION: Since the divorce in the problem was obtained in
1949 (three years prior to the 1952 marriage), it is evident that the
new Civil Code does not apply: instead we have to use our principles
— on absolute divorce decreed in foreign lands — enunciated under
the old law. Without going into the question of jurisdiction, it is
apparent that the ground for the divorce herein was NEITHER
adultery on the part of the wife NOR concubinage on the part of
the husband. Therefore, the divorce CANNOT be given effect in the
Philippines. Therefore also the second marriage is VOID since the
first marriage had not yet been dissolved when said second marriage
was entered into [Barretto Gonzales v. Gonzales, 58 Phil. 67; Sikat
v. Canson, 67 Phil. 207; Area v. Javier, 50 O.G. 3538 [1954]).
[NOTE: In the Sikat and Area cases, the ground for the foreign
divorce was DESERTION. In the Area case, the Supreme Court
said:
“If the decree is predicated on another ground (other than
adultery or concubinage), the decree cannot be enforced in this
jurisdiction. The above pronouncement is sound as it is in keeping
with the well-known principle of Private International Law which
prohibits the extension of a foreign judgment, or the law affecting
the same, if it is contrary to the law or fundamental policy of the
state of the forum . . . It is also in keeping with our concept of
moral values which has always looked upon marriage as an
institution.”]
JAPANESE OCCUPATION
During the Japanese occupation, there was a new Absolute
Divorce Law under Executive Order No. 141 (which enlarge the
ground provided for under Act No. 2710). This Order was effective
until Oct. 23, 1944 when General Douglas MacArthur, by
proclamation, reestablished the Commonwealth Government. Said

Proclamation in effect repealed said Executive Order and revived
Act No. 2710, (Pena de Luz v. CFI, 43 O.G. p. 4102; Justo Bapista
v. Castaneda, 42 O.G. 3186; Raymundo v. Penas, G.R. L-6705, Dec.
23, 1954). Executive Order No. 141 had been framed “as an answer
to the cry of many victims of chronic matrimonial tragedies which
under Act No. 2710, practically only death could dissolve.” (Editorial
o f “The Tribune,” March 31, 1943).
Sec. 2 of Executive Order No. 141 enumerated ten
grouffds. It stated that:
“A civil action for divorce may be brought by either spouse
in a proper court of justice on any of the following grounds:
(a) Adultery on the part of the wife or concubinage on the
part of the husband, committed under any of the forms
described in the Revised Penal Code.
(b) Attempt by one spouse against the life of the other.
(c) A second or subsequent marriage contracted by either
spouse before the marriage has been legally dissolved.
(d) Loathsome contagious disease contracted by either spouse.
(e) Incurable insanity which has reached such a stage that
the intellectual community between the spouses had
ceased.
(f) Criminal conviction of either spouse of a crime in which
the minimum penalty imposed is not less than six years
imprisonment.
(g) Repeated bodily violence by one against the other to such
an extent that the spouses cannot continue living together
without endangering the lives of both or either of them.
(h) Intentional or unjustifiable desertion continuously for at
least one year prior to the filing of the action.
(i) Intentional absence from the last conjugal abode
continuously for three consecutive years prior to the filing
of the action.
(j) Slander by deed or gross insult by one person against
the other to such an extent as to make further living
impracticable.”
VALIDITY OF ABSOLUTE DIVORCE OBTAINED IN THE

PHILIPPINES UNDER THE OLD LAWS
(1) Absolute Divorce under Act No. 2710

(a) If granted validly before August 30, 1950 (date of
effectivity of the new Civil Code), the decree of absolute
divorce remains valid today.
(b) If PENDING merely on Aug. 30, 1950, the same would
be allowed to continue till final judgment. This is true
even if the final judgment on the crime (adultery or
concubinage) was rendered only after August 30, 1950,
because what is important is that the crime was
committed BEFORE said date, AND the action for
absolute divorce was also filed BEFORE said date
(Raymundo v. Penas, L-6705, Dec. 23, 1954).
[Act No. 2710 (the old Absolute Divorce Law) was
repealed by the New Civil Code (Raymundo v. Penas, L-
6705, Dec. 23, 1954)., and today we only have relative
divorce or legal separation in the Philippines.]
(2) Absolute Divorce under Executive Order No. 141

(a) If granted validly before October 23, 1944 (date of Gen.
M acArthur’s proclam ation reestablishing the
Commonwealth Government), the same will be considered
as VALID (Raymundo v. Penas, supra). This is because
our government under the Japanese Occupation Forces
was considered a de facto government, and court decisions
which did NOT partake of a political complexion continued
to remain valid. Under the de facto principle, the judicial
acts of the invader, done under the sanction of municipal
law, should remain good. Were it otherwise, the whole
social life of a community would be paralyzed by an
invasion . . . (Hall, International Law, 7th Ed., p. 518;
Co. Kim Cham v. Eusebio Valdez Tan Keh, G.R. L-5,
Sept. 17, 1945).
fo) If merely pending on Oct. 23, 1944, they were not allowed
to continue, except if the action was based on the grounds
which had ALSO been provided for under the old Divorce
Law, namely, adultery on the part of the wife, and
concubinage on the part of the husband (Pena de Luz v.
CFI, 43 O.G. 4102; Nesperos v. Martinez, 43 O.G. 4660;

Raymundo v. Penas, supra).
[NOTE: Observe that while pending suits under Act
No. 2710 were allowed to continue, those under Executive
Order No. 2710 were allowed to continue, those under
Executive Order No. 141 were GENERALLY not so
allowed. The reason for the difference lies in the fact
that the former are governed by the TRANSITIONAL
PROVISIONS of the new Civil Code; the latter on the
other hand were not covered by any law since the
'“Proclamation of MacArthur did not contain any
transitional provisions. (Raymundo v. Penas, supra).]
Chapter XVII
LEGAL SEPARATION
SOME GROUNDS FOR LEGAL SEPARATION
(1) grounds for legal separation (1) national law of the parties
(a) Adultery (a) if of the same or com
mon nationality — the
common national law
governs
(b) Concubinage (b) if of different nation
alities — the grounds
given by BOTH nation
al laws should ALL be
considered proper
grounds. (See Hague
Convention on Legal
Separation, Art. 8).
(c) Attempt by one NOTE: Residence requirement
. spouse against the life if suit is brought in the
of the other Philippines:
(a) if cause occurred in the
Philippines — NO
residence requirement
(b) if cause occurred out
side the Philippines —
*0 one year residence is
required in our country.
(Art. 99, Civil Code).
285
LEGAL SEPARATION DISTINGUISHED FROM ABSOLUTE

DIVORCE
Legal separation (divorce a mensa et thoro OR separation
from bed and board OR relative divorce) is distinguished from
absolute divorce as follows:
(1) Legal separation does not sever the marriage bonds (Art.
63, Family Code)-, absolute divorce dissolves the marriage
hence the parties are allowed to remarry.
(2) Reconciliation prevents a suit for legal separation or
rescinds one already granted. (Art. 66, Family Code)-,
reconciliation does not revive a marriage already dissolved
by a decree granting absolute divorce.
LEGAL SEPARATION DISTINGUISHED FROM

ANNULMENT OF MARRIAGE
The following are some points of differentiation between legal
separation and annulment of a marriage:
(1) Legal separation can be granted for causes arising AFTER
the celebration of the marriage; annulment requires
causes existing PRIOR TO or AT THE TIME the wedding
takes place;
(2) The grounds for legal separation are those given by the
national law of the parties concerned, inasmuch as this
is purely a question of status, the validity of the marriage
being presumed or admitted; annulment questions the
very existence of that status, hence, generally the grounds
for annulment are those given by the lex loci celebrationis
(subject, of crifirse, to certain exceptions, already
discussed).
GROUNDS FOR LEGAL SEPARATION

Legal separation being a legal status the grounds therefor are
those given by the national law of the spouses. (See Art. 15, Civil
Code). If the nationality of the husband and wife be different, the
grounds enumerated under the national law of the husband PLUS
the grounds given by the national law of the wife constitute all the
available grounds for granting them legal separation. (See Hague
Convention on Legal Separation,Art. 8). Foreigners may sue for
LEGAL SEPARATION 287
legal separation in the Philippines even if they did not get married
here; the grounds of course will be those given by their national
law. (See Art. 15, Civil Code).
Example-. A man and a woman, citizens of State X, get
married in State Y. They are now in the Philippines. In State
X the presence of an incurable contagious disease is a ground
for legal separation; in State Y as well as in the Philippines,
this is not a ground. If the husband has said disease, may the
wife sue in our courts for legal separation?
ANSWER: Yes, because this is allowed by their national
law (Art. 15, Civil Code) despite the fact that our Family Code
provisions on Legal Separation do not consider this a proper
ground. (See also Art. 2, Hague Convention on Legal Sepa
ration). It is believed that this grant of legal separation will
not be contrary to our public policy for after all we recognized
in this country separation from bed and board.
QUERY: In the preceding example, what will be the
prescriptive period for the bringing of the suit in the
Philippines?
ANSWER: Since the cause of action accrued in State X
(not here, because this ground is not recognized by our internal
law) it follows that the prescriptive period is that provided for
by the law of State X.
RESIDENCE REQUIREMENTS
The pertinent rule regarding residence requirements is found
in Art. 99 of the Civil Code which states that:
“No person shall be entitled to a legal separation who has not
resided in the Philippines for one year prior to the filing of the
petition, unless the cause for the legal separation has taken place
within the territory of this Republic.” Hence it follows that:
(1) If the cause took place in the Philippines — there is NO
residence requirement (the local courts, despite the lack
of residence, refuse to assume jurisdiction, on the theory
of forum non conveniens. This is because our forum has
a very intimate connection with the problem, namely,
the occurring of the cause of the legal separation right
here in the Philippines).
(2) If the cause took place outside the Philippines, the law
requires a residence here of ONE YEAR.
It will be observed that the one-year residence requisite should
SUSPEND the running of the prescriptive period. It is elementary
that since one of the purposes of the Statute of Limitations is to
penalize a person who sleeps on his rights, it is evident that the
period during which the plaintiff is PROHIBITED to bring an action
should necessarily suspend the running of the prescriptive period,
for then he cannot be said to be “sleeping on his rights.” (See
among othe.B cases Rio and Co. v. Jolkipli, L-12301, April 13, 1959
where the Supreme Court held that in instances where there is a
debt moratorium law or executive order, the period of the
moratorium SUSPENDS the running of the prescriptive period,
evidently because during such period, the creditor CANNOT bring
the action to recover, even if he so desires.) Under Art. 56 of the
Family Code, where the action is barred by prescription, a petition
for legal separation is denied.
The requirement in Art. 99 of the Civil Code is jurisdictional.
The Court of First Instance (now Regional Trial Court) has
jurisdiction over the case as long as at least one party is a resident
of the Philippines, even if he is a foreigner, and the marriage had
been performed abroad. (See Ybanez de Barnuevo v. Fuster, 29 Phi.
607).
OUR INTERNAL LAWS ON LEGAL SEPARATION

According to Article 55 of the Family Code, a petition for legal
separation may be filed on any of the following grounds: 1) repeated
physical violence or grossly abusive conduct directed against the
petitioner, a common child,4ior a child of the petitioner; 2) physical
violence or moral pressure to compel the petitioner to change
religious or political affiliation; 3) attempt of respondent 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 six years, even if pardoned; 5) drug
addiction or habitual alcoholism of the respondent; 6) lesbianism or
homosexuality of the respondent; 7) contracting by the respondent
of a subsequent bigamous marriage, whether in the Philippines or
abroad; 8) sexual infidelity (adultery or concubinage) or perversion;
9) attempt by the respondent against the life of the petitioner; or
10) abandonment of petitioner by respondent without justifiable

cause for more than one year.
Comment:
There are ten (10) grounds for legal separation
enumerated in the Family Code. As to the proof needed, mere
preponderance of evidence, not guilt beyond reasonable doubt,
will suffice to prove the existence of any of the grounds,
although in ground No. 4, previous criminal conviction is
essential (this is a separate case) in view of the necessity of
a “final judgment.”
One common ground for legal separation is by the guilty
spouse with any justifiable cause for more than one year. (Art.
55, No. 10, Family Code).
Abandonment as used herein is synonymous to criminal
desertion, i.e., a husband’s or wife’s abandonment or willful
failure without just cause to provide for the care, protection or
support of a spouse who is in ill health or necessitous
circumstances. (Black’s Law Dictionary, abridged fifth edition,
p. 232). This includes both the intention to abandon and the
external act by which the intention is carried into effect. (Ibid.,
p. 1).
Another ground for legal separation is bigamy. This is
committed by any person who shall contract a second or
subsequent marriage before the former marriage has been
legally dissolved, or before the absent spouse has been declared
presumptively dead by means of a judgment rendered in the
proper proceedings. (Art. 349, Revised Penal Code).
Pastor B. Tenchavez v. Vicente F. Escano

L-19671, Nov. 29, 1965
FACTS: In 1948, Pastor Tenchavez and Vicente Escano
were married before a Catholic priest in the
Philippines. On Oct. 22, 1950, Vicente obtained
an absolute divorce from her husband from the
State of Nevada, U.S.A. She then married in
*'* America an American. Both presently reside
in California, the girl having acquired
American citizenship in 1958. On July 30, 1955,
however, Tenchavez had already initiated legal
separation proceedings in the Philippines.
Issue: Will the legal separation proceedings

and relief for damages prosper?
HELD: Yes, because the girl technically has committed
adultery (in view of the sexual intercourse with
her American husband), her divorce NOT
BEING recognized here in the Philippines.
Pastor, aside from being relieved of his duty to
support her, can obtain damages from her —
in view of her refusal to perform her wifely
duties, her denial of consortium, and her
desertion of her husband. (Art. 2176, Civil
Code).
NOTE: He is awarded P25,000 by way of
moral damages and attorney’s fees. Later in a
motion for reconsideration, defendant alleged,
inter alia, that the grant of moral damages
was not proper, on the theory that the same is
not one of the effects of legal separation. The
court, however, answered that the grant of
damages was made, not necessarily because of
the legal separation, but because of the
unjustified denial of marital consortium.
NOTE: The change from Philippine to
American citizenship is immaterial for the
change was made AFTER the grant of absolute
divorce. What is important is the citizenship
at the time o f the grant of the divorce.
NOTE: Summing up, this case of
Tench&vez gives us the following doctrines:
(1) a foreign divorce between Filipino citizens
sought and decreed after the effectivity
of the New Civil Code is not entitled to
recognition as a valid decree in this
country;
(2) neither is the marriage contracted with
another party by the “divorced” consort,
subsequent to the foreign decree of
divorce, entitled to validity in the Philip
pines;
(3) the remarriage of the “divorced” wife and

her cohabitation with a person other than
the lawful husband entitles the latter to
obtain a decree of legal separation;
(4) the desertion and obtaining of an invalid
divorce decree by one consort entitles the
other to recover lawful damages;
(5) an action for alienation of affections
against the parents of one consort will not
prosper in the absence of proof of malice
and unworthy motives on their part;
(6) a valid marriage remains subsisting
under Philippine laws despite the decree
of absolute divorce from a foreign court;
and finally;
(7) to grant effectivity to such foreign divorce
would be to patently violate the declared
policy of the State as enunciated in the
3rd paragraph of Art. 17 of the Civil Code.
Both adultery and concubinage are encompassed in the
term “sexual infidelity” (i.e., referring to unfaithfulness in
marriage. (Black’s Law Dictionary, fifth abridged edition, p.
398). “Sexual perversion,” upon the other hand, refers to an
abnormality by a person in matters of sex. (See Webster’s
Dictionary, 1992 ed.).
(“Pre-marital sex” — indulging by an unmarried couple
in sexual intercourse prior to getting married.)
Adultery is the voluntary sexual intercourse of a married
person with a person other than the offender’s husband or
wife. It refers to the unlawful commence of a married man
with an unmarried woman not being of the grade of adultery.
In other jurisdictions, both parties are guilty of adultery, even
though only one of them is married. Also, a distinction is
being made between double and single adultery, the former
"being committed when both parties are married to other
persons, the latter where only one is so married. (Black’s Law
Dictionary, fifth abridged edition, p. 25).
There is what is known, too, as open and notorious
adultery. To constitute living in open and notorious adultery,
the parties must reside together publicly in the face of society,

as if conjugal relations existed between them, and their so
living and the fact that they are not husband and wife must
be known in the community. (Ibid.)
One form of adultery is known as illicit cohabitation, i.e.,
the living together as man and wife of two persons who are
not lawfully married with the implication that they habitually
practice fornication (unlawful sexual intercourse between two
unmarried persons). (Ibid., pp. 380, 334).
Adultery is that “which is committed by a married woman
who shall have sexual intercourse with a man not her husband;
and by the man who has carnal knowledge of her, knowing
her to be married, even if the marriage be subsequently
declared void.” (Art. 333, par. 1, Revised Penal Code). Adultery
cannot be committed by an unmarried girl. (Art. 333, Revised
Penal Code)-, \ so a common law wife can never be guilty of
adultery. (See U.S. v. Villafuerte, 4 Phil. 476). Even if a wife
has been unjustifiably abandoned, she may still be liable for
adultery, the abandonment being merely mitigating. (U.S. v.
Serrano, 28 Phil. 320). Adultery may be proved by
circumstantial evidence, like a photograph showing intimate
relations; or the testimony of a witness who has seen the two
defendants sleep together in scanty clothing, there being in
this instance an opportunity to satisfy adulterous inclinations.
(U.S. v. Feliciano, 36 Phil. 753). Every carnal intercourse is
a separate act or crime of adultery; for adultery is a crime of
result, and not of tendency; it is an instantaneous crime which
is consummated or completed at the moment of carnal union.
(People v. Zapata and Bondoc, L-3047, May 16, 1951).
Concubinage upon the other hand, is committed by “any
husband who shall (a) keep a mistress in the conjugal dwelling,
or (b) have sexual intercourse under scandalous circumstances,
or with a woman who is not his wife, (c) cohabit with her in
any other place.” (Art. 334, par. 1, Revised Penal Code).
Regarding “an attempt by one spouse against the life of
the other,” the following things ought to be noted: the attempt
must not be unjustified as in the case of lawful self-defense;
nor must it be one where the attempt was made because the
other was caught in flagrante delicto with a lover. The attempt
must be one of attempted or frustrated parricide, not one
caused by negligence for in the latter case, it cannot be said
that there was an attempt. It has been held that maltreatment

by a husband of his wife, like giving her fist blows on the face,
pulling her hair, twisting her neck, of boxing her on the
abdomen does not constitute attempts on her life, in an absence
of an intent to kill. (Munoz v. Barrios, C.A. 5217).
Art. 59, Family Code:
“No legal separation may be decreed unless the Court
has taken steps toward the reconciliation of the spouses and
is fully satisfied, despite such efforts, that reconciliation is
highly improbable.”
Comment:
It is the policy of the law to discourage legal separation
(Juarez v. Turon, 51 Phil. 736) because the family is a basic
social institution which public policy cherishes and protects
(Art. 149, Family Code).
Under Art. 56 of the same Code, the petition for legal
separation shall be denied on any of the following grounds: 1)
where the aggrieved party has condoned the offense or act
complained of; 2) where the aggrieved party has consented to
the commission of the offense or act complained of; 3) where
there is connivance between the parties in the commission of
the offense or act constituting the ground for legal separation;
4) where both parties have given ground for legal separation;
5) where there is collusion between the parties to obtain the
decree of legal separation; or 6) where the action is barred by
prescription.
COMMENT:
(1) Defenses in Legal Separation:
(c) connivance;
(d) recrimination or mutual guilt;
Je) collusion;
(f) prescription.
(2) Condonation
(a) This means forgiveness, express or implied. Condonation
to constitute valid defense must be free, voluntary, and
not induced by duress or fraud. (Black’s Law Dictionary,

abridged fifth edition, p. 155). Sleeping together after
full knowledge of the offense is condonation (Bugayong v.
Ginez, L-10033, Dec. 28, 1956), unless the reason for the
voluntary sexual intercourse is to save the marital
relationship and maintain harmony (Keezer, Marriage and
Divorce, p. 577), or for the purpose of attempting
(unsuccessfully, however), at a reconciliation, (Hawkins
v. Hawkins, 286 Pac. 747).
(b) Each sexual intercourse of the wife outside marriage is
a separate act of adultery. Therefore condonation of one
act does not necessarily imply condonation of the others.
(People v. Zapata and Bondoc, L-3047, May 16, 1951).
(c) Where the wife left the conjugal home after her adulterous
acts were discovered, the fact that the husband did not
actively search for her is NOT condonation. It was not
the duty of the husband to search for the wife under the
circumstances. On the contrary, hers was the duty to
return to the conjugal home. (De Ocampo v. Florenciano,
L-13553, Feb. 23, 1960).
(3) Consent
The consent may be express or implied. While consent is
implied in every agreement, such act must be unclouded by
fraud, duress, or sometimes even mistake. (Black’s Law
Dictionary, abridged fifth ed., p. 160). It is implied for instance
from a husband’s abandonment of the wife after discovering
her marital infidelity. (People v. Sansano and Ramos, 59 Phil.
73).
People v. Schneckenburger
73 Phil. 413
FACTS: A husband, who was an alien consul in Manila,

and his wife entered into a mutual agreement
whereby each could carnally live with others,
without interference from either. Pursuant to
the immoral agreement, the husband live with
another woman, and in the prosecution for
concubinage he presented in defense the prior
agreement or consent. Is he guilty?
HELD: No, he is not guilty for after all the wife had
previously given her consent. The Court also
said:
(1) We do not legalize the agreement; the
agreement is still null and void because
it is contrary to the law and contrary to
morals. BUT precisely because the girl
had previously given her consent, she is
now undeserving of our sympathy. She
deserves less consideration than a woman
who condones.
(2) It is alleged that when the law speaks of
consent, what is meant is condonation.
This is NOT so; otherwise, why is consent
used as the alternative of condonation?
Consent is PRIOR to the act; condonation
comes AFTER. (See also Matubis v.
Praxedes, L -l1766, Oct. 25, 1960).
(4) R ecrim ination or M utual Guilt

“Recrimination” is a charge made by an accused person
against the accuser; in particular, a countercharge of adultery
or concubinage made by one charged with the same offense in
a suit for legal separation, against the person who has charged
him or her. (See Black’s Law Dictionary, abridged fifth ed., p.
663.)
Both parties being in pari-delicto, there is no offended
spouse who deserves to bring the action. This is true even if
one of the parties has been pardoned but the other has not.
(Benedicto v. De la Rama, 3 Phil. 34).
(5) Collusion
This is an agreement whereby one party will pretend to
have committed the ground relied upon. (Keezer, Marriage
and Divorce, p. 546). A legal separation obtained through
w»collusion is VOID.

“No decree of legal separation shall be promulgated upon
a stipulation of facts or a confession of judgment.
“In any case, the court shall order the prosecuting

attorney or fiscal assigned to it to take steps to prevent
collusion between the parties and to take care that the evidence
is not fabricated or suppressed.”
Comment:
(1) The law requires proof, not a mere stipulation of facts
or a confession of judgment. The confession of a judgment
referred to is that where the defendant instead of
defending himself, chooses instead to acknowledge the
rightfulness of the plaintiffs action. (See Black’s Law
Dictionary, p. 1026). The proof may be either direct or
circumstantial evidence. It should be noted that the case
may prosper even if the defendant does not appear.
Ocampo v. Florenciano
L-13553, Feb. 23, 1960
FACTS: In 1951, Jose discovered that his wife, Serafica,
was having illicit relations with a certain
Arcales. Serafica then left the conjugal home.
In 1955, Jose again caught his wife having
carnal knowledge with a certain Nelson. Jose
then told Serafina he was filing suit for legal
separation. Serafica agreed on condition that
she would NOT be charged criminally with
adultery. The case for legal separation was then
filed. When the Fiscal (now Prosecutor) outside
o f court asked her why she failed to file an
answer, she replied that she was in conformity
with the legal separation. The lower court and
the Court of Appeals both denied the legal
separation on the ground that there was a
confession of judgment under Art. 101 of the
Civil Code (now Art. 61 of the Family Code).
The case was appealed to the Supreme Court.
HELD: The legal separation should be granted, in view
of the presence of other evidence. Here there
was only an extrajudicial admission and NOT
a confession of judgment (which usually
happens when the defendant appears in court
and confesses the right of plaintiff to judgment
or files a pleading expressly agreeing to the
plaintiffs demand). And even if the statement

of the defendant really constitutes a confession
of judgment, still inasmuch as there is evidence
of adultery indepedently of such statement, the
decree of legal separation may and should be
granted since it would be premised not on her
confession, but on the strength of thr> evidence
presented by her husband. Indeed what the
law prohibits is a judgm ent based
EXCLUSIVELY or mainly on the confession of
judgment. If a confession can automatically and
by itself defeat the suit, any defendant who
opposes the legal separation will immediately
confess judgment, purposely to prevent the
giving of the decree.

“An action for legal separation shall be filed within five
years from the time of the occurrence of the cause.”
Comment:
Although prescription should ordinarily be alleged, this
is not so in legal separation or annulment proceedings.
Therefore, the court even by itself can take cognizance of
prescription of the cause of action because the case involves
public interest, and it is the policy of our law that no such
decree be issued if any legal obstacles thereto appear upon
the record (Brown v. Yambao, L-10699, Oct. 18, 1957).
Art. 58, Family Code.

“An action for legal separation shall in no case be tried
before six months shall have elapsed since the filing of the
petition.”
Comment:
The “cooling-off period” is the period of time in which no
action may be taken by either sides.
Similarly, the purpose of the six-month period before trial
is to enable the parties to cool off. But the cooling-off period
does not mean the over-ruling of such other provisions as

custody, alimony, and support pendente lite according to the
circumstances. (Art. 62, Family Code). Therefore, even during
said period of six months, support pendente lite may be granted
if justified; otherwise rank injustice may be caused. (Araneta
v. Concepcion and Benitez Araneta, G.R. No. L-9667, July 31,
1956, O.G. 5165). Moreover, a writ of preliminary mandatory
injunction for the return of the wife’s paraphernal property
can in the meantime be heard and granted during the 6-
month period. (Semosa-Ramos v. Vamenta, 46 SCRA 110).

“After the filing of the petition for legal separation, the
spouses shall be entitled to live separately from each other.
“The court, in the absence of a written agreement between
the spouses, shall designate either of them or a third person
to administer the absolute community or conjugal partnership
property. The administrator appointed by the court shall have
the same powers and duties as those of a guardian under the
Rules of Court.”
Comment:
Note that the spouses can live separately after the filing
of the petition for legal separation. But they are not required
to do so. A third person may manage the property regime. The
designation of this person may be done by the court.

“During the pendency of the action for legal separation,
the provisions of Art. 49 shall likewise apply to the support of
the spouses and the custody and support of the common
children.”
[Note: Art. 49 of the same Code provides:
“During the pendency of the action and in the absence of
adequate provisions in a written agreement between the
spouses, the court shall provide for the support of the spouses
and the custody and support of their common children. The
court shall give paramount consideration to the moral and
material welfare of said children and their choice of the parent
with whom they wish to remain as provided for in Title IX. It
shall also provide for appropriate visitation rights of the other

parent.”]
Note that as in the annulment or declaration of nullity
of a marriage, Art. 49 shall likewise apply to support and
custody.

“The decree of legal separation shall have the following
effects:
“(1) The spouses shall be entitled to live separately from
each other, but the marriage bonds shall not be severed;
“(2) The absolute community or the conjugal partnership
shall be dissolved and liquidated, but the offending spouse
shall have no right to any share of the net profits earned by
the absolute community or the conjugal partnership, which
shall be forfeited in accordance with the provisions of Art. 43
( 2);
“(3) The custody of the minor children shall be awarded

to the innocent spouse, subject to the provisions of Article 213
of this Code; and
“(4) The offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate succession.
Moreover, provisions in favor of the offending spouse made in
the will of the innocent one shall be revoked by operation of
law.”
Comment:
(1) Even if separated from each other, the obligation of
mutual fidelity remains. The obligation of mutual support
between the spouses CEASES. However, the court may order
that the guilty spouse shall give support to the innocent one,
the judgment for legal separation specifying the terms of such
order. (Art. 198, Family Code).
(2) The custody of the minor children may be given
either to the INNOCENT spouse or to a GUARDIAN, but not
to the GUILTY spouse, unless the children be less than seven
years of age (See Art. 363, Civil Code) or five years of age (see
the Youth and Welfare Code) and the mother be the guilty
spouse. According to the Code Commission, the commission

by the mother of adultery is not a compelling reason to deprive
her of the custody of the child (Report o f the Code Commission,
p. 12).
[NOTE: In case of separation of the parents, parental
authority, shall be exercised by the parent designated by the
Court. The Court shall take into account all relevant
considerations, especially the choice of the child over seven
years of age, unless the parent chosen is unfit. (Art. 213,
Family Code).
(3) The revocation of the provisions in a will refers to
a will made prior to, not after, the decree of legal separation;
otherwise it cannot be said that the decree revokes any
provision, for the will had not yet been made.

“After the finality of the decree of legal separation, the
innocent spouse may revoke the donations made by him or by
her in favor of the offending spouse, as well as the designation
of the latter as a beneficiary in any insurance policy, even if
such designation be stipulated as irrevocable. The revocation
of the donations shall be recorded in the registries of property
in the places where the properties are located. Alienations,
liens and encumbrances registered in good faith before the
recording of the complaint for revocation in the registries of
property shall be respected. The revocation of change in the
designation of the insurance beneficiary shall take effect upon
written notification thereof to the insured.
“The action to revoke the donation under this Article
must be brought within five years from the time the decree of
legal separation has become final.”
Comment:
Two (2) things that may be revoked by the innocent spouse
are:
1. donations made in favor of the offending spouse;
and
2. designation of the offending spouse as beneficiary
in the insurance contracts of the innocent spouse.

“The reconciliation referred to in the preceding Article
(Art. 65) shall have the following consequences:
“(1) The legal separation proceedings, if still pending,
shall thereby be terminated in whatever stage; and
“(2) The final decree of legal separation shall be set aside,
but the separation of property and any forfeiture of the share
of the guilty spouse already effected shall subsist, unless the
spouses agree to revive their former property regime.
“The court’s order containing the foregoing shall be
recorded in the proper civil registries.”
Comment:
Reconciliation is a BILATERAL act, requiring common
consent, whether express or implied. In law of domestic
relations, reconciliation is a voluntary resumption of marital
relations in the fullest sense. (Black’s Law Dictionary, abridged
fifth ed., p. 661).
EFFECT OF DEATH DURING PENDENCY OF THE CASE

While the law speaks of defenses in legal separation, namely:
condonation, consent, connivance, mutual guilt (recrimination),
collusion and prescription, one question persists: What is the effect
of death during pendency of the case?
If one party dies during the pendency of the cases, the same
should be dismissed since the action is purely a personal one. This
is true even if there would have been effects of property rights if
a decree of legal separation had been granted. Without the decree,
there can be no effects.
Chapter XVIII
PATERNITY AND FILIATION, ADOPTION,
GUARDIANSHIP, AND FUNERALS
SYNOPSIS OF THE PERTINENT CONFLICTS RULES
(1) Paternity and Filiation (1)

(including Parental
(a) if legitim ate —
Authority and Reciprocal
national law of the
Support) — legitimacy,
father (see Art. 15,
legitimation, recognition,
Civil Code.)
presum ptions of
legitim acy, rights and (b) if illegitim ate —
obligations of parents and national law of the
children, including mother unless recog
parental authority, and nized by the father,
reciprocal support. in which case,
national law of the
father. (See Art. 15,
Civil Code).
(c) determ ination of
whether legitimate
or illegitimate (na
tional law o f the
father, as a rule) —
(See Art. 15, Civil
Code).
Doctrine of Immutability
o f Status — change of
302
PATERNITY AND FILIATION, ADOPTION, GUARDIANSHIP 303
AND FUNERALS
parent’s nationality does

not affect the status of the
child
(2) Adoption — creation of (2) in general, national law of
the status of adoption; the adopter
rights and obligations of
NOTE: In the Philippines,
adopter and adopted.
adoption by a Filipino
does not confer Filipino
citizenship on an adopted
alien child.
(3) Guardianship
(a) over the person (a)
1) appointing court 1) court of the domi
cile of the ward
2) powers of guard 2) coextensive with
ian those of the ap
pointing court
(law o f the ap
pointing state)
(b) over the property (b)
1) appointing court 1) court where the
property is found
(lex rei sitae)
2) powers of guard 2) coextensive with
ian those of the ap
pointing court
(law o f the ap
pointing state)
(c) over the person and (c) see 3(a) and 3(b).
over the property
(general guardian)
(4) Funerals — incidents (4) where the body is buried.
thereof
PATERNITY AND FILIATION DEFINED

Paternity (or maternity) is the civil status of the father (or
mother) with respect to the child begotten by him (or by her). (5
Sanchez Roman 953). Upon the other hand, filiation is the status
of the child in relation to the father or mother. Similarly, parental
affection is the love of the parents for the child; final affection is
that of the child for the parents.
CONFLICTS RULES ON PATERNITY AND FILIATION

To determine whether a child is legitimate or not, we have to
inquire into the national law of the father. This is so because we
generally adhere in our country to the nationality principle. (Art.
15, Civil OSde). (See also Rabel, Conflict of Laws, Vol. I, pp. 560-
562). Having determined the legitimacy or illegitimacy of the child,
the next problem is to answer the questions: what rules govern the
relationship and duties between the parent and the child? It is
submitted that the following answers will generally be adequate:
(1) If the child has been determined to be legitimate, the
national law of the father controls;
(2) If the child is illegitimate the national law of the mother
is decisive, unless the child be subsequently recognized
by the father, in which case, the national law of the
father prevails. (See Art. 15, Civil Code; Rabel, ibid.)
Example: In State X, all children whether born inside or
outside wedlock are considered legitimate. In State Y, all
children born outside wedlock are illegitimate. Now then a
child is bom outside wedlock of a father, who is a citizen of
State Y, and a mother, who is a citizen of State X.
(a) Should Philippine courts consider the child
legitimate or illegitimate?
(b) What country’s law will govern the relationship of
parents and child?
Answers:
(a) The child should be considered ILLEGITIMATE,
because such is the characterization under the
father’s national law (law of State Y).
(b) Inasmuch as the child is illegitim ate, the
relationship of parents and child should be governed
by the national law of the mother (law of State X,
which incidentally regards the child as legitimate),
unless the father recognizes the child as his own in
' PATERNITY AND FILIATION, ADOPTION, GUARDIANSHIP 305
AND FUNERALS
which case, the law of State Y, the father’s national

law, shall govern.
NOTE: When we mention the relationship between the
child and the parents, we inferentially include also the
following matters:
(a) presumptions of legitimacy and illegitimacy (because
these are substantive, not procedural in character).
(See Rabel, Conflict of Laws, Vol. I, p. 556).
(b) rights and obligations of parents and children;
(c) parental authority;
(d) reciprocal support.
Legitimation Defined:
Legitimation is a remedy or process by means of which
those who in fact were not born in wedlock, and should
therefore be ordinarily considered illegitimate children, are,
by fiction and upon compliance with certain requirements,
regarded by the law as LEGITIMATE, it being supposed that
they were born when their parents were already validly
married. (See 1 Manresa, 5th Edition, p. 550). Authorities are
unanimous in stating that the requisites for legitimation are
those prescribed by the national law of the father. (See Rabel,
Conflict o f Laws, Vol. I, p. 575).
PHILIPPINE INTERNAL RULES ON LEGITIMATION

AND RECOGNITION
In the Philippines, the following constitute the internal
requisites for the legitimation of an illegitimate child:
(1) The child must be conceived and born outside wedlock of
parents who at the time of the conception (of the child)
were disqualified by any impediment to marry each other.
(Art. 77, Family Code)-, and
(2) There must be a subsequent valid marriage (not prior)
« otherwise the child would already be legitimate, and there
would be no need for legitimation. (Art. 178, Family Code).
[NOTE: If a marriage is voidable but subsequently
annulled, the legitimation remains valid — for after all,
a voidable marriage is valid before it is annulled.]
DOCTRINE OF IMMUTABILITY OF STATUS

The doctrine o f immutability of status is the theory that the
status of a child, i.e., his legitimacy, etc. is NOT affected by any
subsequent change in the nationality of the parents. However, the
national law of the parents will, of course, be changed should
the parents effect a change of nationality: the rights and obligations
of parents and child will now be determined by the new national
law.
Example: A Filipino illegitimate child who becomes a
legitimated'£hild of his Filipino parents by virtue of recognition by
both parents and their subsequent valid marriage continues to be
a legitimate child even if the parents should subsequently embrace
another nationality. The parental and filial rights and obligations
will now be governed, of course, by the laws of the NEW nationality,
but the child is considered still a legitimated child, despite any
contrary rule under the new nationality. Moreover, the new rights
and obligations will be effective only from the moment the new
nationality is embraced, not before. (See Rabel, Conflict of Laws,
Vol. I, pp. 606-607).
DEFINITION AND PURPOSE OF ADOPTION

Adoption is defined as the process of making a child whether
related or not to the adopter, possess in general the rights accorded
to a legitimate child.
In the case of Prasnik v. Republic, L-8639, March 23, 1956,
the Philippine Supreme Court, through Mr. Justice Felix Angelo
Bautista, held that the modern trend is to consider adoption not
merely an act to establish a relationship of paternity and filiation,
but also an act which endows the child with a legitimate status. A
second purpose „of adoption was given in the case of Yfiigo v.
Republic, G.R. L-6294, namely to supply solace to those who have
no children or to those who have lost them, so that the void which
exists in a childless home may be filled.
Under Art. 183 of the Family Code, “a person of age and in
possession of full civil capacity and legal rights may adopt, provided
he is in a position to support and care for his children, legitimate
or illegitimate, in keeping with the means of the family. Only minors
may be adopted, except in the cases when the adoption of a person
of majority age is allowed. In addition, the adopter must be at least
sixteen years older than the person to be adopted, unless the adopter
AND FUNERALS
is the parent by nature of the adopted, or is the spouse of the

legitimate parent of the person to be adopted.”
CONFLICTS RULES ON ADOPTION

(1) Whether or not the status of adoption has been created
depends on the national law of the adopter. (See Art. 15,
Civil Code; see also Cheshire, Private International Law,
p. 524).
(2) If the adoption takes place in the Philippines, our
country’s procedural requisites must be complied with in
accordance with the theory of lex fori in procedural matter.
NOTE: In the case of Ynigo v. Republic, L-6294,
June 28, 1954, the Supreme Court held that in this
country, adoption (or paternity and filiation by fiction of
law) cannot be allowed without judicial approval.
(3) In the Philippines the following, among others, are not
given the right to adopt:
Art. 184 of the Family Code provides that the following
persons may not adopt:
(1) The guardian with respect to the ward prior to the
approval of the final accounts rendered upon the
termination of their guardianship relation;
(2) Any person who has been convicted of a crime involving
moral turpitude;
(3) An alien, except:
a. A former Filipino citizen who seeks to adopt a
relative by consanguinity;
People v. Judge Tolentino

G.R. 94147, June 8, 1994
FACTS: Alvin, natural born US citizen, and his wife
Evelyn, natural born Filipina who in 1988
« became naturalized US citizens, jointly filed
in 1990 a petition for adoption of Solomon,
Evelyn’s 12-year old brother.
ISSUE: Are Alvin and Evelyn qualified to adopt
Solomon?
HELD: No. An alien who may adopt a Filipino is one

who is a former Filipino citizen seeking to adopt
a relative by consanguinity, or one seeking to
adopt the legitimate child of his or her Filipino
spouse, or one who is marned to a Filipino
citizen seeking to adopt jointly with his or her
spouse a relative by consanguinity of the latter.
Alvin is not a former Filipino citizen. Solomon
is neither his relative by consanguinity nor the
legitimate child of his spouse. When the
petition was filed, Evelyn was no longer a
Filipino citizen. While she may appear qualified
(former Filipino adopting a relative), adoption
cannot be granted in her favor alone because
the law mandates joint adoption by husband
and wife. (Art. 184, par. 3 (a) and Art. 185 of
the Family Code [Executive Order 209]).
b. One who seeks to adopt the legitimate child of his
or her Filipino spouse; or
c. One who is married to a Filipino citizen and seeks
to adopt jointly with his or her spouse a relative by
consanguinity of the latter.
Aliens not included in the foregoing exceptions
may adopt Filipino children in accordance with the
rules on intercountry adoption as may be provided
by law.
[NOTE: “Consaguinity” is kinship; blood
relationship; the connection or relation of persons
descended from the same stock or common ancestor.
Consanguinity is distinguished from affinity, which
is the connection existing in consequence of a
marriage, between each of the married persons and
the kindred of the other. (Black’s Law Dictionary,
abridged fifth ed., p. 159).
Lineal consanguinity is that which subsists
between persons of whom one is descended in a
direct line from the other, as between son, father,
grandfather, great-grandfather, and so upwards in
the direct ascending line; or between son, grandson,
great-grandson, and so downwards in the direct
descending line. (Ibid.)
AND FUNERALS
Collateral consanguinity is that which subsists

between persons who have the same ancestors, but
who do not descend (or ascend) one from the other.
Thus, father and son are related by lineal
consanguinity, uncle and nephew by collateral
consanguinity. (Ibid.)
Upon the other hand, affinity is distinguished
into three (3) kinds:
(1) Direct, or that subsisting between the husband
and his wife’s relations by blood, or between
the wife and the husband’s relations by blood;
(2) Secondary, or that which subsists between the
husband and his wife’s relations by marriage;
and
(3) Collateral, or that which subsists between the
husband and the relations of his wife’s
relations. (Ibid., p. 29).]
Joseph K. Katancik v. Republic

L-15472, June 30, 1962
FACTS: An American staff-sergeant of the United
States Air Force at Clark Field, Pampanga,
petitioned for the adoption of a child named
Joseph Agullo. He was scheduled to serve in
the Armed Forces for three more years, after
which he expected to remain as a civilian
employee in the Air Base. He manifested his
intent to reside in the Philippines permanently.
HELD: Since his stay in the Philippines is merely
temporary and conditioned on his assignment
in Clark Field, he is considered a non-resident
alien, and, therefore, incapacitated to adopt.
(See also Caraballo v. Republic, L-15080, April
25, 1962, the Court explained: “A foreigner who
has a business or interest therein or property
located in a country or state and goes and stays
in that country or state to look after his
business or property or to check up on the
manner or way his business or property is being
conducted or run by his manager but does not
intend to remain in the country indefinitely

cannot be a resident of such country. Actual or
physical presence or stay of a person in a place,
not of his free and voluntary choice, and
without intent to remain there indefinitely,
does not make him a resident of the place.”)
(See also Ellis v. Republic, L-16922, April 30,
1963). [NOTE: It would seem that the Court
wants the adopter to be a HABITUAL RESI
DENT or a DOMICILIARY of our country.
* Observe, however, that under Art. 50 of the
Civil Code domicile means habitual residence
implying that there can be residence other than
habitual.]
[NOTE: In the Caraballo case, the Court
explained the reason for disqualifying non
resident aliens from adopting in our country.
“Looking after the welfare of a minor to be
adopted, the law has surrounded him with
safeguards to achieve and insure such welfare.
It cannot be gainsaid (denied) that an adopted
minor may be removed from the country by
the adopter, who is not a resident of the
Philippines, and placed beyond the reach and
protection of the country of his birth.”]
(NOTE: May not a resident alien also
change his residence and go elsewhere, taking
along the child with him?)
[NOTE: In the Child and Youth Welfare
Codfân alien is no longer disqualified simply
„ because he is a non-resident. An alien is not
allowed to adopt if “disqualified to adopt
according to the laws of his own country,” or
he is an alien “with whose Government the
Republic o f the Philippines has broken
diplomatic relations.” (Art. 28, Child and Youth
Welfare Code, P.D. 603).]
(4) In the Philippines also, an alien with whose govern
ment the Republic of the Philippines has no diplomatic
relations may NOT be adopted. (See Art. 187, No. 2,
Family Code).
AND FUNERALS
NOTE: This rule apparently has a Filipino

citizen as the would-be adopter. The rule is obviously
premised on the belief that if a Filipino adopts an
alien, the adopted becomes a Filipino. The premise
has been considered by our Supreme Court as false:
in the case of ChingLengv. Galang, L-11931, Oct.
27, 1958, the Court held that in our country adoption
by a Filipino of a foreigner does not confer upon the
adopted child Philippine citizenship. However,
regardless of this wrong premise, it would seem that
the prohibition still stands, for despite (and perhaps
precisely because of) the non-attaining of Philippine
citizenship, there is still the possibility that should
adoption be allowed, the adopted child may be
tempted by reason o f blood to commit acts of
sabotage and espionage against the Philippine
government. It would follow, however, that the
prohibition should only be'feasible in case the
adopter be a Filipino. Should the adopting parent
be also an alien, there is no plausible reason for the
prohibition to remain, particularly if no similar
restriction be found in the national law of the would
be adopter. (See Art. 15, Civil Code). Adoption should
generally be encouraged in view of the natural need
it aims to fulfill, and this would particularly be true
when no outstanding public policy of the forum
would be outraged. As has already been said the
national law of the adopter should generally govern
the question of whether or not; adoption may be
allowed. (See Rabel, Conflict of Laws, Vol. I, p. 641).
(5) The rights and obligations of the adopter and the adopted
are governed by the national law of the adopter. (See
Art. 15, Civil Code, and by inference, Ching Leng v.
Galang, supra.) If a Chinese child, for example, is adopted
by a Filipino, the adopted does NOT become a Filipino,
for under Philippine law (the national law o f the adopter)
adoption of a foreigner does not grant said foreigner
■a Philippine citizenship. (Ching Leng v. Galang, supra.)
Ching Leng v. Galang

G.R. No. L-11931, Oct. 27, 1958
FACTS: Ching Leng, a Chinese was granted Philippine
citizenship on May 2, 1950 by the Court of

First Instance (Regional Trial Court) of Rizal.
Later, his wife filed a petition for the adoption
of his five illegitimate minor children. The
adoption was allowed. Ching Leng then
requested the Commissioner of Immigration for
the cancellation of the alien certificates of
registration of said minors on the theory that
they were now Filipino citizens. Commissioner
of Immigration Galang denied the request
** ; ' citing Opinion No. 269 of the Secretary of
1 Justice dated Oct. 9, 1954, which ruled that
adoption does not effect a change of nationality
of the adopted. Ching Leng then filed this
action to compel Galang to cancel said alien
certificates.
HELD: The alien certificates of registration will not
be cancelled because the adopted children have
NOT become Filipinos, in view of the following
reasons:
(a) While generally an adopted child has the rights of
a legitimate child, still citizenship is not a right but
a mere privilege;
(b) Granting that citizenship is a right, it is not
enumerated as such as among the rights of
legitimate children, and therefore is not one of those
alluded to in the Civil Code (now Family Code);
(c) Acquisition of citizenship partakes of the character
of naturalization and this matter is regulated not
by the Civil Code but by special laws. (Art. 49, Civil
Code);
(d) Under Sec. 15 of the Revised Naturalization Law,

the words “minor children” refer generally to
legitimate children of the mother for in the latter
case, they follow her nationality, not that of the
illegitimate father;
(e) If adoption by a natural-born Filipino does not vest
Philippine nationality in the adopted child, there is
no plausible reason why adoption by a naturalized
Filipino should have a more far-reaching effect; and
AND FUNERALS
(f) If adoption can confer Philippine nationality on the

adopted, many people will resort to this method
rather than to the more difficult process of formal
naturalization proceedings.
[NOTE: Whether or not the illegitimate Chinese
children in this case continued to be regarded as Chinese
by China is a matter that of course depends on Chinese
law. What is clear is that under our law, they are not
Filipino citizens.)
(6) The law that governs the successional rights of an adopted
child is the national law of the deceased, not the national
law of the heir. (Art. 16, par. 2, Civil Code). Similarly,
the law that determines the capacity of the adopted child
to inherit is also the national law of the deceased. (Art.
1039, Civil Code).
VALIDITY OF FOREIGN DECREES RESPECTING

ADOPTION
Should the Philippine courts recognize a foreign decree
concerning adoption? Unfortunately up to now there has been no
legal provision or court decision which has answered this question.
Examining the Private International Law of other countries,
we discover that whereas some countries do give recognition (as in
Argentina or Portugal) others upon the other hand, are reluctant
to give recognition unless similar adoption proceedings are
undertaken in their own countries (as in England). (See Rabel,
Conflict of Laws, Vol. I, pp. 646-647).
It would seem, however, from our Rules of Court that there is
nothing to prevent our tribunals from recognizing a foreign decree
of adoption so long as the court granting the same was vested with
jurisdiction and so long as the judgment is meritorious and was
arrived at impartially, and there was no collusion or extrinsic fraud.
(See Sec. 50, Rule 39, Rules o f Court). This is particularly true if
both the adopter and the adopted are nationals and domiciliaries
of the forum that decreed the adoption. (See Rabel, Conflict of
Law^, Vol. I, p. 647).
In case we do recognize the foreign adoption, what effect should
we give to it? In general, we should give to the decree the same
effect as would be given by the national law of the adopter, inasmuch
as adoption is a STATUS (See Art. 15, Civil Code) unless naturally
said effect would come under any of the exceptions to the application
of the proper foreign law. Be it noted, however, that in the United
States, a foreign adoption is given generally the effect of a local
(not a foreign) adoption. (Sec. 143, American Restatement on the
Conflict of Laws).
GUARDIANSHIP
The rule is well-settled that there are generally three kinds of
guardians: guardians over the person; guardians over the property;
and general guardians (over BOTH the person and the property of
the wards). From another point of view there are also the domiciliary
guardians (appointed by the courts of the domicile of the wards)
and the ancillary guardians (those appointed elsewhere).
GUARDIAN OVER THE PERSON

Guardians over the person are appointed generally by the
courts where the ward is domiciled. Their powers are coextensive
with the authority of the appointing court, that is, they exercise
powers that usually are recognizable only in the country which
appointed them. Hence, a guardian as such is not permitted to sue
in other jurisdictions unless his guardianship is also recognized
in such foreign courts. However he may litigate in his own indivi
dual or private capacity. (See Grimmett u. Whitherington, 66 Ark.
377.)
GUARDIAN OVER THE PROPERTY

In accordance with the lex rei sitae rule, guardians over the
property are appointed by th#fcourt where the property of the ward
may be found; their powers are fixed by the appointing court, and
cannot have extraterritorial application. Should the ward have
properties in foreign states, ancillary guardianship proceedings are
imperative. (See Minor, Conflict of Laws, p. 258).
GENERAL GUARDIANS
A general guardian can generally be appointed only by a court
of the country where the ward is domiciled and where the properties
are located. His powers are coextensive with those of the court that
designated him as such.
AND FUNERALS
GUARDIANSHIP RULES IN THE PHILIPPINES

Any relative, friend, or other person on behalf of a resident
minor or incompetent who has no parent or lawful guardian, or the
minor himself if fourteen years of age or over, may petition the
court having jurisdiction for the appointment of a general guardian
for the person or estate or both, of such minor or incompetent. (Sec.
1, Rule 93, Rules o f Court).
When a person liable to be put under guardianship resides
without (outside) the Philippines but has estate therein, any relative
or friend of such person, or any one interested in his estate, in
expectancy or otherwise, may petition a court having jurisdiction
for the appointment of a guardian for the estate, and if after notice
given to such person and in such manner as the court deems proper,
by publication or otherwise, and hearing the court is satisfied that
such non-resident is a minor or incompetent rendering a guardian
necessary or convenient, it may, appoint a guardian for such estate.
(Sec. 6, Rule 93, Rules of Court). This particular section does not
apply to one who is travelling abroad and is therefore merely
temporarily absent from the Philippines. (Yangco v. Court o f First
Instance of Manila, 29 Phil. 183).
A guardian appointed shall have the care and custody of the
person of his ward, and the management of his estate, or the
management of the estate only, as the case may be. The guardian
of the estate of a non-resident shall have the management of all the
estate of the ward within the Philippines, and no court other than
that in which such guardian was appointed shall have jurisdiction
over the guardianship. (Sec. 1, Rule 96, Rules of Court).
Bar
QUESTION: The Court of First Instance (now Regional Trial

Court) of La Union in a special proceeding appointed X a guardian
of Y, a minor, beneficiary of arrears in pay, insurance, and other
benefits from the U.S. Veterans Administration due to the death of
his father, supposedly a member of the U.S. Armed Forces. A few
years later, a motion was filed by the Administrator of Veterans’
Affai^g seeking a refund of sums allegedly wrongfully paid to the
minor, its records in Washington showing that the father had no
guerilla or other service in the Armed Forces of the United States.
To the opposition of the guardian who submitted evidence of the
father’s service records, the Administrator replied that under U.S.
Law his decision is final and conclusive and that, therefore, the
Philippine court was without jurisdiction. Decide the case with

reasons.
ANSWER: Clearly, the Philippine court has jurisdiction. In
all questions of jurisdiction, it is the court of the forum that
determines whether or not it possesses jurisdiction. To apply a
foreign law on this matter would be to infringe on our national
sovereignty. While it may be true that the provisions of the U.S.
Code make the decisions of the U.S. Veterans’ Administrator final
and conclusive when made on claims properly submitted to him for
resolution, |£ill provisions are not applicable to cases where, as the
one at bar, the Administrator is not acting as a judge but as litigant.
There is a great difference between actions AGAINST the
Administrator (which must be filed strictly in accordance with the
conditions that are imposed by the Veterans’ Act, including the
exclusive review by U.S. Courts), and those actions where the
Veterans’ Administrator SEEKS A REMEDY from the Philippine
Courts and submits to their jurisdiction by filing an action therein.
If the findings of the Veterans’ Administrator, in actions where he
is a party, are made conclusive on Philippine Courts, this in effect
would deprive our tribunals of judicial discretion, and render them
mere subordinate instrumentalities of the Veterans’ Administrator.
(In Re Guardianship o f the Minor Yay Reginald Lelina, Viloria
Severn v. Administrator o f Veterans’ Affairs, L-9620, June 28, 1957).
FUNERALS
The incidents of funerals are governed by the law of the country
where the body is to be buried. If the burial of a foreigner will take
place in this country, our laws have to be complied with. Under the
Civil Code, the duty and the right to make arrangements for the
funeral of a relative devolve on the persons obliged to support the
deceased while ?till alive. (Art. 305). Every funeral shall be in
keeping with the social position of the deceased. (Art. 306) . The
higher the social standing of the deceased in life, the more dignified
and expensive should his funeral be, as a general rule. Prohibited,
nonetheless, is pompous and elaborate funeral of a criminal on
whom the DEATH penalty has been inflicted. (Art. 85, Revised
Penal Code).
Incidental to funerals are the so-called “funeral expenses,”
i.e., the money expended in procuring the interment, cremation, or
other disposition of a corpse, including suitable monument, perpetual
care of burial lot and entertainment of those participating in the
AND FUNERALS
wake. (Black’s Law Dictionary, abridged fifth ed., p. 344).

Nonetheless, paupers should not be denied the benefit of a proper
funeral. The Supreme Court in Hon. Jejomar C. Binay & The Mun.
of Makati v. Hon. Eufemio Domingo, o f the Commission on Audit,
G.R. No. 92389, Sept. 11, 1991, speiaking thru Justice Edgardo
Paras in an en banc decision, held: “Resolution No. 60, reenacted
under Resolution No. 243, of the Municipality of Makati, is a paragon
of the continuing program of our government towards social justice.
The Burial Assistance Program is a relief of pauperism, though not
complete the loss of a member of a family is a painful experience,
and it is more painful for the poor to be financially burdened by
such death. Resolution No. 60 vivifies the very words of the late
President Ramon Magsaysay, those who have less in life, should
have more in law.”
Chapter XIX
REAL AND PERSONAL PROPERTIES
SYNOPSIS OF CONFLICTS RULES ON PROPERTY
(1) Real property (extrinsic and (1) lex rei sitae

intrinsic validity of alien (Art. 16, par. 1, Civil Code)
ations, transfers, mort
gages, capacity of parties,
interpretation o f docu
ments, effects of ownership,
co-ownership, accession,
usufruct, lease, easement#
police power, eminent
domain, taxation, quieting
of title, registration, and
prescription).
Exceptions: Exceptions:
(a) successional rights (a) national law of dece
dent (Art. 16, par. 2,
Civil Code).
(b) capacity to succeed (b) national law of
decedent (Art. 1039,
Civil Code).
(c) contracts involving real (c) the law intended will be
property but which do the proper law of the
not deal with the title contract (lex loci volun
thereto tatis or lex loci inten-
tionis).
318
REAL AND PERSONAL PROPERTIES 319
(d) contracts where the (d) the principal contract

real property is given (usually loan) is gov
as security erned by the proper law
of the contract — (lex
loci voluntatis or the lex
loci intentionis).
NOTE: The mortgage itself,
however, is governed by the
lex rei sitae. There is a
possibility that the prin
cipal contract is valid but
the mortgage is void; or it
may be the other way
around. If the principal
contract is void, the mort
gage would also be void (for
lack of proper cause or
consideration), although by
itself, the mortgage could
have been valid. s
(2) Tangible Personal Property

(chooses in possession)
(a) in general (see the (a) lex rei sitae (Art. 16,
things enumerated in par. 1, Civil Code).
No. 1).
(Exceptions — same as Exceptions — same as
those for real property those for real property
(see No. 1) except that in the
example concerning the
m ortgage the same
must be changed to a
pledge o f personal
property.
(b) means of transport (b)
ation
1) vessels 1) law of the flag (or
in some cases of the
place of registry)
2) other means 2) law of the depot

(storage place for
supplies) or resting
place
(c) thing in transitu (these (c)
things have a changing
status because they
move)
1) loss, destruction, 1) law o f the desti
v#. deterioration nation (Art. 1753,
Civil Code).
2) validity and effect 2) locus regit actum
of the seizure of the (where seized) —
goods because said place
is their temporary
situs
3) disposition or alien 3) lex loci voluntatis or
ation of the goods lex loci intentionis
because here there
is a contract
(3) Intangible Personal Property (3)
(Choses in action)
(a) where debtor may be
(a) recovery of debts or effectively served with
involuntary assignment summons (usually the
of debts (garnishment) domicile)
(b) voluntary assignment (b) lex loci voluntatis or lex
of debts loci intentionis (proper
law of the contract)
Other Theories:
1) national law of the
debtor or creditor
2) dom icile o f the
debtor or the cre
ditor
3) lex loci celebrationis
4) lex loci solutionis
(c) taxation of debts (c) domicile of creditor
(d) administration of debts (d) lex situs of assets of the

debtor (for these assets
can be held liable for
the payment o f the
debts)
(e) negotiability or non (e) the right embodied in
negotiability of an in the instrum ent (for
strument (bill of ex example, in the case of
change, for example) a Swedish bill of ex
change, Swedish law
determines its negotia
bility)
(f) validity of transfer, (f) in general, situs of the
delivery or negotiation instrument at the time
of the instrument of transfer, delivery or
negotiation
(g) effect on a corporation (g) law of the place of
of the sale of corporate incorporation
shares #
(h) effect between the (h) lex loci voluntatis or lex

parties of the sale of loci intentionis (proper
corporate shares law of the contract) —
for this is really a con
tract; usually, this is
the place where the
certificates is deliver
ed
(i) taxation on the divi (i) law of the place of
dends of corporate incorporation
shares
(j) taxation on the income (j) law of the place where
from the sale of corpo the sale was consum
rate shares mated
■('k) franchises (k) law of the place that
granted them
(1) goodwill of a business (1) law of the place where
and taxation thereon the business is carried
on
(m) patents, copyrights, (m) in the absence of a

trademarks, trade treaty, they are protect
names ed only by the state
that granted them.
NOTE: Foreigners may sue
for infringement of trade
marks and trade names in
the Philippines only if
Filipinos are granted reci
procal concessions in the
state of the foreigners.
REAL PROPERTY
It is axiomatic that almost everything concerning real property
should be governed by the law of the place where the property is
situated (Art. 16, par. 1, Civil Code). This rule of lex situs or lex rei
sitae is universally recognized. (Cheshire, Private International Law,
p. 712). The reason for the rule is obvious: real property, particularly
and , is PART of the country where it is located; its immovability
makes it logical that it shall be subject to the laws of the States
where it is found; contrary rules in foreign States can not certainly
be given effect unless the SITUS so allows. (See Beale, Conflict of
Laws, Vol. II, p. 938). As Wolff has so aptly pointed out: “As the
place where a thing is situated is the natural center o f 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). *
SCOPE OF THE RULES IN THE CASE

OF REAL PROPERTY
The theory of lex sitae governs the following things connected
with real property: the extrinsic validity of alienations, transfers,
mortgages, capacity of the parties, interpretation of documents,
effects of ownership, co-ownership, accession, usufruct, lease,
easement, police power, eminent domain, taxation, quieting of title,
registration and prescription.
Example:
A Japanese donated in Germany in favor of a Filipino a
parcel of land in the Philippines.
(a) The law of which country governs the formalities of
the donation? Why?
(b) The law of which country governs the capacity of
the Japanese to make the alienation? Why?
(c) The law of which country governs the intrinsic
validity of the donation? Why?
Answers:
(a) The law of the Philippines — the lex rei sitae governs
the formalities of the donation. (Art. 16, par. 1, Civil
Code). The lex loci celebrationis doctrine enunciated
under Art. 7, par. 1 of the Civil Code doesn’t apply
because the transaction relates to land and must,
therefore, be governed by the law of the place where
the land is situated.
(b) The law of the Philippines — the lex rei sitae —
governs the capacity o f the Japanese to alienate. (Art.
16, par. 1, Civil Code). Here the doctrine of national
law under Art. 15 of the Civil Code yields precisely
because the subject matter is land.
(c) The law of the Philippines the — lex rei sitae governs
the intrinsic validity of the donation. (Art. 16, par.
1, Civil Code). The general rule of lex loci voluntatis
(law of the place voluntarily agreed upon) or lex loci
intentionis (law of the place intended) yields to the
lex rei sitae rule because the subject matter is land.
Swank v. Hufnagle
111 Ind. 453
FACTS: In the State of Ohio a married woman named

Hugnagle executed a mortgage on land owned
•• by her and situated in the State of Indiana.
Under Ohio law, the mortgage was valid; but
under Indiana law, it was void or lack of
capacity. How should the mortgage be con
sidered?
HELD: The mortgage should be regarded as VOID

because “the validity of the mortgage of real
property is to be determined by the law of the
place where the property is situated.”
EXCEPTIONS TO THE RULE IN THE CASE

OF REAL PROPERTY
There are at least four (4) exceptions to the rule that the lex
rei sitae governs real property:
(1) In the case of succession rights to real property, what
should control is the national law o f the deceased. (Art.
16, par. 2, Civil Code);
(2) Capacity to succeed (in inheritance problems) is also
governed by the national law of the deceased. (Art. 1039,
Civil Code);
Example:
A Turkish citizen died leaving parcels of land
in the Philippines. How should our court distribute
the successional rights of his heirs to said real
property? Suppose one of the compulsory heirs is a
Chinese, what law governs the capacity of this
Chinese heir to inherit land in our country?
Answer:
The successional rights of the heir to the
parcels of land in the Philippines shall be governed
not by the lex rei sitae but by the national law of
the deceased, that is, by Turkish law. (See Art. 16,
par. 2, Civfl Code). Similarly, the capacity of the
Chinese heir to inherit Philippine realty is also
determined by Turkish law for this is the decedent’s
national law. (Art. 1039, Civil Code).
(3) Contracts involving real property but which do not deal
with the title to such real property shall not necessarily
be governed by the lex rei sitae. The proper law of the
contract — which is the lex loci voluntatis or the lex loci
intention is should be regarded as controlling. (See Beale,
Conflict o f Laws, Vol. 11, p. 1216; see also Goodrich,
•REAL AND PERSONAL PROPERTIES 325
Example:
In Manila, a German, owning land in Switzer

land, agreed to pay as salary to a Japanese
employee, 10% of the annual produce of the land in
Switzerland, on condition that said land would not
be expropriated by the Swiss authorities. It was the
mutual desire of both parties that the stipulation of
their employment contract should be governed by
Philippine laws. What law governs the extrinsic and
intrinsic validity of their agreement?
Answer:
The extrinsic validity of the agreement is
governed by Philippine law because the contract was
celebrated in our country. The intrinsic validity shall
also be determined by Philippine law for this was
likewise the lex loci voluntatis. The fact that the
contract involved land located in Switzerland is of
no moment, for the agreement does not concern itself
with any transfer of title thereto, at least as between
the parties. The fact that this case deals with foreign
land in a way is merely incidental. (See for reference
Liljedahl v. Glassgow, 180 Iowa, 827).
(4) In contracts where real property is given by way of
security, the principal contract (which is generally the
contract of loan) is governed by the proper law of the
contract; the accessory contract of mortgage is, of course,
governed by the law of the state where the real property
mortgage is situated. (An “accessory contract” is made
for assuring the performance of a prior contract, either
by the same parties or by others — such as suretyship,
mortgages, and pledge. (Black’s Law Dictionary, abridged
fifth ed., p. 6.)
(a) If the principal contract is valid (as tested by the
lex loci voluntatis or the lex intentionis), the validity
of the accessory contract of mortgage is still to be
determined by the lex rei sitae. If the mortgage is
void by the lex rei sitae, the principal contract can
still remain valid.
(b) If, upon the other hand, tested by the lex loci
voluntatis or the lex loci intentionis, the principal
contract of loan is VOID, the mortgage would

undoubtedly be also VOID (for the accessory loses
standing should the principal be invalid), even if
considered independently by itself the mortgage
would have been regarded as VALID by the lex rei
sitae. (See Goodrich, Conflict o f Laws, p. 467).
Examples:
(a) Two Englishmen in England entered into a contract
of loan, with Philippine land as security by way of
mortgage. The contract of loan should be tested by
English law since this is the proper law of the
contract. If the loan is valid, it does not necessarily
follow that the mortgage is also valid. The mortgage
will, of course be also valid if it complies with the
Philippine law on mortgages. But if, for instance,
the debt or mortgagor in England was only the lessee
of the Philippine land, the mortgage would be VOID
under our law for here it is essential that the
mortgagor be the OWNER of the land mortgaged.
(b) Two Frenchmen in France entered into a contract
of loan, with Philippine land as security by way of
mortgage. Let us assume that in France, a contract
of loan to be valid must be in a public instrument;
in the Philippines, it does not have to be. Now then,
if the contract of loan and the contract of mortgage
are in a private instrument, can the mortgage be
enforced in the Philippines?
Answer:
Since^,. the contract of loan is in a private
instrument and therefore VOID in France (which is
' the proper law of the contract of loan), the contract
of mortgage is rendered automatically also VOID in
our country — for when a principal contract fails,
all the accessory obligations are also considered void.
And this is true despite the fact that the mortgage
standing by itself would have been deemed valid by
Philippine laws. (An “accessory obligation” is one
incidental to another or principal obligation; e.g.,
the obligation o f a mortgage. (B lack’s Law
Dictionary, abridged fifth ed., p. 6).]
THE RULES FOR PERSONAL PROPERTY

In many states there are one set of conflicts rules for real
property and one set for personal property. This was also true in
the Philippines under the old Civil Code: real property was governed
by the lex situs; personal property, by the national law of the owner
in accordance with the principle of mobilia sequuntur personam
(movable property follows the law of the owner). Many practical
difficulties had to be encountered because of conflicts o f
characterization of property into real and personal. The new Civil
Code has to a very great extent simplified the problem by decreeing
the concept of lex rei sitae applicable to BOTH real and personal
property. Thus, Art. 16, par. 1 of the new Civil Code says: “Real
property as well as personal property is subject to the law of the
country where it is situated.”
RATIONALE FOR THE DOCTRINE AS APPLIED

TO PERSONAL PROPERTY
The old rule of “mobilia sequuntur personam” grew up in the
Middle Ages when movable property could easily be carried from
place to place. (Pullman's Palace Car Co. v. Comm, o f Pennsylvania,
141 U.S. 1822). Several reasons were set up to justify the doctrine
of personal law following the property:
(1) Firstly, since personal property has no fixed situs, an
artificial one must be created: this artificial situs should
be the personal law of the owner;
(2) Secondly, the rule is simple, and would apply wherever
the location of personality; and
(3) Thirdly, the rule is more stable, since the rule would
remain despite the change location of the movable. (See
Story Commentaries on the Conflict o f Laws, p. 376).
The doctrine of “mobilia sequuntur personam” has met severe
criticism from various writers:
(1) WOLFF says that the rule results in instability or the
^ personal law of the owner may also change;
(2) SCHMITTHOFF remarks that the rule requires a useless
and irrelevant inquiry into the transferor’s personal law
— a law which the transferee may not at all be acquainted
with or interested in;
(3) CHESHIRE ventures the opinion that the rule results in

injustice-, and
(4) BEALE mercilessly points out that “It has proved to be
the refuge for a judge in a hurry, confronted with the
difficult situation; and indeed like all maxims; it serves
celerity (swiftness) rather than soundness o f thought.”
(Beale, Conflict o f Laws, Vol. I, p. 978).
Decidedly, the rule of lex rei sitae has been adopted not only
for real but also for personal property. In the words of Senator
Lorenzo Tanada, “now that there has been great increase in the
amount ancfvariety of personal property not immediately connected
with the person of the owner (Wharton, Conflict o f Laws, Secs. 297-
311). it was deemed advisable by Congress of the Philippines to
adopt the doctrine of lex rei sitae also to movables.” (Report of
Senator Tanada, Chairman, Special Committee on the New Civil
Code).
Today, in many states, the theory of lex rei sitae has also been
adopted for personal property. Various reasons have been given for
this adoption, but it seems that the chief argument in its favor lies
in the fact that the situs is easily ascertainable, making it convenient
and fair for both the immediate parties and third persons, who
maybe affected by rights in rem in the property (See Wolff, Private
International Law, p. 564), and who are, therefore, interested in
having these rights enforced and rendered effective by the state
which logically (by reason of LOCATION) possesses the jurisdiction
to issue the necessary legal and coercive process. (See Goodrich,
SCOPE OF THE THEORY FOR PERSONAL PROPERTY

The doctrine of lex sitifs, with reference to personal property,
extends in general to all the relations and situations already
adverted to in the case of real property. Similarly, the exceptions to
the rule in the case of immovables apply to problems in personal
property. Even the examples of the exceptions are the same, except
of course that the example of the mortgage should be modified to
one of pledge o f personalty. (See preceding discussion on Real
Property).
In addition to the general rule, certain specific modifications
have to be called into play in view of the very nature of movable
property).
•REAL AND PERSONAL PROPERTIES 329
Personal property may be tangible or intangible. The tangibles

are more appropriately referred to as CHOSES IN POSSESSION
and the intangible are more accurately known as CHOSES in
ACTION (such as shares of stock, franchises, and copyrights). With
reference to CHOSES IN POSSESSION, the doctrine of “lex rei sitae”
presents no difficulty except perhaps in the case of usually moving
objects (such as ships and goods in transit). CHOSES IN ACTION,
however, sometimes present complicated problems.
‘CHOSE’ DEFINED
The term “chose” is a thing, an article of personal property. A
chose is a chattel personal, and is either in action or in possession.
(Black’s Law Dictionary, abridged fifth ed., p. 125).
Chose in action is a thing in action and is the right of bringing
an action or right to recover a debt or money. This means any or
all of the following:
(1) Right of proceeding in a court of law to procure payment
of sum of money, or right to recover a personal chattel or
a sum of money, or right to recover a personal chattel or
a sum of money by action;
(2) A personal right not reduced into possession, but recover
able by a suit at law;
(3) A right to personal things of which the owner has not
the possession, but merely a right of action for their
possession;
(4) The phrase “chose in action” includes all personal chattels
which are not in possession, and all property in action
which depends entirely on contracts express or implied;
(5) A right to receive or recover a debt, demand, or damages
on a cause of action ex-contractu or for a tort or omission
of a duty. (Black’s Law Dictionary, abridged fifth ed.,
p. 125).
Chose in possession is a personal thing of which one has
possession, as distinguished from a thing in action. Taxes and
customs, if paid, are a chose in possession; if unpaid, a chose in
action. (Ibid.).
CHOSES IN POSSESSION THAT USUALLY MOVE

Choses in possession that usually move (like means of
transportation and goods in transitu) naturally have a changing
situs.
Vessels, in view of their inherent movability, are governed by
the LAW OF THE FLAG in many states; in others, the LAW OF
THE PLACE OR REGISTRY takes the place of the lex rei sitae.
Said law of the flag or the registry — as the case may be — is
deemed controlling in case for instance of the sale or mortgage of
the vessel if the vessel at the time of the transaction is on the
HIGH SEXS. If the vessel, however, is docked at a foreign port,
said port is usually regarded as the temporary lex situs by both the
owner and third parties. (See Wolff, Private International Law, pp.
529-530).
Regarding GOODS IN TRANSITU, the following rules
generally should be regarded as applicable:
(1) Liability for loss, destruction, or deterioration of goods in
transitu is governed by the law o f the destination. Art. 1753 of the
Civil Code provides 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.” If, in the course
of the voyage the destination is changed, it is evident that the law
of the new destination applies; if, upon the other other hand, the
goods were never shipped, they never were in transitu and Art.
1753 cannot be made use of, and consequently the controlling law
would be that of the actual situs.
Bar Question
If, in a contract, certain limitations of liability as to the
negligence on the part of the carrier are agreed upon, can the
carrier invoke this clause of the contract at the point of
destination, the laws thereof as well as those of the place,
where the contract was made, permitting such limitations, if
the damage and negligence of the carrier which caused such
damage occurred while the merchandise was in transit in a
state which did not recognize the validity of such stipulation?
Answer. Yes, the carrier can invoke the clause in question.
It does not matter that in the state where the damages occurred
the stipulation is not recognized. What is important is the
recognition given to the stipulation at the place of destination.
Art. 1753 of the Civil Code provides 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.
(2) The validity aiid effect of the seizure of goods in transitu
are governed by the law of the place where they were seized (locus
regit actum) because this place was their temporary situs.
(3) The disposition or alienation of the goods in transitu is
generally governed by the law of the place voluntarily agreed upon
(lex loci voluntatis), or the law of the place intended (lex loci
intentionis). The reason is evident: the disposition or alienation is
effected thru a contractual obligation. In some states, however, the
transfer of title to chattels is governed by the law of the place of
the chattels at the time of the transfer; and this title once accrued
will ordinarily be recognized in any state into which the chattels
are brought. (Emery v. Clough, 63 New Hampshire 552).
INTANGIBLE PERSONAL PROPERTY

(CHOSES IN ACTION)
(1) For the recovery of debts or for the involuntary assignment
of the debts (garnishment) the proper point of contact is the place
where the debtor may be effectively served with summons (usually,
but not always, this is the domicile of the debtor).
Examples:
(a) A German, domiciled and found in California, owes a
Filipino in Manila an amount of money. Generally, where
should the Filipino sue for the recovery of the debt?
Answer-. Generally suit must be instituted in
California because the debtor is domiciled and found
there; however, should he be in Japan, for instance,
litigation may be commenced in the latter country. This
is a convenient and practical solution.
(b) A Cuban, domiciled in Florida but found in New York
„ owes by final judgment a Filipino in Manila a sum of
money. The Cuban, however, has in the meantime no
money; upon the other hand, he is the creditor of a
Frenchman domiciled in Indonesia but now temporarily
residing in Manila, where he is a university student. The
Filipino creditor wants to file garnishment proceedings,
that is, as a judgment creditor of the Cuban, he wants to
attach the sum of money due the Cuban from the

Frenchman so that said Frenchman may directly pay the
money to him (the Filipino). May garnishment proceedings
prosper in Manila?
Answer-. Yes, because the Frenchman (the garnishee)
is now in Manila where he may be effectively served
with summons. This garnishment, if granted by the Court,
operates as an involuntary assignment to the Filipino of
the Frenchman’s debt (in favor of the Cuban); moreover,
''since the Filipino tribunal had effective jurisdiction, its
assignment of the debt DISCHARGES the Frenchman’s
liability. This discharge will generally be universally
recognized. (Ibid). Indeed, it has been held that
jurisdiction to reach by garnishment a claim due to one’s
debtor rests upon jurisdiction over the garnishee. (Harris
v. Balk, 198 U.S. 215).
[NOTE: “Garnishment” is an ancillary remedy in
aid of execution to obtain payment of a judgment whereby
a person’s property, money, or credits in possession or
under control of, or owing by, another are applied to
payment of a former’s debt to a third person by proper
statutory process against debtor and garnishee. (Black’s
Law Dictionary, abridged fifth ed., p. 347].)
(2) The validity and effectiveness of a voluntary assignment
of a debt depends on the lex loci voluntatis or the lex loci intentionis;
in other words, the proper law of the contract controls. (Cheshire,
Example-. A Filipino is the creditor of a German domiciled in
Manila. The credit is the&result of a business transaction entered
into in Manila; payment is stipulated to be made also in Manila.
If the Filipino while vacationing in Japan assigns his credit in
favor of a Russian, also domiciled in Manila, the proper law that
should control the validity and the effectiveness of the assignment
should be Philippine law, for it is evident that it is this law that
the parties intended to be applicable (lex loci intentionis). After all,
it is clear in the problem that Manila is the place which has the
most substantial connection with the assignment.
Other theories:
(a) One theory is that the controlling law is the national law
of the debtor and the creditor if the forum adheres to the
nationality principle; and the domiciliary law of the debtor

and creditor if the forum is guided by the domiciliary
principle. Otherwise stated, it is the personal law that
should solve the problem of validity and effectiveness of
the assignment. This theory is of difficult and impractical
application when the personal law of the parties varies;
furthermore, a needless investigation of the personal law
would be inevitable, and business transaction would
suffer. The rationale for the doctrine, however, is stated
in the case of Harris v. Balk (198 U.S. 215), where the
court batting for the personal law theory, ruled that “the
obligation of the debtor to pay his debt clings to and
accompanies him wherever he goes. He is as much bound
to pay his debt in a foreign state when therein sued upon
his obligation by his creditor, as he was in the state
where the debt was contracted.”
(b) Another theory insists on the lex loci celebrationis of the
assignment, that is, the law of the place where the
voluntary assignment of the credit was made. (Goodrich,
Conflict o f Laws, pp. 426-427; American Restatement, Secs.
348-350). Cheshire criticizes the theory on the ground
that in a good number of cases the lex loci celebrationis
may be purely accidental and is least connected with the
credit that is assigned. (Cheshire, Private International
Law, pp. 608-609). If this theory were correct, then, in
the example given, Japanese law would govern the
assignment simply because the act took place in Japan,
while the creditor was vacationing there.
(c) Finally there is the theory that it is the lex loci solutionis
(law of the place of performance or law of the place whert
payment may be asked of the debtor) that is controlling.
(Westlake, A Treatise on Private International Law, p.
202). The inherent defect of this theory is the fact that
there are many places where performance may be sought,
namely, any state where the debtor may be served with
summons. (See Cheshire, Private International Law, p.
598).
(3) The situs of a debt for purposes of taxation is the domicile
of the creditor, and accordingly, the collectible credit may be taxed
therein. (See Minor, Conflict of Laws, pp. 281-282). In our country,
it should be noted that interests on debts are deductible from the
gross income of the taxpayer.
(4) For the purpose of administering debts, the situs is the

place where the assets of the debtor are actuallly situated. An
assignee in insolvency, for example, is required to take hold of the
assets of the debtor for eventual distribution among the creditors:
it is obvious that the lex situs of the properties will be the
determining law. (See Minor, Conflict o f Laws, pp. 283-285).
(5) The negotiability or the non-negotiability of an instrument
(such as a bill of exchange) is determined by the right embodied in
the instrument. (Wolff, Private International Law, p. 561). Thus, in
the case of a Swedish bill of exchange it is Swedish law that
determines whether or not it is negotiable; a Philippine cheque is
governed by the Philippine Negotiable Instruments Law. In the
United States, however, the American Restatement present a
different criterion, namely, the place where the instrument was
executed. (Sec. 348, American Restatement).
(6) The validity of the transfer, delivery, or negotiation of
the instrument is, in general, governed by the law of the situs of
the instrument at the time of transfer, delivery, or negotiation.
(See Cheshire, Private International Law, p. 622).
NOTE: Under the Philippine Negotiable Instruments Law
(Act No. 2031), “where a foreign bill (of exchange) appearing
on its face to be such is DISHONORED by non-acceptance,, it
must be duly PROTESTED for non-acceptance, and where
such a bill which has not previously been dishonored by non-
acceptance is DISHONORED by non-payment, it must be duly
PROTESTED for non-payment. If it is not so protested, the
drawer and indorsers are DISCHARGED. Where a bill does
not appear on its face to be a foreign bill, protest thereof in
case of dishonor is unnecessary.” (Sec. 153, Act No. 2031).
(7) The effect on a corporation of the sale of corporate shares
is governed by the law o f the place of incorporation. The reason is
simple: to bind the corporation, the transfer must be recorded in its
books. (Beale, Foreign Corporations, Sec. 376). Thus, in the case of
a corporation incorporated in our country, no transfer of the share
of stock “shall be valid, except as between the parties, until the
transfer is recorded in the books of the corporation so as to show
the names of the parties to the transaction, the date of the transfer,
the number of the certificate or certificates, and the number of
shares transferred.” (Sec. 63, Corporation Code). Until the transfer
has been thus entered and noted on the corporate books, said
transfer is not valid as to attaching or execution creditors of the
assignor (TJnson v. Diosomito, 61 Phil. 535), unless said creditors

actually knew or had notice of the unregistered transfer. (Fua Cun
v. Summers, 44 Phil. 705). It should be noted, however, that what
should be registered are transfer or absolute conveyance of the
ownership in shares; therefore, registration in the corporate books
of a chattel mortgage or a pledge of the corporate shares is NOT
essential to bind the corporation or third parties so long as the
requirements of the Chattel Mortgage Law and the law on pledge
(as to effectivity on third parties) have been complied with.
(Monserrat v. Ceron, 58 Phil. 261; Guan v. Samahang Magsasaka,
34 O.G. 2131; Bank of the P I. v. Caridad Estates, CA..-G.R. No. 16,
O.G. Supp., Aug. 23, 1941, p. 265); (See E. Paras, et al. Corporate
Law Practice and Litigation, 1994, pp. 366-367).
(8) The effect between the parties of the sale of corporate
shares is governed by the lex loci voluntatis or the lex loci intentionis
(the proper law of the contract) — because this sale or transfer is
really a contract. In many cases, the proper law of the contract is
the place where the certificate is delivered. (Cheshire, Private
International Law, p. 624).
(9) Taxation on the dividends of corporate shares is governed
by the law of the place of incorporation. Thus, it has been held that
shares of stock of a foreigner, even if they are considered personal
property under our law (Art. 417, No. 2, Civil Code) can be taxed
in the Philippines. (See Wells Fargo Bank v. Coll. o f Int. Rev., 40
O.G. (85) No. 2, p. 159; 70 Phil. 325). Similarly, taxes may be
imposed on dividends from shares in a gas corporation situated in
the Philippines even if the stockholders do not reside here. (Manila
Gas Corporation v. Coll., 62 Phil. 825).
Situs of property, for tax purposes, is determined by whether
the taxing state has sufficient contact with the personal property
sought to be taxed to justify in fairness the particular tax. (Black’s
Law Dictionary, abridged fifth ed., p. 721). A business situs is a
situs acquired for tax purposes by one who has carried on a business
in the state more or less permanent in its nature. This is a situs
arising when tax certificates, for instance, are brought into the
sta^g for something more than a temporary purpose, and are devoted
to some business use there and thus become incorporated with the
property of the state for revenue purposes. (Ibid.; p. 103).
(10) Franchises are subject to the law of the place that granted
them. The term “franchise” has several significations and there
appears to be some confusion in its use. Generally, however, it is
a special privilege conferred by the government on an individual or

upon a corporation. (See People v. Utica Ins. Co., 8 Am. Dec. 243).
With particular reference to corporations, the term “franchise” may
refer either to the corporation itself (as a franchise belonging to the
shareholders of the corporation) or to the different powers of a
corporation (such as the franchise or the right of the corporation to
hold and dispose of property) (See Pierce v. Emery, 32 N.H. 484) or
the issuance of a bank note by an incorporated bank (see People v.
Utica Ins. Co., supra). (A “franchise” has evolved into an elaborate
agreement jander which the franchisee undertakes to conduct a
business or sell a product or service in accordance with methods
and procedures prescribed by the franchisor, and the franchisor
undertakes to assist the franchisee thru advertising, promotion,
and other advisory services. [Black’s Law Dictionary, abridged fifth
ed., p. 336].)
(11) 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 mere value of
the capital stocks, funds, or property employed therein in
consequence of the general public patronage and encouragement
which it receives from its customers. (See Menendez v. Holt, 128
U.S. 514). Under Art. 521 of the Civil Code, “the goodwill of a
business is property, and may be transferred together with the
right to use the name under which the business is conducted.”
(12) Patents, copyrights, trademarks, and trade names are in
the absence of a treaty protected only by the state that granted or
recognized them. (Wolff, Private International Law, p. 558).
A trademark is the name or symbol of goods made or
manufactured (example: Guess); a trade name is the name or symbol
of a store or business place (example: Rustan’s); a service mark is
the name or symbol of services rendered (example: Federal Express)
(See’ Sec. 38, Rep. Act No. 166, as amended which is our law on
trademarks and trade names). Trademarks, trade names, and
service marks must be registered at the Patents Office; if so
registered, they are owned by and pertain to the person, corporation,
or firm registering the same. (Art. 520, Civil Code). A certificate of
registration of a trade name or a trademark is prima facie evidence
of the validity of such registration, but the same may be rebutted.
(People v. Lim Hoa, L-10612, May 30, 1958). Generally the protection
is for twenty years, renewable for another twenty. (See Sec. 12,
Rep. Act No. 166).
Under the law, “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 hereunder 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 if 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.” (Sec. 21-A o f Rep. Act No. 166,
as amended by Rep. Act No. 638).
A copyright is the right of literary property as recognized and
sanctioned by positive law. (Black’s Law Dictionary, abridged fifth
ed., p. 178). For that matter, the rights granted by Presidential
Decree No. 49 (Decree on the Protection of Intellectual Property)
shall, from the moment of creation, subsist with respect to any of
the following classes of works;
(1) Books, including composite and cyclopedic works,
manuscripts, directories, and gazetteers;
(2) Periodicals, including pamphlets and newspapers;
(3) Lectures, sermons, addresses, dissertations prepared for
oral delivery;
(4) Letters;
(5) Dramatic or dramatico-musical compositions; choreo
graphic works and entertainments in dumb shows the acting form
of which is fixed in writing or otherwise;
(6) Musical compositions, with or without words;
(7) Works of drawing, painting, architecture, sculpture,
engraving, lithography, and other works of art; models or designs
for works of art;
(8) Reproductions of a work of art;
(9) Original ornamental designs or models for articles of
maifbfacture, whether or not patentable, and other works of applied
art;
(10) Maps, plans, sketches, and charts;
(11) Drawings or plastic works of a scientific or technical
character;
(12) Photographic works and works produced by a process

analogous to photography; lantern slides;
(13) Cinematographic works and works produced by a process
analogous to cinematography or any process for making audio-visual
recordings;
(14) Computer programs;
(15) Prints, pictorial illustrations, advertising copies, labels,
tags, and box wraps;
(16) dramatizations, translations, adaptations, abridgements,
arrangements and other alterations of literary, musical or artistic
works or of works of the Philippine Government as herein defined,
which shall be protected as provided in Section 8 of this Decree.
(17) Collections of literary, scholarly, or artistic works or of
works referred to in Section 9 of this Decree which by reason of the
selection and arrangement of their contents constitute intellectual
creations, the same to be protected as such in accordance with
Section 8 of this Decree.
(18) Other literary, scholarly, scientific and artistic works.
(Sec. 2, PD 49)
The rights granted by this Decree shall not be lost except in
the manner specifically provided herein. Neither shall they be
subject to levy and attachment while in the possession of the creator
or his heirs. (Sec. 3, Id.).
Copyright shall consist in the exclusive right:
(a) To print, reprint, publish, copy, distribute, multiply,
sell, and make photographs, photo-engravings, and pictorial
illustrations of the wojrks;
(b) To make any translation or other version or extracts
or arrangements or adaptations thereof; to dramatize it if it
be a non-dramatic work; to convert it into a non-dramatic
work if it be a drama; to complete or execute it if it be a model
or design;
(c) To exhibit, perform, represent, produce, or reproduce
the work in any manner or by any method whatever for profit
or otherwise; if not reproduced in copies for sale, to sell any
manuscripts or any record whatsoever thereof;
(d) To make any other use or disposition of the work
consistent with the laws of the land.
The creator or his heirs or assigns shall own the copyright in

any of the work mentioned in Section 2 of this Decree. If the works
is produced by two or more persons, the copyright shall belong to
them jointly and their respective rights thereto shall be governed
by the Rules of Civil Code on co-ownership. (Sec. 6, id.).
The original title and the name of the author of the work shall
be printed on all copies of the published translation. (Sec. 14, 3rd
par., id.).
The copyright may, by gift, inheritance or otherwise, be
transferred or assigned in whole or in part. Such transfer or
assignment shall entitle the transferee or assignee to all the rights
and remedies which the transferor or assignor had with respect to
the copyright. The copyright is not deemed transferred or assigned
inter vivos in whole or in part, unless there is a written indication
that such is the intention. (Sec. 15, id.).
The copyright conferred by this Decree shall endure during
the lifetime of the creator and for fifty (50) years after his death.
In case of works of joint creation, the period of fifty (50) years shall
be counted from the death of the last surviving co-creator. (Sec. 21,
id.).
Any person infringing a copyright shall be liable:
(1) To an injunction restraining such infringement.
(2) To pay to the copyright proprietor or his assigns or heirs
such actual damages as he may have due to the infringement as
well as the profits the infringor may have made due to such
infringement, and in proving profits the plaintiff shall be required
to prove sales only and the defendant shall be required to prove
every element of cost which he claims, or, in lieu of actual damages
and profits, such damages which to the court shall appear to be
just and which shall not be less than the sum of One Thousand
Pesos, and shall not be regarded as penalty.
(3) To deliver under oath, for impounding during the
pendency of the action, upon such terms and conditions as the
court may prescribe, all articles alleged to infringe a copyright.
(4) To deliver under oath for destruction all infringing copies
or devices, as well as all plates, molds or other means for making
such infringing copies as the court may order.
(5) To such other terms and conditions, including the
payment of moral and exemplary damages, which the court may
deem proper, wise and equitable. (Sec. 28, id.).
Any person infringing any copyright secured by this Decree or

aiding or abetting such infringement shall be deemed guilty of a
crime punishable by imprisonment not exceeding one year or by
fine not less than Two Hundred Pesos nor more than Two Thousand
Pesos or both, in the discretion of the court. (Sec. 29, id.):
Unless authorized by the copyright proprietor concerned,
importation into the Philippines of any piratical copies or likeness
of any work in which Philippine copyright subsists is prohibited,
except whgn imported. (Sec. 30, id.).
The Commissioner of Customs, subject to the approval of the
Secretary of Finance, is hereby empowered to make rules and
regulations for preventing the importation of articles the importation
of which is prohibited under this Section and for seizing and
condemning and disposing of the same in case they are discovered
after they have been imported. (Sec. 30, id.).
All actions, suits and proceedings shall, regardless of the
amount involved, be originally cognizables by Court of First Instance
(now Regional Trial Court). No damages may be recovered under
this Decree after four years from the time the cause of action arose.
Appeals shall be governed by the Rules of Court. (Secs. 57, 58, and
59, id.).
By intellectual creation, the following persons acquire
ownership:
1. The author with regard to his literary, dramatic,
historical, legal,philosophical, scientific or other work;
2. The composer, as to his musical composition;
3. The painter, sciflptor, or other artist with respect to the
product of his art;
4. The scientist or technologist or any other person with
regard to his discovery or invention (Art. 721, Civil Code).
[NOTA BENE: The State shall protect and secure the exclu
sive rights of gifted citizens to their intellectual property and
creations, particularly when beneficial to the people, for such period
as may be provided by law. (Sec. 13, Art. XIV, The 1987 Constitution).
Arts and letters shall enjoy the patronage of the State. The State
shall conserve, promote, and popularize the nation’s historical and
cultural heritage and resources, as well as artistic creations. (Sec.
15, id.).
Letters and other private communications in writing are owned

by the person to whom they are addressed and delivered, but they
cannot be published or disseminated without the consent of the
writer or his heirs. However, the court may authorize their
publication or dissemination if the public good or the interest of
justice so requires. (Art. 723, Civil Code).]
Filipino Society of Composers, Authors

and Publishers v. Tan
G.R. No. 36401, March 16, 1987
Justice Edgardo Paras:

The song “Dahil sa Iyo”, registered on April 20, 1956,
became popular in radios, juke boxes, etc., long before
registration. The song “Nearness of You,” registered on January
14, 1955, had become popular twenty five (25) years prior to
1968 or from 1943. The songs “Sapagkat Ikaw ay Akin” and
“Sapagkat Kami Ay Tao Lamang,” both registered on July 10,
1966, have been known and sang as early as 1965 or three
years before the hearing in 1968.
The musical compositions in question had long become
public property, and are therefore beyond the protection of the
copyright law. Under Paragraph 33 of the Patent Office
Administrative Order No. 3 (as amended, dated September
18, 1947), promulgated pursuant to Republic Act 165, “an
intellectual creation should be copyrighted thirty (30) days
after its publication, if made in Manila, or within sixty (60)
days if made elsewhere, failure of which renders such creation
public property .” If the general public has made use of the
object sought to be copyrighted for thirty (30) days prior to the
copyright application, the law deems the object to have been
donated to the public domain and the same can no longer be
copyrighted.
The word “perform” as used in the Copyright Act is
« applied to “one who plays a musical composition on a piano,
thereby producing in the air sound waves which are heard as
music. If the instrument he plays on is a piano plus a
broadcasting apparatus, so that waves are thrown out, not
only upon the air, but upon the other, then also he is
performing the musical composition.
The performance in a restaurant or hotel dining room,

by persons employed by the proprietor; of a copyright musical
composition, to entertain patrons, without charge for admission
to hear it, infringes the exclusive right of the owner of the
copyright. While it is possible in such establishments for the
patrons to purchase their food and drinks and at the same
time dance to the music of the orchestra, the music is furnished
and used by the orchestra for the purpose of inducing the
public to patronize the establishment and pay for the
entertainment in the purchase of food and drinks. The
proprietor conducts his place of business for profit and it is
public; and the music is performed for profit. The playing of
music in dine and dance establishment which was paid for by
the public in the purchase of food and drink constituted
“performance for profit” within Copyright Law.
If the rights under the copyright are infringed only by a
performance where money is taken at the door, they are very
imperfectly protected. Performance, not different in kind from
those of the defendants could be given, and that might compete
with and even destroy the success of the monopoly that the
law intends the plaintiffs to have. It is enough to say that
there is no need to construe the statute so narrowly. The
defendants’ performance are not eleemosynary. They are part
of the total for which the public pays, and the fact that the
price of the whole is attributed to a particular item which
those present are expected to order is not important. It is true
that the music is not the sole object but neither is the food,
which probably could be gotten cheaper elsewhere. The object
is a repast in surroundings that to the people having limited
power of conversation or disliking the rival noise, give a
luxurious pleasure not to be had from eating a silent meal. If
music did not pay, it would be given up. If it pays, it pays out
of the public’s pocket. Whether it pays or not, the purpose of
employing it is profit, and that is enough. (Herbert v. Shanley
Co., 242 U.S. 590, Holmes, J.).
[NOTE: Absent a treaty, a copyright is protected only by
the state that grants or recognizes it. Thus, a copyright in
State X will not be enforced in our country in the absence of
a treaty, unless a similar copyright is also applied for and
granted in the Philippines.]
[NOTE: With the advent of multimedia (CD-ROMs),
cyberspace and Internet, needed at this point in time is a
modification of existing international copyright law in order

that the copyright could fulfill the fundamental functions of
stimulating creation and guaranteeing in social interest the
optimal use of works, despite the changed conditions of creation
and usage of works, caused by the technological progress of
the information superhighway age. (See Dr. E.C. Paras, Jr.,
“Multimedia and Copyright,” Foreign Relations Journal, Vol.
X, No. 1, Mar. 1995, pp. 74-105).]
Chapter XX
WILLS, SUCCESSION,
AND ADMINISTRATION
T *
SYNOPSIS OF CONFLICTS RULES
(1) Extrinsic Validity of Wills (1)

(a) made by an alien (a) lex nationalii OR lex
abroad domicilii OR Philippine
law (Art. 816, Civil
Code), OR lex loci cele
brationis (Art. 17, par.
1, Civil Code)
(b) made by a Filipino (b) lex nationalii OR lex
abroad loci celebrationis (Art.
815, Civil Code)
(c) made by an alien in the (c) lex nationalii OR lex
Philippines loci celebrationis (Art.
■•
,^ 817, Civil Code)
(2) Extrinsic Validity of Joint (2)
Wills (made in the same
instrument)
(a) made by Filipinos (a) lex nationalii (is void,
abroad even if valid where
made) (Art. 819, Civil
Code)
344
WILLS, SUCCESSION, AND ADMINISTRATION 345
(b) made by aliens abroad (b) valid if valid according

to lex nationalii, or lex
domicilii or lex loci
celebrationis (See No. 1
(a); see also Art. 819,
Civil Code).
(c) made by aliens in the (c) lex loci celebrationis
Philippines therefore void even if
apparently allowed by
Art. 817 — because the
prohibition on join t
wills is a clear expres
sion of our public
policy)
(3) Intrinsic Validity of Wills (3) lex nationalii o f the
(including order of suc deceased — regardless of
cession, amount of su the LOCATION and
ccessional rights, and NATURE of the property
intrinsic validity of the (Art. 16, par. 2, Civil Code)
provisions of the will)
(4) lex nationalii o f the
(4) Capacity to Succeed deceased — not that of the
heir (Art. 1039, Civil Code)
(5) Revocation of Wills
(a) If done IN the Philip (a) lex loci actus (of the
pines revocation) (Art. 829,
Civil Code)
(b) If done OUTSIDE the (b)
Philippines
1) by a NON-DOMI- 1) lex loci celebrationis
CILIARY (of the making of
will, not the revo
cation), OR lex
domicilii (Art. 829,
Civil Code).
2) by a DOMICI ' 2) lex domicilii (Phil.
LIARY of the Phil Law) OR lex loci
ippines actus (of the revo
cation) (Art. 17,
Civil Code)
(6) probate o f wills made (6)

abroad
(a) if not yet probated (a) lex fori of the Philippines
abroad applies as to procedural
aspects — that is — the
will must be fully probated
here and due execution
must be shown [see (1)]
(b) ifâlready probated (b) lex fori of the Philippines
abroad again applies as to the
procedural aspects — that
is, the will must ALSO be
probated here — but
instead of proving due
execution, generally it is
enough to ask for the
enforcement here of the
foreign judgment on the
probate abroad.
(7) executors and adminis (7)
trators
(a) where appointed (a) place where domiciled at
death or in case of non-
domiciliary, where assets
are found
(b) powers (b) co-extensive with the
qualifying or the appointing
court — that is — powers
may be exercised only
within the territorial juris
diction of the court con
cerned
NOTE: These rules also
apply to principal, domi
ciliary, or anciliary admi
nistrators and receivers
even in non-succession
cases.
EXTRINSIC AND INTRINSIC VALIDITY

OF WILLS IN GENERAL
Extrinsic validity of a will deals with the forms and solemnities
in the making of wills (including the age and capacity of the testator
to make the will; the number of witnesses; the form of the will —
oral, private instrument, public instrument; and so forth). Upon
the other hand intrinsic validity concerns itself with the order of
succession, the amount of successional rights, and the intrinsic
validity of the provisions of the will.
Both kinds of validity are important: once a will is void
extrinsically, it is clear that no effect can be given to it; a will that
has complied with all formalities can also be rendered useless if all
the provisions it contains are contrary to the law.
The following are our conflicts rules on the extrinsic validity
of wills:
(1) If the will is made by an alien abroad, he must comply
with the formalities of the lex nationalii OR the lex domicilii OR
Philippine law (Art. 816, Civil Code) OR the lex loci celebrationis
(Art. 17, par. l, Civil Code).
Example: If a Japanese domiciled in Argentina makes a will
in Mexico while vacationing there, the will may be considered
extrinsically valid by our courts if it has complied with the
formalities prescribed in Japan, Argentina, Mexico, or the
Philippines.
(2) If a Filipino makes a will abroad, he may comply with
the formalities of the lex nationalii (Philippine law) or the lex loci
celebrationis (the law of the place where he may be — and where
obviously he makes the will). (Art. 815, Civil Code).
(3) If an alien makes a will in the Philippines he is allowed
to comply with the formalities of his own country (lex nationalii) or
the law of the Philippines (Art. 817, Civil Code).
EXTRINSIC VALIDITY OF JOINT WILLS

^Joint wills are those executed in the same instrument by two
or more testators. They are considered by our Civil Code as null
and avoid. Mutual or reciprocal wills, upon the other hand, are
those which contain reciprocal disposition in favor of the testator.
Example of mutual will: A made a will in favor of B; B in turn
made A the heir in his (B’s) own will. Mutual wills are valid. Joint
and mutual wills are void, not because they are mutual but because
they are joint. Art. 818 of the Civil Code says: “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.” The
following are our conflicts rules on the matter:
(1) If the joint wills were made by Filipinos abroad, the
same shall be considered void in the Philippines, even if they are
valid in the place where they were executed.
Art. 819 of the Civil Code states that ‘Wills, prohibited by the
preceding article (on joint wills) executed by Filipinos in a foreign
country, shall not be valid in the Philippines, even though authorized
by the laws of the country where they may have been executed.”
(2) Joint wills made by aliens abroad shall be considered as
valid in the Philippines if valid according to the lex nationalii or lex
domicilii or lex celebrationis. (Arts. 816 and 17, Civil Code). Be it
noted that the prohibition referred to in Art. 819 applies only to
Filipinos.
(3) Joint wills made by aliens in the Philippines, even if
valid in accordance with their national law, will not be countenanced
in the Philippines because otherwise our public policy may be
militated against.
INTRINSIC VALIDITY OF WILLS

The intrinsic validity of wills including the order of succession,
the amount of successional rights, and the intrinsic validity of the
provisions of the wills shall be governed by the lex nationalii of the
deceased — regardless of tjie LOCATION and NATURE of the
property whether real or personal. (Art. 16, par. 2, Civil Code).
Quoted hereunder are the exact words of Art. 16, par. 2 of the
Civil Code:
“However, intestate and testamentary successions, both
with respect to the order of succession and the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein
said property may be found.”
Examples:
(1) A Chinese died in Manila leaving a BMW car and a
parcel of land in Pampanga, Philippines. The law of which
country governs the successional rights of his heirs to
both the car and the land?
Answer: The law of China, being the lex nationalii
of the deceased, governs the successional right to BOTH
the car and the parcel of land. (Art. 16, par. 2, Civil
Code).
(2) In the preceding problem, suppose the Chinese also left
parcels of land in China and Cuba, what should our courts
do?
Answer: Our courts have no jurisdiction to award
the Chinese and Cuban lands in favor of the heirs of the
deceased since they are outside the Philippines. As a
matter of fact, in the inventory of the assets of the
deceased which is essential in every testamentary (and
even intestate) proceedings, these lands will ordinarily
not be included. While it is true that under Art. 16, par.
2 of the Civil Code, the law says “wherein said property
may be found,” this cannot really be given effect unless
the properties are themselves within the territorial
jurisdiction of the Philippines. (See Gibbs v. Government).
Philippine Trust Co. v. Bohanan, al.

G.R. L-12105, Jan. 30, 1960
FACTS: Testator was a citizen of Nevada, with

properties in the Philippines, who gave nothing
in his will to his Filipino wife, and very little
to his children. Under Nevada law, however,
which was duly proved, the wife and the
children are NOT compulsory heirs, and are,
therefore, not entitled to any legitime.
ISSUE: Can the wife and the children justifiably
complain?
HELD: No, because under Art. 16, par. 2 of the Civil
Code, the order of succession, the amount of
successional rights (including the right, if any,
to the legitime), and the intrinsic validity of
the provisions of the will shall be governed by

the national law of the deceased (Nevada law)
regardless of where the property is found, and
whether the property be real or personal. Since
under Nevada law, there is NO LEGITIME,
the wife and the children cannot validly
complain.
Miciano v. Brimo
50 Phil. 867
E’kCTS: Joseph G. Brimo’s will provide that even if he

was a Turk, still he wanted his estate in the
Philippines disposed of in accordance with
Philippine laws (and not in accordance with
Turkish law); and that should any of his
legatees oppose the intention of his, his or her
legacy would be considered cancelled. Andre
Brimo, one of the brothers of the deceased, did
not want this disposition in accordance with
Philippine laws; he wanted Turkish law to be
applied. He, therefore opposed practically every
move that would divide the estate in accordance
with Philippine internal laws on succession.
Issue: Does Andre Brimo lose his legacy?
HELD: No, Andre Brimo does not lose his legacy,
because the condition referred to in the will is
CONTRARY to our law. Art. 873 of the Civil
Code says: “Impossible conditions and those
contrary to law or good customs shall be
considered as not imposed, and shall in no
manner prejudice the heir, even if the testator
( should otherwise provide.” Indeed, the condition,
namely, the disposal of the testator’s estate in
accordance with Philippine internal law on
succession, is against the second paragraph of
Art. 16 of the Civil Code, which insists on the
application of the national law of the deceased.
The condition being disregarded, the legacy to
Andre Brimo becomes unconditional, and
therefore, he is entitled to his legacy.
Bar Question
Carl Schultz, Swiss citizen and resident

of Baguio City, Philippines, for the last forty
years, died in that city leaving six children
and real and personal properties located in the
Philippines. In his will executed in Switzerland
where the institution of forced heirs does NOT
exist, he designated as his SOLE HEIR his
eldest son. Can the other children question the
validity of the will in the probate proceedings
filed before our courts? Explain briefly.
Answer: The other children cannot
question the extrinsic and intrinsic validity of
the will.
(a) Extrinsically, the will is valid on the
presumption that this alien abroad had
executed the will in accordance with the
formalities prescribed in Switzerland,
which is all at once the place of execution,
his country, and his domicile. (Arts. 17
and 816, Civil Code).
(b) Intrinsically, the will is also valid. The
designation of the eldest son as SOLE
HEIR is valid, and will not properly
constitute “preterition” or “pretermission”
or “omission” as the terms are technically
understood under Philippine law, because
after all in Switzerland, of which the
deceased was a national, there are NO
forced or compulsory heirs. It is clear that
the intrinsic validity of this provision shall
be governed not by Philippine but by
Swiss law. (Art. 16, par. 2, Civil Code).
NOTE: The foregoing discussion is
of course without prejudice to the problem
posed by renvoi, if any. (See the Chapter
on the Renvoi).
Testate Estate of Amos G. Beilis, et al.

v. Edward A. Beilis
L-23678, June 6, 1967
FACTS: Amos G. Beilis was a citizen and resident of
Texas at the time of his death. Before he died,
he had made two wills, one disposing of his
Texas properties, the other disposing of his
Philippine properties. In both wills, his
recognized illegitimate children were not given
anything. Texas has no conflicts rule (rule of
v* Private International Law) governing
successional rights. Furthermore, under Texas
law, there are no compulsory heirs and
therefore no legitimes. The illegitimate children
opposed the wills on the ground that they have
been deprived of their legitimes (to which they
would be entitled, if Philippine law were to
apply). Issue: Are they entitled to their
legitimes?
HELD: (Thru Mr. Justice Jose P. Bengzon)
(1) Said children are NOT entitled to their
legitimes — for under Texas law which
we must apply (because it is the national
law of the deceased), there are no
legitimes. (See Art. 16, par. 2, Civil Code).
(2) The renvoi doctrine, applied in Testate
Estate o f Edward Christensen, Aznar v.
Christensen Garcia, L-16749, Jan. 31,
1963, cannot be applied. Said doctrine is
ustfally pertinent where the decedent is a
national of one country, and a domiciliary
of another. In the present case, the
decedent was BOTH a national and a
domiciliary of Texas at the time of his
death. So that even assuming that Texas
has a conflict of law rule providing that
the law of the domicile should govern, the
same would not result in a reference back
(renvoi) to Philippine law, but would still
refer to Texas law. Nonetheless, if Texas
has a conflicts rule adopting the situs

theory (lex rei sitae) calling for the appli
cation of the law of the place where the
properties are situated, renvoi would
arise, since the properties here involved
are found in the Philippines. In the
absence however, of proof as to the conflict
of law rule in Texas, it should not be
presumed different from ours. (Lim v.
Collector, 36 Phil. 472; In re Testate Estate
of Suntay, 95 Phil. 500).
(3) The contention that the national law of
the deceased (Art. 16, par. 2 and Art.
1039) should be disregarded because of
Art. 17, par. 3 which in effect states that
our prohibitive laws should not be
rendered nugatory by foreign laws, is
WRONG, firstly because Art. 16, par. 2
and Art. 1039 are special provisions, while
Art. 17, par. 3 is merely a general
provision; and secondly, because Congress
deleted the phrase “notwithstanding the
provisions of this and the next preceding
article” when it incorporated Art. 11 of
the old Civil Code as Art. 17 of the new
Civil Code, while reproducing without
substantial change, the second paragraph
of Art. 10 of the old Civil Code as Art. 16
of the new. It must have been its purpose
to make the second paragraph of Art. 16
a specific provision in itself, which must
be applied in testate and intestate
successions. As further indication of this
legislative intent, Congress added a new
provision, under Art. 1039, which decrees
that capacity to succeed is to be governed
by the national law of the decedent. It is
therefore evident that whatever public
policy or good customs may be involved
in our system of legitimes Congress has
not intended to extend the same to the
succession of foreign nationals.
(4) It has been pointed out by the oppositor

that the decedent executed two wills —
one to govern his Texas estate and the
other his Philippine estate — arguing
from this that he intended Philippine law
to govern his Philippine estate. Assuming
that such was the decedent’s intention in
executing a separate Philippine will, it
will NOT ALTER the law, for as this
Court ruled in Miciano v. Brimo, 50 Phil.
867, 870, a provision in a foreigner’s will
** to the effect that his properties shall be
distributed in accordance with Philippine
law and not with his national law, is
illegal and void for his national law, in
this regard, cannot be ignored.
THEORIES ON THE PROPER LAW FOR THE TRANSMISSION

OF SUCCESSIONAL RIGHTS
There are at least two theories on the proper law for the
transmission of successional rights: the unitary or single system;
and the slip or scission system.
The unitary or single system:
Under the unitary or single system, one law governs the
transmission of BOTH real and personal property. In countries
adhering to the nationality theory (such as the Philippines) the
national law of the deceased governs real and personal property.
(Art. 16, par. 2, Civil Code)\ states that follow the domiciliary
principle make use of the domiciliary law of the dead man. (See
Wharton, A Treatise on the Conflict o f Laws, Vol. I, p. 1276).
The split or scission system:
Under the split or scission system, one law governs real
property while another determines successional rights to personal
property. This theory is the rule followed in England and the United
States, among others. (See Wolff, Private International Law, p. 578).
The Philippine rule:
It is clear under Art. 16, par. 2 of the Civil Code that the
theory prevailing in this jurisdiction is the unitary system, that is
whether the property be real or personal, only the national law of
the deceased governs for the law says “whatever may be the nature
of the property and regardless of the country wherein said property
may be found.” Unfortunately, in actual practice, the rule may be
made use of only if the properties are situated in the Philippines,
for if they were in some foreign state, any judgment we may make
on the matter may not be given effect in said foreign jurisdiction.
Thus, if a Chinese dies leaving parcels of land in the Philippines
as well as in Argentina, Art. 16, par. 2 of the Civil Code theorically
directs our courts to distribute said parcels by applying Chinese
law. Argentina courts may naturally object.
CAPACITY TO SUCCEED
Art. 1039 of the Civil Code says “Capacity to succeed is
governed by the law of the nation of the decedent.”
Example: The German daughter of a Russian died in Manila
with parcels of land in the Philippines, in Vietnam and in Pakistan.
If you were the Filipino judge in a Philippine court how would you
distribute the successional rights to the real property?
Answer: I would distribute the land in the Philippines in
accordance with the national law of the deceased which is German
law. (Art. 16, par. 2, Civil Code). The capacity of the Russian father
to inherit from his daughter shall be governed not by Russian law,
but by German law — the national law of the decedent. (Art. 1039,
Civil Code). I do not have jurisdiction to award to anybody the
lands in Vietnam and in Pakistan, because they are outside the
territorial jurisdiction of the Philippines.
REVOCATION OF WILLS
(1) If the revocation of a will is done in the Philippines, the
lex loci actus of the revocation applies; hence Philippine
law will have to be followed. (Art. 829, Civil Code).
(2) If the revocation is done OUTSIDE the Philippines by a
NON-DOMICILIARY of the Philippines, the testator may
•a follow either the law of the place where the will had been
made (lex loci celebrationis of the making not the
revoking) or the lex domicilii. (Art. 829, Civil Code).
(3) If the revocation is done OUTSIDE the Philippines by a
person who is DOMICILED here, the revocation may be
done in accordance with the lex domicilii (Philippine law)

or the lex loci actus o f the revocation not that of the
making. (See Art. 17, Civil Code). It is unfortunate that
a situation like this has not been provided for under Art.
829 of the Civil Code. Decidedly, the rule on the lex loci
actus of the revocation was utilized because, after all, in
the absence of a definite provision on the matter, the
general rule enunciated in Art. 17, par. 1 of the Civil
Code can certainly apply.
^ NOTE: The exact wording of Art. 829 of the Civil
Code follows: “A revocation done outside the Philippines,
by a person who does not have his domicile in this country,
is valid when it is done according to the law of the place
where the will was made, or according to the law of the
place in which the testator had his domicile at the time;
and if the revocation takes place in this country, when it
is in accordance with the provisions of this Code.”
Example: A Japanese domiciled in Italy made a will
in Ecuador. While vacationing in Brazil, he decided to
revoke his will. The law of which country or countries
must he use in order that under our law his will may be
considered to have been revoked?
Answer: To properly revoke his will in order that
Philippine courts may consider the revocation valid, the
Japanese testator must comply with the formalities for
revocation under either the law of Ecuador where the
will had been made or the law of Italy where he is
domiciled. (Art. 829, Civil Code).
INTERPRATION OF THE WORDS OF A WILL

The words of a will should be interpreted by the rules on
construction specifically referred to in the will; in default of their
express mention in the will, the rules of interpration are those
under the national law of the deceased, since we may reasonably
presume that this was the testator’s intent. (See Minor, Conflict of
Laws, p. 339). Thus, if the testator is a Japanese national, the term
“compulsory heirs” in his will must be construed to refer to the
compulsory heirs under Japanese law, unless the testator had
expressly made mention of-some other law as applicable. (See
Stumberg, Principles o f Conflict o f Laws, p. 386).
EFFECT OF CHANGE OF NATIONALITY

OF THE TESTATOR
(a) With reference to extrinsic validity of the will, the
nationality at the time the will was executed should
control. It is unfair to expect him to follow the formalities
of some future national law which he will have should he
subsequently embrace another nationality.
(b) With reference to intrinsic validity, order o f succession
and amount of successional rights (both in testamentary
and intestate succession, as regards the latter two), the
nationality at the moment o f death should be
determinative of the national law to be followed. This is
because the right to the succession are made effective
only from the moment of death. (See Art. 777, Civil Code).
CADUCIARY RIGHTS
Caduciary rights refer to the right of the state to claim thru
escheat proceedings the properties of decedents who are not survived
by any heirs. Dean Graveson calls them “the claims of the sovereign
or other public authority of a country in which the deceased’s
property is situated to that property on failure of all persons entitled
to claim under the appropriate law.” (Graveson, Conflict of Laws,
p. 324).
The question of caduciary rights in Conflict of Laws may come
up in the following example: A national of State X dies intestate in
the Philippines, with no surviving relative. If he left properties in
the Philippines, who should get them? Our law on the matter is not
very clear. Under the Rules of Court it is provided that “the residue,
if any (after payment of just debts, etc.) shall be disposed of as is
provided by law in cases of estate in the Philippines belonging to
persons who are inhabitants of another state or country.” (Rule 77,
Sec. 4). There seems to be no other applicable law on the matter
except Art. 16, par. 2 of the Civil Code which directs us to apply
the national law of the deceased. Now then, our own internal law
on the matter provides that the state, in the absence of any other
legal heir, shall be the legal heir of the deceased. (Art. 1011, Civil
Code). As a matter of fact, Art. 1013 of the Civil Code says: “After
the payment of debts and charges, the personal property shall be
assigned to the municipality or city where the deceased last resided
in the Philippines, and the real estate to the municipalities or
cities, respectively, in which the same is situated. If the deceased

never resided in the Philippines, the whole estate shall be assigned
to the respective municipalities or cities where the same is located.
Such estate shall be for the benefit of public schools, and public
charitable institutions and center in such municipalities or cities.
The court shall distribute the estate as the respective needs of each
beneficiary may warrant. The court, at the instance of an interested
party, or on its own motion, may order the establishment of a
permanent trust, so that only the income from the property shall
be used.” Now then, if under the laws of State X, State X is itself
the legal h&r of the deceased in the absence of any other legal
heirs, should our courts award the properties to our own government,
or should they give them to State X because of Art. 16, par. 2 of the
Civil Code?
If we consider the rights to said properties as still a matter
appertaining to succession, we have no alternative except to award
the properties to State X, together with resultant complications (as
when the properties concerned are immovable). However We believe
that we should classify the matter as caduciary in nature, and not
one o f succession; therefore, the properties should go to our
government. This is in consonance with the proposition that in a
situation like 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”: otherwise stated
we should regard the property as ownerless or “bona vacantia.”
This is the rule followed notably in England. (Bona vacantia refers
to unclaimed property — generally, personal property which escheats
[goes to, confiscated] to the state because no owner, heir or next of
kin claims it — now includes real as well as personal property and
passes to state as an incident of sovereignty). [Black’s Law
Dictionary, abridged fifth ed., p. 92].
Illustrative Case:
In the Estate of Musuros (1936)

2 All. E.R. 1666
FXCTS: A Turkish woman died intestate in England
leaving, among other things, property in
England. She had no heirs and no surviving
relatives. The English court was called upon
to decide what to do with the properties in
Englan.d, considering the fact that under
Turkish law (her national as well as domiciliary

law) said properties were supposed to go to
the Moslem Treasury in Turkey.
HELD: England can exercise caduciary rights over the
property; therefore said property must go to
the Government of England as “ownerless
property” or “bona vacantia.”
PROBATE
Probate is the act of proving before a compent court the due
execution of a will possessed of testamentary capacity, as well as
approval thereof by the said court. Probate has also been referred
to as “probation, legalization, protocolization, authentication.”
(Manahan v. Manahan, 58 Phil. 448).
Necessity for Probate:

A probate is essential because under the law “no will shall
pass real or personal property unless it is proved and allowed in
accordance with the Rules of Court.” (Art. 838, 1st par. Civil Code).
So essential is probate that a provision in a will stating that “the
will shall not be presented before the courts” is a VOID provision,
for a person cannot by his actuations deprive a competent court of
its jurisdiction. (Mendoza v. Pilapil, 40 O.G. 1855, 72 Phil. 546).
However the heirs concerned may extrajudicially agree to partition
the property among them, even though such partition is not in
accordance with the provisions of the will. (Manalo v. Paredes, 47
Phil. 938). In this case, ownership is acquired not by testamentary
succession, but by legal succession. If any heir not included in the
partition feels aggrieved, his remedy would of course, be to ask for
the probate of the will. Be it noted, however, that no judicial approval
can ever be given to an extrajudicial partition unless the will is
first probated. Neither may an unprobated will be presented as
evidence of an act of partition among the co-heirs. (Guevara v.
Guevara, 74 Phil. 479).
Period o f Prescription:
*b3
There is no period of prescription for the probate of a will. The

Statute of Limitations fixes time limits for the filing of “civil actions”
but not for “special proceedings” of which probate is admittedly
one. The distinction is not merely verbal or a matter of terminology,
for there are differences between the two. Probate proceedings are
not exclusively established in the interest of surviving heirs but

primarily for the protection of the testator’s expressed wishes that
are entitled to respect as an effect of ownership and o f the right of
disposition: If the probate of validly executed wills is required by
PUBLIC POLICY, the state could not have intended the Statute of
Limitations to defeat the policy. (Guevara v. Guevara, et al., L-
5405, Jan. 31, 1956). Parenthically, it must be stated that the rules
of estoppel do not apply to probate proceedings for they are vested
with public interest, and if estoppel would be applied, the
ascertainment of the truth may be blocked. This should be avoided
for the primary purpose of a probate is not the protection of the
interest of living persons. (Obispo v. Obispo, C.A. 50 O.G. 514). As
a matter of fact in probate proceedings (unlike in ordinary civil
actions), the issues are fixed by LAW and not by the parties. (Vano
v. Garces, et al., G.R. L-6303, June 30, 1954; 50 O.G. 3044).
PROBATE OF WILLS EXECUTED ABROAD

a) If a will executed abroad has NOT yet been probated in
a foreign country, the ordinary Philippine probate
procedure is required; that is, the lex fori of the
Philippines applies as to the procedural aspects. It must
be shown to the court that the foreign will has been
validly executed in accordance with the formalities
already discussed (concerning extrinsic validity).
NOTE: It has been held in this connection that an
alleged foreign probate cannot be deemed one unless it is
shown that the foreign court was a duly authorized
probate tribunal, and that the entire probate procedure
there had been complied with. (In Re Testate o f Jose B.
Suntay, 50 O.G. 5321).
(b) If a foreign will has already been probated in a foreign
country, does it still have to be probated here in the
Philippines? The answer is in the affirmative, because a
foreign judgment, no matter how intrinsically merito
rious, generally cannot have automatic extraterritorial
effect. The will has still to be probated here, 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 on the probate abroad.
Of course, the lex fori of the Philippines again applies as
to the procedural aspects in our courts. The pertinent
rules on the subject are found in Rule 77 of the Rules of

Court.
RULE 77, ALLOWANCE OF WILL PROVED

OUTSIDE OF PHILIPPINES
Section 1. Will proved outside Philippines may be

allowed here. — Wills proved and allowed in a foreign
country, according to the laws of such country, may be
allowed, filed and recorded by the proper Court of First
Instance (Regional Trial Court) in the Philippines.
Sec. 2. Notice o f hearing for allowance. — When a
copy of such will and of the order or decree of the
allowance thereof, both duly authenticated, are filed with
a petition for allowance in the Philippines, by the executor
or other person interested, in the court having jurisdiction
such court shall fix a time and place for the hearing, and
cause notice thereto be given as in case of an original
will presented for allowance.
Sec. 3. When will allowed and, effect thereof. — If it
appears at the hearing that the will should be allowed in
the Philippines, the court shall so allow it, and a
certificate of its allowance, signed by the judge and
attested by the seal of the court, to which shall be attached
a copy of the will shall be filed and recorded by the clerk,
and the will shall have the same effect as if originally
proved and allowed in such court.
ADMINISTRATION OF ESTATE
OF DECEASED PERSONS
Administration (of the estate of a deceased person) consists of
the duties of the representative of the deceased person in bringing
the estate of the deceased into a position in which he may safely
distribute the balance or residue after payment of debts to the
persons beneficially entitled. (Graveson, Conflict of Laws, p. 322).
In8eed, there may be distribution of the estate only after the assets
have been realized and the debts paid off. (Stumberg, Principles of
Conflict o f Laws, p. 404).
In charge of administration may be an executor, an
administrator or an administrator with a will annexed:
(a) When there is a will, an executor appointed in such a

will (by the testator naturally) takes charge of carrying
out the wishes of the testator. “When a will has been
proved and allowed, the Court shall issue LETTERS
TESTAMENTARY thereon to the person named as
executor therein if he is competent, accept the trust, and
gives bond as required by these rules.” (Sec. 4, Rule 78,
Rules of Court). (A “letter testamentary is the formal
instrument of authority and appointment given to an
executor by the proper court, upon admission of the will
10 probate, empowering him to enter upon the discharge
of his office as executor. (Black’s Law Dictionary, abridged
fifth ed., p. 767). A paper, instrument, document, gift,
appointment, etc., is said to be “testamentary” when it is
written or made so as to take effect until after the death
of the person making it, and to be revocable and retain
the property under his control during his life, although
he may have believed that it would operate as an
instrument of a different character. (Ibid.])
(b) When there is NO will, it follows that there can be no
executor, and, therefore, the Court appoints an
ADMINISTRATOR, but only if an administrator is really
required. Such an administrator will be given LETTERS
OF ADMINISTRATION. (Sec. 5, Rule 79, Rules o f Court).
“Letters of Administration” refer to a formal document
issued by the probate court appointing on an
administration of an estate. [Black’s Law Dictionary,
abridged fifth ed., p. 471].)
(c) If there is a will, but no executor has been named therein,
or if the executor named is either incompent or unwilling,
the Court will, if necessary, appoint an administrator,
but this time he will be called ADMINISTRATOR WITH
A WILL ANNEXED. (Sec. 5, Rule 79; Sec. 4, Rule 77,
Rules o f Court). (“Administrator with will annexed” is
one appointed as the administrator of the deceased’s
estate after executors named in the will have refused or
are unable to Act. [Black’s Law Dictionary, abridged fifth
ed., 23].)
Under Philippine law, no person is competent to serve as
executor or administrator who:
(a) is a minor;
(b) is not a resident of the Philippines;

(c) is in the opinion of the Court unfit to execute the duties
of the trust by reason of drunkenness, improvidence, or
want of understanding or integrity, or by reason of
conviction of an offense involving moral turpitude. (Sec.
1, Rule 78, Rules o f Court).
An “executor” is a person appointed by a testator to carry out
the directions and requests in his will, and to dispose of the property
according to his testamentary provisions after his decease. (Black’s
Law Dictionary, abridged fifth ed., p 294).
An “administrator” is a person appointed by the court to
administer (i.e., manage or take charge of) the assets and liabilities
of a decedent (i.e., the deceased). Such person may be a male (i.e.,
administrator) or a female (i.e., administratrix) (Ibid.). NOTE: If
the person performing these services is named by the decedent’s
will, he is designated as the executor, or she the executrix, of the
estate (Ibid.)
[NOTE: As used in a statute, excluding one found incompetent
to execute the duties of an administrator by reason of improvidence
means that want of care and foresight in the management of
property which would be likely to render the estate and effects of
the intestate unsafe, and liable to be lost or diminished in value,
in case the administration should be committed to the improvident
person. (Black’s Law Dictionary, abridged fifth ed., p. 386.)
As used in statutes prescribing the qualifications of public
officers, trustees, etc., the term “integrity,” means soundness or
moral principle and character, as shown by one person dealing
with others in the making and performance of contracts, and fidelity
and honesty in the discharge of trusts; integrity is synonymous
with “probity,” “honesty,” and “uprightness.” (Ibid., p. 415).
“Moral turpitude” is the act or behavior that gravely violates
moral sentiment or accepted moral standards of community and is
a morally culpable quality held to be present in some criminal
offenses as distinguished from others. (Ibid., p. 522).]
*• Parenthetically, it may be stated that “a married woman may
serve as executrix or administratrix, and the marriage of a single
woman shall not affect her authority so to serve under a previous
appointment.” (Sec. 3, Rule 78, Rules o f Court).
The principal duties of executors and administrators are:
(1) to file a bond (the sum is to be fixed by the court) even

before he enters upon the execution of his trust. (Sec. 1,
Rule 81, Rules o f Court);
(2) to make within three (3) months a true and complete
inventory (Sec. 1, Rule 83, Rules o f Court) — the purpose
being to provide a basis for subsequent accounting and
liability;
(3) to administer the estate in accordance with the will or
the Rules of Court;
(4) To'collect all accounts receivable, and to pay all debts
and taxes;
(5) to pay allowances (in a proper case) to the surviving
spouse and to the children;
(6) to maintain in tenantable repair the houses and other
structures and fences belonging to the estate. (See Sec. 2,
Rule 84, Rules o f Court);
(7) to prepare a project of partition (to be submitted to the
court);
(8) to render a true and just account of his administration
within one (1) year, and at any other time when required
by the Court; and finally,
(9) to perform all orders of the Court required of him.
Be it noted that an executor or administrator of an estate
cannot appoint himself as an agent of said estate. Such an “AUTO
CONTRACT” is not valid for the reason that the estate may be
defrauded, as when, for instance, a person (acting as administrator)
authorizes himself (as agent) to sell certain estate properties at an
OVERPRICE (the excess price to be given to the agent himself).
Natividad V. A. Jaroda v. Hon. Vicente Cusi, L-28214, July 30,
1969).
CONFLICT RULES ON ADMINISTRATION

(1) The executor is qualified, and the administrator is
appointed, by the Court of the place where the deceased
was domiciled at the time of death; or in the case of a
nondomiciliary, where the assets or properties of the
deceased are found. Incidentally, in the latter case, when
the assets may be found in several provinces, the Court
of First Instance (now Regional Trial Court) first taking

cognizance is allowed to have exclusive jurisdiction over
the probate proceedings. (Sec. 1, Rule 73, Rules o f Court).
(2) The rights, powers, and obligations of the executor, the
administrator, and the administrator with a will annexed
are coextensive with the territorial jurisdiction of the
qualifying or the appointing court. Thus, an administrator
appointed by a Philippine court can have jurisdiction
only over the properties located in the Philippines. (In
Re Testate Estate of Butler, L-3677, Nov. 29, 1951). Indeed,
presence of the decedent’s properties in the Philippines
is necessary to give the Philippine courts jurisdiction to
grant administration. (See Graveson, Conflict o f Law, p.
324). Should the deceased have left properties in other
states, the Philippine administrator has no right to take
such properties, unless he is also appointed administrator
in said foreign states. Upon the other hand, another
individual may be appointed by the courts therein. (See
Minor, Conflict o f Laws, p. 229). The administrator in
the state where the testator was domiciled at the moment
of death is referred to as the domicialiary or principal
administrator; those appointed in other states are known
as ancillary administrators and are authorized to act as
such in what are called ancillary administration
proceedings. (See Johannes v. Harvey, 43 Phil. 175) . If
a Philippine Court will name a certain person as an
executor for the estate of the testator in a foreign state,
said executor must first qualify as such before the courts
of the foreign country, otherwise he cannot enter into his
duties as executor. (Minor, Conflict of Laws, p. 231).
(3) Administration is governed not by the law on succession
(national law of the deceased) but by the actual lex fori
— up to the point of distribution. (Graveson, Conflict o f
Laws, p. 322). And it is understood that the forum is the
place where he was appointed (that is the law of the
domicile in the :ase of the domiciliary administrator).
(See Sec. 1, Rule 73, Rules of Court). Thus, an adminis
trator appointed by a Philippine Court can sue and be
sued as such in the Philippines; he can convey title to
property located in the Philippines. (See Minor, Conflict
of Laws, p. 232). He must pay off the debts of the estate
with the assets found in our country: the preference and
concurrence of credits shall be that prescribed under

Philippine law following the theory of lex situs. (See Arts.
2236-2251, Civil Code).
On the matter of debts and credits, Westlake has
this to say: “Every administrator, principal or ancillary
must apply the assets reduced into possession under his
grant (of administration) in paying all the debts of the
deceased whether contracted in the jurisdiction from
which the grant issued or out of it, and whether owing
t(^creditors, domiciled or resident in that jurisdiction or
out of it, in that order of priority which according to the
nature of the debts or of the assets is prescribed by the
law of the jurisdiction from which the grant issued.”
(Westlake, Private International Law, par. 110) [See also
Re Kloebe (1884) 28 Ch. D. 175 Cases 453; Re Lorillard
(1922) 92 L.J. Ch. 148 Cases 4571
Testate Estate of Idonah Slade Perkins;

Renato Tayag v. Bengu Consolidated, Inc.
L-23145, Nov. 29, 1968
FACTS: Idonah Slade Perkins died domiciled in New

York on March 27, 1960. Because she had
properties both in New York and in the
Philippines, a domiciliary administrator was
appointed in New York by the New York courts,
and an ancillary administrator was appointed
in the Philippines by the Philippine courts. Now
then, to satisfy the legitimate claims of local
creditors, the Philippine ancillary admi
nistrator; asked the New York administrator
to surrender to the former two stock certificates
* owned by the deceased in a Philippine
corporation, the Benguet Consolidated, Inc.
Although said New York administrator had the
stock certificates, he refused to surrender them
despite the order of the Philippine court,
prompting the court to consider said certificates
as LOST for all purposes in connection with
the administration of the deceased’s Philippine
estate. He then ordered the Benguet Conso
lidated Co. to cancel said certificates and to
issue new certificates deliverable either to the
ancillary administrator or to the Philippine

probate court. The company refuses to issue
the new certificates on the ground, firstly, that
after all the old certificates still really exist,
although in the possession of the New York
administrator; and secondly, that in the future,
the company may be held liable for damages
because o f the presence o f conflicting
certificates. Issue: Should the company issue
the new certificates?
Yes, the company must issue the new
certificates because of the following reasons:
(a) While factually the old certificates still
exist, the same may by judicial fiction be
considered as LOST — in view of the
refusal of the New York administrator to
surrender then, despite a lawful order by
our courts. To deny the remedy would be
derogatory to the dignity of the Philippine
judiciary. The ancillary Philippine
administrator is entitled to the possession
of said certificates so that he can perform
his duty as such administrator. A contrary
finding by any foreign court or entity
would be inimical to the honor of our
country. After all an administrator
appointed in one state has no power over
property in another state. [Leon and
Ghezzi v. Manufacturer's Life Ins. Co., 90
Phil. 459 (1951)].
(b) The company has nothing to fear about
contingent liability should the new
certificates be issued. Its obedience to a
lawful court order certainly constitutes a
valid defense.
TRUSTS
A trust is a fiduciary relationship concerning property which
obliges the person holding it to deal with the property for the
benefit of another. (Pacheco v. Arro, 47 O.G. 4099).
In a trust, the trustee or holder has LEGAL TITLE to the
property; a guardian, administrator, or executor does NOT have
such title.
In the Philippines, there are two (2) kinds of trusts:
(1) express trusts — those created by the parties, or by the
intention of the trustor;
(2) implied trusts — those created by operation of law. (Art.
1441, Civil Code).
An express trust may be created:
(1) by an act mortis causa — as in a will
Note: Since a trust created in a will is a testamentary
disposition, it follows that its extrinsic validity follows
the conflicts rules for wills; and its intrinsic validity is
governed by the national law of the deceased. (Art. 16,
par. 2, Civil Code; See also Stumberg, Principles of
Conflict o f Laws, p. 397).
(2) by an act inter vivos (as by some writing or deed or
meeting of the minds). (See Philippine Airlines, Inc. v.
Heald Lumber Co., L-11497, Aug. 16, 1957).
Note: Since the trust deals with property, the lex
situs governs its extrinsic and intrinsic validity, subject
to our previous discussion on choses in action (if such be
the subject matter of the trust). (See Stumberg, Principles
of Conflict of Laws, p. 400; See also American Restatement,
Sec. 294). Thus, if a trustee appointed by a foreign state
desires to administer Philippine lands for his trustor, he
must seek appointment before our tribunals. (See Sec. 4,
Rule 98, Rules o f Court).
Should an express trust concern lands located in the
Philippines, the trust must be evidenced by a written instrument.
Art. 1443 of the Civil Code says “No express trust concerning an
immovable or any interest therein may be proved by parol evidence.”
The requirement that the express trust be written is only for
enforceability, not for validity bween the parties. Hence, this rule
may by analogy be included under the Statute of Frauds. (See
Gamboa v. Gamboa, 52 Phil. 503). For effectivity insofar as THIRD
PERSONS are concerned, the trust must be in a public instrument

and REGISTERED in the Registry of Property (since real property
is involved).
Express trust concerning property in the Philippines are ended
by:
(1) mutual agreement by all the parties;
(2) expiration of the term of the trust;
(3) fulfillment of the resolutory condition;
(4) rescission or annulment (as in other contracts);
(5) loss of the subject matter of the trust (physical loss or
legal impossibility);
(6) order of the court (as when the purpose of the trust is
being frustrated);
(7) merger; and
(8) accomplishment of the purpose of the trust;
It should be noted that a testamentary trust for the
administration and eventual sale of certain properties of the testator
ends not at the time the trustee’s petition for the sale of the property
is approved by the court, but at the time said sale is actually made
and the proceeds thereof distributed to the proper recipients.
(Trusteeship o f Estate of Benigno Diaz, L-1011, Aug. 31, 1960).
Chapter XXI
OBLIGATIONS AND CONTRACTS
(1) formal or extrinsic validity (1) lex loci celebrationis (Art.

Exceptions: 17, par. 1, Civil Code)
(a) alienation and encum (a) lex situs (Art. 16, par.
brance of property 1, Civil Code)
(b) consular contracts (b) law of the Philippines
(if made in Philippine
consulates)
(2) capacity of the contracting (2) national law (Art. 15, Civil
parties Code) without prejudice to
the case of Insular Gov
ernment v. Frank, 13 Phil.
236, where the Supreme
Court adhered to the theory
o f lex loci celebrationis
Exception: Exception:
(a) alienation and encum (a) lex situs (Art. 16, par.
brance of property 1, Civil Code)
(3) intrinsic validity (including (3) the proper law of the con
interpretation of instru tract — the lex contractus
ments, and amount of (in the broad sense), mean
damages for breach ing the lex loci voluntatis
or the lex loci intentionis.
370
OBLIGATIONS AND CONTRACTS 371
Note: Other theories are:

(a) lex loci celebrationis
(defect: this makes pos
sible the evasion of the
national law)
(b) lex nationalii (defect
this may impede com
mercial transactions)
(c) lex loci solutionis (law
of the place of perform
ance) (defect: there may
be several places of
performance).
(d) Prof. Minor’s solution:
1) perfection — lex
loci celebrationis.
2) cause or consid
eration — lex loci
considerations.
3) performance — lex
loci solutionis.
(defect: this theory
combines the defects of
the others)
CONFLICTS RULES FOR SPECIFIC CONTRACTS
(1) Sales and Barter (1)

(a) extrinsix validity (a) lex situs
(b) capacity of parties (b) lex situs
(c) intrinsic validity (c) lex situs
(2) Lease of Property (2)
(a) extrinsic validity (a) lex situs
(c) intrinsic validity (c) lex situs lex

(3) Lease of Services
(a) extrinsic validity (a) lex loci celebrationis
(b) capacity of parties (b) national law
(c) intrinsic validity (c) loci voluntatis or lex
loci intentionis
(4) Contract of Common Car
riage of Goods
(a) extrinsic validity (a) fixed situs of the carrier
(depot or resting place)
(b) capacity of parties (b) fixed situs of the carrier
(c) intrinsic validity (c) fixed situs of the carrier
(d) liability for loss, des (d) law of the destination
truction, or deteriora (Art. 1753, Civil Code).
tion of goods in transitu
(5) Contract of Agency (5)
(unless the agency
deals with the convey
ance or encumbering of
property — in which
case the lex situs of the
property applies)
(b) capacity of parties to be (b) national law o f the
principal or agent parties (unless the
agency deals with the
conveyance or encum
bering of property — in
\ which case the lex situs
of the property applies)
(c) intrinsic validity (c) lex loci voluntatis or lex

loci intentionis (unless
the agency deals with
the conveyance or en
cumbering of property,
in which case the lex
situs of the property
applies)
(6) Simple Loan (Mutuum) (6)

(b) capacity of the parties (b) national law
loci intentionis
(7) Commodatum (7)
(a) extrinsic validity (a) lex situs
(b) capacity of the parties (b) lex situs
(8) Pledge, Chattel Mortgage, (8)
Real Mortgage, and Anti
chresis
(a) extrinsic validity a) lex situs
Note: These are accessory
contracts only; therefore, if
the principal contract
(generally the contract of
loan) is defective, the acces
sory contract must also be
deemed defective)
(9) Guaranty and Suretyship (9)
(b) capacity of parties (b) national law
loci intentionis
Note: These are also acces
sory contracts; if the prin
cipal contract is defective,
the accessory contract is
also generally defective.
DEFINITION OF OBLIGATIONS AND CONTRACTS

IN GENERAL
Obligation:
While our Civil Code simply defines an obligation “as a
juridical necessity to give, to do, or not to do.” (Art. 1156), a
more accurate definition is the following: “An obligation is a

juridical relation whereby a person (called the creditor) may
demand from another (called the debtor) the observance of a
determined conduct (the giving, doing, or not doing), and in
case of breach, may demand satisfaction from the assets of
the latter.” (Arias Ramos). (Quoted with approval by Justice
J.B.L. Reyes in the Lawyer’s Journal, Jan. 31, 1951, p. 47).
Contract: '
r*
“A contract is a meeting of minds between two persons
whereby one binds himself, with respect to the other, to give
something or to render some service.” (Art. 1305, Civil Code).
FROM THE VIEWPOINT OF CONFLICT OF LAWS

Strictly speaking, obligations and contracts as defined
hereinabove include:
(1) those creating a status (like the contract of marriage);
(2) those transferring real rights (like the sale of property);
(3) those which are purely civil or commercial in nature.
In the realm of Conflict of Laws, a discussion of CONTRACTS
does not include the first two. (See Wolff, Private International
Law, p. 421). In this treatise, a special chapter has already been
devoted to MARRIAGE AS A CONTRACT, and, therefore, the same
will no longer be discussed here in the present chapter. Likewise
another chapter has treated of both real and personal property,
their conveyance, and they encumbering. However, inasmuch as
property is involved in so many transactions, it was deemed prudent
to also occasionally refer to them in this chapter.
In general, an attempt will be made to discuss individually
the following elements in a contract:
(1) formal or extrinsic validity;
(2) capacity of the contracting parties;
(3) intrinsic validity (including consideration or cause, the
interpretation of the instruments, and nature of damages
for breach or non-performance).
FORMAL OR EXTRINSIC VALIDITY

In our country, our general rule on formal or extrinsic validity
is explicitly indicated in the first paragraph of Art. 17 of the Civil
Code, namely: “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.” This is the theory o f lex loci
celebrationis. This is also followed in Art. 52, par. 2 of the Code of
Commerce and in Art. 11 of the Spanish Civil Code.
Illustrations:
(a) A contract entered into in Illinois must follow the
formalities prescribed by the law there. It is
compulsory for the1parties to do this (not merely
optional). (See Insular Government v. Frank, 13 Phil.
236).
(b) A power of attorney executed in Germany must
follow German formalities so that said power may
be given effect here in the Philippines. (Germann
and Co: v. Donaldson, Sim, and Co., 1 Phil. 63).
Exceptions:
(a) If the contract involves say the sale of property, the
formalities of the lex situs (not that of the lex loci
celebrationis) must be complied with.
Example: AChinese sold in Chile to a Filipino
a parcel of land in the Philippines. The Philippine
formalities for such a sale should be followed. (Art.
16, par. 1, Civil Code).
(b) If the contract is celebrated in a foreign country
(but within the premises of the Philippine embassy
or consulate in said foreign state), Philippine
formalities must be complied with, because under
the principle of exterritoriality, it is as if the embassy
or consulate is considered an extension of Philippine
territory. Thus, the second paragraph of Art. 17 of
the Civil Code read: “When the acts referred to are
executed before the diplomatic or consular officials
of the Republic of the Philippines in a foreign
country, the solemnities established by Philippine
laws shall be observed in their execution.”
376 PHILIPPINE CONFLICT OP LAWS
NOTE: Exterritoriality is the fiction in international law

by virtue of which certain foreign persons and their things are
exempted from the jurisdiction of a State on the theory that
they form an extension of the territory of their own state.
Traditionally, diplomatic inmmunities have been premised on
this “exterritoriality ” but in recent years the thought has
grown that if ever diplomatic immunities continue to exist, it
is because they are given as concessions of the national law of
a state to assure full freedom in the exercise of diplomatic
functions. (Justice Edgardo L. Paras and Dr. Edgardo C. Paras,
Jr., Irtternational Law and World Politics, 1994, ed., p. 306).
The principle of exterritoriality is contradistinguished
from that of the extraterritoriality. The latter principle is the
exemption of foreign persons from the laws and jurisdictions
of the state in which they presently reside, an exemption which
can exist only by virtue of a treaty stipulation to this effect.
(Ibid.).
While extraterritoriality deals with the exemption of
persons only, exterritoriality exempts persons and things;
extraterritoriality can exist only because of a treaty, while
exterritoriality is generally premised on an international
custom. (Ibid., p. 307).
A provision on extraterritoriality allows the foreigners to
be governed by their own diplomatic or consular tribunals.
(Ibid.). Thus, acts of foreign governments purporting to have
an extraterritorial effect should be recognized by U.S. courts
only if they are consistent with the law and policy of the
United States. Since the Costa Rican government’s unilateral
attempt to repudiate private commercial obligations was
inconsistent with U.S. law and policy, the court refused to
recognize the extraterritorial effect of the Costa Rican
government’s decrees. (Allied Bank International v. Banco
Credito Agricola de Cartago, 757, F.2d 516 [U.S. Court of
Appeals, 2d d r.], Mar. 18, 1985).
Considering further that extraterritorial jurisdiction is
the juridical power which extends beyond the physical limits
of a particular state or country, i.e., the extraterritorial
operation of laws involves operation upon persons, rights, or
jural relations, existing beyond the limits of the enacting state
or nation, but still amenable to its laws, crime is said to be
extraterritorial when committed in a state or country other
than that of the forum in which the party is tried. (Black’s

Law Dictionary, abridged fifth ed., p. 303).
Note: While the Statute of Frauds is considered by some
as substantive in character, the majority of courts declare it
to be merely procedural, and therefore governed by the lex
fori. Thus, Goodrich states the following: “The law of the place
where the action is brought controls all procedural matters
and may require that before a contract is proved in its courts,
it must meet certain formal requirements, no matter where
the agreement was made. Courts taking this view of their
local Statute of Frauds would then refuse enforcement of a
foreign contract which did not conform to the local statute,
though the contract was admittedly a valid one.” (Goodrich,
Conflict o f Laws, p. 316). The better (and more just) approach,
however, would be, as already discussed in the Chapter on
CHARACTERIZATION, to consider the Statute of Frauds
which the parties presumably intended to be applicable to
their particular transaction (lex loci voluntatis or lex loci
intentionis). (As adopted iri most states, the Statute of Frauds
provides, that no suit or action shall be maintained on certain
classes of contracts or engagements unless there shall be a
note or memorandum thereof in writing signed by the party
to be charged or by his authorized agent. [Black’s Law
Dictionary, abridged fifth ed., p. 337]. [See Arts. 1403, 1405,
and 1406, Civil Code].)
BAR QUESTION
QUESTION: Suppose our law provides that certain
instruments shall be void and unenforceable unless they bear
documentary stamps, and a written contract is entered into in
the Philippines to be performed in France. The contract was
not stamped in the Philippines as required by its law. The
placing of a stamp on written contracts is not, however,
required by the laws of France. In an action brought on the
contract in France, may the defendant avail himself of the
invalidity of the contract? Explain.
ANSWER: Since the forum of the problem is France, the
answer will depend not on Philippine Conflict of Laws, but on
French Conflict of Laws. On the assumption that the French
conflicts rule on the matter is identical with ours, it is believed
that the contract should be considered as valid, and the defense
of invalidity cannot be sustained. The rule to apply is evidently

the lex loci voluntatis or the lex loci intentionis — that which
was voluntarily agreed upon or intended by the parties — and
we can assume that the parties intended French internal law
to apply because the place of performance is there in France.
We cannot presume that the parties were not sincere or that
they did not intend to be bound by their agreement. “Ut res
magis valeat qua pereat” (a contract should be so interpreted
as to effectuate to the fullest extent the intention of the parties).
Incidentally, Prof. Rabel, eminent authority on the subject,
beliefes that the rule hereinabove discussed is that which is
also followed in France. [Rabel, The Conflict o f Laws, pp. 368-
369; see also Pritchard v. Norton, 106 U.S. 124 (1882).]
CAPACITY OF THE PARTIES

Capacity of the parties to enter into a contract is generally
governed by the national law. (Art. 15, Civil Code). One outstanding
exception, of course, is in the case of the alienation or encumbering
of properties, both real and personal, for here capacity is doubtless
governed by the lex situs. (Art. 16, par. 1, Civil Code).
Example: If a Japanese enters into a contract with another
Japanese in California, Japanese law governs their capacity
to enter into the contract; but if the transaction concerns real
or personal property in the Philippines, their capacity will be
governed by Philippine law because of the location of the
property. (Arts. 15 and 16, Civil Code).
Unfortunately, however, our Supreme Court in a case NOT
INVOLVING PROPERTY once held that instead of the national
law, what should determine capacity to enter generally into a
contract is the lex loci celebrationis. (Insular Government v. Frank,
13 Phil. 236)'.
Insular Government v. Frank

13 Phil. 236
FACTS: Mr. Frank, an American citizen from

Illinois, U.S.A., entered into a contract
with the Philippine government to
serve as a stenographer for a period of
two years. He served for only six
months, and, therefore, the government
sued for damages. Frank presented

minority as a defense. The contract was
•entered into in Illinois (in said State,
Frank was considered an adult)-, under
Philippine laws, Frank was still a
minor.
HELD: The contract is valid because at the
time and place of the making of the
contract (loci celebrationis), Frank was
of age and fully capacitated. Therefore,
Frank can be held liable for damages.
OBSERVATION: The reason given by the court was: “No
rule is better settled in law than that
matters bearing upon the execution,
interpretation, and validity where the
contract was made. (Scudder v. Union
National Bank, 91 U.S. 406). Matters
connected with its performance are
regulated by the law prevailing at the
place of performance. Matters respect
ing a remedy, such as the bringing of
a suit, admissibility of evidence, and
statutes of limitations, depend upon the
law of the place where the suit is
brought. The defendant being fully
qualified to enter the contract at the
place and time the contract was made,
he cannot plead infancy as a defense
at the place where the contract is being
enforced.” It is believed that there are
several errors in the sentences quoted:
however, at this juncture mention will
be made of merely one: Frank’s capacity
should be judged by his NATIONAL
LAW and not by the law of the place
where the contract was entered into.
This is the clear implication of Art. 15
of the Civil Code. (Art. 9 o f the Spanish
Civil Code). Of course, in the instant
case, whether Frank’s national law or
the law of the place where the contract
was made should be used is immaterial,
for they happen to be the same;

however, the doctrine would have had
a different result if the contract had
been entered into in the Philippines,
for under the doctrine of lex loci
celebrationis, the contracts would have
been considered invalid; under the
national law theory, the contract would
be valid.
SUGGESTIONS FOR THE CONFLICTS RULE

ON CAPACITY IN GENERAL
If an alien, incapacitated under his national law, enters into
an ordinary contract in the Philippines (where he is considered
capacitated), Art. 15 of our Civil Code clearly ordains that the
contract be considered defective (applying the nationality principle)
in view of the incapacity. This may result firstly in inconvenience
(for an investigation of the national law of a party may greatly
impede business transactions); and secondly, may produce unjust
effects. It is, therefore, suggested that as to ordinary contracts
(those not involving status or property) the national law of the
parties should be controlling except (if (1) the contract was entered
into in the Philippines; or if (2) the performance thereof would be
in the Philippines and our public policy on the matter will be
jeopardized. (See the Geneva Convention, and the German Civil
Code o f 1896).
INTRINSIC VALIDITY OF CONTRACT

The intrinsic validity of a contract (including the consideration
or cause thereof, the interpretation of the instruments, and the
nature and amount of damages for breach or non-performance)
must be governed by the “proper law of the contract” (the lex
contractus, considered in the broad sense). This is the law voluntarily
agreed upon by the parties (the lex loci voluntatis) or the law
intended by them expressly or implicitly (the lex loci intentionis).
While this rule is not expressly provided for in our laws, this is
followed by most legal systems. (See I Castan 100; I Manresa 118-
119; Rabel, Conflict of Laws, Vo. II, p. 357).
According to Dean Graveson, there are some aspects of a
contract that cannot be subject to stipulation such as form and
capacity; however in all other aspects the free will of the parties
may properly govern. (See Graveson, Conflict o f Laws, p. 172).

Manresa also opines that the parties may freely stipulate as to the
determinative law. (1 Manresa, 118-119). In the case of Lauritzen
v. Lauritzen, 73 Sup. Ct. 921, the United States Supreme Court
held that “except as forbidden by some public policy, the tendency
of the law is to apply in a contract matters the law which the
parties intended to apply.” The rule is implicitly recognized in our
own Civil Code — “The contracting parties may establish such
stipulations, clauses, terms and conditions as they may deem
convenient, provided they are not contrary to law, morals, good
customs, public order, or public policy.” (Art. 1306, Civil Code).
The law selected may be expressly agreed upon (here there
would be little difficulty) or may be implied (from such factors as
the following: the law having the most substantial connection with
the transaction; the nationality and domicile of the parties; the law
most favorable for the effectivity or efficacy of the contract for we
should presume that the parties intended to be bound by their
agreement). (See Cheshire, Private International Law, pp. 312-313).
Such agreements, may involve complex financial transactions like
foreign debt (loan) and derivatives contracts (options like put, call,
straddle, swaps, swaption, commodity futures, and the like).
Limitations and Principles in the Choice of Law:
(1) The choice may be made expressly or impliedly. If of two
possible choices, one law provides certainly specific
remedies in case of breach, and the other does not, it is
understood that the first law applies if the contract makes
mention of said remedies. (See Wolff, Private International
Law, p. 434).
(2) Several laws may be selected, each of which governs
different elements of the transaction. (Cheshire, Private
International Law, p. 236).
(3) Generally, the parties cannot select a law that has no
connection at all with the transaction. (Cook, Legal and
Logical Bases of the Conflict o f Laws, p. 423). However,
important reasons may have prompted the parties to
*• make such a choice: these reasons, we should disincline
to disregard.
(4) If the law selected should change, it is that law, as
changed, that will apply, for we must presume that at
the time of contracting, the parties were cognizant of the
dynamic quality of law. One exception would be if the

change is so revolutionary that it was never contemplated
by the parties. In such a case, we must consider that law
intended — and this is inferable from other circumstances.
(See Wolff, Private International Law, pp. 430-431).
(5) If under the law selected, the contract is legal, but in the
place of performance, it is illegal, the selected law must
naturally prevail, and the contract should therefore be
considered legal. (See Rabel, Conflict o f Laws, Vol. II, p.
537). A contrary rule, such as that stated in the American
Restatement (Sec. 360) would frustrate the intention of
the parties, and would make the place of performance
the controlling factor, even if such place be merely
accidental. Moreover the “place of performance” is
characterized diversely by different countries. (See Wolff,
(6) Assuming that the law of the place of performance can
be ascertained (as when there is an express stipulation
on this point), still questions of substantial and essential
validity (e.g., whether the contract is valid or voidable or
void) should be governed by the proper law of the contract;
only such minor details (e.g., payment during reasonable
business hours) should be governed by the law of the
place of performance (the lex loci solutionis). (Cheshire,
(7) While the parties may stipulate on the proper law of the
contract, they cannot stipulate on the jurisdiction of
courts. (See Molina v. De la Riva, 6 Phil. 12).
Molina v. De la Riva
- 6 Phil. 12
FACTS: An American corporation delivered in America
to a German corporation a consignment of
agricultural machinery to be carried on the
German steamer “Bulgaria.” Vladivostok,
Russia, was the place of destination. Under
the BILL OF LADING, it was stipulated that
in case of disputes under the contract; the
question would be, at the carrier’s option,
decided exclusively by German courts applying
German law.. During the voyage, war broke
out between Germany and Russia, and the ship

had to go in the meantime to Manila. While in
M anila, the shipper asked either for a
transhipment of the goods to Russia, or their
surrender by the carrier. When the carrier
refused, the shipper started suit in Manila.
The carrier raised the issue of jurisdiction,
alleging that under the terms of the bill of
lading, Philippine courts had no jurisdiction.
HELD: Philippine courts have jurisdiction for a
contractual stipulation cannot operate to oust
our courts of their jurisdiction under the law.
Companie de Commerce, etc. v.

Hamburg-Amerika, etc.
36 Phil. 590
FACTS: A French shipper of goods aboard a German

vessel felt prejudiced when the ship had to
take refuge in Manila due to the outbreak of
World War I, and so, he brought suit in our
country for damages. Under the charter party
(the contract), there was a clause providing for
the settlement of disputes by first referring
them to a Board of Arbitrators in London,
England. Defendant asserted that our courts
were WITHOUT jurisdiction over the subject-
matter — in view of the contractual stipulation
referred to.
HELD: Our courts have jurisdiction. Moreover, it was
alleged and proved that in England, such a
stipulation is considered valid, that is, it was
NOT alleged and proved that compliance, is a
CONDITION PRECEDENT for the enforce
ment of the contract.
Other Theories on What Should Govern Intrinsic Validity:

(1) The Theory of lex loci celebrationis
The advantage of this theory is that generally, the
place of execution may readily be ascertained; moreover
once this principle is universally adhered to, the parties
would know what law will apply, thus facilitating

commercial agreements. (See Goodrich, Conflict o f Laws,
p. 322). Defects: (a) the theory makes possible the evasion
of the national law; (b) the place of contracting may have
very little substantial connection with the transaction.
(Ibid., p. 323).
(2) The theory of lex nationalii
Defects: (a) the lex nationalii may not easily be
determined; (b) an investigation of the lex nationalii may
,i>e timeconsuming; (c) the nationality of the parties may
be different — all these impede commercial transactions.
(See Lorenzen, Selected Essays, p. 291).
(3) The theory of lex loci solutionis
The theory finds justification in the inherent and
natural connection of the place of performance with the
contract itself. (See Story, Commentaries on the Conflict
o f Laws, p. 376). Defects', there may be several places of
performance for different parts of the contract; moreover
in some cases the place of performance may not have
been previously fixed. (See Goodrich, Conflict o f Laws, p.
325).
(4) The theory of Prof. Minor
According to Prof. Raleigh Minor, different laws
govern the various elements of a contract, thus:
(a) the perfection of the contract — is governed by the
lex loci celebrationis;
(b) the sufficiency and validity of the cause or
consideration — is determined by the lex loci
considerations;
(c) questions of performance are controlled by the lex
loci solutionis. (Minor, Conflict of Laws, p. 420).
Example: In a contract entered into in Alaska where
a Chinese would render a concert in Manila in
consideration of an automobile to be manufactured in
Germany — Prof. Minor would want to have the validity
of the meeting of the minds tested by Alaskan law (lex
loci celebrationis)-, the sufficiency of the cause or
consideration, by German law (lex loci considerationis);

and damages for nonperformance, by Philippine law (the
lex loci solutionis). Defects: The theory suffers (in combined
or cumulative form) the defects of all the other theories:
moreover, the question of cause or consideration goes
into the very validity of the contract itself, and must
therefore not be considered separately from all questions
on perfection. (See Lorenzen, Selected Essays, p. 270).
BAR QUESTION
X and Y entered into a contract in Madrid, Spain, wherein

it was agreed that X would construct for Y an apartment in
Manila, the consideration being Y’s house and lot in San
Francisco, California. The laws of what country or countries
would govern:
(a) the validity of the contract;
(b) its performance;
(c) its consideration? Reason.
ANS.: Since the contract deals with a building to be
constructed in Manila, its seems clear that the validity thereof
would depend on the lex situs, namely, Philippine law. In fact,
Philippine law should govern everything about the contract.
(Art. 16, par. 1, Civil Code).
However, Prof. Minor would say that the validity of the
contract, would be governed by the lex loci celebrationis —
Spanish law; performance and damages in case of breach would
depend on the lex loci solutionis — Philippine law; and the
sufficiency of the consideration would depend on the lex loci
considerationis — California law.
CONFLICTS RULES FOR SPECIFIC CONTRACTS

ôr the conflicts rules on specific contracts, see the summary
at the beginning of the Chapter. The rules have been derived
generally from the preceding discussion on contracts in general.
Attention must be called to the fact, however, that in contracts
involving the alienation, disposition, carriage, or encumbering of
property, the general determinative law is the lex situs.
BAR QUESTION
What law governs the transportation of goods abroad a
Philippine vessel from Europe to the Philippines? Discuss
briefly.
ANS.: Transportation of goods aboard a Philippine vessel
from Europe to the Philippines will be governed:
(a) primarily by Arts. 17321766 of the Civil Code. (Art.
1753, Civil Code)\ and
(b) subsidiarily, by the Code of Commerce. (Arts. 573-
736, 806-869);
(c) In default of (a) and (b), by the Carriage of Goods
by Sea Act. (Tart Lian Grocery, Inc. v. De la Rama
Steamship Co., Inc., 54 O.G. 8076).
With respect to liability for loss, destruction, and
deterioration of the goods in transitu, the law of the
destination, i.e., the Philippines, will govern. (Art. 1753, Civil
Code).
BAR QUESTION
A logging company uses big quantities of gasoline and
diesel fuel, buying the same from an American Oil Company
in big containers or drums. May the American Oil Company
sell the gasoline and diesel fuel directly to the logging company?
Reasons.
ANS.:
(a) If the American Oil Company is selling the gasoline
and diesel fuel from the United States, and exporting
it to the logging company in the Philippines, such
sales does not violate any Philippine law, not even
the Retail Trade Act, because it is a sale made in
the United States, and not in the Philippines, hence,
the sale is outside the purview of the Retail Trade
Act.
(b) If the American Oil Company is in the Philippines,
the direct sale to the logging company (incidentally,
this is RETAIL sale, for the buyer is the consumer
or end-user, despite the big quantities involved) can
be made according to previous opinions of the
Secretary of Justice only if the American Company

is 100% American-owned (or 100% American-Filipino
owned), at least during the effectivity of the Laurel-
Langley Agreement between the Philippines and the
United States. (Opinion o f the Secretary o f Justice,
No. 253, Series of 1954, and No. 71, Series o f 1963,
re par. 2, Sec. 1, Rep. Act No. 1180).
[In 1966, the Secretary of Justice ruled that
American citizen and juridical entities wholly owned
by them are exempt from the operation of the Retail
Trade Act — Rep. Act No. 1180. And a Presidential
Directive dated Dec. 31, 1966 has been issued to
the effect that until otherwise decided by the
Supreme Court, the opinion of the Secretary of
Justice should be followed by all departments,
offices, and instrumentalities under the Executive
Department, both national and local. The validity
of said Presidential Directive, pending resolution of
the retail trade question by the Supreme Court,
was sustained by the Supreme Court itself in
Antonio J. Villegas v. Claudio Teehankee, L-27928,
Jan. 18, 1967].
Philippine Banking Corporation, representing

the Estate of Justina Santos y Canon
Faustino v. Lui She,
administratrix of the Intestate Estate
of Wong Hong
L-17587, Sept. 12, 1967
FACTS: Justina Santos, an aged Filipino woman, leased
to Wong, a Chinese citizen, a parcel of land on
Rizal Avenue, Manila, for a period of fifty (50)
years, and also gave to the latter an option to
purchase the same (within said period of 50
years), payable in 10 years, on the condition
that Wong would become a Filipino. Justina
died. Wong also died without having become a
Filipino. Justina’s administrator, the Philippine
Banking Corporation now sues Wong’s estate
and surviving spouse (administratrix of her
husband’s estate) for the recovery of the land.
It was alleged that no recovery should be
allowed — firstly, because the contract was

validly entered into, and secondly, assuming
the nullity of the same, Justina’s administrator
should not be allowed to recover on the theory
that Justina herself was a party to the
transaction.
ISSUE:
(a) Is the contract valid? Reasons.
(b) May Justina’s administrator recover the
r* land? Reasons.
HELD:
(a) While generally the contract should have
been valid, still there appears to be a
deliberate plan to circum vent the
Constitution. The lease of land for 50
years in favor of an alien is rather long
(virtually depriving the lessor-owner of jus
utendi, jus possedendi, jus abutendi for
50 years); the option to buy within same
period of 50 years likewise deprives the
lessor-owner of jus disponendi for a like
period. Since all together these rights
constitute the essence o f ownership, the
contract has virtually made the lessee
the OWNER, contrary to the intent o f the
Constitution. Parenthetically, the
statement in the Smith Bell case (Smith,
Bel & Co. v. Reg. of Deeds o f Davao, L-
7084, Oct. 27, 1954) that a lease of land
for99 years in favor of alien was a mere
's obiter dictum, premised on the provision
in the Civil Code that a lease for 99 years
is valid. It is obiter because in said Smith
Bell case, the lease contract was only for
25 years, renewable for another period of
25 years. Thus the Court did not then
squarely determine the effect of a long
lease of land in favor of an alien.
(b) Justina’s administrator will be allowed to
recover the land, notwithstanding the fact
that Justina was herself a party to the

illegal transaction. The “pari-delicto”
(mutual guilt) rule to the effect that a
party to an illegal transaction cannot get
back what had previously been given,
should in the present case be relaxed or
modified because of the following reasons:
1) firstly, Justina, the guilty party is
already dead, and it is doubtful as
to whether her heirs or the
administrator of the estate can also
be put under the cloud of guilt;
2) secondly, under Art. 1416 of the Civil
Code, the *pari delicto” rule cannot
apply, if the law is for the protection
of the person seeking recovery and
if, by allowing recovery, public policy
will be enhanced; and
3) thirdly, because if recovery will not
be allowed, the alien will continue
having the property (in view of the
government’s failure in very many
cases to file the necessary escheat
proceedings so that the lands
concerned can become government
property). This continued ownership
by a disqualified alien can only result
in a continuing violation o f the
Constitution. (“Escheat” is the
reversion of property to the state in
consequence o f a want o f any
individual competent to inherit.
[Black’s Law Dictionary, abridged
fifth ed., p. 282].)
Chapter XXII
TORTS (QUASI-DELICTS)
(1) Liability and Damages for (1) lex loci delicti commissi
Torts in General (law of the place where the
delict was committed)
NOTE: The locus delicti NOTE: Liability for foreign
(place of commission of torts may be enforced in the
torts) is faced by the Philippines if:
problem of characteriza
(a) the tort is not penal in
tion. In civil law countries,
character
the locus delicti is generaly
where the act began; in com (b) if the enforcement of
mon law countries, it is the tortious liability
where the act first became will not contravene our
effective. public policy
(c) if our judicial machi
nery is adequate for
, *0 such enforcement.
TORT DEFINED
A tort is a legal wrong committed upon another’s person or
property independent of a contract. It may be:
(1) a direct invasion of some legal right of the individual;
390
TORTS (QUASI-DELICTS) 391
(2) the infraction of some public duty by which special

damage accrues to the individual; and
(3) the violation of some private obligations by which like
damage accrues to the individual. (Black’s Law Dictionary,
abridged fifth ed., p. 774).
Three (3) elements of every tort action are:
(1) existence of legal duty from defendant to plaintiff;
(2) breach of duty; and
(3) damage as proximate result. (Black’s Law Dictionary,
abridged fifth ed., p. 774). Thus, an injury or damage is
proximately caused by an act, or a failure to act, whenever
it appears from the evidence in the case, that the act or
omission played a substantial part in bringing about or
actually causing the injury or damage; and that the injury
or damage was either a direct result or a reasonably
probable consequence of the act or omission. (Ibid.,
p. 641).
In the Philippines, Art. 20 of the Civil Code reads: “Every
person who, contrary to law, wilfully or negligently causes damage
to another, shall imdemnify the latter for the same.” This Article
correctly understood embraces two (2) concepts of tort:
(1) the Spanish tort — based on culpa aquiliana or negligence
— “Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the
damage done.” (Art. 2176, Civil Code).
(2) the American tort — based on malice and wilful intent.
(See wording o f Art. 20; see also Prosser, Torts, p. 4).
LIABILITY AND DAMAGES FOR TORTS IN GENERAL

Liability and damages for torts, in general, are governed by
the lex loci delicti commissi (the law of the place where the delict
or wrong or tort was committed). (See Cheshire, Private International
Law, p. 367). Two (2) important reasons have been given for this
rule:
(1) Firstly, the state where the social disturbance occurred
has the primary duty to redress the wrong, and to
determine the effects of the injury;
(2) Secondly, the law of said state must be presumed to

have been foremost in the mind of the parties concerned:
thus they acted with knowledge of the resultant
consequences under said law. (See Rabel, Conflict of Laws,
Vol. II, pp. 251-252).
While it may generally be said that the above-mentioned theory
is almost universally followed, conflict often arises in the
characterization of the locus delicti (the place where the wrong was
committed). (See Wolff, Private International Law, p. 500).
CHARACTERIZATION OF THE LOCUS DELICTI

There are at least three (3) theories as to where the locus
delicti in torts is:
(1) Civil law theory — the locus delicti is where the act
began. This is because rules on tort are intended to
regulate human conduct; hence a person who wilfully or
negligently acts contrary to social norms must be held
liable for any injury caused. (See Rabel, Conflict of Laws,
Vol. II, p. 303).
(2) Common law theory — the locus delicti is where the
tortious act first became effective. The reason is evident:
until there is produced some effect, some result, no injury
or wrong has really been committed, despite the disregard
of human norxris. The law on torts seeks to give protection
and redress; without injury, there is no necessity for
judicial intervention and relief. (See Sec. 377, American
Restatement).
(3) The theory of Dr. Rabel — the locus delicti is the place
which has the most substantial or essential connection
with the act (example: the situs of the radio station that
broadcasts a libelous or slanderous remark). (See Rabel,
Conflict o f Laws, Vol. II, pp. 334-335).
Example: While negligently cleaning his gun, a
person situated in State A accidentally shot another in State
B, who then was rushed to a hospital in State C, where the
victim finally died. Where is the locus delicti?
Answer:
(1) According to the civil law theory, the locus delicti is
State A because the negligent act occurred there.
(2) Under the common law theory, State B is the locus

delicti because the injury was felt there.
(3) From the viewpoint of Dr. Rabel’s theory, the locus
delicti is evidently State A, because it has the most
substantial connection with the tort. Had the gun
not been fired, there would have been no injury.
It is submitted that generally the theory of Dr. Rabel
should control as it is the most logical one.
SPECIAL RULES
(1) If the tort is committed aboard a public vessel, whether
on the high seas or in foreign territorial waters, the
country to which the vessel belongs is the locus delicti;
the law o f the flag is thus the lex loci delicti commissi.
(The “law of the flag” in maritime law, is that law of the
nation or country whose flag is flown by a particular
vessel. A shipowner who sends his vessel into a foreign
port gives notice by his flag to all who enter into contracts
with the master that he intends the law of that flag to
regulate such contracts, and that they must either submit
to its operation or not contract with him. [Black’s Law
Dictionary, abridged fifth ed., p. 327].)
(2) If the tort takes place aboard a private or merchant vessel
on the high seas, the law of the flag is likewise the lex
loci delicti commissi. If the vessel is in a foreign port or
within foreign territorial waters, the rule is not uniform.
However, it is suggested that generally the law of the
flag must also be determinative. The rules in the case of
crime should not necessarily be applied because in the
case of torts the parties are interested merely in the civil
liability, not the public punishment of the offense.
(3) If the tort concerns property, whether real or personal,
the lex situs is usually also the lex loci delicti commissi.
(See Minor, Conflict of Laws, pp. 475-486).
(4) Maritime Torts
(a) If the colliding vessels are of the same state, or
carry the same flag, said law is the lex loci delicti
commissi.
(b) If the vessels come from different states, whose laws

however, on the matter are identical, said laws
constitute the lex loci delicti commissi.
(c) If the vessels come from different states with
different laws, the lex loci delicti commissi is the
general maritime law as understood and applied by
the forum where the case is tried. (See The
Belgenland, 114 U.S. 355; The Scotland, 105 U.S.
24).
SOME C/&ES
Morrisette v. Can Pac. R. Co.

76 Vt. 267
FACTS: A railroad employee of the Canadian Pacific

Railway Company, while in the performance
of his duties in Quebec suffered injuries there
as a result of the Company’s negligence and
hiw own contributory negligence. Suit was
brought for damages in Vermont, where
contributory negligence BARS recovery. Quebec
law, upon the other hand, allows recovery and
contributory negligence merely serves to reduce
the amount of damages. Issue: May recovery
be allowed?
HELD: Yes, the victim may recover. The lex loci deicti
commissi is clearly Quebec law, since the tort
took place there. To enforce the liability will
not in any way violate the public policy of
Vermont. Neither will the application of the
4 Quebec law militate against pure morals or
abstract justice.
Le Forest v. Tolman
177 Mass. 109
FACTS: Tolman owned and kept a dog in Massa

chusetts. One day the dog which had strayed
to New Hampshire bit someone named Le
Forest in the latter state. Under Massachusetts
law, recovery of damages may be had; in New
Hampshire where the act took place, the injury

is not actionable. Suit was brought in Mas
sachusetts.
ISSUE: May the victim recover?
HELD: Recovery will not be allowed since the lex loci
delicti commissi is clearly New Hampshire law,
which does not consider the injury actionable.
In order to successfully maintain an action of
tort, founded upon injury to person or property,
the act which is the cause of the injury and
the foundation of the action must at least be
actionable or punishable by the law of the place
in which it was done, if not also by the law of
the place where redress is sought.
ENFORCEABILITY OF FOREIGN TORTS 9

IN THE PHILIPPINES
In the Philippines, foreign torts may properly be the subject
of suits provided certain conditions are present, aside from the
requisite that our courts must have jurisdiction over the case.
Incidentally, mention may be made of the fact that, generally, a
suit to recover on a foreign tort is cognizable in any state where
jurisdiction may be acquired over the person of the defendant (since
the action for damages is one in personam). Even tort suits for
trespass to real and personal property in foreign countries may
properly be entertained in the Philippines, for, after all, we are
merely concerned here with the recovery of damages, and not with
the ownership, title, or encumbering of the property involved. If
any question of title is involved, this would be merely incidental to
the real issue — the commission of the alleged wrong. (See Goodrich,
Confict o f Laws, p. 271). Thus, if the defendant is personally served
by the summons of our tribunals, or if he voluntarily appears in
court even without such service (unless of course, the precise purpose
of his appearance is to question the jurisdiction of our courts [See
DeJ.os Santos v. Montesa, Jr. 221 SCRA 15 (1993)], our courts may
validly decide the case, applying the proper lex loci delicti commissi
(as already discussed in the preceding paragraphs).
However, as already intimated hereinabove, there are at least
three (3) conditions which must be complied with, before recovery
may be had for the aggrieved party, namely:
(1) The foreign tort must not be penal in character;

(2) The enforcement of the tortious liability should not
contravene our public policy; and
(3) Our judicial machinery must be adequate for such
enforcement. (See Minor, Conflict o f Laws, pp. 479-485).
Slater v. Mexican National Railway Co.

194 U.S. 120
FACTS: Suit was brought in a Texas court for
damages because of a death in Mexico.
Under Texas law, payment of
damages should be in a lump sum;
Mexican law however, which was the
lex loci delicti commissi, ordained that
payment be made in the installments
over a long period of time, the amount
for each to vary depending on the
needs of the recipients.
HELD: The Mexican manner of awarding
indemnity is a remedy which Ame
rican courts are not prepared to
undertake, in view of the lack of the
proper judicial machinery for the
purpose. Hence, the case was dis
missed, instead of having the court
award the substitute Am erican
remedy. The substitute may prove
onerous and burdensome for the
victim’s heirs.
OBSERVATION: The decision of the United States
Supreme Court is in line with Prof.
Minor’s statement that the foreign lex
loci delicti commissi will not be
enforced if it creates a statutory tort,
where the statute in creating the
liability, at the same time, creates a
method of redress or indemnification
peculiar to the foreign state, and
which may be remedied SOLELY by
such state. (See Minor, Conflict of
Laws, p. 485). Parenthetically, it
should be stated that Prof. Minor

distinguished two kinds of tort in the
United States: the common law tort
and the statutory tort. He says:
Common law tort are such as are
actionable, or at least condemned, by
the common law without the aid of any
statute, the demand for compensation
being justified upon principles of
inherent justice and of expediency;
while statutory torts comprise those
acts for which redress is given by
statute, but which were not actionable
at common law, either because no
essential principle of right and justice
demanded it, or because redress could
not be afforded without violating some
technical rule of the common law.”
(Minor, Conflict of Laws, p. 477).
APPLICATION BY PHILIPPINE COURTS OF THE PROPER

LEX LOCI DELICTI COMMISSI
Once our tribunals find themselves confronted with the
properly proved and pleaded lex loci delicti commissi, said law will
now be used to govern, among other things, the following points:
(1) The proper prescriptive period — Under Sec. 48 of the
Code of Civil Procedure, “If, by the laws of the state or
country where the cause of action arose, the action is
barred, it is also barred in the Philippine Islands;”
(2) The proper parties — plaintiffs and defendants — of the
case. (See Rabel, Conflict of Laws, Vol. I, p. 259);
(3) Whether or not the act is considered the proximate cause
of the injury. (See Stumberg, Principles of Conflict of Laws,
p. 169);
(4) The measure o f damages, except punitive (relating to
punishment or penalty) ones. (See Rabel, op. cit., pp. 276-
277);
(5) The burden of proof and the defenses that may be
interposed. (See Minor, Conflict of Laws, pp. 485-490;
Rabel, op. cit., p. 283). (“Burden of Proof’ is a term which

describes two [2] different concepts: (1) the burden o f
persuasion, which under traditional view never shifts from
one party to the other at any stage of the proceedings;
and (2) the burden o f going forward with the evidence,
which may shift back and forth between the parties as
the trial progresses. [Black’s Law Dictionary, abridged
fifth ed., p. 102]). (“Defenses” as used herein speak of a
response to the claims of the other party, setting forth
reasons why the claims should not be granted. The
defense may be as simple as a flat denial of the other
party’s factual allegations or may involve entirely new
factual allegations. In the latter situation, the defense is
an affirmative defense. (Ibid., p. 218). Under the Rides of
Civil Procedure, many defenses may be raised by motion
as well as by answer [Rule 6, Sec. 4, Rules of Court);
while others must be pleaded affirmatively. (Rule 8, Sec.
1, id.].)
V •
Chapter XXIII
CRIMES
(1) essential elements of a (1) generally where committed

crime; and penalties there (locus regit actum)
for Theories As to What Court
Has Jurisdiction
(a) territorial theory —
where the crime was
committed
(b) nationality or personal
theory — country of
which the criminal is a
citizen or a subject.
(c) protective theory — any
state whose national
interests may be jeo
pardized has jurisdic
tion so that it may
protect itself
(d) real theory — any state
whose penal code has
been violated has juris-
399
diction, whether the

crime was committed
inside or outside its
territory
(e) cosmopolitan or uni
versality theory — the
state where the cri
minal is found or which
has his custody has
jurisdiction.
(f) passive personality
theory — the state of
which the victim is a
citizen or subject has
jurisdiction.
NOTE: In the Philip-pines,
we follow the territorial
theory in general; by way
of exception, Art. 2 of the
Revised Penal Code stres
ses the protective theory.
(2) the locus delicti of certain
crimes:
(a) frustrated, and con (a) where the victim was
summated, homicide injured (not where the
murder, infanticide, aggressor wielded his
and parricide weapon)
(b) attempted homicide, (b) where the intended
etc. * victim was (not where
the aggressor was
situated) — so long as
the weapon or the
bullet either touched
him or fell inside the
territory where he was
(c) bigamy (c) where the illegal mar
riage was performed
(d) theft and robbery (d) where the property was
unlawfully taken from
CRIMES 401
the victim (not the

place to which the crim
inal went after the
com m ission o f the
crime)
(e) estafa or swindling (e) where the object of the
through false repre crime was received (not
sentations where the fasle repre
sentations were made)
(f) conspiracy to commit (f) where the conspiracy
treason, rebellion, or was formed (not where
sedition the overt act of treason,
rebellion or sedition
NOTE: Other conspiracies
was committed)
are not penalized by our
laws.
(g) libel (g) where published or
circulated
(h) continuing offense (h) any place where the
offense begins, exists,
or continues
(i) complex crimes (i) any place where any of
the essential elements
of the crime took place.
CRIMES DEFINED
In general, a crime is an act or omission punishable by law.
If the transgression is against our Revised Penal Code, it is referred
to as a felony, if against a special law, it is more particularly
designated as an offense-, and if against a local or municipal
ordinance, it is known as an infraction. States punish crimes not
necessarily to protect private interest but to vindicate public justice.
■^Crimes may be committed thru deliberate deceit and malice,
or thru negligence. Parenthetically it may be stated that in the
Philippines there are really no crimes called for instance “homicide
thru reckless imprudence” or “arson thru reckless imprudence.”
Offenses of these nature are called “criminal negligence” under Art.
365 of the Revised Penal Code (regardless of whether homicide or
arson, etc. is involved) and the proper names of the abovementioned

crimes should be “reckless imprudence resulting in homicide” and
“reckless imprudence resulting in arson,” respectively. The reason
is clear — the law punishes the negligent or careless ACT, not the
RESULT (See People v. Buas, L-25366, March 29, 1968; Laura
Corpus, et al. v. Felardo Paje, et al., L-26737, July 31, 1969).
CRIMES DISTINGUISHED FROM TORTS

(1) Crimes are offenses against the state; tort violate private
'lights. (Minor, Conflict of Laws, p. 498).
(2) Crimes are prosecuted in the name of the state; require
criminal proceedings; and insist on proof of guilt beyond
reasonable doubt. Upon the other hand, tort actions are
instituted in the name of the aggrieved party; the
proceedings are civil in character; and mere preponderance
of evidence would suffice to obtain judgment for the
plaintiff. (See Prosser, Torts, p. 10).
(3) Punishment, reformation, exemplarity, and deterrence
are the avowed purposes of the law on crimes; torts
demand civil indemnification and reparation.
SIMILARITIES
(1) Both crimes and torts are unlawful acts requiring redress.
(2) Crimes require criminal intent for offenses of deceit and
malice; crimes mala prohibita and crimes of negligence
or imprudence do not necessitate criminal intent.
Similarly torts based on malice (the American concept of
tort) fundamentally insist on intent; torts based on
negligence or culpa aquiliana or quasi-delicts (the
Castilian concept of tort) cannot be premised on intent.
NOTE: Both crimes and torts, governed as they are
by lex loci delicti, have their respective defenses. For
instance, as regards defense to criminal charge, such
defenses include alibi, consent, “corporate” liability
defenses, de minimis infraction, duress, entrapment,
ignorance or mistake, infancy, insanity, intoxication, law
enforcement authority, necessity, protection of property,
public duty, legal impossibility, self-defense and protection
of others. Defense also means the forcible repelling of an
CRIMES 403
attack made unlawfully with force and violence, such as

the defense of one’s person or property or nation in time
of war. (Black’s Law Dictionary, abridged fifth ed., p.
218).
CHARACTERIZATION
Whether an act is a tort or a crime depends on the
characterization accorded the actuation in the state where it was
committed (if we follow the Territorial Theory of Criminal Law).
(See Beale, Conflict of Laws, Vol. II, p. 1290). In the Philippines,
certain acts may be BOTH torts and crimes. Example: If an
intoxicated driver as a result of an imprudent maneuvering of his
vehicle crashes into another automobile and injures the passengers
of the latter, he has committed both a tort and a crime. Under Art.
33 of the Civil Code there may be an independent civil action for
the injury, regardless of the pendency of a criminal suit on the
same act. Moreover, the Civil Code, expressly provides that
responsibility for fault or negligence “is entirely separate and distinct
from the civil liability arising from negligence under the (Revised)
Penal Code. But the plaintiff cannot recover damages twice for the
same act or omission of the defendant.” (Art. 2177, Civil Code).
THEORIES AS TO WHAT COURT HAS JURISDICTION

TO TRY CRIMINAL CASES (THEORIES ON
EXTRA-TERRITORIAL COMPETENCE)
There are at least six (6) different theories as to what tribunal
or legal system has jurisdiction to take cognizance of criminal cases:
(1) the territorial theory; (2) the nationality or personal theory; (3)
the protective theory; (4) the real property; (5) the cosmopolitan or
universality theory; and (6) the passive personality theory. (See
Harvard Research in International Law, 29 A.J.I.L., Supp. 1935).
(1) The Territorial Theory

Under the territorial theory, the state where the crime
was committed has jurisdiction to try the case; the penal code
„ it will apply will, of course, be its own; the penalties to be
meted out will also depend on its own law. The theory is
based on this rationale: crimes affect directly and particularly
the dignity, authority, and sovereignty of the state where the
crime was committed. The aggrieved state is duty bound to
prosecute and punish the offender if only to restore public
order and trust. In general, it is this theory that is adhered

to in the Philippines.
Parenthetically, in some countries the territorial principle
includes:
(a) the subjective territorial principle — by means of
which the state has jurisdiction to prosecute crimes
begun within the state but completed abroad.
(Harvard Research in International Law, 29 A.J.I.L.,
Supp., 1935, p. 484);
(b) the objective territorial principle — thru which the
state can prosecute offenses begun abroad but
completed within its territory. (Ibid., p. 487).
Examples'. If aliens conspire abroad with
persons within the United States to violate the
country’s tariff laws, said aliens may be validly
prosecuted in the United States, provided, of course,
that somehow the U.S. can get said aliens within
its power. (See Ford v. US, 237 US 593; Strassheim
v. Daily, 221 US 280). A French naval officer, for an
act of negligence originating from a French vessel
was tried in a Turkish Court because the act of
negligence resulted in a collision with a Turkish
vessel, and fatal consequences to some passengers
aboard said latter vessel. (The Lotus case, PCIJ,
Ser. A. No. 10, 2 Hudson, World Court Reports 20).
(2) The N ationality or P ersonal Theory (also referred to as

the active nationality principle)
States which follow the nationality or personal theory in
criminal law are of the opinion that the country of which the
criminal is a citizen or a subject has jurisdiction to try him for
the offense he is supposed to have committed, whether the
effectuation of the act be inside or outside its territory, provided
that the act is a crime under his country’s penal law. According
to this theory, penal laws follow a citizen or subject wherever
he may be and wherever the crime may be committed, even
if this be outside of the territorial jurisdiction of his own native
land. (See Minor, Conflict of Laws, p. 497). Other reasons
have been given to justify the theory; the citizen’s misbehavior
in a foreign land adversely affects the social and moral order
CRIMES 405
of his country; if a citizen abroad expects his country’s

protection he should be ready to obey its laws. (Harvard
Research, p. 519); penal laws are of a personal nature and
follow the national wherever he goes. (Alcorta, Principios de
Derecho Penal Internacional, pp. 115-119; 121-123).
(3) The P rotective Theory

Adherents of the protective principle say that any state
whose national interests may be jeopardized has jurisdiction
over criminal offenses, even if committed outside of its territory,
and in some cases, even if committed by an alien in order that
it may properly protect itself. (See Harvard Research, p. 543).
By way of exception, this principle finds support in Art. 2 of
the Revised Penal Code of the Philippines. Thus, if a Filipino
or an alien should counterfeit Philippine currency in Singapore,
he is amenable to prosecution under our criminal laws the
moment he sets foot on Philippine soil.
(4) The R ea l Theory (also referred to as the E clectic Theory)

The real or eclectic theory in Criminal Law may be stated
in this wise: any state whose penal code has been transgressed
upon has jurisdiction to bring to justice the perpetrators of
the offense, whether the crime was committed inside or outside
of its own territory. While the protective principle (No. 3)
takes cognizance only of very important state prejudicing
offenses, the real theory demands authority over ALL crimes
committed against a state’s penal statutes so long as any
substantial contact is made with the state (whether it be
contact because of territoriality, nationality, or any of the other
theories). Crimes here would include piracy, slavery, drug
trafficking, immoral traffic in women and children, war crimes,
etc. (Ibid., 478-479). Otherwise stated, the eclectic theory allows
the simultaneous application o f all the theories on
extraterritorial competence. (Alcorta, op. cit. pp. 146-147).
(5) ^The Cosm opolitan or University Theory

Any state where the criminal is found or which has
custody over him is vested with jurisdiction to try him for the
crime he is alleged to have committed — unless extradition is
possible. (See Hall, International Law, 262). This in nutshell
form is the cosmopolitan or universality theory in Criminal

Law.
(6) Passive Personality Theory (also called Passive

Nationality Theory)
The passive personality theory holds that the state of

which the victim is a citizen or subject has jurisdiction. The
reason seems to be this: a wrong having been inflicted on its
citizen or subject, a state is duty bound to seek justice by
criminally prosecuting the offender. This theory has been
widely criticized (Harvard Research), principally because a
national of one country may be one act subject himself to the
penalties given by several foreign penal codes. (See Instructions
of November 1, 1887, U.S. For. Rei. 75).
ILLUSTRATIVE EXAMPLES OF THE AFOREMENTIONED

THEORIES
(1) A Frenchman commits a crime in England against a
German. The criminal fled to Argentina where he is now
in the protective custody of the police. Incidentally, the
crime also violates the law of Russia because certain
properties involved in the offense are in Russian territory.
What country has jurisdiction over the offense? ANSWER:
Under the territorial theory, England has jurisdiction
because the crime was committed there. According to the
nationality or personal theory, France has jurisdiction,
the offender being a French national. Advocates of the
real theory will be inclined to allow Russia (among others)
to assume jurisdiction because, the Russian law on crime
has apparently been violated. Argentina, which now has
custody over the aggressor, will have jurisdiction, if we
follow the cosmopolitan or universality theory. States
which believe in the passive personality theory will say
that Germany ought to have jurisdiction because the
victim happens to be a German.
(2) In the example given, if the crime had consisted of the
counterfeiting of Philippine currency, our national
economy will be imperilled; under the protective principle,
it is undeniable that we possess jurisdiction.
CRIMES 407
THE PHILIPPINE THEORY IN CRIMINAL LAW

As hereinabove intimated, the Philippines follows as a general
rule the territorial theory; by way of exception, we also occasionally
and in the proper cases make use of the protective theory. (See Art.
2, Revised Penal Code). Moreover, we consider our penal legislation
to be endowed with the principle of generality — that is, regardless
of the nationality of the criminal we consider him subject to our
criminal processes. Thus Art. 14 of the Civil Code says: “Penal laws
and those of public security and safety shall be obligatory upon all
who live or sojourn in Philippine territory, subject to the principles
of public international law and to treaty stipulations.”
Example illustrating the territorial theory. If a Filipino murders
his sweetheart in New York he cannot be prosecuted in the
Philippines for the crime of murder. This is because the crime was
committed outside of our territorial jurisdiction.
Example illustrating the protective theory: If a Filipino
government official in Japan commits a crime there in the exercise
of his official functions, he can be tried therefor in the Philippines
and by Philippine courts, even if the offense took place in a foreign
state. (Art. 2, No. 4, Revised Penal Code).
Art. 2 of the Revised Penal Code refers to crimes triable by
our courts even if the offense was committed outside of our territorial
jurisdiction. Said Article says:
“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 of its jurisdiction, against those who:
(1) Should commit an offense while on a Philippine ship
or airship (i.e., of Philippine Registry) (R.A. No. 776
on Registration of Aircraft).
(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 Islands
(this includes forging of bonds and treasury bills).
(3) Should be liable for acts connected with the intro
duction into these Islands of the obligations
mentioned in the preceding number;
(4) While being public officers or employees, should

commit an offense in the exercise of their official
functions (the offenses contemplated include direct
bribery, indirect ^bribery, frauds against the public
treasury, malversation, etc.);
(5) Should commit any of the crimes against national
security (such as treason, misprision of treason,
espionage, etc. but unfortunately not conspiracy,
proposal and inciting to rebellion, or conspiracy and
inciting to sedition. Correspondence with a hostile
country, flight to enemy country, and crimes against
the law of nations such as airplane hijacking and
piracy or mutiny on the high seas) are, of course,
included as punishable even if committed outside
the Philippine territory.
NOTE: Examples of crimes committed against the
Law of Nations are the crimes of aircraft (airline)
hijacking or piracy. Hijackers or pirates are considered
“outlaws of the whole of humanity” and may therefore be
tried anywhere for their acts as such.
Uluh Asaali, et al. v.

Commissioner of Customs
L-24170, Dec. 16, 1968
FACTS: On Sept. 10, 1950, at about noon time, a

Philippine customs patrol team on board Patrol
Boat ST-23 intercepted five (5) sailing vessels
on the high seas between British North Borneo
and Sulu, while they were heading towards
v Tawi-tawi, Sulu. The vessels are all of
Philippine registry, owned and manned by
Filipino residents of Sulu. The cargo consisted
of cigarettes without the required import license
(hence, smuggled). They were seized by the
patrol boat.
ISSUE: May the seizure be made although the
vessel was on the high seas?
CRIMES 409
Yes, for the following reasons:

(a) The vessels are of Philippine registry,
hence under the Revised Penal Code, our
penal laws may be enforced even outside
our territorial jurisdiction.
(b) It is well-settled in International Law that
a state has the right to protect itself and
its revenues, a right not limited to its
own territory, but extending to the high
seas. (Church v. Hubbart, 2 Cranch 187,
234).
QUERY
Dr. Jose Santos and Aurora Flores, both Filipino citizens, were
married in 1993 in Cebu, where they had been domiciled since
childhood. In 1996, to acquire legal residence in Georgia for the
purpose of divorce, he applied for and was granted American
citizenship. Two weeks thereafter he filed an action for divorce
against his wife before the courts of Georgia on the alleged ground
of incompatibility of character. This was granted by default. Not
long thereafter, he returned to the Philippines where he contracted
another marriage with a nurse from Manila. Is Dr. Santos amenable
to criminal prosecution and conviction for bigamy before our courts?
Discuss briefly.
ANSWER: Ordinarily, since Dr. Santos was already an
American citizen at the time of the divorce, the divorce as to him
should be valid, but with respect to the wife, the divorce should be
void. However, this would be unfair to the wife. The better rule
would be to consider the divorce void from the viewpoint of both,
and therefore, Dr. Santos should be deemed guilty of bigamy.
CRIMES COMMITTED ABOARD

PUBLIC VESSELS
Whether the crime committed aboard a public vessel (such as
a battleship) took place on the high seas or within our territorial
waters (or maritime zone), the country whose flag the vessel carries
has jurisdiction on the theory that the vessel is an extension of the
territory of the said state. (See U.S. v. Fowler, 1 Phil. 14).
CRIMES COMMITTED ABOARD PRIVATE

OR MERCHANT VESSELS
(1) If the crime committed aboard a private or merchant
vessel occurred on the high seas, the country of the flag
of the vessel has jurisdiction. Thus, if the vessel carries
the French flag, Philippine courts have no jurisdiction
except, of course, in the instances enumerated under Art.
2 of the Revised Penal Code (such as the crime of piracy).
(2) If* the crime aboard a private or merchant vessel of a
foreign state took place inside Philippine territorial waters
— two theories have generally been used to determine
the question of jurisdiction: the English rule (which
emphasizes the territorial principle) and the French rule
(which stresses the nationality theory).
(a) The English Rule — Here the territory where the
crime was committed (Philippines) will have
jurisdiction except:
1) in matters relating to the internal order and
discipline in the vessel; and
2) those which affect solely the ship and its
occupants such as minor or petty criminal
offenses committed by members of the crew.
(See Hyde, International Law, Vol. I, p. 739).
(b) The French Rule — Under this rule, founded on the
opinion of the French Council of State in 1806, the
state whose flag is flown by the vessel, would have
jurisdiction except if the crime affects the peace,
order, security, and safety of the territory. (See
Brierly, The Law of Nations, p. 180).
It should be noted that in the case of People v. Wong
Cheng (46 Phil. 729), the Philippine Supreme Court
expressly stated that the English Rule obtains in the
Philippines, and as authority therefor, it cited the case of
U.S. v. Look Chaw (18 Phil. 573), which it had previously
decided, but which on the contrary had applied the French,
not the English Rule. Be that as it may, 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 murder
CRIMES 411
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 the French rule on the
matter is not significant: the effect is the same. Mention,
however, must be made of two pertinent rulings by our
Supreme Court:
(a) The mere possession of opium aboard a foreign vessel
in transit is not triable by our Courts because mere
possession thereof, without being used in our
territory, is not considered a disturbance of the
public order. (U.S. v. Look Chaw, 18 Phil. 573).
(b) Upon the other hand, “to smoke opium within our
territorial limits, even though aboard a foreign
merchant ship, is certainly a breach of the public
order here established, because it causes such drug
to produce its pernicious effects within our territory.
It seriously contravenes the purpose that our
Legislature had in mind in enacting the aforesaid
repressive statute (the Opium Law), and is therefore
triable in our Courts.” (People v. Wong Cheng, 46
Phil. 729).
BAR QUESTION
A French vessel in transit is anchored along a pier at Port
Area, Manila. There was found in a cabin of one of the members
of the crew, who is a Frenchman, a package of opium. The French
sailor admitted possession of the same. May he be criminally
prosecuted for illegal possession of opium in our courts? Why?
Suppose the package of opium was already lowered from the
boat and placed on a banca that was floating on the water alongside
the vessel ready to be brought ashore, may a criminal prosecution
be filed in the Philippines? Why?
^NS:
(a) No prosecution will succeed in the case involving merely
the illegal possession of opium, because there is actually
no disturbance of the public order in the Philippines.
(U.S. v. Look Chaw, 18 Phil. 573).
(b) The act, however, of placing the opium aboard the banca,
ready to be brought ashore is violation of our public
morals, safety and order, consequently, the act should be
punished. (See People v. Wong Cheng, 46 Phil, 729).
THE PHILIPPINE-UNITED STATES MILITARY

BASES AGREEMENT (NOW TERMINATED)
As amended, by the Mendez-Blair Exchange of Notes, effective
August 10,1965, the rules on criminal jurisdiction in the Philippine-
United States Military Bases Agreement of 1947 (Terminated in
1991 by tfie Aquino government) were the following:
(1) Exclusive Jurisdiction

(a) The Philippines had exclusive jurisdiction over members
of the US armed forces or civilian component and their
dependents with respect to offenses punishable by
Philippine law, and not by US law. (Art. XIII, 2a, Revised
Military Bases Agreement).
(b) The military authorities of the United States had
exclusive jurisdiction over person subject to the military
law of the United States with respect to offenses
punishable by US law but not by Philippine law. (Art.
XIII, 2b, Revised Military Bases Agreement.)
(2) C oncurrent Jurisdiction

With respect to offenses punishable by both Philippine
and U.S. law, the Philippines had the primary right to exercise
jurisdiction in all offenses except in the following cases (in the
following cases the U.S. has primary jurisdiction):
(a) Offenses committed by persons subject to U.S. military
law — against the property or person of a member of the
United States;
(b) Offenses committed by persons subject to U.S. military
law — against the property or person o f a member o f the
United States armed forces or civilian component or of a
dependent; and
(c) Offenses committed by persons subject to U.S. military
law — arising out of any act or omission done in the
performance of official duty. (Art. XIII, 3 a, b, Revised
CRIMES 413
(3) Waiver o f Jurisdiction

The Agreement allowed a waiver by the State having
the primary jurisdiction provided notification had been made
as soon as practicable. (Art. XIII, 3c, Revised Military Bases
Agreement).
NOTE: Be it observed that the military authorities of the
United States had no right to exercise jurisdiction over persons
who were nationals of, or ordinarily resident in the Philippines
unless they were members of the United States Armed Forces.
(Art. XIII, 23, last paragraph, Revised Military Bases Agree
ment). Be it remembered also that under the amended rules,
whether the crime had been committed inside or outside the
bases was completely immaterial.
Example: When inside Clark Field Air Base an American
lieutenant raped a Filipino girl-visitor, while both countries
had jurisdiction over the criminal offense committed, in the
instant case, the Philippines had primary jurisdiction for; while
it was committed by a person subject to U.S. military law,
still the crime was not committed:
(a) against the property or security of the United States;
(b) nor against the property or person of —
1) a member of the U.S. Armed Forces, or
2) civilian component, or
3) a dependent; and
(c) nor was the rape done an act or omission done in the
performance of official duty. (See Art. XIII, 3, ab Revised
Death Sentence
The Agreement expressly stated that “a death sentence
shall not be carried out in the Philippines by the authorities
of the United Stated if the Legislation of the Republic of the
Philippines does not provide for such punishment in a similar
„pase. (Art. XIII, 7a, Revised Military Bases Agreement).
Double Jeopardy Prohibited

If trial had been made for a particular offense by one
State, would the other conduct a trial for the same offense? In
other words, did the prohibition against “double jeopardy”

(ordinarily understood) apply?
ANS.: The occurrence of “double jeopardy” being prohi
bited, by express provision of the Agreement, hence, if already
convicted or acquitted by one State, the other State could not
prosecute anymore. However, the military authorities of the
US could still try a member of its force — not criminally —
but for a violation o f its rule or discipline arising from an act
or omission for which he was criminally tried by the Philippine
Courts. (Art. XIII, Revised Military Bases Agreement).
When the Provisions on Criminal Jurisdiction Became Effective

According to the United States Government, the
amendments (hereinaboye discussed) on criminal jurisdiction
became effective on August 10, 1965, the date expressly
mentioned in the Exchange of Notes between the (then)
Philippine Secretary of Foreign Affairs Mauro Mendez and
then U.S. Ambassador William Blair. The Department of
Justice of the Philippine Republic had ruled then that said
amendments were already in force despite lack of Senate
concurrence because the amendments were merely in the
nature of Presidential Executive agreements (which were NOT
treaties).
Duration o f the Agreement

In the original Agreement of March 14, 1947 (signed at
Manila), the duration of the Bases Agreement was set for a
period of 99 years. However, by virtue of the Ramos-Rusk
Exchange bf Notes of Sept. 16, 1966, the term had been
decreased to a period of twenty-five (25) years, counted from
Sept. 16, 1966. Art. XXIX of the Agreement, as amended, then
read: '*
“Term of Agreement — Unless terminated earlier
by mutual agreement of the two governments, this
agreement and agreed revisions thereof shall remain in
force for a period o f '25 years from Sept. 16, 1966, after
which unless extended for a longer period by mutual
agreement, it shall become subject to termination upon
one year’s notice to either government.
The foregoing amendment was agreed upon in
Washington, D.C., U.S.A. between Narciso Ramos, Philippine
CRIMES 415
Secretary of Foreign Affairs and Dean Rusk, U.S. Secretary of

State.
The comments given (supra) on the effectivity of the
amendment on criminal jurisdiction were likewise applicable
to this amendment on duration.
THE 1987 CONSTITUTION ON THE RP-US MILITARY

BASES AGREEMENT
Art. XVIII, Sec. 25 of the Philippine Constitution provides:
“After the expiration in 1991 of the Agreement between
the Republic of the Philippines and the United States of
America concerning Military Bases, foreign Military bases,
troops, or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the Senate and,
when the Congress so requires, satisfied by a majority of the
votes cast by the people in a national referendum held for
that purpose, and recognized as a treaty by the other
contracting State.”
THE MUTUAL DEFENSE BOARD

The Mutual Defense Board is an agency that has been created
because of the PhilippineUnited States Mutual Defense Treaty; the
latter still subsists today inspite or despite of the terminated
(expired) RP-U.S. MBA (Military Bases Agreement). It is thus, an
agency of BOTH the Philippine and United States Governments. If
in the course of its investigative works, it should conclude that
certain operations by Filipinos within US military or naval bases
would be inconsistent with the security and operation of the Bases,
its findings would be CONCLUSIVE on our courts of justice. (Donald
Baer, Commander, US Naval Base, Subic Bay v. Hon. Tito V. Tizon
and Edgardo Gener, L-24294, July 15, 1974).
Chapter XXIV
JURIDICAL PERSONS
(1) Corporations 1
( )
(a) powers and liabilities (a) general rule — law of
the place of incorpo
ration
Exceptions:
(1) for constitu
tional purposes — even
if the corporation was
incorporated in the
Philippines, it is not
deemed a Filipino cor
poration and therefore
cannot acquire land,
exploit our natural
resources, and operate
public utilities unless
60% of the capital is
Filipino owned (or
American owned
because of the Parity
Amendment). Art. XIII,
Sec. 1 and Art. XIV,
Sec. 8, 1935 Consti-
416
JURIDICAL PERSONS 417
tution; Art. XTV, Secs.

5, 8, 9, 1973 Consti
tution; Art. XII, Secs. 2,
10, 11, 1987 Consti
tution:
(2) for wartim e
purposes — here, we
pierce the veil of cor
porate identity and go
to the nationality of the
controlling stockholders
to determine if a corpo
ration is an enemy cor
poration or not (the
CONTROL TEST).
(Filipinas Ins* Co. v.
Christern Huenefeld &
Co., L-2294, May 26,
1951; Doris Winship v.
Phil. Trust Co., L-3869,
Jan. 31, 1952).
(b) formation of the corpo (b) law o f the place o f
ration (requisites); kind incorporation
of stocks; transfer of
stocks to bind the cor
poration; issuance,
amount, and legality
and dividends; powers
and duties of members,
stockholders, and
officers
(c) validity o f corporate (c) law of the place o f
acts and contracts incorporation and law
(including ultra-vires of the place of perform
acts) ance (the act or con
tract must be author
ized by BOTH LAWS)
(d) right to sue and (d) lex fori
amenability to court
processes and suits
against it.
(e) manner and effect of (e) law o f the place of

dissolution incorporation provided
that the public policy of
the forum is not mili
tated against
(f) domicile (f) if not fixed by the law
creating or recognizing
the corporation or by
any other provision —
the domicile is where
r*
its legal representation
is established or where
it exercises its principal
functions. (Art. 51, Civil
Code).
(g) receivers (appointment (g) principal receiver is
and powers) appointed by the courts
of the state of
incorporation; ancillary
receivers, by the courts
of any state where the
corporation has assets
(authority of receivers
is CO-EXTENSIVE
with the authority of
the appointing court).
(See Beale, Conflict of
Laws, Vol. Ill, pp.
1568-1576).
NOTE: Theories oel the
Personal or Governing Law
of Corporations:
(a) law of the place of in
corporation (this is
generally the Philip
pine rule)
(b) law of the place or cen
ter o f management
(centre o f adm inis
tration or siege social)
(central office principle)
(c) law of the place of ex

ploitation (exploitation
centre or seige d’exploit-
ation) [See Wolff, Priv.
Int. Law, Oxford Univ.
Press (1945), 300-304)].
(2) Partnership (2)
(a) the existence or non (a) the personal law of the
existence of legal partnership — that is —
personality of the firm; the law of the place
capacity to contract; where it was created.
liability of the firm and (See Art. 15, Code of Com
the partners to third merce). (Subject, how
persons ever, to the excep-tions
given above as in the
case of corporations).
(b) creation of branches in (b) Philippine law (law of
the Philippines; validly the place where the
and effect o f the branches were created).
branches’ commercial (See Art. 15, Code o f
transaction; and the Commerce).
jurisdiction of courts
(c) dissolution, winding up, (c) Philippine law. (See
and term ination of Art. 15, Code of Com
branches in the Philip merce).
pines
(d) domicile (d) See rule on Corpora
tions
(e) receivers (e) Philippine law insofar
as the assets in the
Philippines are
concerned (authority of
such receivers can be
exercised as such only
in the Philippines)
(3) Foundations (combination (3) personal law of the
**’ of capital independent of foundation (place of the
individuals, usually not for principal center of admi
profit) nistration). (See Rabel,
Conflict o f Laws, Vol. II,
pp. 113-114)._____________ .
CORPORATION DEFINED
A corporation is an artificial being created by operation of
law, having the right of succession and the powers, attributes, and
properties expressly authorized by law or incident to its existence.
(Sec. 2, Corporation Code). While there are many classes of
corporations — this treatise will deal only with private corporations
— those formed for some private purpose, benefit, aim or end.
Parenthetically, when we say that a corporation has “the right of
succession,” we mean that even if the individual members or
stockholders die from time to time, the corporation, as a juridical
entity, continues until its term expires, (See Fletcher, Cyclopedia of
the Law o f Private Corporations, Vol. I, pp. 12-13).
THEORIES ON THE PERSONAL OR GOVERNING

LAW OF A CORPORATION
There are at least three (3) theories on the personal or
governing law of a private corporation:
(1) the theory that the personal law is the law of the place
o f incorporation;
(2) the theory that said personal law is the law of the place
or center o f management (central office principle); and
(3) the theory that insists on the law of the place o f
exploitation as the personal law. (See Wolff, Private
International Law, pp. 304-305).
THE FIRST THEORY

The first theory — that the personal law of a private
corporation is governed by the law of the place of incorporation —
is premised on the idea that the corporation is merely a creature
of the law under which it was organized; that without such law
granting its existence, it would be a non-entity, devoid of any rights;
and that therefore, wherever it may be, said law should govern its
every actuation. (See Wolff, Ibid., p. 203). Unfortunately, such a
doctrine, if adhered to literally, would make possible, evasion of
many responsibilities by the simple expedient of a company
organizing in one state and performing its corporate functions in
another. The theory is followed by England, the United States,
Russia, many German jurists, and in a modified way by the
Philippines.
THE SECOND THEORY

The second theory is that the personal law is the law of the
place or center of management (centre o f administration or seige
social). Otherwise stated, it is not the place where corporation was
made that is vital: what is significant is where the officers of the
corporation exercise the functions of management and control
(usually thru board meetings). The theory is sound, for all the big
corporate problems arise because of decisions arrived at during
board meetings. One practical difficulty, however, may arise when
the board meets in different states: this may of course be cured by
an express reference in its articles or by-laws to the principal
meeting place. (See Rabel, Conflict o f Laws, Vol. II, pp. 42-43).
Almost all civil law countries have adopted this theory.
THE THIRD THEORY

The third theory is that the governing law of the corporation
must be the law of the place principally affected by its activities,
namely, the center of exploitation (exploitation centre or seige
d’exploitation). This principle suffers from two fundamental defects:
firstly, the corporation may have its enterprise scattered in all
parts of the world; secondly, the physical acts are not as important
and consequential as the decision arrived at in board conferences.
(See Wolff, Private International Law, p. 301).
EXEMPLIFICATION OF THE THEORIES

A private corporation organized in the United States is headed
by a Board of Directors which regularly meets in Rome, Italy. The
corporation manufactures certain medicinal products in France
where it has set up pharmaceutical factories. The U.S., which follows
the incorporation theory, would consider the corporation to be an
American corporation; Italy, which insists on the “central office”
principle (centre o f administration or siege social) will regard it as
an Italian corporation and Italian law would be its personal law;
France, which apparently adheres to the siege d’exploitation theory,
will endow the corporation with French nationality, and will demand
Frfifich law for its personal law.
THEORY FOLLOWED IN THE PHILIPPINES

In this jurisdiction, the personal law of a corporation (as well
as its NATIONALITY) is generally subjected to the INCOR

PORATION TEST. Sec. 123 of the Corporation Code reads:
“For the purposes of this Code, a foreign corporation is
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. It
shall have the right to transact business in the Philippines
after it shall have obtained a license to transact business in
this country in accordance with this Code and a certificate of
authority from the appropriate government agency.”
It would seem from this section that if the corporation was
organized in the Philippines, it is a local or domestic corporation;
if incorporated elsewhere, it is a FOREIGN corporation. It is logical,
therefore, to conclude that as a rule, we follow the theory of
incorporation . . . Indeed, “the sovereignty by which a corporation
was created, under whose laws, it was organized, determines its
NATIONAL character, and the fact that some of its incorporators
were residents or citizens of a foreign nation does not change this
rule.” (Philippine Sugar Estates v. United States, 39 U.S. Court of
Claims, 225).
Two (2) exceptions to the rule may be given:
(1) For Constitutional Purposes:

Even if the corporation was incorporated in the
Philippines, it is not deemed a Filipino corporation, and,
therefore, cannot exploit our natural resources, and operate
public utilities unless 60% of the capital is Filipino owned
(Art. XIII, Sec. 1; and Art. XIV, Sec. 8, 1935 Constitution; Art.
XIV, Secs. 5-9, 1973 Constitution; Art. XII, Secs. 2, 10-11,
1987 Constitution).
NOTE: Subject to the acquired rights of foreign
corporation owned or controlled directly by American under
the terms of the Executive Agreement of July 4, 1946 (as
enacted into law by Com. Act No. 733), other foreign
corporations generally cannot exploit natural resources, or
operate public utilities. Under the Laurel-Langley Trade
Agreement of 1955 (as enacted by Rep. Act No. 1355, effective
June 18, 1955) the right granted to American citizens in the
Executive Agreement of 1946 with regards to natural resources
in the Philippines may be exercised only thru the medium of
a corporation organized under the laws of the Philippines at

least 60% of the capital stock of which is owned or controlled
by the citizens of the United States, subject to a reservation
to the Government of the Philippines to deny such rights to
American citizens or corporations 60% of the capital stock of
which is owned or controlled by citizens of States of the United
States which deny similar rights to citizens of the Philippines.
(Art. VI, Secs. 2 and 3, Trade Agreement o f 1955), In Patting
v. San Jose Petroleum, Inc., L-14441, Dec. 17, 1966, the
Supreme Court ruled that before an American-owned and
controlled corporation can make use of parity rights, it is
essential to present proof that the various states (in the U.S.)
of which the stockholders are citizens grant reciprocal parity
rights to Filipino citizens and corporations.
Pedbro R. Palting v. San Jose Petroleum, Inc.

L-14441, Dec. 17, 1966
FACTS: San Jose Petroleum, Inc., a Panamanian
Corporation, filed with the Securities and
Exchange Commission, a sworn registration
statement, for the registration and licensing
for the sale in the Philippines of certain shares
of its capital stock, alleging that the entire
proceeds of the sale would be devoted or used
exclusively to finance the operations of San
Jose Oil Company, Inc., a domestic mining
corporation, which has petroleum concessions
in several parts o f the Philippines. Pedro R.
Palting and others, alleged prospective
investors in the shares of San Jose Petroleum,
filed an opposition on the ground, among
others, that the tie-up between the issuer, San
Jose Petroleum, Inc. (a foreign corporation —
from Panama), and the San Jose Oil Company,
Inc., a domestic corporation, violates the
Constitution of the Philippines, the Corporation
Law (now Corporation Code), and the
Petroleum Act of 1949. It was not proved that
the San Jose Petroleum, Inc. was American-
owned and controlled; and assuming that it
was really American-owned and controlled, still
it was not proved that various states (in the
U.S.) of the various stockholders granted
reciprocal parity rights to Filipino citizens and

corporations. Issue: Does the tie-up violate the
Constitution?
HELD: Yes, the tieup violates the Constitution. It is
“necessary to establish that the different states
of which they (the stockholders) are citizens,
allow Filipino citizens or corporations or
associations owned or controlled by Filipino
citizens, to engage in the exploitations, etc. of
the natural resources of those states,” under
* paragraph 3, Art. VI of the Laurel-Langley
Agreement (said Agreement otherwise called
the Philippine Trade Agreement of 1955, was
unauthorized under Rep. Act No. 1355). To hold
otherwise would be grossly unfair.
(2) For Wartime Purposes:

For wartime purposes — we pierce the veil o f corporate identity
and go into the nationality of the controlling stockholders to
determine if a corporation is an enemy corporation or not (this is
referred to as the CONTROL TEST, as distinguished from the
INCORPORATION TEST). (Filipinas Ins. Co. v. Christem Huenefeld
& Co., L-2294, May 25, 1951; Doris Winship v. Phil. Trust Co., L-
3869, Jan. 31, 1952). Thus, a German-controlled corporation, even
if incorporated in the Philippines, was considered an enemy
corporation during the war for the purpose of freezing its assets. A
contrary rule may endanger Philippines security. (David Wineshop
v. Phil. Trust Co., L-3869, Jan. 31, 1952).
[NOTE: The doctrine o f piercing the corporate veil (or
disregarding the corporate fiction — permits the courts to impose
personal liability on the shareholders of a corporation if the corporate
form has been used to defeat the public convenience, justify wrongs,
or protect fraud or crime. (Edgardo Paras, et al., Corporate Law
Practice and Litigation, 1994, p. 11). (Tan Boon Bee & Co., Inc. v.
Hon. Jarencio, et al., 163 SCRA 205, J. Paras, ponente)].
Filipinas Insurance Co. v. Christem

Huenefeld & Co
L-2294, May 25, 1951
FACTS: Christem Huenefeld and Co., a corporation
incorporated in the Philippines (but whose
majority stockholders were Germans) insured

in 1941 its merchandise with a Philippine
insurance company for P100,000. In 1942, fire
destroyed the merchandise, resulting in loss to
the company of P92,650. This amount was paid
to the insured during the Japanese occupation
by order of the Philippine Executive
Commission. After liberation, suit was
instituted to recover this amount on the theory
that the insured was a German corporation
(and, therefore, a public enemy, not insurable
under our Insurance Law (now Sec. 7,
Insurance Code) — there being war at the time
between Germany and the United States. The
Philippines was then under the United States).
HELD: The insurance contract became void when war
broke out between the United States and
Germany inasmuch as the insured was a
German corporation (a public enemy and,
therefore, non-insurable). Though incorporated
here in the Philippines, the majority or
controlling financial interest belonged to
German citizens: hence, by the CONTROL
TEST the corporation must be considered
German. The control test was used because
Germany or enemy interests usually
masqueraded under innocent fronts — such as
the cloak of domestic corporation structure. (See
Clark v. Usbersee Finanz Korporation A. G.
Decisions o f the United States Supreme Court,
Dec. 18, 1947). The indemnity was therefor
returned (computed in accordance with the
Ballantyne Scales) MINUS (for the sake of
fairness) the value of the premiums paid.
OBSERVATIONS:
(1) Firstly, the Supreme Court o f the
Philippines in this abovementioned case
apparently agreed with the case of
Daimler Co. v. Continental Tyre and
Rubber Co., 1 K.B. 893 (1915) where the
House of Lords of England said that the

loyalty of a corporation is not tested by
the nationality of the corporation itself
(for a juridical person is itself incapable
o f loyalty and enm ity) but by the
nationality of the stockholders, since they,
as human beings, are alone possessed of
such attributes.
(2) Secondly, while the Supreme Court ruled
unqualifiedly that the control test applies,
»» it would seem, from the circumstances of
the case, that said theory should be used
only for wartime purposes. In other words
the INCORPORATION TEST must still
be regarded as the GENERAL RULE.
THE ‘GRANDFATHER RULE’

At the outset, be it noted that “no Supreme Court case has
addressed the specific issue of determining the nationality of a
corporate shareholder in a Philippine Corporation, in a non-war
context.” Until 1977, the Securities and Exchange Commission (SEC)
consistently applied the control test. That same year, the SEC issued
an internal memorandum for the application of the so-called
“grandfather rule.” (See Silverio Benny J. Tan, “The Grandfather
Rule in Corporate Share Ownership," IBP Journal, Vol. XVII, No.
1, First Quarter 1989, pp. 7-14, cited in E. Paras, et al., Corporate
Law Practice and Litigation, 1994, p. 23).
WHAT THE PERSONAL LAW OF THE CORPORATION

GOVERNS
It would seem that the personal law of the corporation (law of
the place of incorporation) governs, among other things, the following
matters:
(1) the requisites for the formation of the corporation (but
not the pre-corporation contracts such as those entered
into by promoters preliminary to the incorporation of the
company). (See State v. Manhattan Verde Co., 109 Pac.
442). (Such preliminary contracts are governed by the
proper law of the contract.) (See Wolff, Private Interna
tional Law, pp. 360-370). ,
NOTE: If the company will be incorporated in the

Philippines the following pertinent provisions on
citizenship and residence must be complied with:
(a) Incorporators (5 or more, but not exceeding 15) do
not need Philippine citizenship', but a majority of
them must be Philippine residents. (Sec. 10,
Corporation Code);
(b) Members of the Board of Directors do not have to be
Filipino citizens; however, a majority of them must
be Philippine residents. (Sec. 23, 2nd par.,
Corporation Code);
(c) The officers of the corporation do not have to be
Filipino citizens or residents EXCEPT the secretary
who must be a Filipino citizen and resident. (Sec.
25, 1st par., Corporation Code).
(2) the kinds of stocks allowed;
(3) the transfer of stocks in a way that would be binding on
the corporation; '
(4) the issuance, amount, and legality of dividends; and
(5) the powers and duties of members, stockholders, and
officers (in general).
Phil. Association of Free Labor Unions (PAFLU)

et al. v. Sec. of Labor, et al.
L-22228, Feb. 27, 1969
FACTS: Sec. 23 of Rep. Act No. 875 requires registration
with the Office of the Secretary of Labor, before
a labor organization can acquire legal
personality. Said Sec. 23 reads as follows:
“Any labor organization, association, or
union of workers duly organized for the
material, intellectual, and moral wellbeing of
its members shall acquire legal personality and
be entitled to all the rights and privileges
granted by law to legitimate labor organiza
tions within 30 days of filing with the office of
the Sec. of Labor notice of its due organization
and existence, and (certain specified) docu
ments. . .”
It is alleged that said requirement of

registration —
(1) violates freedom o f assem bly and
association, and is inconsistent with the
Universal Declaration of Human Rights.
(2) should be deemed repealed by the
International Labor Organization Conven
tion (ILO Convention) No. 87.
HELD: (Thru Mr. Chief Justice Roberto Concepcion):
The theory to the effect that Sec. 23 of
Republic Act 875 unduly curtails the freedom
of assembly guaranteed in the Bill of Rights is
devoid of factual basis. The registration
prescribed therein is not a limitation to the
right of assembly and association, which may
be exercised with or without registration. (Ex
parte R.J. Thomas, 174 S.W. 2d 958-960). The
latter is merely a condition sine qua non for
the acquisition of legal personality by labor
organizations, etc., and the possession of the
“rights and privileges granted by law to
legitim ate labor organizations.” The
Constitution does not guarantee these rights
and privileges, much less said personality,
which the mere statute creates, for the
possession and exercise of which registration
is required to protect both labor and the public
against abuses, fraud and impostors who pose
as organizers. Although not truly accredited
agents*of the union they purport to represent,
such requirement is a valid exercise of the
police power.
For the same reasons, said Sec. 23 does
not impinge upon the right of organization
guaranteed in the Declaration of Human
Rights, or run counter to Art. 8 of the ILO
Convention No. 87, which provides that
“workers and employees shall have the right
to establish and join organizations of their own
choosing, without previous authorization,” that
“workers and employees” organization shall not
be liable to be dissolved or suspended by

“administrative authority” that “the acquisition
of legal personality by workers and employees’
organizations shall not be made subject to
conditions of such a character as to restrict
the application of the provisions” above-
mentioned; and that “the guarantee provided
for in” said Convention shall not be impaired
by the law of the land. The cancellation of a
labor union’s registration certificate (for failure
to comply with important requirements) would
not entail a dissolution of said association or
its suspension. The EXISTENCE of the
organization would not be affected by said
cancellation, although its juridical personality
and its statutory rights and privileges — as
distinguished from those conferred by the
Constitution — would be suspended thereby.
(See also B.S.P. v. Araos, L-10091, Jan. 29,
1958).
VALIDITY OF CORPORATE ACTS AND CONTRACTS

The validity o f corporate acts and contracts is tested by the
law of the place of incorporation and by the law of the place of
performance. To be valid and binding the act or the contract must
be authorized (not prohibited) by BOTH LAWS. If valid in the
place of incorporation but void in the place of performance; or if
valid in the place of incorporation — the legality of the act will
seriously be questioned, and it is doubtful if it can be given any
effect at all. (See Sec. 129, Corporation Code; See also Stumberg,
Principles of Conflict of Laws, p. 329). This is, of course, without
prejudice to the application of the principle of estoppel (See 17
Fletcher, op. cit., p. 100), i.e., an admission or representation is
rendered conclusive upon the person making it, and cannot be denied
or disproved as against the person relying thereon. (Art. 1431, Civil
Code).
RIGHT TO SUE AND AMENABILITY TO COURT PROCESSES

The right of a private corporation to bring a suit in the forum,
and its amenability to court processes and suits against it, are
governed by the lex fori. From the theoretical viewpoint, a sovereign
country like ours may completely prohibit a foreign corporation

from transacting business in the Philippines; we may even prohibit
it from filing suit here, even if it does transact business within our
territorial jurisdiction. However, we have chosen to allow foreign
corporation to do business and to file suits in our country UNDER
CERTAIN CONDITIONS.
Before discussing these conditions, a definition of “transacting
or doing business” here is imperative. Thompson says that:
“A foreign corporation is ‘doing business’ within a
particrflar state when it transacts therein some substantial
part of its ordinary business which is continuous in character
as distinguished from merely casual or occasional transactions.”
(8 Thompson, pp. 845-846).
Similarly, our Supreme Court has held that to “transact
business” connotes a continuity of business dealings and
arrangements. (Mentholatum Co. v. Mangalinan, 72 Phil. 524).
The pertinent rules:
(1) If a foreign corporation transacts business in the
Philippines it must have the necessary license, therefor.
(Sec. 123, Corporation Code); it cannot sue on such
business unless such license has been obtained.
(Mentholatum Co. v. Mangalinan, 72 Phil. 524).
(2) If a foreign corporation is not doing business in the
Philippines, such fact must be disclosed if it wants to sue
in Philippine courts under the “isolated transactions rule.”
Absent this disclosure, the court may choose to deny it
the right to sue. (Commissioner o f Customs v. K.M.K.
Gani, 182 SCRA 591 [1990]).
. 4$
(3) If a fpreign corporation duly licensed to transact business
desires to withdraw, it must file a petition for withdrawal,
and must meet the following requirements: (a) all claims
which have accrued in the Philippines must be
com prom ised or settled; (b) all taxes, imposts,
assessments, and penalties, if any, lawfully due to the
Philippine government or any of its agencies or political
subdivisions must be paid, and (c) the petition for
withdrawal of the license must be published once a week
for 3 consecutive weeks, in a newspaper of general
circulation in the Philippines. (Sec. 136, Corporation
Code).
(4) If the foreign corporation sues merely on isolated acts

(and hence, does not “transact business”), the action may
be allowed even without the license. (Marshall-Wells and
Co. v. Elser and Co., 46 Phil. 71; Atlantic Mutual
Insurance Co. and Continental Insurance Co. v. Cebu
Stevedoring Co., Inc., L-18961, August 31, 1966).
Examples:
(A) A foreign corporation, even without a license, can
sue in the Philippines to protect its reputation,
corporate name, and goodwill; and may therefore
ask that certain Philippine residents be restrained
from organizing a local corporation with the same
name and same business (Western Equipment
Supply Co. v. Reyes, 51 Phil. 115) provided that a
sim ilar privileged is granted to Philippine
corporation in the foreign state involved. (Sec. 21-A,
Rep. Act 166; Sec. 7, Rep. Act 628).
NOTE: The “reciprocity” requirement is also
essential in actions involving infringement of a
trademark, or trade name; unfair competition; false
designation of origin; false description. (Ibid.)', and
infringement of a patent. (Sec. 41-a, Rep. Act No.
165, as amended by Rep. Act No. 637).
(b) A foreign corporation which for the first time
transports merchandise to the Philippines (although
previously its vessel had been chartered by the
NARIC to transport rice to the Philippines from
abroad) is not “engaged in business” in the
Philippines . (Eastboard Navigation Ltd. v. Juan
Ysmael and Co., L-9090, Sept. 10, 1953).
(c) The following do not necessarily transact business
in the Philippines: a foreign corporation that owns
the controlling interest of a domestic corporation
(See People’s Tobacco Co. v. American Tobacco Co.,
246 U.S. 79), even when it tries to sell its own shares
or solicit contributions to its capital stock — here in
our country. (See Mandel v. Swan Land and Cattle
Co., 154 Illinois 177); a foreign corporation that
desires to participate in bids for Philippine contracts
— such an act of bidding being merely preparatory
in character. (See State v. American Book Co., 69

Kan. 1).
(3) If the foreign corporation transacts business OUTSIDE
of the Philippines, it may sue in the Philippines on such
contracts, even without a license. (Pac. Veg. Oil Corp. v.
Angel Q. Singzon, L-7917, April 29, 1955). After all, the
license is needed for transacting business HERE in our
country.
Examples:
(a) A foreign corporation obtained the services of a
Filipino cook to serve on one of its vessels plying
between Guam and the trust territories of the Pacific
Islands. Said corporation may sue in our courts even
without a license. (Pacific Macronisian Lines v. N.
Baens del Rosario, L-7154, Oct., 1954).
(b) An American corporation and a Filipino company,
the latter thru its resident agent in California,
entered into a contract of sale of goods, c.i.f. Pacific
Coast. The transaction was entered into and was
agreed upon to be consummated in the United
States; obviously this cannot be considered as
transacting business in the Philippines. (Pac.
Vegetable Oil Corp., v. Singzon, L-7917, April 29,
1955).
(c) If the corporation sells its goods in the Philippines
thru a resident merchant on a commission basis, it
is the merchant, not the corporation, that is doing
business in the Philippines; hence, even without a
license, the foreign corporation may sue in our
; courts. (See 8 Thompson, p. 85).
NOTE: In the following instances, the foreign
corporation is “transacting business in the Philippines”
and therefore, needs a license before it can so transact
and before it will be allowed to bring a suit in our courts:
(a) A foreign corporation that sells goods in the
Philippines thru an exclusive distributing agent (for
an agent acts only in behalf of the principal that is
transacting business here). (Mentholatum Co. v. A.
Mangalinan, 72 Phil. 524).
(b) A foreign corporation selling goods in the Philippines

thru a resident agent whose business it is to solicit
orders and sell the corporate goods forwarded to it
by the corporation for delivery to the buyers. (See 8
Thompson, 867).
(c) A foreign corporation, which issues marine policies
abroad to cover Philippinebound cargo, makes the
policies payable in the Philippines and which
appoints and keeps an agent here to receive and
settle policy claims. (General Corporation o f the Phil.,
et al. v. Union Ins. Society o f Canton, et al., LL-
2684, 48 O.G. 73).
BAR QUESTION
A is sued in the Regional Trial Court of Manila by
California Candy Corporation, a corporation organized
under the laws of California for damages in the amount
of P5 million arising from a breach of contract whereby
A had agreed to sell to said corporation 500 tons of sugar
to be delivered in San Francisco, where the contract was
entered into. Would you grant A’s motion to dismiss the
complaint on the ground that the plaintiff corporation
has no capacity to sue, it not having previously obtained
a license to transact business in the Philippines? State
your reasons briefly.
ANSWER: I would deny the motion to dismiss. The
contract firstly was an isolated transaction. Secondly,
the plaintiff was not “transacting business in the
Philippines,” the contract having entered into in San
Francisco and expressly agreed upon to be consummated
there. So long, therefore, as the ju risd iction al
requirements are complied with, the plaintiffs suit may
properly be entertained by our tribunals of justice . (Pac.
Vegetable Oill Corp. v. Singson, L-7917, April 29, 1955).
BAR QUESTION
A New York corporation takes part in a bidding for
the construction of a building in Makati. The New York
corporation won the bid, but the construction company
which opened the bid refused to sign the contract with
the New York corporation for the construction of the

building. The New York corporation then sued. As the
New York corporation had not expressly obtained a license
to engage in business in the Philippines, the construction
company moved to dismiss the suit on the ground that
the New York corporation has no right or personality to
sue in Philippine courts. How should the motion to dismiss
be resolved? Reasons for your answer.
ANSWER: The motion to dismiss should be denied.
’To take part in a bidding does not constitute “transacting
business” as the term is understood in Philippine law*—
for this is an isolated act. (See Marshall Wells and Co. v.
Elser Co., 46 Phil. 70; See also State v. American Book
Co., 69 Kan. I).
Wang Laboratories, Inc. v. Mendoza

G.R. No. 72147, Dec. 1, 1987
(First Division)
Justice Edgardo L. Paras:

A foreign corporation although “doing business” in the
Philippines, it, nonetheless, may be sued for acts done against
persons in the Philippines. If a foreign corporation, not engaged
in business in the Philippines, is not barred from seeking
redress from courts in the Philippines, a fortiori, that same
corporation cannot claim exemption from being sued in the
Philippine courts for acts done against a persons in the
Philippines.
In the case at bar, Wang Laboratories, a corporation duly
organized under the U.S. laws with principal address in
Massachusetts, engaged in the business of manufacturing and
selling computers worldwide. It installed at least 26 different
products in several corporations in the Philippines since 1976.
It registered its trade name with the Philippine Patents Office.
Its controller in Asia has visited the office of its distributor at
least 4 times where he conducted training programs in the
Philippines. It allowed its registered logo and trademark to be
used by EXX-BYTE and made it known that there exists a
designated distributor in the Philippines as published in its
advertisements.
Under the circumstances, Wang cannot unilaterally

declare that it is not doing business in the Philippines on the
ground that no general rule or governing principle can be laid
down as to what constitutes doing or “engaging” or “trading”
in business. Each case must be judged in the light of its peculiar
environmental circumstances, upon peculiar facts and upon
the language of the statute applicable. Thus, where a single
act or transaction of a foreign corporation is not merely
incidental or casual but is of such character as distinctly to
indicate a purpose to do other business in the State, such act
constitutes doing' business within the meaning of statutes
prescribing the conditions under which a foreign corporation
may be served with summons.
Reason for the License Requirement

The license required before “transacting business” in the
Philippines (Sec. 123, Corporation Code) is 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 a suit in
the local courts. (Marshall Wells and Co. v. Elser Co., 46 Phil.
71).
Application for the License
The application for license to transact business in the

Philippines must be filed with the Securities and Exchange
Commission. (See Sec. 125, Corporation Code). For instance,
the Commission can issue the license only upon the order of
the Monetary Board of the Bangko Sentral in case of domestic
banks and trust corporations. In the case of all other
corporations, no application for license to transact business in
the Philippines shall be accepted by the SEC without previous
contracts from the appropriate government agency, whenever
required by law. Thus, by special arrangement, the recom
mendation of the Insurance Commissioner is first sought before
a license is issued to an insurance corporation.
After the approval of the General Banking Act on July
24, 1948, no bank which may be established and licensed to
transact business in the Philippines shall receive deposits,
unless said bank has been incorporated in the Philippines.
(Sec. 11, Rep. Act No. 337). This practically prevents foreign
banks from establishing Philippine branches inasmuch as

under said Act at least 60% of the capital stock of the banking
institution established after its effectivity should be owned by
Filipino citizens, and at least two-thirds of the directions must
be Filipinos. (Sec. 13, id). Be it noted, however, that the
prohibition to receive deposits does NOT apply to branches
and agencies of foreign banks already receiving deposits at
the time the ACT was approved, provided that said deposit
should not be invested outside of the Philippines. (Sec. 11,
id.).
'Recent developments have radically altered the once
closeted Philippine banking system, namely: the advent of
universal banking, offshore banking, and liberalization of the
entry of foreign banks in the country.
Foreign insurance corporations may engage in business
in the Philippines only if possessed of the necessary paid-up
unimpaired capital or assets and reserve (not less, of course,
than that required of domestic insurance companies). Moreover
they have to deposit with the Insurance Commissioner for the
benefit and security of its policy holders and creditors in the
Philippines, securities satisfactory to the Commissioner and
consisting of bonds of the Philippines or its branches or political
subdivisions authorized to issue bonds or of the State in which
the corporation was organized or both worthwhile securities
possessed of an actual market value of P250,000. The securities
will be returned to the corporation when it ceases to do business
in the Philippines, provided that it has no further liability
under any of its policies in the Philippines. (See Secs. 178 and
179, Act 2427, as amended).
QUERY: We already know that if a foreign corporation
wants to transact business in the Philippines (as distinguished
from isolated acts or suits), it must obtain the license previously
discussed. Now then, suppose business was, thus, transacted
without first obtaining the requisite license, would the contract
be valid, rescindable, voidable, unenforceable, or void?
ANSWER: It would seem that the contract is
unenforceable, that is, the corporation cannot sue in our courts
till after the necessary license has been obtained. The moment
the license is obtained, suits may be instituted even on
prelicense contracts, which shall then be considered VALID
(See Marshall-Wells and Co. v. Elser Co., 46 Phil. 71 — where
the Supreme Court held that “until it [the foreign corporation]

complies with the law, it shall not be permitted to maintain
any suits in the local courts”). This rule is apparently followed
in 29 States of the United States. (See Rabel, Conflict o f Laws,
Vol. II, p. 205). At least two (2) reasons justify the rule, namely:
(1) The object of the requirement is to protect the parties
from vexing impositions; and to assure convenient
jurisdictional processes — certainly not to invalidate the
contracts. (Model Heating Co. v. Magarity, 81 Atl. 400).
(2) The defendant (the person who contracted with the foreign
corporation) should be regarded in estoppel, if he has
received the benefits of the contract. (See Fletcher, op.
cit., Sec. 8520).
QUERY: May a person sue a foreign corporation that
transacted business with him without a license?
ANSWER: Yes, for the corporation can not put up by
way of defense its own failure to comply with the law. (See
Gen. Corp. o f the Phil. v. Union Insurance Society of Canton,
Ltd., 48 O.G. No. 1, Jan. 1952, p. 73).
Service of Summons on a Foreign Corporation:

Foreign corporations are required to give the name and
address of an agent residing in the Philippines to accept service
of summons and process in all legal proceedings against the
corporation. (Sec. 128 Corporation Code). Service on said agent
gives our courts jurisdiction over the corporation.
Even if the foreign corporation transacting business in
the Philippines has not obtained a license, and has not
designated the necessary agent for court processes, our courts
may still acquire jurisdiction over it (as a defendant) in view
of Sec. 14, Rule 14 of the Rules of Court which says — “It the
defendant is a foreign corporation, or a nonresident joint stock
company or association, doing business in the Philippines,
service may be made on its resident agent designated in
accordance with law for that purpose, or if there be no such
agent, on the government official designated by law to that
effect, or on any of its officers or agents within the Philippines.”
(See General Corporation of the Philippines v. Union Insurance
Co. of Canton, Ltd., 48 O.G. No. 1, Jan. 1952, p. 73). In fact,
it has been held that service on the lawyer of the foreign

corporation is sufficient, for he is supposed to communicate to
his client the service made on him. (See Johnlo Trading Co.
v. Flores, L-3987, May 18, 1951).
Suits Against a Foreign Corporation After It Has Withdrawn

from Business in the Philippines:
After a foreign corporation has withdrawn from

transacting business in the Philippines, it may still be sued
on contracts entered into previously by service of summons on
the foreign corporations’s designated agent, or in his default,
the designated government officials. (8 Thompson, op. cit., pp.
1014-1015). After all, fairness demands that the citizens and
residents of the Philippines should be afforded a chance to sue
locally. (See Stevens on Corporation, p. 851). By the same
token, the foreign corporation that has withdrawn should also
be allowed to sue on validly existing transactions, entered
into prior to the cessation of business. An identical rule applies
in the case of contracts entered into prior to the revocation of
the license. (See Banco-Agricola, et al. v. El Dorado Trading
Co., et al., CA.-G.R. No. 16281-R, June 25, 1957).
MANNER AND EFFECT OF DISSOLUTION

The manner and effect of dissolution of a private corporation
is governed by its personal law, that is, the law of the place of
incorporation, provided that the public policy of the forum is not
militated against. If a foreign corporation organized under the laws
of State X should be arbitrarily dissolved and its assets confiscated
in accordance with its personal law, the dissolution would not be
regarded as effective in a forum if under the laws of said forum the
dissolution is “contrary to our public policy and shocking to our
sense of justice and equity.” (Vladikavkzaki Railway Co. v. New
York Trust Co., 189 N.E. 456 [1934]). Should a foreign corporation
doing business in the Philippines be dissolved on account of
insolvency, its local assets will become a trust fund for the benefit
of its creditors. This rule is stated in what is popularly referred to
as the Trust Fund Doctrine. (See 17 Fletcher, pp. 703-706). Thus,
preferential treatment is accorded to resident creditors and policy
holders of foreign insurance corporation as well as to local creditors
of agencies or branches of foreign banking corporations.
DOMICILE OF A CORPORATION
Under the Civil Code, the domicile of a private corporation is
the place where its legal representation is established or where it
exercises its principal functions — when the law creating or
recognizing it, or any other provision does not fix it. (Art. 51). Even
a defectively organized corporation which the law recognize as de
facto insofar as innocent third persons are concerned can possess
a domicile for its de facto existence. (MacDonald v. F.N.C.B.N.Y.,
L-7991, May 21, 1956).
RECEIVERSHIP OF A CORPORATION
The Philippine courts may appoint a receiver whose principal
task would be to preserve the property of a private corporation or
to sequester it for the benefit of the creditors. (See Beale, Conflict
o f Laws, Vol. Ill, p. 1568). This rule is adhered to if the corporation
was incorporated under Philippines laws. If incorporated elsewhere,
the principal receiver is appointed by the courts of the state of
incorporation; ancillary receivers, by the courts of any state where
the corporation has assets. The authority of the receivers is
COEXTENSIVE with the authority of the appointing court. (See
Beale, op. cit., pp. 1568-1576). (To “sequester” means to separate or
isolate. A sequestered account thus is an account which has been
ordered separated and impounded by order of the court. This means
that no disbursements may be made from this account without
order of the court. (Black’s Law Dictionary, abridged fifth ed.,
p. 711.)
PARTNERSHIPS
A partnership is a contract whereby two or more persons bind
themselves to contribute money, property, or industiy to a common
fund, with the intention of dividing the profits among themselves,
or in order to exercise a profession. (See Art. 1767, Civi Code).
CONFLICT RULES ON PARTNERSHIPS

The existence or non-existence of the legal or juridical
personality of the partnership (as distinct from the separate
personalities of the partners); the capacity of the firm to contract;
and the liability of the firm and the partners to third persons —
are all governed by the personal law of the partnership — this is
— the law of the place where it was created. (See Art. 15, Code of
Commerce). The rule is, of course, subject to the same exceptions
(constitutional purposes, natural resources, public utilities, wartime
purposes) indicated hereinabove for private corporations.
Thus, while Philippine partnership have a juridical personality,
those formed in America do not have any (except for the purpose
of insolvency proceedings). (See Campos Rueda and Co. v. Pac.
Com. Co., 44 Phil. 916). If, therefore, three Filipinos organize a
partnership in the United States, the firm will, in general not
possess any juridical personality. The term “juridical” here means
something done in conformity to the laws of the country and the
practice which is there observed. (Black’s Law Dictionary, abridged
fifth ed., p. 443).
The creation of branches in the Philippines; the validity and
effect of the branches’ commercial transactions; and the jurisdiction
of courts — are all governed by Philippine law (law of the place
where the branches were created). (See Art. 15, Code o f Commerce).
These are some limitations in Philippine law on alien
partnerships: ‘
(1) If at least 60% of the capital of a partnership is not
owned by Filipinos, the firm cannot acquire by purchase
or otherwise agricultural Philippine lands. Of course if
the land was purchased during the Japanese occupation,
at a time when the 1935 Constitution being political in
nature, was suspended (up to Sept. 3, 1942) (insofar as
prohibition on acquisition of lands by aliens were
concerned), the prohibition would not apply. (See
Cabuatan v. Uy Hoo, L-2207, Jan. 23, 1951). Neither
would the prohibition apply to lands purchased before
the effective date of the 1935 Constitution, or to those
acquired by the exercise of the right of conventional
redemption — even if the redemption took place after
the 1935 Constitution took effect — as long as the sale
a retro had been effected prior to the 1935 Constitution.
To hold otherwise would be to impair a vested right.
(2) Foreign partnerships may lease lands provided the period
does not exceed 99 years. (See Obiter in Smith, Bell and
Company v. Reg. o f Deeds o f Davao, L-7084, Oct. 27,
1954), there being no legal or constitutional prohibition
regarding said leases. (Krivenko v. Reg. of Deeds, L-630,
Nov. 12, 1946; 79 Phil. 461). However, in the subsequent
case of Philippine Banking Corporation vs. Lui She, (L-

17587, Sept. 12, 1967), the Court, through Mr. Chief
Justice Fred Ruiz Castro held that the period of 99 years
stated in the Smith Bell and Company case was only an
obiter dictum, since in that Smith Bell case, the period
involved was only 25 years (subject to another 25 years
in the case the lease was renewed). In the Philippine
Banking case, the Court ruled that it would seem that a
very long period of lease in favor of an alien would
virtually negate the constitutional prohibition against
alien ownership of land.
(3) Foreign partnerships may be the mortgages of land, the
mortgage to last for 5 years, renewable for another 5
years. However they cannot purchase the land involved
at the foreclosure proceedings. (See Rep. Act No. 133).
The dissolution, winding up, and termination of branches of
the foreign partnership in the Philippines are likewise governed by
Philippine law (See Art. 15, Code of Commerce). Dissolution is the
change in the relation of the partners caused by any partner ceasing
to be associated in the carrying on the business. (Art. 1828, Civil
Code). Winding-up is the process of settling business affairs after
dissolution. Termination is the point of time after all the partnership
affairs shall have been all wounded up. (See Com. Note, ULA, Sec.
29, p. 43). Just because a partnership is dissolved, this does not
mean that a partner can evade previous obligations entered into by
the partnership. Of course, dissolution, generally saves the former
partners from new obligations to which they have not expressly or
implicitly consented, unless the same be essential for winding-up.
(See Art. 1834, Civil Code; See also Testate Estate ofMota v. Serra,
47 Phil. 464).
RECEIVERSHIP OF A PARTNERSHIP
If a Philippine court appoints a receiver for a foreign
partnership in the Philippines which is possessed of local property
assets, Philippine law is generally determinative. The authority of
the Receiver may be exercised as such only within the territorial
boundaries of the Philippines. It has been held that in a suit for
dissolution, the court may appoint a receiver at its discretion.
(Salonga v. Lipka, 224 Mich. 278)\ but a receiver is usually not
needed when practically all the firm assets are in the hands of a
sheriff under a writ of replevin. (Gianuso v. Weiss, 191 NYS 118).
DOMICILE OF A PARTNERSHIP
What has been said about the domicile of a corporation whether
de jure or de facto applies also to the domicile of a partnership. (See
Art. 51, Civil Code).
FOUNDATIONS
Foundations are combinations of capital, independent of
individuals, and organized principally for charitable, medical, or
educational purposes (non-profit purposes). Thus, we have as typical
examples the Carnegie and the Rockefeller Foundations of the
United States: and the Claro M. Recto Foundation, the Jose P.
Laurel Foundation, and the Ramon Magsaysay Foundation in the
Philippines. Perhaps the very first educational foundation in the
Philippines is the College of Medicine of the University of the East.
The College is otherwise known as the University of the East Ramon
Magsaysay Memorial Center (UERM). While in the course of its
routine operation the Center may earn some profit, still said gains
cannot be distributed in the form of dividends to the founders or to
the Board of Directors or members thereof; instead said profits are
supposed to be put back into the enterprise for the improvement,
let us say, of the medical facilities therein. (Incidentally, recent
media reports have it that the UERM is in danger of closure due
to insolvency and/or mismanagement). From the viewpoint of
Conflict of Laws, the organization, capacity, powers, liabilities; and
dissolution of a foundation is governed according to Dr. Rabel by
the personal law of the foundation — and this, in turn, is supposed
to be the law of the very place from which it is administered.
(Rabel, Conflict o f Laws, Vol. II, pp. 113-114). The rule for the
domicile of a private corporation or a partnership equally applies
to a foundation.{Art. 51, Civil Code). (A “foundation” is a permanent
fund established and maintained by contributions for charitable,
educational, religious or other benevolent purpose. It is an institution
or association given to rendering financial and to colleges, schools,
and charities and generally supported by gifts for such purposes.
[Black’s Law Dictionary, abridged fifth ed., p. 335].)
TAXATION OF JURIDICAL PERSONS

While foundations are subject to minimal taxes, corporations
generally have a big tax accountability. The question has been
asked — does our taxation law apply to both the domestic

corporations and the licensed foreign corporations?
A distinction ought to be made. While both kinds o f
corporations have virtually the same rate of income tax, a
substantial difference exists in the determination of the taxable
income:
(1) Domestic corporations as well as resident foreign
corporations are taxed on net income received from all
sources; while
(2) Licensed non-resident foreign corporations are taxed on
net income derived from all sources within the Philippines.
Query: If a foreign corporation does business in the
Philippines and obtains a license therefore, does it become a
domestic corporation or does it remain a foreign corporation?
Answer:
(1) If aside from doing business here and obtaining a license
therefor, it is incorporated (or reincorporated) under our
laws, it becomes a domestic corporation. It becomes indeed
a new juristic entity, and its foreign personality and
foreign charter are automatically disregarded. (When we
speak of “juristic,” it is an act designed to have a legal
effect, and capable thereof. (Black’s Law Dictionary,
abridged fifth ed., p. 444].) Therefore, insofar as income
tax is concerned, it is taxable on net income received
from all sources.
(2) If, upon the other hand, it becomes not a domestic
corporation but a domesticated one (here there would be
no incorporation or reincorporation under Philippine law),
it would be considered a Philippine corporation in some
aspects, and a foreign corporation in other matters.
Parenthetically, domestication is simply the process
whereby a state effects a change in the status of a foreign
corporation, at least in legal effect, i.e., for certain local
purposes, as a condition precedent to its being permitted
* to transact business within the State. (See 17 Fletcher,
op. cit., Sec. 8302). Domestication in the strict sense (that
is, without the necessity of Philippine incorporation or
reincorporation) is not expressly provided for under our
laws; understandably our laws do NOT provide for the
procedure therefore. Were domestication part really of

our law and jurisprudence, a domesticated corporation,
would be sim ultaneously a domestic and foreign
corporation, since its foreign personality and foreign
charter would still remain in force.
Chapter XXV
A BRIEF HISTORY OF CONFLICT OF LAWS
ANCIENT ROME
Conflict of Laws could have begun in Ancient Rome; but it did
not. For one, Ancient Rome presented a fertile place for the
development of “conflicts rules” because two legal systems were in
vogue: Roman citizens were governed by the civil law of Rome; all
others (inhabitants of the provinces of the Roman Empire) were
under the jurisdiction of their own provincial legislation — how
easily, therefore, “conflicts” theories could have arisen. But the
theories did not come — for invariably only one law prevailed
whenever a Roman citizen was involved, namely, Roman civil law.
However, there were two incidental developments — the concept of
domicile and the concept of lex situs — (where immovables were
concerned). (Graveson, Conflict of Laws, p. 20).
THE EDICT OF CARACALLA (212 A.D.)

In 212 A.D., the Edict of Caracalla conferred Roman citizenship
on all the people living within the Roman Empire: consequently
only one law remained — the civil law of Rome — for any and all
acts, events, and transactions within the Empire. Law was, thus,
placed on a territorial without personal or racial discrimination.
(See Graveson, loc. cit.).
THE COMING OF BARBARIANS

In the 5th century, the Roman Empire was overthrown by the
so-cafied “barbarian tribes”: personal law replaced territorial law.
This simply means that every person, regardless of residence, was
considered subject to the law of his original nation or tribe. If the
445
parties to a contract came from different nations, the law of the

debtor prevailed — for it was then believed that his interest were
paramount. (See Graveson, loc. cit.).
THE RETURN TO TERRITORIAL LAW

Soon, the theory of personal law gave way to the return of
territorial law:
(1) In the North, feudalism, a social order inherently
premised on territoriality, gave cognizance to only one
principle in deciding conflict cases — the lex fori.
(2) In the South, the growth of Italian City-States (Milan,
Bologna, Venice, etc.), each with preconceived notions of
independence, insisted on the territorial principle in
deciding conflicts cases brought about by inter-city-state
commercial ventures.
(3) In England, as a matter of fact, courts DECLINED to
decide cases having a foreign element. (See Goodrich,
Conflict o f Laws, p. 3, citing Anonymous, Y.B. 2 Edw. II,
SS Year Book Series, 110, 1308).
However, there arose an agitation for “conflict rules.” Three
(3) outstanding jurists came to the fore:
(1) Accursius — came forth with a disquisition on the subject
based on the laws of Justinian.
(2) Aldricus (of the University of Padua) came out openly
with the question: “What law must a judge apply if the
litigants before him come from different places with
conflicting rules of law?” He gave his answer: “That which
is more useful asd which seems best to him.”
(3) Bartolus de Saxoferranto (13141357) evolved the “Theory
o f Statutes.” This man, on account of his monumental
contribution to the subject, has been referred to as the
“father of Private International Law.”
According to Bartolus, the statute theory method
involved two (2) steps:
(1) the consideration of the applicable legal system that
must govern the legal situation brought up for
judicial determination;
A BRIEF HISTORY OF CONFLICT OF LAWS 447
(2) the application of one of the following:

a) personal statutes — which regulated men in
their personal and domestic affairs (as
distinguished) from their proprietary and
commercial ventures;
b) real statutes — which regulated things,
particularly, immovabels;
c) mixed statutes — which governed all other
matters including contracts. (See Cheshire,
Private International Law, p. 31; Graveson,
It should be noted that while the “personal statutes”
stressed the personal law, the “real statutes” emphasized
the territorial principle. Indeed, Dean Graveson referring
to “real statutes” says that they “were primarily concerned
with things; and were applied only within the territorial
limits of the legal system of which they formed part.
They however, affected every person transacting business
within those limits.” He concludes by stating that the
Theory of Statutes was an “immeasurable step in
progress.” (Graveson, Conflict o f Laws, p. 22). As will
perhaps be evident, the statutes sometimes overlapped
in their actual application. Something was needed to bring
system and order to the confusion caused.
TWO JURISTS FROM FRANCE

To bring a semblance of order to the confusion apparently
caused by the Theory of Statutes, two (2) French jurists improved
on it with the following contributions:
(1) Charles Damoulin (1500-1566) — accentuated the
“personal statutes” by stressing the principle that the
parties to a transaction could choose the proper law to
apply, (lex loci voluntatis or lex loci intentionis).
^(2) Bertrand D’Argentre (1519-1590) — leaned towards the
territorial theory by resolving all doubts in favor of the
“statute real.” Furthermore, he opined that the “lex rei
sitae” applies to successional rights in immovables. (See
Graveson, Conflict o f Laws, pp. 21-22).
THE DUTCH THEORY OF TERRITORIALITY AND COMITY

At the conclusion of the Thirty Years War (1612-1648), Holland
(now called the Netherlands) among other countries, gained
independence (by virtue of the Peace of Westphalia of 1648),
Conscious of their country’s new found sovereignty, some Dutch
jurists (notably Ulrich Huber, 1636-1694) formulated two (2)
fundamental maxims:
(1) The laws of a state can only have force and effect within
the confines of its territorial jurisdiction; hence as a
gdheral principle, the forum can choose to exclude all
other laws in the adjudication of conflict cases.
(2) By way of exception, the forum may once in a while, as
a gesture of “comity” (“comitas gentium”) allow the
operation of a foreign law within the forum, so long as
the public policy of the forum is not outraged. Comity
was thus allowed:
(a) to avoid unfairness — which would sometimes result
in case the principle of territoriality was rigidly
enforced;
(b) to cope with the increasing demands of worldwide
commerce — which in many cases would be seriously
hampered if foreign legislation would at all times
be unceremoniously brushed aside; and finally;
(c) to stress the fact that precisely because o f its
sovereignty, a state may, at its discretion, permit or
allow the application of foreign law within its
borders. (See Graveson, Conflict of Laws, p. 22; See
also Beale, Conflict of Laws, Vol. Ill, p. 1864).
Because Holland (now called the Netherlands) stressed the
definitive role of a sovereign state in drafting conflicts rules, other
states enacted express rules in their code. For example:
(1) The Bavarian Code (1756) — applied the theory of lex rei
sitae not only to real but also to personal property.
(2) The General Code o f Prussia (1794) — stressed the
principle of “efficacy” in contracts; namely, that if
according to one applicable law, the contract is valid, but
according to another equally logical law, the contract is
void, that which sustains the efficacy of the contract
should be upheld (res magis valet quan pereat).
A BRIEF HISTORY OF CONFLICT OF LAWS 449
(3) The Code Napoleon o f France (1804) — emphasized the

nationality theory in matters concerning status and
capacity. (See Cheshire, Private International Law, pp.
201 -202).
WRITERS OF THE 19TH AND 20TH CENTURIES

In general, there are three (3) kinds of writers in Conflict of
Laws:
(1) the deductive (a priori or theoretical) writers — from a
set of general principles, these writers draw forth certain
corollaries and conclusions, generally applicable to all
conflicts problems:
(2) the inductive (a posteriori or positive) writers — after a
thorough/going study of all actual cases and decisions on
the subject, they try to formulate principles which would
seem to be adhered to, sometimes with great consistency
by not a few tribunals; and
(3) the writers who combine both approaches.
Some famous writers with their respective contributions to
the subject are enumerated hereunder:
(1) Joseph Story (American) — Chiefly an inductive writer,
he wrote his “Commentaries on the Conflict of Laws”
(1934), relying chiefly on European decisions and the
opinions of European jurists (not on American and English
decisions, for by that time, not many conflicts problems
had arisen for judicial determination). (See Goodrich,
Conflict o f Laws, p. 3). Story firmly believed in the
territorial theory in view of the equality of sovereign
states; as well as in the occasional application of comity.
(Story, Conflict of Laws, Secs. 18, 20, and 21).
(2) Friedrich Carl von Savigny (German) — He wrote
“Modem Roman Law,” Vol. Ill (1839) of which dealt with
Conflict of Laws. He believed in the application of the
proper foreign law, not because of comity, but because of
the resultant benefits for everybody concerned. He
espoused the theory of “situs,” or the principle that every
element of a transaction must be governed by the law of
the place with which said element has the most
substantial connection. Savigny was an “internationalist”
in the sense that he regarded conflicts rules as having

been imposed not by individual states but by an
“international common law of nations having intercourse
with one another.”
(3) Pasquale Stanislao Manicini (Italian) — Manicini was
the principal exponent of the nationality theory (first in
Public, then also, Private International Law) in matters
dealing with status, capacity, and in general private
interest of the individual. (See I Castan 97). It was
Mancini’s claim that if at all law is territorial, it is only
^ by way of EXCEPTION (that is, only in matters affecting
public order and public policy). Mancini’s influence,
together with the promulgation of the Code Napoleon,
was chiefly responsible for replacing the “domiciliary
theory” with the “nationality theory.”
(4) Joseph Beale (American) — He was the principal author
of the American Restatement on the Conflict of Laws.
The American Restatement “consists of an orderly and
logical setting down of what are considered the more
authoritative rules of law throughout the United States.
The Restatement is not a code or codification of American
Law; it has no binding force in American Courts, but in
effect, has persuasive value, varying, as might be expected
from state to state.” (Graveson, Conflict o f Laws, p. 19).
Together with Dicey of England, Prof. Beale has been
credited with the theory o f vested rights.
(5) Walter Wheeler Cook (American) — the author of “Legal
and Logical Bases of the Conflict of Laws” (A Critique of
the American Restatement) (1942) is responsible for the
theory of local law. The idea, however, originated from
Anzilotti, eui Italian. Anzilotti later repudiated his own
theory. (See Rabel, Conflict o f Laws, Vol. I, p. 62).
>
Regarding characterization, four important names ought to be

mentioned: Franz Kahn who first discussed it in 1891; Bartin, who
referred to it as the doctrine of qualification; Falconbridge, who
suggested various steps in classification; and Rabel, for his so-
called “totality approach.”

Philippine Conflict of Laws PDF

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Philippine Conflict of Laws PDF

Uploaded by

Copyright:

Available Formats

PHILIPPINE CONFLICT

No portion of this book may be copied or repro­

Any copy of this book without the corresponding

ALL RIGHTS RESERVED

Printed August 2001

Tel. Nos. 712-41-08 • 712-41-01

This eighth edition (revised) embodies the same format and

This book is now on its seventh edition, embodying the same

Padre Faura, Manila

There is something unusual to be said of Conflict of Laws,

July 16, 1984

Our world is troubled anew: Red China has invaded Vietnam

In the last few years, the Philippines has played an increasingly

Despite the advent of a new Constitution and the auspicious

In these days of social ferment, both in our restless native

Whether it be in the pursuit of our daily bread or in the

WHAT THE TRIBUNALS OF THE FORM MUST DO

THEORIES ON WHY THE FOREIGN LAW

THE NATURE AND COMPOSITION OF CONFLICTS RULES

NATURE AND COMPOSITION OF CONFLICT RULES

THE CHARACTERIZATION OF CONFLICTS RULES

THE VARIOUS THEORIES ON STATUS

Chapter V IH ................................................................................... 104

THE NATIONALITY THEORY

THE DOMICILIARY THEORY

THE SITUS OR ECLECTIC THEORY

The Situs or Eclectic Theory Restated, 209; Examples, 209.

THE PROBLEM OF THE RENVOI

RULES ON STATUS IN GENERAL

Marriage Defined, 232; The Two Aspects of Marriage, 232;

ANNULMENT A VOIDABLE MARRIAGE

Synopsis of the Rules on Annulment of a Voidable Marriage

PATERNITY AND FILIATION, ADOPTION,

REAL AND PERSONAL PROPERTIES

Synopsis of Conflicts Rules on Property, 318; Real Property,

WILLS, SUCCESSION, AND ADMINISTRATION

OBLIGATIONS AND CONTRACTS

TORTS (QUASI DELICTS)

A BRIEF HISTORY OF CONFLICT OF LAWS

DEFINITION OF CONFLICT OF LAWS

“Private International Law is that department of national

ELEMENTS OF THE DEFINITION DISCUSSED

(2) The Direction to Courts and Administrative Agencies

(3) A Legal Problem Involving a Foreign Element

considered a “conflicts” problem. Eliminate the “foreign

(4) The Application or Non-Application o f a Foreign Law

When our courts are confronted with a “conflicts” problem

IMPORTANCE OF THE SUBJECT

still to be manufactured in a third state, and to be delivered at a

BASIC CAUSE FOR CONFLICTS PROBLEMS

EXAMPLES OF DIVERSITY IN LAWS

reference to their wages and personal property. Upon the other

(2) In the Matter o f Marriage

(3) In the Matter o f Divorce

(4) In the Matter of Income Tax Exemptions

SCOPE OF FUNCTIONS OF CONFLICT OF LAWS

HOW CONFLICT OF LAWS IS OBSERVED

(2) Private individuals may in their own way abide by our

WHY CONFLICT OF LAWS IS OBSERVED

NAMES GIVEN TO THE SUBJECT

(1) Firstly, it stresses the “conflict,” whereas the principal

CONFLICT OF LAWS AND THE LAW OF NATIONS

CONFLICT OF BASIS LAW OF NATIONS

No portion of this book may be copied or repro