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Paras Philippine Conflict of Laws PDF
Paras Philippine Conflict of Laws PDF
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
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PREFACE TO THE 1990 EDITION
EDGARDO L. PARAS
EDGARDO L. PARAS
vi
PREFACE TO THE 1979 EDITION
EDGARDO L. PARAS
Manila, Philippines
March 30, 1979
PREFACE TO THE 1976 EDITION
EDGARDO L. PARAS
Manila, Philippines
July, 1976
PREFACE TO THE 1973 EDITION
EDGARDO L. PARAS
Manila, Philippines
October 12, 1973
PREFACE TO THE 1970 EDITION
EDGARDO L. PARAS
Manila, Philippines
July 4, 1970
PREFACE TO THE 1968 EDITION
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 .......................................................................................
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
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 ......................................................................................
MARRIAGE AS A CONTRACT
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
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............................................................. ...................
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
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).
l
2 PHILIPPINE CONFLICT OF LAWS
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).
(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).
(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
PRELIMINARY CONSIDERATION 17
25
PHILIPPINE CONFLICT OF LAWS
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.)
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
WHAT THE TRIBUNALS OF THE FORUM MUST DO 31
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
WHAT THE TRIBUNALS OF THE FORUM MUST DO 33
(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).
PHILIPPINE CONFLICT OF LAWS
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).
(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). ^
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
PHILIPPINE CONFLICT OF LAWS
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).
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
WHAT THE TRIBUNALS OF THE FORUM MUST DO 45
Querubin v. Querubin
L-3693, 47 O.G. (Supp. 12) p. 316
(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:
WHAT THE TRIBUNALS OF THE FORUM MUST DO 57
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.
WHAT THE TRIBUNALS OF THE FORUM MUST DO 59
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:
64
THEORIES ON WHY THE FOREIGN LAW 65
MAY IN SOME CASES BE GIVEN EFFECT
Kinds o f Comity ^
Hilton v. Guyot
159 U.S. 113
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.”
(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.
THEORIES ON WHY THE FOREIGN LAW 71
MAY IN SOME CASES BE GIVEN EFFECT
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
74
THE NATURE AND PROOF OF FOREIGN JUDGMENTS 75
81
82 PHILIPPINE CONFLICT OF LAWS
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.
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
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
84 PHILIPPINE CONFLICT OF LAWS
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
86
THE CHARACTERIZATION OF CONFLICTS RULES 87
STEPS IN CHARACTERIZATION
Falconbridge suggests three (3) im portant steps in
characterization:
(1) Characterization of the questions;
(2) ^election 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.
ascertain the precise foreign country that has the nearest or the
most intimate connection with the facts that have been brought
out.
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
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 CHARACTERIZATION OF CONFLICTS RULES 95
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
PHILIPPINE CONFLICT OF LAWS
- 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,
THE CHARACTERIZATION OF CONFLICTS RULES 99
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
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.
102 PHILIPPINE CONFLICT OF LAWS
104
THE NATIONALITY THEORY 105
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.)
THE NATIONALITY THEORY 111
Chiongbian v. De Leon
G.R. L-2007, Jan. 31, 1949
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).
THE NATIONALITY THEORY 135
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
THE NATIONALITY THEORY 139
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
THE NATIONALITY THEORY 141
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
160 PHILIPPINE CONFLICT OF LAWS
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).
Yvanovich v. Republic
L-15998, May 26, 1964
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).
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:
THE NATIONALITY THEORY 185
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.
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
THE NATIONALITY THEORY 189
191
192 PHILIPPINE CONFLICT OF LAWS
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).
I
THE DOMICILIARY THEORY 197
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.
THE DOMICILIARY THEORY 201
Velilla v. Posadas
62 Phil. 624
Gallego v. Vera
73 Phil. 453
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
210 PHILIPPINE CONFLICT OF LAWS
211
212 PHILIPPINE CONFLICT OF LAWS
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
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 t^ie 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.
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.
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
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?
226 PHILIPPINE CONFLICT OF LAWS
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.”
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.
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.
232
MARRIAGE AS A CONTRACT 233
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
MARRIAGE AS A CONTRACT 237
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:
MARRIAGE AS A CONTRACT 241
(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
244 PHILIPPINE CONFLICT OF LAWS
Bar Question
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).
SOME CASES
(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.)
258
ANNULMENT OF A VOIDABLE MARRIAGE AND DECLARATION 259
OF NULLITY OF A VOID MARRIAGE
ILLUSTRATIVE PROBLEMS
(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
OF NULLITY OF A VOID MARRIAGE
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).
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.
^Article 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).
262 PHILIPPINE CONFLICT OF LAWS
(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
264 PHILIPPINE CONFLICT OF LAWS
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.
ILLUSTRATIVE PROBLEMS
(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?
ABSOLUTE DIVORCE 267
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.
272 PHILIPPINE CONFLICT OF LAWS
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.
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
282 PHILIPPINE CONFLICT OF LAWS
(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
286 PHILIPPINE CONFLICT OF LAWS
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).
288 PHILIPPINE CONFLICT OF LAWS
(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).
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
294 PHILIPPINE CONFLICT OF LAWS
(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
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).
(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.
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
LEGAL SEPARATION 297
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).
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
298 PHILIPPINE CONFLICT OF LAWS
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.
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
300 PHILIPPINE CONFLICT OF LAWS
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.
LEGAL SEPARATION 301
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).
302
PATERNITY AND FILIATION, ADOPTION, GUARDIANSHIP 303
AND FUNERALS
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.
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).
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).
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.
PATERNITY AND FILIATION, ADOPTION, GUARDIANSHIP 315
AND FUNERALS
Bar
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
PATERNITY AND FILIATION, ADOPTION, GUARDIANSHIP 317
AND FUNERALS
318
REAL AND PERSONAL PROPERTIES 319
(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)
320 PHILIPPINE CONFLICT OF LAWS
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). *
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
Example:
‘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.).
330 PHILIPPINE CONFLICT OF LAWS
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.
REAL AND PERSONAL PROPERTIES 331
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).
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
REAL AND PERSONAL PROPERTIES 333
344
WILLS, SUCCESSION, AND ADMINISTRATION 345
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.
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).
Miciano v. Brimo
50 Phil. 867
Bar Question
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
356 PHILIPPINE CONFLICT OF LAWS
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
358 PHILIPPINE CONFLICT OF LAWS
Illustrative Case:
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).
Period o f Prescription:
*b3
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:
362 PHILIPPINE CONFLICT OF LAWS
TRUSTS
A trust is a fiduciary relationship concerning property which
368 PHILIPPINE CONFLICT OF LAWS
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
WILLS, SUCCESSION, AND ADMINISTRATION 369
370
OBLIGATIONS AND CONTRACTS 371
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).
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
378 PHILIPPINE CONFLICT OF LAWS
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
OBLIGATIONS AND CONTRACTS 383
BAR QUESTION
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
OBLIGATIONS AND CONTRACTS 387
(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
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.
394 PHILIPPINE CONFLICT OF LAWS
SOME C/&ES
Le Forest v. Tolman
177 Mass. 109
V •
Chapter XXIII
CRIMES
399
400 PHILIPPINE CONFLICT OF LAWS
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
402 PHILIPPINE CONFLICT OF LAWS
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
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).
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.
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).
412 PHILIPPINE CONFLICT OF LAWS
(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).
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).
(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
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).
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
432 PHILIPPINE CONFLICT OF LAWS
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
434 PHILIPPINE CONFLICT OF LAWS
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).
— 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
JURIDICAL PERSONS 441
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).
442 PHILIPPINE CONFLICT OF LAWS
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].)
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).
445
446 PHILIPPINE CONFLICT OF LAWS