LECTURE NO.

HISTORY OF CONFLICT OF LAWS

The origin of Conflict of Laws, like many of our laws,

may be found in Roman Law. (Paras disagrees.) Roman
Law, regardless of what you may think, is important.
(Latin is a dead language. The only ones who still speak
Latin today are the church prelates in the Vatican and
lawyers who try to impress their clients by mouthing Latin
legal maxims.)
Ius gentium. This term was used during the early Ro-
man empire to denote the body of rules developed by the
praetor peregrinus to resolve disputes between foreigners,
or between a foreigner and a Roman citizen. Ius civile was
the term used for the law that applied only to Roman citi-
zens.
Paras points out, however, that in 212 A.D. the Edict
of Caracalla conferred Roman citizenship on all the peo-
ples and tribes living within the Roman Empire. Thereaf-
ter, only one law remained—the civil law of Rome—for
any and all persons, acts, events, and transactions within
the empire.
In the fourteenth century there arose in what is now
known as Italy the city-states of Milan, Genoa, Bologna,
Naples, Venice, etc. The city-states were far from united.
Spain held dominion over the kingdom of Sicily and
Naples and the duchy of Milan; the Medicis ruled Flor-
ence; the Venetian republic had the audacity to contest
papal authority. As centers of maritime commerce, they
did brisk business with each other and with the rest of the
 Z Review Notes IN Conflict oF LAws

known world. To cope with the increasing number of

transactions with foreign nationals, the Italian jurists de-
veloped the Theory of Statutes. Bartolus (de Saxoferrato),
the acknowledged father of Conflict of Laws, first formu-
lated the Theory of Statutes, understood as the local laws
and customs of each city state.
Statutes were classified into:

1. Statuta realia—real statutes applied to things and

immovables within the state.
2. Statuta personalia—personal statutes followed the
person wherever he went and governed his status
and capacity.
3. Statuta mixta—mixed statutes applied to all other
matters, including contracts.

From the Italian city-states the practice spread to

France in the sixteenth century. The different provinces
developed divergent systems of law, giving rise to con-
flicts. The French jurists, led by Charles Dumuolin and
Bertrand D’Argentre, started formulating rules to resolve
conflicts between the laws of the different provinces. Du-
muolin stressed the principle that the parties to a transac-
tion may choose the proper law to apply to such transac-
tion. It was D’Argentre who formulated the principle of
universal succession which was adopted in the Napo-
leonic Code of 1804, from where it was copied by the
drafters of the Spanish Civil Code of 1888. That is the same
principle now embodied in the second paragraph of Arti-
cle 16 of the Civil Code.
From France, the practice spread to the Netherlands
during the age of colonization, but there it acquired an in-
ternational flavor as the Dutch jurists increasingly con-
cerned themselves with the diverse legal systems of sover-
eign states. Udrich Huber, among others, asserted that the
 Lecture No. 1 a

State is under no obligation to apply a foreign law unless

required by a treaty or comitas gentium, or considerations
of courtesy and expediency. They developed the territorial
principle under which the laws of a state operate only
within the territorial limits of such state.
Thus the ius gentium or its commune ceased to be a
law for the heathen and commoners and evolved into a
supranational law that was applied as some sort of a con-
tinental European law.
When the European nations started codifying their na-
tional laws, rules on Conflict of Laws found their way into
their codes. The French Civil Code of 1804, or Napoleonic
Code, became the model for the Civil Codes of Spain, Bel-
gium and Romania. The principle of nationality now in Ar-
ticle 15 of the Civil Code is a direct lineal descendant of a
provision in the Code Napoleon through the Spanish Civil
Code.
During the eighteenth century, the foremost writers
in Conflict of Laws were the American Joseph Story, the
German Frederich Carl von Savigny, and the Italian
Pasquale Stanislao Mancini. Joseph Story relied heavily on
Huber's concept of territoriality. This approach was later
adopted by Joseph Beale, the principal author of the
American First Restatement on the Conflict of Laws.
Savigny, who wrote “Modern Roman Law,” is recog-
nized as the founder of modern private international law
or conflict of laws. He advocated the theory of situs, or the
principle that every element of a transaction should be
governed by the law of the place with which such element
has the most substantive connection.
Mancini advocated the nationality theory in matters
that concern status and capacity. We are greatly in his
debt.
 4 Review Notes IN ConpLict oF LAws

In 1969, a Second Restatement of the Conflict of Laws

was adopted by the American Law Institute under Prof.
William Reese. The Restatement proposed that in the ab-
sence of a specific provision of law, the law to be applied
in a conflicts case should be the law of the most significant
relationship, i.e., the law of the country with which the
problem is most intimately related. This is definitely an
improvement on the theory of lex situs as originally
framed by Savigny, where several laws could come into
play in a single conflicts case.

Factors that give rise to conflicts problems

There are two factors that give rise to conflicts prob-

lems, or problems involving a foreign element:

(1) diversity of the municipal laws of the various

states, and
(2) occurrence of transactions affected by the laws of
two or more states.

As of September, 1999, at the start of the 1999-2000

session of the UN General Assembly, there were 188 inde-
pendent and sovereign states admitted to the United Na-
tions, the latest being the South Pacific island nations of
Nauru, Kiribati and the Kingdom of Tonga.
Each state has its own municipal law. It is a given
that to this day the municipal laws of the “civilized” states
vary on fundamental matters such as marriage, property,
succession, etc.
In the case of the Philippines, we had been under for-
eign sovereignty since the sixteenth century until July 4,
1946. The period before the sixteenth century does not
count as there was then no Filipino nation to speak of.
Since 1946 we started to evolve our own municipal law,
although it is still admittedly based on Western legal con-
 Lecture No. 1 5

cepts. One law that we can truly call our own—Pinoy

through and through—is the Katarungang Pambarangay
Law.
More and more, in a rapidly globalizing world, pri-
vate individuals enter into a dizzying variety of transna-
tional transactions. With the opening up of our economy
through trade liberalization, and the globalization of
commerce through GATT, conflicts cases are becoming
increasingly commonplace. In 1994, Congress enacted R.A.
7722, liberalizing the entry of foreign banks into the Phil-
ippines. Local banks are now frantically resorting to merg-
ers and buy-ins to position themselves for heightened
competition with giant banking conglomerates.
In the field of family relations, we can expect a rich
harvest of conflicts cases as Filipino overseas workers
continue to spread throughout the world, in a veritable
Filipino diaspora, in search of employment that is not
available at home.
It is estimated that 6 million Filipinos, men and
women, are now taking their chances in the labor markets
of the Middle East, Europe, North America, East Asia and
here in Southeast Asia. 52% of the land-based workers are
women. When I say taking chances, I do not speak figura-
tively. Many of them will come home minus a finger or
two. Many of them will come home in a box. There will be
more Flor Contemplacions and Sarah Balabagans.
Ours is the only country that exports labor as a matter
of national policy. The remittances of OFWs keep our
economy afloat. That is why Filipino slaves abroad are
hailed as mga bagong bayani and met by politicians and
movie stars at the airport when they come home for
Christmas.
We export not only slave labor but all kinds of skills.
We export nurses. We export accountants. We export en-
 6 Review Notes in Conruict or LAws

gineers. We export computer programmers.

We export
classroom teachers. We export drivers, plumbe
rs and car-
penters. We export entertainers and musicians.
We export
domestic help, a.k.a. “house managers.”
The only ones we
do not export, because we love them so much,
are the law-
yers.

Conflict of Laws as a subject in the law cour

se
The Spanish Civil Code of 1888 was enforced by royal
decree in the Philippines from December 7, 1889
until the
effectivity of the Philippine Civil Code on August
30, 1950.
The Spanish Civil Code adopted several importan
t con-
flicts rules from the N apoleonic Code of 1804,
among them
the principle of nationality, which has found its way
into
our own Civil Code as Article 15.
The lex situs rule in the first paragraph of Article 16 of
the Civil Code was copied from Article 10 of the Spanish
Civil Code. The system of succession in the second para-
graph of Article 16 is recognizably the same principle first
proposed by the French jurist Bertrand D’Argentre in the
sixteenth century.
The principle of lex loci contractus or lex loci celebratio-
nis in the first paragraph of Article 17 of the Civil Code
was taken from Article 11 of the Spanish Civil Code.
When the UP College of Law was opened in 1911
Conflict of Laws was included in the legal curriculum as
Private International Law. Together with Public Interna-
tional Law, it was a bar subject during our time. But when
the Supreme Court revised the structure of the bar exami-
nations, Conflict of Laws was included in Civil Law, and
Public International Law was made part of Political Law.
So it is that today Conflict of Laws remains a part of Civil
Law.
 Lecture No. 1 7

The original title of Private International Law is still

occasionally used, but the official title of the subject is now
Conflict of Laws. Some authors prefer to call the law a va-
riety of names, such as International Private Law, Laws of
Foreigners, Laws of Strangers, Extraterritorial Law, to
namea few.
Why the switch from Private International Law to
Conflict of Laws? By definition, the subject is part of the
municipal law. It is definitely not international in charac-
ter, unlike Public International Law. To dispel the doubts
as to the nature of the law engendered by the oxymoronic
title, the title Conflict of Laws was adopted.
The purpose of conflicts rules is to resolve conflicts,
not to exacerbate them. Occasional conflict cannot be
avoided. It is a fact of life. The rules are precisely there to
resolve the conflict. To put it another way, the function of
Conflict of Laws is to harmonize the diverse laws of the
different countries. That laudable purpose, not the nega-
tive concept of conflict, should therefore be reflected in the
title. So a new title is being proposed for the subject: Har-
mony of Laws.
But somehow the title Conflict of Laws appeals to
lawyers, who thrive on conflict, and who feel irrelevant in
a world without conflict. That is why lawyers are not al-
lowed to intervene in Katarungang Pambarangay proceed-
ings. There the purpose of mediation and conciliation is to
settle disputes, and lawyers are a hindrance to settlement.
Hence, the title Conflict of Laws will be with us for some
time.
 LECTURE NO. 2

Definition

Conflict of Laws is defined as that part of the munici-

pal law of the state which directs its courts and adminis-
trative agencies, when confronted with a legal problem
involving a foreign element, to apply either the local law
or a foreign law. (Paras) By definition, Conflict of Laws is
part of the municipal law, particularly civil law, not inter-
national law.
“That part of the law of each state which determines
whether in dealing with a legal situation the law of some
other states will be recognized, be given effect or be ap-
plied is called Conflict of Laws.” (American Restatement
of Conflict of Laws, p. 2)

Distinguished from purely internal rules

The law is composed of rules known as conflicts

rules. They are easily distinguished from purely internal
rules, or rules applicable to cases without any foreign ele-
ment, which are also part of the municipal law, by the fact
that they do not purport to solve the problem. They
merely point to the law to be applied, whether local law or
the proper foreign law. The first paragraph of Article 17,
Civil Code, is a good example.
“Art. 17. The forms and solemnities of
contracts, wills, and other public instruments
shall be governed by the laws of the country in
which they are executed.” (Civil Code)
 Lecture No. 2 9

This provision speaks of forms and solemnities, i.e.,

extrinsic validity, of contracts, wills and other public in-
struments. It lays down the conflicts rule of lex loci celebra-
tionis with respect to extrinsic validity.
The court should apply the law of the place where the
airline ticket was issued—the /ex loci celebrationis. (United
Airlines, Inc. v. Court of Appeals, G.R. No. 124110, April
20, 2001)
Thus an ordinary contract entered into by a Filipino
in the Kingdom of Saudi Arabia should be governed by
Saudi Arabian law. Note that Article 17 does not answer
the question: Is the contract valid? Being a conflicts rule, it
merely points to the law to be applied, which in this case is
Saudi Arabian law.

PROBLEM: A, an American from New

York, and F, a Filipino from Baguio City, enter
into a contract of employment in the Kingdom of
Saudi Arabia under which A is to pay F a
monthly salary of P5,000 provided the latter
prays to Allah five times a day. Is the contract
valid?
CORRECT ANSWER: I do not know.
CAUTION: Do not answer this way in an
examination.
NOTE: There are two foreign elements in
the problem. A is an American, and the contract
was entered into in the Kingdom of Saudi Ara-
bia.

The first paragraph of Article 17, Civil Code, does not

decide the case. It merely points to the law to be applied,
the lex loci celebrationis, which, in this case, is the municipal
law of the Kingdom of Saudi Arabia. As to what Saudi
Arabian law provides, we do not pretend to know.
 10 Review Notes IN Cone.ict oF Laws

Contrast this with a purely internal rule, or a rule

meant for local cases, or cases devoid of any foreign ele-
ment. For instance, Article 749 of the Civil Code requires a
public instrument for the validity of a donation of real
property.
PROBLEM: A donated a parcel of land to B
in a private instrument. B accepted the donation.
Is the donation valid?
ANSWER: No, the donation was not made
in a public instrument. (Camagay v. Lagera, 7
Phil. 397) [There is no foreign element in the
problem.]
PROBLEM: A donated a real property to B
in a public instrument. B accepted the donation
in a private instrument. Is the donation valid?
ANSWER: No, because both the giving
and the acceptance must be made in a public in-
strument. (Abellara v. Balanag, 37 Phil. 865)

Thus, a purely internal rule decides the case. Article

749 answers the question: Is the donation valid? That is
because the problem does not involve any foreign element,
and therefore the internal rule, not the conflicts rule, gov-
erns.

Subject distinguished from Public International Law

Not too long ago, this subject was called Private In-
ternational Law. The word “private” served to highlight
the fact that the subject dealt not with sovereign states but
private individuals. On the other hand, the word “inter-
national” was used to denote the distinction between
purely internal problems and the problems governed by
the law, which involve a foreign element.
 Lecture No. 2 Tt

It was the foreign element that was thought to impart

to the law an international character, which was clearly
misleading, because conflicts rules were then, as they are
now, municipal in character, and had absolutely nothing
to do with the relations between sovereign states.
The oxymoronic title of Private International Law,
sometimes International Private Law, and, rarely, Private
Law of Nations, was discarded fairly recently in favor of
the present title of Conflict of Laws. And rightly so, for the
new title serves to disabuse our minds of the supposedly
international character of the law, and focuses instead on
the conflict or collision angle. The conflict may be between
municipal law and a foreign law, or between a foreign law
and another foreign law.
The avowed purpose of conflicts rules is to harmo-
nize the diverse laws of the different states. It is a fact of
life that conflicts cannot be avoided. Some authorities hold
that it is wrong to emphasize such conflicts. Rather, we
should stress the avowed purpose of the law, which is to
harmonize the diverse municipal laws around the world.
Hence the suggested new title: Harmony of Laws.
There is a distinct body of laws or rules, called Public
International Law, which is largely composed of multilat-
eral treaties and conventions, as well as international cus-
toms that go back to antiquity, that regulate the relations
between sovereign states. On the other hand, there is no
single body of laws governing the transactions of private
individuals in foreign countries. What we have are rules
found in the municipal laws of the different states. For in-
stance, Article 17 of the Civil Code is part of our municipal
law.
Moreover, there is no international organ constituted
along the lines of the World Court (created in 1945), oth-
erwise known as the International Court of Justice (ICJ),
 12 Review Notes IN Conetict or LAws

which enforces conflicts rules. Resort must still be had to

domestic tribunals and appropriate administrative agen-
cies.
In any case, when the subject was still called Private
International Law, there was a genuine need to distinguish
it from Public International Law.

The Monists and the Dualists

There are two schools of thought as to the distinc-

tions:

A. The Monist School of Thought

The Monists maintain that there is no distinction.

There is only one concept of law, and it is ultimately ad-
dressed to the private individual. It is misleading to say
that public international law applies to states, while pri-
vate international law (Conflict of Laws) is confined to
private individuals. States are after all juridical persons
(see Art. 44, Civil Code) and have no corporeal existence.
In the final analysis, it is not the states who obey or dis-
obey international law but the individuals who compose
them.
The lesson of the Nuremberg trials is that private in-
dividuals may be held liable for violations of international
law. “Crimes against international law are committed by
men, not by abstract entities, and only by punishing indi-
viduals who commit such crimes can the provisions of in-
ternational law be enforced.” (Judgment at Nuremberg,
starring Spencer Tracy, Burt Lancaster, Richard Widmark
and Montgomery Clift.)
 LECTURE No. 2 13

B. The Dualist School of Thought

On the other hand, the Dualists hold that there are

two distinct concepts of law, one meant for sovereign
states, properly called public international law, and the
other applicable to private persons, or conflict of laws.
According to the Dualists, the following are the dis-
tinctions:

1; As to nature—Public International Law is interna-

tional in nature; while Conflict of Laws, by defi-
nition, is part of the municipal law of the state.
As to persons involved—In Public International
Law, the persons involved are states and such
other entities as are possessed of international
personality; while in Conflict of Laws, private
persons are involved.
As to transactions involved—Public International
Law governs transactions in which states are in-
terested; while Conflict of Laws governs transac-
tions in which private parties are interested.
As to remedies in case of violation—In Public Inter-
national Law, the remedies may be peaceful, like
negotiation and mediation, or forcible, like retor-
sion and reprisal, and, as a last resort, war itself
(although war has been outlawed by the Kelogg-
Briand Pact and the UN Charter); in Conflict of
Laws, the remedy is to resort to the proper mu-
nicipal tribunals or agencies.

Sources of conflicts rules

The sources may be divided into direct and indirect.

 14 Review Notes in Conruict or Laws

A. The indirect sources are:

(1) Natural moral law, and
(2) Works of prominent writers on the subject.
Natural moral law is that rule of human conduct im-
planted by God in our nature and in our conscience, urg-
ing us to do right and avoid evil. (Paras) [The term js
“natural moral law”; as if there is a natural law that is im-
moral.] To borrow the words of Pope John Paul IL, it is the
universal moral law written in the human heart.
Works of writers include treatises on the subject by
recognized authors like H.F. (not B.F.) Goodrich, R.C. Mi-
nor, Graveson, etc. The works of these legal scholars and
jurisconsults are indirect sources of conflicts rules insofar
as they have influenced judicial decisions. They are indi-
rect sources because the judicial decisions themselves, be-
ing part of the law of the land (Art. 8, Civil Code), are di-
rect sources of conflicts rules.

B. The direct sources are:

(1) the Constitution,
(2) codifications,
(3) special laws,
(4) judicial decisions,
(5) treaties and conventions, and
(6) international customs.

1. Constitution. Broadly, the constitution is the fount

of all laws. It is the fundamental law to which all laws
must conform and all authorities, including the highest
officials of the land, must bow. It contains some conflicts
rules, as when it enumerates who are Filipino citizens and
grants them the special privilege of exploiting our natural
resources—or what remains of them.
 LectTuRE No. 2 15

2. Codifications, such as the Civil Code and the

Code of Commerce, are direct sources of conflicts rules.
Article 15 of the Code of Commerce is a conflicts rule
much like Article 15 of the Civil Code. The Family Code
contains some conflicts rules, such as Articles 26 and 80.
3. Special laws, such as the Insurance Act, the Patent
Law, etc., are also rich sources of conflicts rules.
4. Judicial decisions. Under Article 8 of the Civil
Code decisions of the Supreme Court applying or inter-
preting the laws or the constitution shall form part of the
law of the land. “Decisions of the Supreme Court assume
the same authority as the statute itself.” (Columbia Pic-
tures, Inc. v. Court of Appeals, 261 SCRA 144, 166) While
decisions of lower courts are not considered jurisprudence
in this jurisdiction (Miranda v. Imperial, 77 Phil. 1066),
such decisions may become the law between the parties
under the principle of res judicata. The reason is that a final
judgment of a lower court cannot be modified by the Su-
preme Court. (In re Borromeo, 241 SCRA 405)
5. Treaties and conventions, such as the Hague Con-
ventions of 1896, 1902 and 1905 on marriage; the Geneva
Conventions of 1823, 1926, 1930 and 1931 regarding arbi-
tration; the Codigo Bustamante of 1896 entered into by
American states that adhere to the principle of nationality
(lex nationalii; lex patriae); and the treaties of Montevideo of
1899 (revised in 1940) on the domiciliary theory (lex domi-
cilii) entered into by some South American countries; the
Warsaw Convention of 1929 on airline liability; the Con-
vention of New York on the Recognition and Enforcement
of Foreign Arbitral Awards of 1958.
The Warsaw Convention on airline liability is a
“treaty commitment voluntarily assumed by the Philip-
pine government and, as such, has the force and effect of
law in this country.” (Santos III v. Northwest Orient Air-
 16 Review Notes in Conflict oF Laws

lines, 210 SCRA 256, 261) The Warsaw

Convention of 1929
merely declares that air carriers are liable
for damages in
the cases enumerated therein. It does not
exclude liabilj
for other breaches of contract by the air carriers. (Nor
th-
west Airlines, Inc. v. Cuenca, 14 SCRA 1063)
Although the Warsaw Convention has the force of
law in this country, being a treaty commitment
assumed
by the Philippine government, it does not operate as
an
exclusive enumeration of the instances for declaring a
car-
rier liable for breach of contract of carriage or as an
abso-
lute limit of the extent of that liability. It must not be con-
strued to preclude the operation of the Civil Code and
other pertinent laws. (Cathay Pacific Airways, Ltd. v.
Court of Appeals, 219 SCRA 520, 527-528)

Extradition treaties

The Philippines has signed extradition treaties with

eleven countries, the latest of which is with Spain. Filipino
fugitives from justice still have a lot of room in which to
seek refuge.
Under the RP-US extradition treaty, the offense for
which a fugitive may be extradited should be considered a
crime under the laws of both countries (dual criminality
rule), should be punishable by at least one year imprison-
ment, and should not be punishable by death. (RP-US
Extradition Treaty, November 13, 1994, negotiated in ac-
cordance with the extradition law, PD 1069, January 13,
1977)
The Philippines has extradition treaties with Hong
Kong (now a Special Administrative Region [SAR] of the
People’s Republic of China), the People’s Republic of
China, Indonesia, Thailand, South Korea, Australia,
Canada, Switzerland, Micronesia, the United States and
Spain.
 Lecture No. 2 17

Under the Extradition Law, PD 1069 (January 13,

1977), as well as under the extradition treaty with the
United States, it is the ministerial duty of the Secretary of
Justice to file the petition for extradition with the proper
court upon receipt of the indorsement from the Depart-
ment of Foreign Affairs. It is the Secretary of Justice who is
empowered by the law to evaluate the extradition papers
to assure their sufficiency. (Secretary of Justice v. Judge
Lantion, 322 SCRA 160 [2000])

The Supreme Court ruled in the Mark Jimenez case

that an extradition case is not a criminal proceeding, and
therefore the respondent is not entitled to bail. The
evaluation process belongs to a class by itself; it is sui gene-
ris. It is not a criminal investigation, but it is also errone-
ous to say that it is purely an exercise of ministerial func-
tions. (Sec. of Justice v. Lantion, supra)

6. International customs, such as lex situs or lex rei si-

tae (Art. 16, 1st par., Civil Code); lex loci celebrationis (Art.
17, 1st par., Civil Code); lex nationalti or lex patriae (Art. 15,
Civil Code; Art. 15, Code of Commerce); the principle of
“territoriality” (Art. 2, Revised Penal Code); principle of
“generality” (Art. 14, Civil Code), are recognized the
world over as direct sources of conflicts rules.

Non-applicability to criminal cases

It is fundamental that the principles of Conflict of

Laws apply only in civil matters. When it comes to crimi-
nal cases, the law is narrow-minded. As long as the of-
fense is committed within our territorial jurisdiction, we
recognize no law but our own. This is so because our very
sovereignty is at stake. No foreign element, such as the
foreign citizenship of the offender, can prevent us from
enforcing our criminal laws and exacting vindication of
18 Review Notes IN Conruict oF Laws

our outraged sovereignty. A contrary rule would be a

impairment of our sovereignty.
The principle of territoriality is universally recog-
nized. No state, no matter how small or how weak, will
tolerate intrusion into its territorial jurisdiction or inter-
vention in its internal affairs. Within its territory, each
state reigns supreme.

The Principle of “Generality”

The principle of “generality,” as expressed in Article
14 of the Civil Code, is an international custom and is unj-
versally observed. It is a logical consequence of territorial-
ity.

“Article 14. Penal laws and those of pub-

lic security and safety shall be obligatory upon
all who live or sojourn in Philippine territory,
subject to the principles of international law and
to treaty stipulations.” (Civil Code)

“The Philippines renounces war as an in-

strument of national policy, adopts the generally
accepted principles of international law as part
of the law of the land, and adheres to the policy
of peace, equality, justice, freedom, cooperation
and amity with all nations.” (Sec. 2, Art. II, Con-
stitution)

Ignorance of the law has never been a good defense

(Art. 3, Civil Code), even on the part of foreigners who are
in fact ignorant of our municipal law. The moment they
step on Philippine soil, they are conclusively presumed to
know the law, i.e., the acts of the legislature, national as
well as local, and the voluminous decisions of the Su-
preme Court. (Art. 8, Civil Code) There are around 18,000
 Lecture No. 2 19

national laws in the statute books, and a whole library of

the decisions of the Supreme Court.
Exceptions; special laws

There are a few states though which have passed spe-

cial laws authorizing the prosecution of their nationals
who commit certain types of offenses abroad. Germany,
Switzerland and Australia, for instance, prosecute and
punish their citizens who commit sexual offenses against
children abroad. We have no such laws in the Philippines.
We have enough problems fighting crime within our ter-
ritory.
In Australia there is a law, called Crime Act of 1994,
that provides for the prosecution in Australia of Austra-
lians for sexual offenses against children committed out-
side the country. An Australian, a certain Mr. Carr, has
already been convicted for molesting a Filipino boy in the
Philippines under the Crime Act of 1994.
Ambassador John Holloway, a former ambassador to
the Philippines, was also the subject of prosecution under
the 1994 law for having sex with a fourteen-year old Cam-
bodian boy for two dollars in Phnom Penh. The case was
dismissed for insufficiency of evidence.
In July 1999, a 36-year old Swiss national, Pierre
Meyer, wanted in the Philippines for abusing some 30
young boys in Antique, was sentenced by the Criminal
Court of Basle to sixteen years in a psychiatric clinic.

May a Filipino convicted abroad serve time here?

No. (Opinion of the Secretary of Justice No. 142, S.

1992; Opinion No. 2, S. 1992; Opinion No. 80, S. 1986)
There is no legislation allowing such practice. It would in
effect require the Philippine government not only to rec-
 20 Review Notes IN Conelict oF Laws

ognize, but also to enforce, a foreign judgment Which ig

penal in nature.
If there is a treaty for exchange of prisoners, such as
the one with Canada, which was signed in May 2003, the
treaty becomes part of the law of the land. But absent 4
proper treaty, prisoner swaps would not be legally feasible
as they would amount to enforcement in this jurisdiction
of a foreign law that is penal in nature.

The principle of “territoriality”

Criminal law has three main characteristics: (1) gen-

eral, (2) territorial, and (3) prospective.
Under the well-known principle of “territoriality,” a
felony is punishable only in the territorial jurisdiction
where it is committed. The only exceptions are stated in
Article 2 of the Revised Penal Code.
It is axiomatic that a crime is a crime only in the
country where it is committed. A sovereign state is under
no obligation to enforce the penal laws or penal judgments
of another state. In the case of fugitive offenders, the rem-
edy is to have them extradited back to the country where
the offense was committed, but there is no obligation to do
so in the absence of an extradition treaty.

PROBLEM: Abe, a Filipino naturalized

American, now a resident of Texas, comes back
to the Philippines as a balikbayan. He is arrested
at the NAIA packing a .38 Smith and Wesson.
Charged with illegal possession of firearms, he
moves to quash based on his constitutional right
as a Texan to bear arms. Decide.
ANSWER: Denied. The crime was com-
mitted within our territorial jurisdiction and is
therefore punishable here. Under the principle of
 Lecture No. 2 21

generality, no one is exempt from our penal

laws, except those who enjoy diplomatic immu-
nity under international law. (Art. 14, Civil
Code; Art. 2, Revised Penal Code; see also 3rd
par., Art. 17, Civil Code)
NOTE: A crime is an outrage against the
sovereignty of the state in which it is committed.
That is why it is always prosecuted in the name
of the sovereign people.
NOTE: A Filipino naturalized American is
an American but a Filipino-naturalized Ameri-
can is a Filipino. But whether it is one or the
other does not matter in a criminal case. The na-
tionality of the accused is immaterial, the sole
consideration being the place where the offense
was committed.
PROBLEM: Suppose that after arraign-
ment, Abe slips out of the country and somehow
makes it back to the U.S. May he still be tried
and convicted here?
ANSWER: Yes, Abe may be tried and con-
victed in absentia. What is important is that the
court had acquired jurisdiction over his person
and validly notified him of the trial before he
skipped town.
PROBLEM: H and W, husband and wife,
are married in Baguio City. H goes to Hong
Kong and marries F, a Filipina DH (domestic
helper). After a month of marital bliss in the
former Crown Colony (now a Special Adminis-
trative Region of China), H goes to Singapore
and marries S, a Filipina “house manager.” After
two months with S, H goes to Brunei Dar-
rusalam where he marries B, a Filipina GRO
 22 Review Notes IN Conrtict of Laws

(guest relations officer), a.k.a. Bruneiyuki. After

three months of connubial bliss in Brunei, H
heads for home sweet home. May H be prose-
cuted for bigamy in the Philippines at the in-
stance of his wife, W? Why?
ANSWER: No, H did not commit any
crime in Philippine territory. Bigamy is commit-
ted by entering into a second or subsequent mar-
riage. The first marriage, which was entered into
in the Philippines, is not bigamous. The subse-
quent marriages, which are the bigamous mar-
riages, were all entered into abroad, or outside
Philippine territory, and therefore beyond our
criminal jurisdiction.
PROBLEM: May W, H’s wife, sue for legal
separation?
ANSWER: Yes, this is now a ground for le-
gal separation (See Art. 55[7], Family Code); a
mere consuelo de bobo, considering that the other
party is already married to somebody else.
CAUTION: Even if it looks like a perfect
crime, don’t try it. It may not be punishable as a
crime but it can prevent you from realizing your
ambition to become a lawyer.

Persons Exempt from Operation of Criminal Laws

The following are not subject to the operation of our

criminal laws:
1. Sovereigns and other chiefs of state,
Ambassadors,
hd

Ministers plenipotentiary,
oFWwW

Ministers resident, and

Charges d'affaires.
 LECTURE No. 2 23

Well established is the rule of international law that

diplomatic representatives, such as ambassadors or public
ministers and their “official retinue,” are immune from the
criminal jurisdiction of the country of their sojourn, and
cannot be sued, arrested or punished under the laws of
such country. The rule protects not only the ambassador
but also his “official retinue,” without whom he cannot
properly perform his official functions in the host country.
If the ambassador runs afoul of local laws, the rem-
edy is to declare him a persona non grata and to request
the sending country to have him recalled. As the political
representative of the sending country, he is entitled to
special treatment, not for his sake, but for the sake of his
country.

Consuls not Immune

In the absence of a treaty to the contrary, consuls,

vice-consuls and commercial or other representatives of a
foreign country do not possess the status, privileges and
immunities accorded to ambassadors and ministers.
(Schneckenburger v. Moran, 63 Phil. 250)
Hence, the Filipino driver of the U.S. Ambassador is
better off than a foreign consul. (R.A. No. 75)
R.A. No. 75

R.A. No. 75, which is good for the museum, is a law

“of preferential application” (Art. 2, RPC) in favor of
diplomatic representatives and their domestic servants. It
penalizes acts that impair the proper observance by the
government of the immunities, rights and privileges of
duly accredited ambassadors and ministers in the Philip-
pines. The penalty is imprisonment of not more than three
(3) years and a fine not exceeding P200.00, in the discretion
of the court.
 24 Review Notes iN Conrtict or Laws

With respect to domestic servants of the diplomat, the

reason is obvious. It is not hard to imagine that an ambas-
sador would be hampered in the discharge of his diplo-
matic functions if the domestic help who washes his un-
derwear is thrown in jail.
But the law does not apply to a Filipino domestic help
with respect to a process founded upon a debt contracted
before he entered the employ of the diplomat.
Nor does the law apply where the name of the do-
mestic servant has not been registered with the Depart-
ment of Foreign Affairs (DFA).
The Secretary of Foreign Affairs is supposed to
transmit his name to the Chief of Police of Manila who
shall post it in some public place in his office. More im-
portantly, the law does not apply when the foreign coun-
try adversely affected does not provide similar protection
to our diplomatic representatives. This is called reciproc-
ity.
Factors That Give Rise to Conflicts Cases

It is a given that the municipal laws of the different

states of the world differ even on the most fundamental
matters like marriage, contracts, property, and so on. The
diversity of municipal laws inevitably gives rise to con-
flicts problems.
To regulate transnational transactions, there is a need
for a well-defined set of rules in the municipal law of each
state, called conflicts rules.
The first paragraph of Article 17 of the Civil Code is
such a rule. In fact, the entire Article may be considered a
conflicts rule. There are other conflicts rules in the Civil
Code: Arts. 14, 15, 16, 816, 817, 818, 819, 1039, etc.
 LECTURE No. 2 25

The Family Code (E.O. 209, as amended by E.O. 227)

contains some conflicts rules, notably Articles 26 and 80.
The student of Conflict of Laws should familiarize
himself with these provisions. Together with the rules on
citizenship in the Constitution, and the provisions on for-
eign insurance companies in the Insurance Act, and simi-
lar statutes, they constitute the bulk of Conflict of Laws.
Act of State Doctrine

The acts of a state are entitled to respect and recogni-

tion by other states. When an official vested with sover-
eign authority acts in an official capacity, his acts are acts
of the sovereign state he represents. These acts, though
less than legal in a foreign state, are protected from judi-
cial scrutiny by the act of state doctrine. The doctrine is
based on the respect due a sovereign state, not to a par-
ticular leader. Par in parem, non habet imperium. All states
are sovereign equals and cannot assert jurisdiction over
one another.
In reality, the doctrine springs from selfish consid-
erations on the part of the state concerned. If it does not
recognize the acts of a foreign head of state, there is the
danger that the acts of its own head of state might suffer
the same fate, thus hampering the conduct of its foreign
relations.
The act of state doctrine serves as a bar against judi-
cial scrutiny of the acts of the head of state of a foreign
country. It compels the courts of one state, despite their
vaunted independence, to close their eyes and accept as
valid all the official acts of the head of state of another
country, even if such acts would be questionable under
local law. The doctrine does not appear to be based on any
noble desire on the part of the state to show respect for
another state, no matter how weak or small. Rather, it
springs from the practical consideration that if the state
 26 Review Notes IN Conetict oF LAws

does not show respect for the acts of another state, its acts
might be similarly treated by the family of nations, thus
jeopardizing its foreign relations.
However, as held in the 1962 Venezuela case of Jime-
nez v. Aristeguieta (311F. 2d 547-58), “the doctrine applies
only when an official having sovereign authority acts in an
official capacity; a dictator is not a sovereign and his fj-
nancial crimes committed in violation of his position and
not in pursuance of it are not acts of a sovereign, but rather
for his own benefit.”
The act of state doctrine was unavailing in the case of
Marcos’s assets in New York. The New York District Court
froze the properties upon application by the Presidential
Commission on Good Government (PCGG). The court in
effect considered the acts of Marcos in acquiring the prop-
erties subject to judicial scrutiny.
Two further considerations, said the New York Court,
may limit the applicability of the doctrine with respect to
Marcos’s public acts:

a.) the Marcos government is no longer in power,

hence the danger of interference with the US
government’s conduct of foreign policy is re-
mote, and
b.) the act of state doctrine reflects respect for for-
eign states, but when the Republic of the Philip-
pines itself, through its new government, asks
the US government to scrutinize the acts of Mar-
cos, the doctrine should not apply.
The BNPP case

At the onset of the Cory administration, the Philip-

pine government accused Pittsburgh-based Westinghouse
Electric Corp. and Burns and Roe of Eradell, New Jersey,
 Lecture No. 2 DY.

of funneling nearly $20 million in bribes to the late dictator

through one of his cronies, Herminio Disini.
The Philippines sought to declare the nullity of the
BNPP contract on the ground that the two companies had
not complied with their obligations and engaged in fraud
because the nuclear reactor was not built according to the
specifications in the contract.
The government maintained that the contract, in-
cluding the arbitration clause, was null and void from the
beginning because it was concluded through fraud and
bribery.
In an “expert opinion affidavit” filed in 1992 with the
New Jersey court by Prof. Perfecto Fernandez of the UP
College of Law, he said that the contract is valid because it
was authorized by Marcos who had, at that time, clothed
himself with vast powers. The Philippines was under
martial law. The acts of Marcos relative to the contract
with Westinghouse are not only binding but beyond
question. In sum, the legal opinion is that a dictator, pre-
cisely because he is a dictator, can do no wrong.
“The Philippines was under authoritarian conditions
then and Marcos had plenary powers to authorize that
agreement. And he had specifically authorized it.... Asa
dictator, Marcos had all the power to approve contracts.
Anything he did in the exercise of the power vested in him
was legal because there were no checks on the dictator.”
(Fernandez’s deposition; PDI, Sept. 14, 1999)
The husband of the daughter of my mother-in-law re-
spectfully begs to differ. He believes that a dictator, pre-
cisely because he is a dictator, is always wrong—if he is
overthrown. All decrees (PDs) and letters of instruction
(LOIs), and other issuances of the dictator, including
tainted contracts purportedly entered into by him in behalf
28 Review Notes IN Coneuict or Laws

of the government, are valid only if not inconsistent With

the laws and policies adopted by the new government.
To hold otherwise would be to chain the people to a
dictatorship even after the dictator has departed the scene,
To refute the Fernandez deposition, the gOvernment
submitted the counter-affidavits of Fr. Joaquin Bernas
former Supreme Court Justice Irene Cortes, and Haydee
Yorac. But the court sustained the stand of Fernandez,
prompting Deputy Ombudsman Francisco Villa to de.
nounce him as a “traitor.”
The BNPP contract is not a treaty with another sover-
eign state. It is a contract with a private entity. The Filipino
people, who are paying $350,000.00 interest a day (some
say as much as $800,000) [these are pre-devaluation fig-
ures] under the contract, have every right to reexamine it.
They are not strangers to the contract. They are real parties
in interest.
Sovereign Immunity
The Supreme Court, through Justice Quiason, ex-
plained the concept of sovereign immunity in the case of
Holy See v. Rosario, 238 SCRA 524, 534-535. What follows
is an excerpt from the Supreme Court decision.
As expressed in Section 2 of Article II of the 1987 in-
stitution, we have adopted the generally accepted princi-
ples of International Law. Even without this affirmation,
such principles of International Law are deemed incorpo-
rated as part of the law of the land as a condition and con-
sequence of our admission to the society of nations.
(United States of America v. Guinto, 182 SCRA 644 [1990])
This is commonly known as the principle of incorporation.
There are two conflicting concepts of sovereign im-
munity, each widely held and firmly established. Accord-
ing to the classical or absolute theory, a sovereign cannot,
 Lecture No. 2 29

without its consent, be made a respondent in the courts of

another sovereign. According to the newer or restrictive
theory, the immunity of the sovereign is recognized only
for public acts or acts jure imperii of a state, but not with
respect to private acts or acts jure gestionis (United States of
America v. Ruiz, 136 SCRA 487, 491 [1987]; Coquia and
Defensor-Santiago, Public International Law, 194 [1984])
Some states have passed legislation to serve as guide-
lines for the executive or judicial determination when an
act may be considered as jure gestionis. The United States
passed the Foreign Sovereign Immunities Act of 1976,
which defines a commercial activity as either a regular
course of commercial conduct or a particular commercial
transaction or act. Furthermore, the law declared that the
commercial character of the activity shall be determined
by reference to the nature of the course of conduct or par-
ticular transaction or act, rather than by reference to its
purpose.
The Canadian parliament enacted in 1982 an Act to
provide for State Immunity in Canadian Courts. The Act
defines a “commercial activity” as any particular transac-
tion, act or conduct or any regular course of conduct that
by reason of its nature, is of a “commercial character.” The
restrictive theory, which is intended to be a solution to the
host of problems involving the issue of sovereign immu-
nity, has created problems of its own. Legal treaties and
the decisions in countries which follow the restrictive the-
ory have difficulty in characterizing whether a contract of
a sovereign state with a private party is an act jure gestionis
or an act jure imperil.
The restrictive theory came about because of the entry
of sovereign states into purely commercial activities re-
motely connected with the discharge of governmental
functions. This is particularly true with respect to the
 30 Review Notes IN CONFLICT OF Laws

Communist states which took control of nationalizeg

business activities and international trading.
The Supreme Court has considered the followin
transactions by a foreign state with private parties as acts
jure imperit:

(1) the lease by a foreign government of apartment

buildings for the use of its military officers (Sy-
quia v. Lopez, 84 Phil. 312 [1949]);
(2) the conduct of public bidding for the repair of a
wharf at a United States Naval Station (Uniteg
States of America v. Ruiz, supra); and 162 SCRA
88 [1988]).
(3) the change of employment status of base em-
ployees (Sanders v. Veridiano, 162 SCRA 88
[1988]).

On the other hand, the Supreme Court has consid-

ered the following transactions by a foreign state with pri-
vate parties as acts jure gestionis:

(1) the hiring of a cook in the recreation center, con-

sisting of three restaurants, a cafeteria, a bakery,
a store, and a coffee and pastry shop at the John
Hay Air Station in Baguio City, to cater to
American servicemen and the general public
(United States of America v. Rodrigo, 182 SCRA
644 [1990]); and
(2) the bidding for the operation of barber shops in
Clark Air Base in Angeles City (United States of
America v. Guinto, 182 SCRA 644 [1990]).

The operation of restaurants and other facilities open

to the general public is undoubtedly for profit as a com-
mercial and not a governmental activity. By entering into
 Lecture No. 2 31

the employment contract with the cook in the discharge of

its proprietary functions, the United States government
impliedly divested itself of its sovereign immunity from
suit.
In the absence of legislation defining what activities
and transactions shall be considered “commercial” and
constituting acts jure gestionis, we have to come up with
our own guidelines, tentative though they may be.
Certainly, the mere entering into a contract by a for-
eign state with a private party cannot be the ultimate test.
Such an act can only be the start of the inquiry. The logical
question is whether the foreign state is engaged in the ac-
tivity in the regular course of business. If the foreign state
is not engaged regularly in a business trade, the particular
act or transaction must then be tested by its nature. If the
act is in pursuit of a sovereign activity, or an incident
thereof, then it is an act jure imperii, especially when it is
not undertaken for gain or profit.
As held in United States of America v. Guinto (supra):

“There is no question that the United States

of America, like any other state, will be deemed
to have impliedly waived its non-suability if it
has entered into a contract in its proprietary or
private capacity. It is only when the contract in-
volves its sovereign or governmental capacity
that no such waiver may be implied.”
 LECTURE NO. 3

Lecture No. 3, or Lesson No. 3, is a breeze.

We can finish it in 10 seconds flat. Lesson No. 3 is
nothing but a brief overview of the subject of jurisdiction,
Just read our “Aspects of Jurisdiction” and you will be
fine. Anyway, the subject is covered by your Remedial
Law Review.
End of Lesson No. 3.
LOL

32
 LECTURE NO. 4

If the court has no jurisdiction over the subject matter

—the rule is the same for purely internal cases and con-
flicts problems—it must dismiss the case. It is a funda-
mental rule in civil procedure that where the court has no
jurisdiction over the subject matter, it has no power but to
dismiss the case.
The point of divergence is when the court has juris-
diction. If the case is a purely internal one, ie., it has no
foreign element, the court must assume jurisdiction. It is
mandatory for the court to assume jurisdiction. The fact
that there may be no law applicable to the case at hand is
no excuse. (Art. 9, Civil Code) The court can always apply
the pertinent custom or general principle of law.
Chu Jan v. Bernas, 34 Phil. 631 (1916)

This is the case of the cockfight that reached the Su-

preme Court. It is now immortalized in the short story of
Alejandro Roces titled “Of Cocks and Barratry.” (Barratry
has nothing to do with being an Ilocano.)
Way back in 1913, there was this cockfight in Tabaco,
Albay. The cocks belonged to Chu Jan, a Chinese national
(Justice Araullo used the pejorative term “Chinaman”),
and Lucio Bernas. Each put up a wager of P160, which
must have been a small fortune in those good old days
well before the advent of E-VAT and oil price hikes and
currency devaluation. The sentenciador declared Bernas’
cock the winner.
Chu Jan filed a case against Bernas with the Justice of
the Peace of the pueblo, praying that the judgment of the

33
34 Review Notes IN CONFLICT OF LAws

sentenciador be voided and his cock be declared the right-

ful winner. Meantime, the bets remained in the safekeep.
ing of the owner of the cockpit. The Juez de Paz decideg
that the bout was a draw.
Unappeased, Chu Jan appealed to the Court of First
Instance. The CFI judge dismissed the appeal on the
ground that he knew of no law governing cockfights, He
also ordered the return of Chu Jan’s P160 bet. Apparently,
the judge was not an aficionado of the sport.
Bernas appealed to the Supreme Court. The High
Court reversed the order of dismissal and remanded the
case to the CFI. Said the Supreme Court:

“The ignorance of the court or his (sic) lack

of knowledge regarding the law applicable to a
case submitted to him for decision, the fact that
the court does not know the rules applicable to a
certain case that is the subject of an appeal which
must be decided by him and his not knowing
where to find the law relative to the case, are not
reasons that can serve to excuse the court for
terminating the proceedings by dismissing them
without hearing the issues. Such an excuse is the
less acceptable because, foreseeing that a case
might arise to which no law would be exactly
applicable, the Civil Code (old), in the second
paragraph of Article 6, provides that the customs
of the place shall be observed, and in the absence
thereof, the general principles of law.”

After due hearing in accordance with the

decision of the Supreme Court, the CFI upheld
the decision of the sentenciador, there being no
clear violation of law or evidence of fraud.

The law at present is Art. 9 of the Civil Code.

 Lecture No. 4 35

“Art. 9. No judge or court shall decline to

render judgment by reason of the silence, obscu-
rity or insufficiency of the laws.” (Civil Code)

“Fiat justicia ruat coelum. Stated differently, when a

provision of law is silent or ambiguous, judges ought to
invoke a solution responsive to the vehement urge of con-
science.” (Amatan v. Aujero, 248 SCRA 511, 516) [The
provision in question is Section 2, Rule 116 of the New
Rules of Criminal Procedure.] The governing law cannot
be supplanted with customs, no matter how widely ob-
served. (Malang v. Moson, 338 SCRA 393, 419)
Custom is defined as “a rule of conduct formed by
repetition of acts, uniformly observed (practiced) as a so-
cial rule, legally binding and obligatory.” (In the Matter of
the Petition for Authority to Continue Use of the Firm
Name of Ozaeta, Romulo, de Leon, Mabanta and Reyes, 3
SCRA 12, citing JBL Reyes and RC Puno, Outline of Phil.
Civil Law, 4th ed., Vol. 1, p. 7; cited in Yao Kee v. Sy-
Gonzales, 167 SCRA 736, 743 [1988])
“Tn the absence of a law or principle of law, we must
apply the rules of fair play.” (Sec. of Justice v. Lantion, 322
SCRA 160, 198 [2000])
The law requires that “a custom must be proved as a
fact, according to the rules of evidence.” (Art. 12, Civil
Code) “A local custom as a source of right cannot be con-
sidered by a court of justice unless such custom is properly
established by competent evidence like any other fact.”
(Patriarca v. Orate, 7 Phil. 390, 395 [1907]; cited in Yao Kee
v. Sy-Gonzales, supra). If a custom, however, is of public
knowledge, it may come under judicial notice. (Sec. 2, Rule
129, New Rules on Evidence)
In the event that no custom is applicable, or no cus-
tom has been proved (and there is no general principle of
 36 Review Notes IN Conruict oF Laws

law pertinent to the case), what is the proper course of ac-

tion for the court? The answer, oddly enough, is judicja]
legislation. So said the Supreme Court in Floresca Vv
Philex, 136 SCRA 141, 167, April 30, 1985. “That is the
mandate of Art. 9 of the Civil Code which compels the
court to decide a case even in the event of ‘silence, obscy-
rity or insufficiency of the laws.’ ”
“Judges do and must legislate, but they can do go
only interstitially.” (Justice Holmes) The judge “legislates
only between gaps.” (Justice Cardozo)

Forum non conveniens

But if the case involves a foreign element, the court

has a choice: it may assume jurisdiction, or it may refuse to
do so on the ground of forum non conveniens, i.e., it is not
convenient for the forum.
Even if the court assumes jurisdiction, it will still
have two options: whether to apply the local or domestic
law (lex fori) or the proper foreign law (/ex causae).
Conflicts problems and purely internal cases do not
stand on the same footing before our courts. Internal cases
have first claim on the attention of the court. In a local
case, when the law authorizes the court to assume juris-
diction, the authorization is actually a command for the
court to assume jurisdiction. And justly so, because it may
be the only forum where the relief sought may be ob-
tained.
This is not so in conflicts cases. Their hallmark is the
existence of a foreign element; and precisely because of
such foreign element, they may be entertained by foreign
tribunals, and such tribunals may in fact be in a better
position to try and decide the case. The forum may there-
fore decline to assume jurisdiction on the ground of in-
 a7
Lecture No. 4

ved
without ng
causi in ju stice to the aggrie
convenience
wh o ma y the n see k re lie f in a foreign court.
party
is mat eri al o nl y in co nflicts cases, and
Inconvenience t to the
en ie nc e mu st per tai n to the tr ibunal, no
such inco nv
parties.
in co nv en ie nc e ma y be manifested as follows:
Such
witnesses may
a) The evidence and the
not be readily available.
eady be
b) The court docket may alr
clogged with local cases.
uld be
c) The evil of “forum-shopping” sho
curbed.
in
d) The forum has no particular interest
the case.
e) Other courts are open that may better
try and decide the case.

What is “forum-shopping”?
um-shopping is
As understood in Conflict of Laws, for
ce of a plaintiff
the underhanded and contemptible practi
ilable courts or
in choosing the forum out of several ava
certain proce-
tribunals the world over in order to secure
l systems
dural advantages. The plaintiff examines the lega
s the one
of the possible venues for his action and choose
other
perceived to be most congenial to his cause. In
words, nanlalamang.
Forum-shopping originated as a concept in private
international law. (First Philippine International Bank v.
Court of Appeals, 252 SCRA 259)

As a rule, the doctrine of forum non conveniens may

only be invoked by a defendant which is a corporation or
 oF LAws
38 Review Notes IN Conflict

is a natural person , it
juridical person. If the defendant
be diff icul t for the pro per forum to acquire jurisdic.
may
ntiff without an
tion over his person, thus leaving the plai mson,
(Paras, Conflict of Laws, p. 37, citing Sti
remedy.
Conflict of Laws, p. 349)
of a non-
The rules provide that “x x x in the case
resident defendant” (he may be sued) “where he may be
found x x x. ” (See Sec. 2, Rule 4, 1997 Rules of Civil Proce.
dure)

PROBLEM: A, an American, enters into a

contract with G Corp., a German corporation
based in Bonn, for delivery by the latter of a
certain quantity of computer software to A's
residence in New York. The contract is entered

nate?
into in Paris. G Corp. also does business in Ma-

ating as
nila. For failure of G Corp. to make good on its
contract, A sues the corporation for specific per-

se Sante
formance before a Manila Regional Trial Court.
Should the court assume jurisdiction?
ANSWER: While the RTC may have juris-
diction over the subject matter and over the per-
sons of the parties, it may still dismiss the case
on the ground of forum non conveniens.
The plaintiff, A, is an American residing in
New York, the place of performance of the con-
tract. But the action was not instituted in New
York. The place of execution of the contract is
Paris, where the witnesses are presumably re-
siding. But the case was not filed before a Paris
Court. Neither was the case filed in Bonn, the
home office of the defendant corporation.
The only connection of Manila to the case is
the rather tenuous one that the defendant main-
 Lecture No. 4 39

tains a branch office there. X may have chosen to

come here thinking that the Philippine legal
system is more congenial to his cause than the
other foreign laws. That is “forum-shopping.”
The principle of forum non conveniens as recently applied

In Islamic Republic of Iran v. Pahlavi (464 N.U.S. 2d

487 App Div. 1983) aff’d, 62 N.Y. 2d 474, 467 N.E. 2d 245,
478 N.U.S. 2d 597 (1984), it was held that Iran’s in personam
action against the former Shah and his wife alleging that
they had accepted bribes, misappropriated funds, and em-
bezzled or converted billions of dollars belonging to the
National Treasury should be dismissed. The litigation had
little relation to the New York court other than the pres-
ence of the hospitalized Shah and his wife in the State of
New York.
Moreover, the complaint against the Shah prayed that
a constructive trust be imposed “on assets throughout the
world”—something the New York court could not grant.
On the other hand, the case filed by the Republic of
the Philippines through the Presidential Commission on
Good Government (PCGG) with the New York District
Court sought to impress a constructive trust only on the
Marcos assets in New York. The assets are pieces of real
estate, fixed and immovable. Hence, the New York Court
could not be deemed an inconvenient forum.
Another example is the case against Union Carbide
for the poisoning incident in Bhopal, India. The case was
dismissed by the New York court on the ground that the
case may be better tried and decided in India where the
evidence and witnesses could be found.
A poisonous gas leak at a Union Carbide plant in
Bhopal, India in 1984 killed thousands of Indians in the
40 Review Notes IN Conruct oF LAws

world’s worst industrial accident. The lethal gas wag

identified as methyl isocyanate.
At least 3,000 people died at the time of the accident,
The government of Madhya Pradesh state, where Bhopal
is located, claims that nearly 11,000 people died in the fol-
lowing years due to ailments related to the gas leak.
Union Carbide paid the Indian government $470 mil-
lion as part of an out-of-court settlement in 1989, but the
amount is not enough as around 600,000 claims for com-
pensation have been filed with the Indian government.
The problem is further complicated by the merger of
Union Carbide and Dow Chemicals.

Application of the lex fori

Despite the fact that the case involves a foreign ele-

ment, the forum may be forced to apply the internal law or
lex fori in three (3) instances:

1. When the conflicts rule so provides;

2. When the proper foreign law (lex causae) has not
been properly pleaded and proved; and
3. When the case falls under any of the eight (8)
basic exceptions to the application of the proper
foreign law (lex causae), as follows:
a. when the foreign law, judgment or contract is
contrary to a sound and important public
policy of the forum;
b. when the foreign law, judgment or contract is
contrary to universally recognized principles
of morality (contra bonos mores);
c. when the foreign law or judgment is penal in
nature;
 Lecture No. 4 41

d. when the foreign law is procedural in nature;

e. when the foreign law is fiscal (revenue-
producing) or administrative in nature;
f. when the application of the foreign law,
judgment or contract may work injustice to
residents of the state;
g. when the application of the foreign law,
judgment or contract may work against the
vital interests and national security of the
state; and
h. when the case involves real or personal prop-
erty situated in the forum (lex situs).

1. When the conflicts rule provides that the lex fori

shall apply

An example of a conflicts rule that directs the appli-

cation of the lex fori is Article 80 of the Family Code which
declares that the property relations between husband and
wife “shall be governed by Philippine laws.” In the ab-
sence of a contrary stipulation in the marriage settlement,
the system of absolute community prevails. (See Art. 75,
Family Code.)
“Art. 80. In the absence of a contrary
stipulation in a marriage settlement, the prop-
erty relations of the spouses shall be governed
by Philippine laws, regardless of the place of the
celebration of the marriage and their residence.
This rule shall not apply:
1. where both spouses are aliens;
2. with respect to the extrinsic validity of
contracts affecting property not situated
in the Philippines and executed in the
42 Review Notes IN Conrict of Laws

country where the property is located:

and
3. with respect to the extrinsic validity of
contracts entered into in the Philippines
but affecting property situated in a for.
eign country whose laws require differ- |
ent formalities for extrinsic validity, |
(124a)” (Art. 80, Family Code)

To fully understand Article 80, one must bear in mind

a couple of things. First, it comes in two parts: the genera]
rule is expressed in the first paragraph; the cases when
such general rule does not apply are enumerated in the
second paragraph. Second, one must remember that the
provision is not entirely new. It is a revision of Article 124
of the Civil Code regarding mixed marriages, which is
herein quoted for purposes of comparison.

“Art. 124. If the marriage is between a

citizen of the Philippines and a foreigner,
whether celebrated in the Philippines or abroad,
the following rules shall prevail:

1. If the husband is a citizen of the Phil-

ippines while the wife is a foreigner,
the provisions of this Code shall gov-
ern their property relations;
2. If the husband is a foreigner and the
wife is a citizen of the Philippines, the
laws of the husband's country shall be
followed, without prejudice to the pro-
visions of this Code with regard to
immovable property.” (Civil Code)

When it comes to clarity, Article 80 of the Family

Code is hardly an improvement on Article 124 of the Civil
 LECTURE No. 4 43

Code. The new wording may have gotten rid of the male
chauvinism implicit in the old provision, but it has left us
with a formulation that is as inelegant as it convoluted.

PROBLEM: H and W, husband and wife,

are Filipinos who get married in New York. The
law of what state governs their property rela-
tions?
ANSWER: Philippine law. While the first
paragraph of Article 80 of the Family Code does
not expressly cover the case where both spouses
are Filipinos, sub-paragraph (1) provides the
clue: “The rule shall not apply where both
spouses are aliens.” It must therefore apply
where both spouses are Filipinos.
Sub-paragraphs 2 and 3 seem faintly irrelevant. They
do not speak of proprietary relations between the spouses
but of the extrinsic validity of contracts affecting property.
The roundabout way in which the explanation has to
be made is testament to the asymmetry of the new provi-
sion. Indeed, the first paragraph of Article 80 is a good ex-
ample of how a general rule should not be couched.

QUESTION: Suppose H and W reside in

New York?
ANSWER: Still, Philippine law applies.
The first paragraph of Art. 80 provides “x x x
the property relations of the spouses shall be
governed by Philippine laws, regardless of the
place of celebration of the marriage and their
residence.”
QUESTION: Suppose the real properties of
H and W are located in New York where they
got married and where they permanently reside?
 Review Notes IN ConrLict of Laws

ANSWER: It would seem that the question

could be answered on the basis of Article 80 of
the Family Code. However, for practical pur-
poses, our courts should not try a case if they
have no power to enforce their judgement.
To repeat, for it bears repeating, sub-paragraphs 2
and 3 have nothing to do with the property relations be.
tween the spouses. They refer to the extrinsic validity of
contracts affecting property situated abroad, in obedience
to the lex rei sitae (Art. 16, 1st par., Civil Code). The Com-
mittee should have transferred this noisome provision
elsewhere, but the members chose to reproduce and per-
petuate this defect of the old provision (Art. 124, Civil
Code).

QUESTION: Suppose this is a case of a

mixed marriage, as where H is a Filipino and W
is a foreigner?
ANSWER: Even in the case of a mixed
marriage, where one of the spouses is a Filipino,
Philippine Law applies. The rule does not apply
only where both spouses are aliens.

Article 3 of the Civil Code lays down the iron rule

that ignorance of the law excuses no one. Ignorantia legis
non excusat. There ought to be an exception to the rule, as
when the law is couched in vague and confusing lan-
guage, as in Article 80 of the Family Code.
The old provision, Article 124 of the Civil Code, was
much clearer. It expressly addressed the problem of mixed
marriages.

QUESTION: Suppose the husband is a

a
i jenn,
———

foreigner and the wife is a Filipino citizen. The

a
 Lecture No. 4 45

law of what state governs their property rela-

tions?

ANSWER: Philippine law. The law does

not distinguish, unlike Article 124 of the Civil
Code, whether it is the husband or the wife who
is a foreigner. If the law does not distinguish,
who are we to distinguish?
NOTE: In this instance, while the Com-
mittee has succeeded in purging the provision of
its male bias, it has also unceremoniously
shoved the foreign husband under the saya of
his Filipino wife. Since the rule applies regard-
less of the nature and location of the properties
of the spouses, this situation could give rise to a
lot of conflicts. Instead of harmonizing the di-
verse laws on the subject, the conflicts rule opens
a whole new world of potential conflict.
ILLUSTRATION: H, a US. citizen, marries
W, a Filipina, in New York. They reside perma-
nently in New York. Under New York law, the
property relations between H and W should be
absolute separation of property. Meaning, to
each his own. H is employed, but W is not.
Through his earnings, H is able to acquire a
house and lot and a car in New York. What sys-
tem governs their property relations?

The answer should be in accordance with Article 80

of our Family Code—if our courts are forced to decide the
case. However, our courts have no business trying a case if
they are in no position to enforce their judgment.
46 Review Notes IN Conruict of Laws

Doctrine of Immutability of the Matrimonial Property Regime

Regardless of change of nationality of any of ¢,

spouses or of both, the original property regime at the stan
of the marriage remains constant. This is for the Protection
of creditors as well as the spouses themselves.
This doctrine, however, is subject to the doctrine of
mutability of the law, ie., when the law of the original
nationality itself is amended, the property relationship has
to change accordingly. (Paras, Conflict of Laws, 249-259
’
1990 ed.)

II. When the proper foreign law has not been properly
pleaded and proved

This is something of a legal oddity. The case is unde-

niably a conflicts problem. There is an appropriate con-
flicts rule, and it points to the proper foreign law (lex cau-
sae) to be applied. However, in the end what is applied is
the local law (lex fori).
This is so because foreign law, unlike “the law of na-
tions,” is not within the scope of judicial notice. (See Sec. 1,
Rule 129, New Rules on Evidence; Sy Joc Lieng v. Sy Quia,
16 Phil. 137 [1910]; Yam Ka Lim v. Collector of Customs,
30 Phil. 46, 48 [1915]; Fluemer v. Hix, 54 Phil. 610 [1930],
Yao-Kee v. Sy-Gonzales, 167 SCRA 736 [1988)]) It has to be
proved as a fact in accordance with the rules of evidence.
If the proper foreign law is not established as a fact,
for whatever reason, the presumption arises that such
foreign law is identical with the local law (Wong Woo Yiu
v. Vivo, 13 SCRA 552 [1965]), and the court then proceeds
to apply the local law. This is called the “processual pre-
sumption.” (Wharton; see Collector of Internal Revenue V:
Fisher, 110 Phil. 686, 699; Northwest Orient Airlines, Inc. Vv:
CA, 241 SCRA 192, 208 [1965])

y
A
 Lecture No. 4 47

In Northwestern Orient Airlines, Inc. v. Court of Ap-

peals, 241 SCRA 192, the Supreme Court ruled:

“Alternatively, in the light of the absence of

proof regarding Japanese law, the presumption
of identity or similarity of the so-called proces-
sual presumption may be invoked. Applying it,
the Japanese law on the matter is presumed to be
similar with the Philippine law on service of
summons on a private foreign corporation doing
business in the Philippines.”
This rule is dictated by necessity. The fact that the
interested party fails to prove the applicable foreign law
does not relieve the court of its obligation to decide the
case. (Chu Jan v. Bernas, supra)
In Zalamea v. Court of Appeals, 228 SCRA 23, 30, the
Supreme Court ruled that:

“Written law may be evidenced by an offi-

cial publication thereof or by a copy attested by
the officers having the legal custody of the rec-
ord, or by his deputy, and accompanied with a
certificate that such officer has such custody. The
certificate may be made by a secretary of an em-
bassy or legation, consul general, consul, vice-
consul, or consular agent or by any officer in the
foreign service of the Philippines stationed in the
foreign country in which the record is kept, and
authenticated by the seal of his office.”

The Supreme Court has ruled that the testimony of a

witness is admissible to prove the existence of a foreign
law, particularly where such law is “unwritten.” (Collector
of Internal Revenue v. Fisher, 110 Phil. 686, 700-701 [1961],
48 Review Notes iN Conr.ict oF Laws

citing Willamette Iron and Steel Works v. Muzzal, 61 Phijj

471 [1935})
In Fluemer v. Hix, 54 Phil. 610 (1930), it was held that
where the West Virginia law was attempted to be proveg
through a copy of the law found ina book (West Virginia
Code) in our National Library certified by the Director of
National Library, such law was not properly proved.
In another case (In re: Testate of Suntay, 95 Phil. 500),
the interested party presented in evidence the written
answers of the Chinese Consul General to prove Chinese
law. The Supreme Court held that the Chinese law was not
properly proved, first because the Consul General was not
presented in court as a witness and could not be cross-
examined, hence his statement was hearsay; and second,
he was not necessarily an expert on Chinese law.
In another case (Phil. Trust Co. v. Bohanan, L-12105,
Jan. 30, 1960), the Supreme Court held that in probate pro-
ceedings where the proper foreign law was proved when
the will was admitted to probate, there was no need to
repeat the proof in a subsequent hearing for approval of
the project of partition. This is because the project of parti-
tion is sought to be approved in the same proceeding,
although in a different stage.
In each case, the foreign law must be proved. Sup-
pose it has been proved in a previous case and the proof
was accepted by no less than the Supreme Court, is there
still a need to prove it in subsequent cases? Yes, because of
the dynamic nature of the law. It may be amended or re-
pealed any time.
The possible exception is when there is identity of
dates, as when the issue is what Chinese law on marriage
was on a given date, and said Chinese law on such date
 Lecture No. 4 49

has already been the subject of proof in a case already

finally decided by the Supreme Court.

Sec. 46. Learned treatises. A published

treatise, periodical or pamphlet on a subject of
history, law, science or art is admissible as
tending to prove the truth of a matter stated
therein if the court takes judicial notice, or a wit-
ness expert in the subject testifies, that the writer
of the statement in the treatise, periodical or
pamphlet is recognized in his profession or
calling as expert in the subject. (40a) (Rule 130,
Rules of Court)
Sec. 49. Opinion of expert witness. The
opinion of a witness on a matter requiring
special knowledge, skill, experience or training
which he is shown to possess, may be received
in evidence. (43a) (Rule 130, Rules of Court)
Sec. 24. Proof of official record. The rec-
ord of public documents referred to in para-
graph (a) of Section 19, when admissible for any
purpose, may be evidenced by an official publi-
cation thereof or by a copy attested by the officer
having the legal custody of the record, or by his
deputy, and accompanied, if the record is not
kept in the Philippines, with a certificate that
such officer has the custody. If the office in
which the record is kept is in a foreign country,
the certificate may be made by a secretary of the
embassy or legation, consul general, consul, vice-
consul, or consular agent or by any officer in the
foreign service of the Philippines stationed in the
foreign country in which the record is kept, and
authenticated by the seal of his office. (25a) (Rule
132, Rules of Court).
 LECTURE NO. 5

I. First Exception:
or contract is con. ? |
When the foreign law, judgment
trary to a sound and established public policy of the fo. 4
. s is in |
rum, the court must disregard it, even if proved Thi
consonance with the third paragraph of Article 17, Ciyi j
q
Code, which states:

“Prohibitive laws concerning persons, their

acts or property, and those which have for their
object public order, public policy and good cus-
toms shall not be rendered ineffective by laws or
judgments promulgated or by determinations or
conventions agreed upon in a foreign country.”

The Supreme Court ruled recently in Cadalin y, 4

i
POEA, 238 SCRA 721, 762:

“The courts of the forum will not enforce

any foreign claim obnoxious to the forum’s pub-
lic policy (Canadian Northern Railway Co. v.
Eggen, 252 U.S. 553, 40 S. Ct. 402, 64L ed. 713
[1920]). To enforce the one-year prescriptive pe-
riod of the Amiri Decree No. 23 of 1976 (of the
State of Bahrain) as regards the claims in ques-
tion would contravene the public policy on the
protection to labor.” (p. 762) [“The state shall af-
ford full protection to labor, local.and overseas,
organized and unorganized x x x.” (Sec. 3, Art.
XIII, Constitution)]

50
 Lecture No. 5 51

PROBLEM: A and B, Filipinos, both

women, enter into a same-sex marriage in Den-
mark, where such a marriage is valid. Is the mar-
riage also valid here? Explain.
SUGGESTED ANSWER: Ordinarily, the
general rule of lex loci celebrationis enunciated in
the first paragraph of Article 26 of the Family
Code should apply, under which marriages
valid where celebrated are also valid here.
(Note that the case does not fit into any of the excep-
tions, not even Art. 35[1]. Art. 35[1], Family Code, the first
exception, refers to Marriages “contracted by any party
below eighteen years of age even with the consent of par-
ents or guardians.” It does not apply to same-sex mar-
riages.)
However, it would seem that the case falls under the
first exception to the application of the proper foreign law
(lex causae), ie., it runs counter to an important public
policy of the forum.
It is an important public policy of the forum that a
marriage should be between a man and a woman, as the
imperious tone of the following provisions would show:

“Sec. 2. Marriage, as an inviolable social

institution, is the foundation of the family and
shall be protected by the state.” (Sec. 2, Art. XV,
Constitution)

“Art. 1. Marriage is a special contract of

permanent union between a man and a woman
entered into in accordance with law for the es-
tablishment of conjugal and family life.” (1st
sentence, Art. 1, Family Code)
52 Review Notes IN CONFLICT OF Laws

In declaring the essential requisites of marriage, the

law prescribes:

“Art. 2. No marriage shall be valid, unless

these essential requisites are present:
1. Legal capacity of the contracting parties
who must be a male and a female; and
2. Consent freely given in the presence of
the solemnizing officer.” (Art. 2, Family Code)
Thus it would appear that there is a strong public
policy in this country against same-sex matriages.
Gay marriages are frowned upon the world over. The
only countries known to recognize gay marriages are
Denmark and The Netherlands. In Norway and Sweden
gay couples are allowed to register their “partnerships.”

Foreign Divorce Decrees

There is no local divorce. (Tenchavez v. Escafio, 15

SCRA 355 [1965]) Before the Civil Code, Act 2710 allowed
divorce on the ground of adultery on the part of the wife
or concubinage on the part of the husband. But under the
Civil Code and the Family Code there is no divorce in
this jurisdiction.
Foreign divorce decrees secured by Filipino citizens
are not countenanced in this jurisdiction. We have a strong
public policy against divorce. (Sec. 2, Art. XV, Constitu-
tion; Art. 15, Civil Code)

“The State recognizes the sanctity of family

life and shall protect and strengthen the family
as a basic autonomous social institution.” (Sec.
12, Art. II, Constitution; repeated verbatim in the
second paragraph of Sec. 2, R.A. 8369)
 Lecture No. 5 53

As long as the parties are Filipinos, they can go any-

where to get divorced, but when they come back the de-
cree will not be recognized here and they will remain le-
gally married to each other. (The very limited exception is
the case of a mixed marriage where the alien spouse se-
cures a divorce decree abroad, as provided in the second
paragraph of Article 26 of the Family Code.)
An alien in a same-sex relationship with a Filipino
citizen may not be issued an immigrant visa to reside in
the Philippines. Under Section 13 of the Philippine Immi-
gration Act there should be a valid marriage.
The pertinent public policy is found in Article XV of
the Constitution.
“Sec. 1. The state recognizes the Filipino
family as the foundation of the nation. Accord-
ingly, it shall strengthen its solidarity and ac-
tively promote its total development.”

Such public policy follows Filipinos wherever they

go.
“Sec. 2. Marriage as an inviolable social
institution, is the foundation of the family and
shall be protected by the state.” (Art. XV, Con-
stitution)

“Art. 15. Laws relating to family rights

and duties, or to the status, condition and legal
capacity of persons are binding upon citizens of
the Philippines, even though living abroad.”
(Civil Code) [Commonly known as lex nationalit,
it is sometimes referred to as lex patriae.]

The local public policy “shall not be rendered inef-

fective” by foreign laws or judgments allowing or decree-
 FLICT OF Laws
54 Review NOTES IN C ON

ate
t. 17 , Ci vi l Code) The st
Ar
ing divorce. (3rd paragraP h, d in the
of its citizens an
sta tus
has a vital interest in the le ) In de a ng marriage
fini
ir fa mi li es . (B ea
preservation of the ar es tha t “Marriage is q
Family Co de de cl
Article 1 of the un io n between a man and q
of pe rm an en t
special contract the estab-
acco rdance with law for
woman entered into in
and family life.”
lishment of a conjugal
co up le ge t ma rr ie d, they can go to the
Once a Filipino married. In this country
ea rt h an d wi ll re ma in
ends of the ing cove-
ble bond, an everlast
eaka
matrimony is an unbr now
d we in te nd to ke ep it that way. There are
nant, an di-
co un tr ie s in th e wo rl d which do not allow
only two lta.
e Republic of Ma
vorce: the Philippines and th
, get mar-
PROBLEM: H and W, Filipinos
r of marriage,
ried in Baguio City. After a yea
ish their per-
they migrate to the US. and establ
Ty
ere they se-
manent residence in California, wh
to the Philip-
tS ti i Ne

cure a divorce. They come back

d, G? How
pines. May H marry his girlfrien
about W, may she also remarry?
ges
ANSWER: No. Such subsequent marria
they
by either spouse would be bigamous. Since
s
are Filipinos, Article 15 of the Civil Code applie
e
to them, and the public policy against divorc
follows them wherever they go.
PROBLEM: Same as above, except that be-
fore securing a divorce, H and W take out
American citizenship. Is the divorce valid here?
SUGGESTED ANSWER: At the time they
secured a divorce, H and W were no longer Fili- |
pino citizens. Philippine laws on status and ca-
pacity were no longer applicable to them. If the
divorce decree is valid under their national law,
then it should also be recognized here.

yg
 Lecture No. 5 55

The public policy is to prevent a breakup of the Fili-

pino family. Philippine law couldn’t care less what hap-
pens to a family that is no longer Filipino. (Sec. 1, Art. XV,
Constitution)

“The family, being the foundation of the nation, is a

basic social institution which public policy cherishes and
protects. x x x” (Art. 149, Family Code)

Psychological Incapacity

This is not to say that there is absolutely no way out

of a failed marriage.
There is Article 36 of the Family Code provides the
way out:
“Art. 36. 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 E.O. No. 227.)
R.A. 8533 deleted the ten-year prescriptive
period for actions to declare nullity due to psy-
chological incapacity of marriages solemnized
prior to the enactment of the Family Code.

To be sure, Article 36 of the Family Code does not

speak of divorce. The Revision Committee did not use the
word “divorce” because of the hysteria that the word was
certain to stir up. But the Solicitor General calls it “the
most liberal divorce law in the world.” (Republic v. Court
of Appeals, 268 SCRA 198, otherwise known as the Molina
case)
 Laws
56 Review Notes in Conrtict or

precisely be.
Even so, Article 36 is now under attaforck a foforrm of di :
it provides ra
cause of the perception that Laws
ttee on Revision of
vorce in this country. The Commi
of Rep res ent ati ves (8th Congress) approved
of the Hou se a
Bill No. 166, aut hor ed by Cong: et
Hou se le 36,
Gar cia (Ce bu) , whi ch sought the repea! © , rtic
Pablo “a con-
Gar cia cla ime d that the provision is
Con g. 0 on ab-
rcumventini g the pro hibiti
on
i t loopho
venien le for cii “499 much leeway for the
solute divorce ”” It P provides lid marriage. It does not de-
va
declaration of nullity of a
ch ol og ic al inc apa cit y” and expressly provides
fine “p sy s
en if the incapacity become
that the marriage is void ev
of the marriage. It
manifest only after the solemnization
does not even say how soon after.
is broad, even
The term “psychological incapacity” ns of
rital obligatio
“overly broad. ” The tautology: “ma
vision was clum-
marriage” only goes to show how the pro
hority be-
sily phrased. The term is so broad that one aut
view. Con-
lieves that excessive jealousy is within its pur
sidering the wide range of psychological disorders, the
term defies definition. (Pineda, Family Code, p. 36)
Article 36 is based on the Canon Law of the Roman
Catholic Church, which is anything if not conservative.
For centuries the church has been liberating spouses from
ill-starred marriages on the ground of psychological inca-
pacity. Finally, the State has caught up with the church.
But now Congress, which turns out to be more popish
than the Pope, wants to do away with Article 36.
Fortunately, most of the complaints have been an-
swered in the landmark Molina case (Republic v. Court of
Appeals, 268 SCRA 198). In fact, even before the Molina
case, the Supreme Court had already declared in Santos v.
Court of Appeals, 240 SCRA 20, 34, that ”... the intend-
ment of the law has been to confine the meaning of ‘psy-
 Lecture No. 5 57

chological incapacity’ to the most serious personality

disorders clearly demonstrative of an utter insensitivity
or inability to give meaning and significance to the mar-
riage.”
The Molina decision, a vintage Panganiban ponencia,
prescribes no less than eight (8) guidelines that serve to
circumscribe, if not actually restrict, the term psychologi-
cal incapacity.
The Molina guidelines are:
1. The burden of proof to show the nullity of the
marriage is on the plaintiff. Any doubt should be
resolved in favor of the existence and continua-
tion of the marriage and against its dissolution
and nullity. This is rooted in the fact that both
the Constitution and the law cherish and protect
the marriage as the foundation of the family.
Thus, our Constitution devotes an entire article
to the family (Art. XV), recognizing it “as the
foundation of the nation.” It describes marriage
as legally “inviolable,” thereby protecting it from
dissolution at the whim of the parties.
The root cause of the psychological incapacity
must be (a) medically or clinically identified, (b)
alleged in the complaint, (c) sufficiently proven
by experts, and (d) clearly explained in the deci-
sion. Article 36 of the Family Code requires
that the incapacity must be psychological—not
physical, although its symptoms may be physical.
The evidence must convince the court that the
parties, or one of them, was mentally or psy-
chically ill to such an extent that the person
could not have known the obligation he was as-
suming, or knowing them, could not have given
valid assumption thereof.
 Laws
58 Review Notes in Coneuict of

to be existing at
3. The incapacity must be proven
the marriage. The
“the time of celebration” of ng
the illness was existi
evidence must show that
their vows. The
when the parties exchanged

Brot
not be perceiy-
manifestation of the illness need

EER
a HES
ess itself must have
able at such time, but the illn o.
or prior theret
attached at such moment,
b e shown to be medi-
Such incapacity must also

TS: 5a
t or incurable. Such
cally or clinically permanen

me IR Hale
or even fr elative only
incurability may be absolute
not necessarily ab-
in regard to the other spouse,
same sex.
solutely against everyone of the

dann tenbeees
=
g about
Such illness must be grave enough to brin
the essential
the disability of the party to assume
acter-
obligations of marriage. Thus, “mild char
al
ological peculiarities, mood changes, occasion
as root
emotional outbursts” cannot be accepted
nright
causes. The illness must be shown as dow
or
incapacity or inability, not a refusal, neglect
difficulty, much less ill will.
those
The essential marital obligations must be
embraced by Articles 68 up to 71 of the Family
Code as regards the husband and wife as well as
Articles 220, 221 and 225 of the same Code in re-
gard to parents and their children. Such marital
obligations must be stated in the petition, proven
by evidence, and included in the text of the deci-
sion. (A good illustration of this would be Chi
Ming Tsoi v. Court of Appeals, 266 SCRA 324.
“The prolonged refusal of a spouse to have sexual
intercourse with his or her spouse is considered a
sign of psychological incapacity.”)
Interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church of

;
 Lecture No. 5 59

the Philippines, while not controlling or decisive,

should be given great respect by our courts. It is
clear that Article 36 was taken by the Family
Code Revision Committee from Canon 1095 of
the New Code of Canon Law, which became ef-
fective in 1993, and which provides: “The fol-
lowing are incapable of contracting marriage:
Those who are unable to assume the essential ob-
ligation of marriage due to causes of psychologi-
cal nature.”
8. The trial court must order the prosecuting attor-
ney or fiscal and the Solicitor General to appear
as counsel for the State. No decision shall be
handed down unless the Solicitor General issues a
certification, which will be quoted in the decision,
briefly stating therein his reasons for his agree-
ment or opposition, as the case may be, to the pe-
tition. The Solicitor General, along with the
prosecuting attorney, shall submit to the court a
certification within fifteen (15) days from the date
the case is deemed submitted for resolution of the
court. The Solicitor General shall discharge the
equivalent function of the Defensor Vinculi con-
templated under Canon 1095.

This does not mean that the door opened by Article

36 has been closed by judicial legislation, particularly by
the Vitug pronouncement in the Santos case, which was
later explored in all its ramifications in the Molina case. In
a clear case the Supreme Court does not hesitate to declare
the presence of psychological incapacity, as shown by the
case Chi Ming Tsoi v. CA, 266 SCRA 324. Justice Torres
held for the Court:
“x x x the prolonged refusal of a spouse to
have sexual intercourse with his or her spouse is
60 Review Notes in Conruict or Laws

considered a sign of psychological incapacity.”

(pp. 332-333, citing Psychological Incapacity,
G.T. Veloso, p. 20, cited in The Family Code of
the Philippines Annotated, Pineda, 1989 ed., p.
51)
the State-
NOTA BENE: In the Tsoi case,
ties “slept to-
ment of Facts shows that the par
the same bed
gether in the same room and on
since May 22, 1988 (their marriage) until March
no
15, 1989. But during this period, there was
them.
attempt of sexual intercourse between
vate
xxx she did not even see her husband’s pri
parts nor did he see hers.”
In the Tsoi decision, the Supreme Court ob-
served that a petition under Article 36 may be
filed by the incapacitated party.
In Mercado v. Tan (GR 137110, Aug. 1,
2000) the accused was convicted of bigamy not-
withstanding the fact that he filed a petition for
declaration of nullity of marriage after the com-
plaint for bigamy was filed. Even if the petition
is later granted that will not change the fact that
the crime of bigamy had been consummated.
“Art. 40. The absolute nullity of a previ-
ous marriage may be invoked for purposes of
remarriage on the basis solely of a final judg-
ment declaring such previous marriage void.”
(Family Code)
Third party in cases of annulment or declaration of nul-
lity of a marriage

Under Article 48 of the Family Code, aside from the

husband and wife, there is a third indispensable party in
 Lecture No. 5 61

all cases of annulment or declaration of absolute nullity of

a marriage. This party is the State, which has a vital inter-
est in the preservation of the sacred institution of mar-
riage. (Tolentino v. Villanueva, 56 SCRA 1)
Even in a case of legal separation, the state is an in-
dispensable party. (Art. 60, Family Code)
Whether the case be for annulment or declaration of
nullity of a marriage, or legal separation, the court shall
order the prosecuting attorney or fiscal to intervene in the
case. Nowhere is this more important than in a case for
declaration of nullity on the ground of psychological inca-
pacity, where the Solicitor General himself is called upon
to intervene and submit a certification setting forth his
position vis-a-vis the petition.

QUESTION: H, a Filipino, marries W, an

American, in New York. At the time of the mar-
riage, H was psychologically incapacitated to
enter into marriage, although the incapacity
manifested itself five years after the wedding.
Assuming that the marriage is valid in New
York, is it also valid here?
ANSWER: No. The rule is: “valid there,
valid here,” except those prohibited under Arts.
35 (1), (4), (5) and (6), 36, 37 and 38. (2nd par.,
Art. 26, Family Code). Article 36 of the Family
Code is the provision on psychological incapac-
ity.
QUESTION: Two second cousins, Filipi-
nos, got married in Papua New Guinea where,
let us assume, such a marriage is void. Is the
marriage valid here?
ANSWER: No, the rule is: “valid there,
valid here.” Hence, “void there, void here” also.
 OF Laws
62 Review Notes IN CONFLICT

that had the mar-

This notwithstanding the fact
would have been
riage been solemnized here, it de)
. 26, Family Co
perfectly valid. (1st par., Art
Family Code, a
NOTE: Under Article 38, ,
atives up to the
marriage between c ollateral rel
the relationship be
fourth civil degree, whether sons of
void for rea
legitimate or illegitimate, is 4
s between first
public policy. Hence, marriage
lication, those
cousins are void. By necessary imp ‘
valid.
between second cousins are A

Vaso
the parties made the
In the above problem, however,
n country where the

a ba beep ONS
mistake of getting married in a foreig
validity of the mar-
marriage is not valid. As a rule, the
brationis, in accor-
riage is determined by the lex loci cele

PIR SS a ad RES 4
e 26 of the Family
dance with the first paragraph of Articl
Code.
said, “Many people like me are
As Forrest Gump

Sal
get stupider as
born idiots, but there are many more who

Sit a
they go along.”
s,
PROBLEM: Joseph and Gloria, Filipino
sensual
get married in what is known as a con
us as-
marriage in Oregon, U.S.A., where, let
sume, such a marriage is va lid. (A consensual
y and
marriage is one where there is no ceremon
-
the parties exchange vows without the interven
ge
tion of a solemnizing officer.) Is the marria
valid here? Explain.
ANSWER: Yes, the marriage is also valid
| here. The rule is valid there, valid here. The case
does not appear to fall under any of the excep-
tions, so the general rule of valid there, valid
here must apply.
 Lecture No. 5 63

PROBLEM: Renato, a Filipino, marries

Monique, his French girlfriend, in Paris. At the
time of the marriage, Ruben is psychologically
incapacitated to enter into marriage under Phil-
ippine law. Under French law, the marriage is
voidable. Is the marriage also voidable in the
Philippines?
ANSWER: No. The marriage is void. The
rule is: “valid there, valid here”; “void there,
void here”; “voidable there, voidable here.”
However, the case falls under one of the excep-
tions, Article 36 of the Family Code.
PROBLEM: Marcos adopts (judicially)
Teresa in La Union. They go to Bosnia and there
get married. Assuming the marriage to be valid
under Bosnian law, is it also valid here? Explain.
ANSWER: No. Even if the marriage is
valid in Bosnia where it is celebrated, it is void
here because it “is void from the beginning for
reasons of public policy” it being a marriage
between the adopting parent and the adopted
child. (Art. 38[4], Family Code)

Public Policy in the Law on Succession

The second paragraph of Article 16 of the Civil Code

expresses the rule that succession shall be governed by the
national law (lex nationalii) of the decedent.

“However, intestate and testamentary suc-

cessions, both with respect to the order of suc-
cession and to the amount of successional rights
and to the intrinsic validity of testamentary pro-
visions, shall be regulated by the national law of
the person whose succession is under considera-
 ;

64 Review Notes in Conriict oF Laws

tion, whatever may be the nat

ure of the property
rein said
and regard less of the coun try whe
property may be found.”
siding
PROBLEM: T, a Turkish national re
Baguio City, leaving a
in the Philippines, dies in
of land, one in Baguio
will and two (2) parcels
will he provided
and the other in Ankara. In his -
e in the Philip
that since he acquired his fortun
pines, it is hi 5 wish that his
estate be distributed
w. He provided
+n accordance with Philippine La the
e oppose
further that any heir who would dar lica-
g the app
testamentary provision mandatin
eritance.
tion of Philippine law shall lose his inh
ccession to
The law of what state governs the su
poses the
both parcels of land? H, a legatee, op
e his
application of Philippine law. Should he los
legacy?
ANSWER: With respect to the parcel of
land in Baguio City, the law that shall govern the
the
succession is Turkish law, the national law of
h
decedent, as provided in the second paragrap
of Article 16 of the Civil Code.

The testamentary provision mandating ap-

plication of Philippine law is contrary to an im-
portant public policy of the forum; hence, it is
null and void. In contemplation of law such a
provision is non-existent. Therefore, H should
not lose his legacy. In effect, he did not oppose
any provision in the will. (Miciano v. Brimo, 50
Phil. 867)
Art. 873 of the Civil Code provides:

“Art. 873. Impossible conditions and

those contrary to law or good customs shall be
 Lecture No. 5 65

considered as not imposed and shall in no man-

ner prejudice the heir, even if the testator should
otherwise provide.”
But with respect to the parcel of land in
Ankara, the RTC should refrain from assuming
jurisdiction under the principle of forum non con-
veniens. It should not raise false hopes by as-
suming jurisdiction if it is in no position to en-
force its judgment. The forum has no particular
interest in the case, and there are other courts
which may better try and decide the case. This
notwithstanding the colatilla in the second para-
graph of Article 16, which states, “regardless of
the country where said property may be found.”
We have no right to legislate for other countries.
(Time, Inc. v. Reyes, 39 SCRA 303, 313)

PROBLEM: Suppose that in the preceding

problem, T died without any heirs. Under Turk-
ish law (let us assume), the Turkish government
shall succeed to the estate of Turkish nationals
who die abroad without any heirs. May such law
be given effect?
ANSWER: No. The second paragraph of
Article 16 of the Civil Code contemplates a
situation where there are heirs. The provision
states, “intestate and testamentary succession,
both with respect to the order of succession and
to the amount of successional rights and to the
intrinsic validity of testamentary provisions
Kxx,

Where there are no heirs, Art. 1011, not

Art. 16, applies:
Pr

66 Review Notes IN CONFLICT OF Laws

“Art. 1011. In default of persons entitled

to succeed in accordance with the provisions of
the preceding Sections, the State shall inherit the
whole estate.” (Civil Code)
il Code, “the
Under Article 1012 of the Civ
Court must
pertinent provisions of the Rules of
be observed.”
ides:
Section 1, Rule 91, Rules of Court, prov

“Sec, 1, When and by whom petition

filed—When a person dies intestate, seized of
real or personal property in the Philippines,
leaving no heir or person by law entitled to the
same, the Solicitor General or his representative
in behalf of the People of the Philippines, may
file a petition in the Court of First Instance of the
province where the deceased last resided or in
which he had estate, if he resided out of the
Philippines, setting forth the facts, and praying
that the estate of the deceased be declared es-
cheated.”

Escheat, being an attribute of sovereignty, rests on the

principle that ultimately it is the State that owns all prop- =
erty within its territorial jurisdiction. (Paras, Civil Code,
Vol. III, 11th ed.; Salas v. Jarencio, 46 SCRA 734; Rabuco v.
Villegas, 55 SCRA 658)
Under the doctrine of caduciary rights, the state
where the properties of a decedent are located may lay
claim to such properties through escheat proceedings if
| the decedent is not survived by any heirs. (Graveson) The
estate may be considered as “ownerless property” or bona
vacantia. (In the Estate of Musoros [1936] 2 All. E.R. 1666)
 Lecture No. 5 67

(Read Art. 1013, Civil Code, as to the final disposition

of the estate; and Art. 1014 on the prescriptive period of
five (5) years for the filing of claims by heirs.)
Joint Wills

As a rule, a will executed by a Filipino abroad is gov-

erned by the lex loci celebrationis with respect to its forms
and solemnities or extrinsic validity.
The first paragraph of Article 17 of the Civil Code
states:

“Art. 17. The forms and solemnities of

contracts, wills, and other public instruments
shall be governed by the laws of the country in
which they are executed.”

Article 815 of the Civil Code is more specific:

“Art. 815. When a Filipino is in a foreign
country, he is authorized to make a will in any of
the forms established by the law of the country
in which he may be. Such will may be probated
in the Philippines.”

However, there is a strong public policy against joint

wills, notwithstanding the fact that this is a common prac-
tice of married couples in the Philippines. The making of a
will is a highly personal act on the part of the testator. No
other person may take part in its execution, not even one’s
spouse. (Just try telling that to the wife.)
A joint will consists of two or more wills executed in
the same instrument by two or more testators. There are
actually two or more separate wills embodied in the same
instrument. Such instrument is declared null and void by
our civil law as a matter of public policy.
re
68 Review Notes 1n Conruict or LAws

e based on the absolute

The public policy appears to b will, which he may not 4
is

right of the testator to revoke his

h somebody else who

GH ieoensats
be able to do if he shares his will wit

it
s to rev oke it. The re is als o the fear that if the will is
refuse
being joint, either spouse may be

iE RIOR IEA
reciprocal, aside from

a
his or her par tne r to an early grave. In

ORR; ——_____—
temp te d to sen d
ng buhay.”
street Tagalog, it could become one’s “mitsa

IS STOLLER OR
states:
Article 818 of the Civil Code

eeiaeaeaenemenmeemneamenEee
RES aEssenaceanaeaaiaeaeniananien
s Can-
“Art. 818. Two or more person
same in-
not make a will jointly, or in the t
iprocal benefi

SLE Tg
strument, either for their rec
or for the benefit of a third person.”

eB BSR Sie aed ESA

H and W, husband and wife,
PROBLEM:
there
Filipinos, find themselves in Sarajevo and
to be
they execute a joint will. Assuming the will
here?
valid under Bosnian law, is it also valid
ANSWER: No, it is contrary to an impor- eae a Be

tant public policy of the forum. Article 819 of the

Civil Code declares:
.
AR

“Art. 819. Wills prohibited by the

preceding articles (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 be executed.”

7 QUESTION: A and B, Bosnians, execute a

joint will in Sarajevo. Assuming that the joint
will is valid there, is it also valid here?
ANSWER: Yes, it is also valid here. Article
816 of the Civil Code provides:
 Lecture No. 5 69

“Art. 816. The will of an alien who is

abroad produces effect in the Philippines if
made with the formalities prescribed by the
law of the place in which he resides, or ac-
cording to the formalities observed in his
country, or in conformity with those which
this Code prescribes.”
The prohibition against joint wills applies to Filipinos
here or abroad, as well as to foreigners who execute their
wills here.

NOTE: Article 816 speaks of the lex domi-

cilii (“the law of the place in which he resides”),
the lex nationalii (“according to the formalities
observed in his country”), and lex fori (“in con-
formity with those which this Code prescribes”).
There is no mention here of the lex loci celebratio-
nis. However, the Code Commission believes
that Article 17 supplements Article 816. So, there
are four laws applicable: the law of the domicile
of the testator, the law of his nationality, the lo-
cal law (Art. 816), and the law of the place where
the will is executed (Art. 17).
QUESTION: Suppose that in the above
question, A and B, Bosnians, come to the Philip-
pines and execute their joint will here, may such
a will be probated here?
ANSWER: No. It is not only joint wills exe-
cuted by Filipinos anywhere but also those exe-
cuted by foreigners on Philippine soil that are
violative of our public policy.
QUESTION: Suppose the probate court
makes the mistake of declaring the joint will of a
Filipino couple valid upon the death of the hus-
 Review Notes I n ConrFLict OF
Laws
70

band. May such judgment be challenged after jt

has become final?
ANSWER: No more. In De la Cerna v. Re.
Court
baca-Potot, 12 SCRA 576, the Supreme the wil]
being void
held: “The contention that i
that the ultimate
cannot be validated, overlooks
is valid or void rests
decision on whether an act
they have spoken with
with the courts and here
probated in 1939.” (p,
finality when the will was
579)

It would seem that the public policy of res judicata ig

policy against joint wills. Said the
stronger than the public
policy and sound practice
Supreme Court, “x x x public =
errors judgments of
demand that at the risk of occasional :
definite date fixed by
courts should become final at some
litium.” (p. 578)
= * law. Interest rei publicae ut finis set
However, the fact that the joint will was declared
not necessarily mean
valid after the husband’s death, does
n the wife dies. The
that it will also be declared valid whe
“x x x the va-
Supre me Court held in the De la Cerna case:
the wife was
lidity of the joint will, in so far as the estate of
ed and adjudi-
concerned, must be, on her death, reexamin
ed a separate
cated de novo, since a joint will is consider
will of each testator.” (p. 579)
is
The legal effect of the decision is that the joint will
valid with respect to the estate of the deceased husband
only, but is null and void with respect to the wife, whose
estate, upon her death, should pass to her heirs by intes-
tacy.

CASE: H and W were married in 1937 when both of

them were Filipino citizens. In 1943 H was naturalized as 4
US citizen. In 1951 he obtained a California divorce. In

J
 Lecture No. 5 Fi

1958 he remarried his second wife, a Filipina, in the Phil-

ippines. H died in 1985. Is his second marriage valid?
HELD: The divorce obtained by H was valid and
recognized in this jurisdiction. Therefore the second mar-
riage is valid. (Llorente v. Court of Appeals, G.R. 124371,
Nov. 23, 2000, citing Pilapil v. Ibay-Somera, 174 SCRA 653
[1989])
 LECTURE NO. 6

II. Second Exception

,
dgment or contract is cop
When the foreign law, ju lity, oy pa
trary to universally accepted principles of mora d }
mor es, the n it sh ou ld on no account be applie
tra bonos lic Policy
s acrifice our own pub
our courts. We should not
mo ra ls jus t to ac co mm od ate an alien. Hospitality
or good
can only go so far.
what
Thus, a foreign contract which provides for iged
a Filipina is obl
amounts to prostitution, under which
country at
to dispense her favors to the royalty of a certain
be en.
$5,000.00 a night, assuming it is valid there, cannot
or contra bo-
forced here. It is contrary to our good morals,
nos mores.
and the
There is a thin line between this exception
first, between what is contrary to good morals and what is
ion
contrary to public policy. There is a common provis
of
that embodies both exceptions. The third paragraph
Article 17 of the Civil Code states:

“Prohibitive laws concerning persons, their

acts or property, and those which have for their
object public order, public policy and good cus-
toms shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or
conventions agreed upon in a foreign country.”
Republic Act No. 6955

R.A. No. 6955, enacted under President Cory, prohib-

its the so-called mail-order brides. What the law actually

ae
 Lecture No. 6 73

prohibits (see Section 2) is the “business” of matching

Filipino women with foreigners either on a mail-order
system or through personal introduction. The declared
policy of the law is that “the State shall take measures to
protect Filipino women from being exploited in utter dis-
regard of human dignity in their pursuit of economic up-
liftment.”
It has been reported that there are men from entire
villages in Japan who come to marry women from villages
in the Philippines in pre-arranged marriages. Why? So the
women can work on the farms because Japanese women
refuse to do farm work. In 1995 no less than 3,000 South
Koreans married Filipinas for the same reason.
Recruiters for German husbands have devised the
“discovery process” and “30-day guarantee.” “Discovery
process” means that the man can take the Filipina, have
sex with her right in the office of the mail-order bride
agency, and see if he likes her. If not, he can leave her right
there, like a shirt that does not fit. Then there is the “30-
day guarantee.” The man can take the Filipina home, try
her out for one month, like a washing machine, and if he is
not satisfied, he can return her in 30 days.
The government has been trumpeting the “success”
of our export sector. At the very top of our list of exports is
2.5 million of female flesh.
No one has been convicted under R.A. 6955 so far.
How about e-mail order brides? This is now rampant, but
the government is technically unable to run after the cul-
prits.

PROBLEM: Suppose A arranges a mar-

riage between F, a young Filipina, and A’s
friend, K, an elderly South Korean national, by
presenting a nude photo of F to K. Is A liable
under R.A. 6955?
74 REVIEW NOotTES IN CONFLICT OF Laws

ANSWER: | am afraid not. What is pun-

4
ished under R.A. 6955 is the act of matching
Filipina with a foreigner when conducted ag a
business. In the problem, it does not appear that

Se
s
A is engaged in the business of matching bride
is part of
and grooms for a fee. (If the matching

Sie Facet
A’s business, he would face a stiff penalty of six
to eight years imprisonment and a fine of
P8,000.00 to P20,000.00)

Lo
QUESTION: May A collect his fee as a

SSE aches
.
marriage broker from F and K?
SUGGESTED ANSWER: No way, not
here. (It is precisely the matching, or marriage
brokering, that is prohibited by R.A. 6955, not
the marriage). A may even be prosecuted crimi-
nally under R.A. 6955.
QUESTION: How about the mass wed-
ding between Korean grooms and Filipina brides
on January 23, 1996 at the PICC arranged by the
Holy Spirit Association for Unification of World
Christianity (Moonies, for short)?
SUGGESTED ANSWER: The Moonies in-
sist that there was no wedding. What took place
was only a blessing ceremony, or a reaffirmation
of commitments, whatever that means. There
was no marriage contract. There was no license.
Besides, there may be no proof that the matching
was done as part of the regular “business” of the
Moonies. However, if the Moonies charge a fee,
they may be vulnerable under subparagraph 3 of
Section 2.
QUESTION: Considering that the Filipina
brides consented to the ceremony because of the
failure of the government to improve the econ-
 Lecture No. 6 75

omy in the rural areas, and considering that

there are so many cases of graft and corruption
involving billions of the people’s money waiting
to be investigated, are the government lawyers
justified in prosecuting the Moonies?
ANSWER: No comment.

The problem appears to have metastasized—from

mail to e-mail. In January, 1999 it was reported that there
were at least 3,000 Pinay “e-mail order brides” in just one
Website, “Asia Romance Network.”
Vice President Gloria Macapagal-Arroyo has admit-
ted that the government can do little to stop Website own-
ers who are mostly based abroad from posting Filipina
mail-order brides in the Internet. Their hi-tech services
include on-line payment schemes and money guarantees
for dissatisfied customers.

Ill. Third Exception

When the foreign law or judgment is penal in nature,

it cannot be enforced here. The penal laws of a state are
enforceable only within its territorial jurisdiction.
If we cannot even enforce our own penal law against
the “salvagers” of the Kuratong Baleleng, why volunteer
to enforce foreign penal law?
This exception to the application of the proper foreign
law is based on the principle of territoriality. A felony may
be punished only in the territorial jurisdiction where it is
committed. Indeed, a crime is a crime only where it is
committed. In the words of Chief Justice Marshall, “No
society takes concern in any crime but what is hurtful to
itself.”
76 Review Nores iN Conruict or Laws

The ill-gotten wealth case

The first action brought by the Philippine Commis.

sion on Good Government (PCGG) to recover the “stolen”
wealth of the Marcoses was a civil case for recovery ang
accounting and not a criminal case for plunder or embez.
zlement. When Senator Jovito Salonga (first PCGG Chair.
man) was asked about it, he explained that the intention
was to enforce the judgment in New York where some rea]
properties of the Marcoses had earlier been frozen.
Salonga (Ph. D., Yale) knows his law. A judgment in a
criminal case in the Philippines is not enforceable in New
York. The rule works both ways.

PROBLEM: A, an American, and B, a Fili-

pino, enter into an employment contract in New
York, under which B is to render two (2) years of
service in Baguio City, failing which, in accor-
dance with the penalty clause in the contract, he
is to pay P5,000.00 to A, the employer. With a
couple of months to go on his contract, B quits
his job. A sues B for enforcement of the penalty
before the RTC of Baguio. Assuming that under
the law of New York the penalty clause is valid,
will the action prosper?
ANSWER: Yes, the action will prosper. The
penalty may be enforced, it being valid under
the lex loci celebrationis, which is applicable in
this case. It is not penal in nature because its
purpose is not to remedy an act of injustice
against the general public but against a private
individual.
QUESTION: May A recover exemplary
damages?
 Lecture No. 6 TE

ANSWER: No. Although the exemplary

damages are to be paid to A, a private individ-
ual, the purpose of this particular type of dam-
ages is to punish the defendant in order to deter
other persons who are similarly minded, or to
set up the defendant as an example for the pub-
lic good. It partakes of the nature of a penalty as
understood in criminal law.
NOTE: Even in criminal cases, exemplary
damages may be imposed only if the crime is
committed with one or more aggravating cir-
cumstances. (Art. 2230, Civil Code; Pp. v. Ra-
banes, 208 SCRA 768)
Note that a penal law in this context need not be a
penal statute. It may be civil in nature, as in the case of a
law authorizing payment of exemplary or punitive dam-
ages. What is controlling is the purpose of the statute. If its
purpose is to remedy an act of injustice against the public
in general, then it is penal in nature, even if it is properly a
part of the state’s civil or commercial law.
PROBLEM: Suppose that H and W, both
Americans, secure a divorce in New York, and
the decree provides that both ex-spouses may
not remarry within one year, may H remarry
within the year in the Philippines?
ANSWER: No. The prohibition to remarry
is obviously not a penalty as it was not imposed
on the guilty spouse as a punishment, but on
both spouses, ostensibly as a precaution against
paternity problems later. Since it is not a penalty,
the prohibition must be enforced, and neither H
nor W should be allowed to marry here within
the prohibited period.
 78 Review Notes IN ConeLict oF Laws

PROBLEM: Suppose W secures a divore

decree on the ground of H’s infidelity, ang the
prohibition to remarry is imposed on H alone ag
part of his punishment, being the guilty spouse
If H comes to the Philippines, may he be alloweg
to remarry within the prohibited period?
ANSWER: Yes. In this case, the Prohibition
to remarry is a penalty. It cannot be enforced
here.
NOTE: Even if the prohibition is contained
in the certificate of legal capacity to contract
marriage issued by the U.S. embassy in accor-
dance with the first paragraph of Article 21 of
the Family Code, such prohibition should be dis-
regarded, it being penal in nature. (Paras) [The
law seems to work in favor of the guilty spouse.]

IV. Fourth Exception

When the foreign law or judgment is procedural in

nature, it cannot be enforced here. There are no vested
rights in the rules of procedure.
This exception to the application of the proper foreign
law is actually based on necessity. We would be placing an
intolerable burden on our courts if we compel them to
adopt a new procedure each time a foreigner is involved in
litigation here.
Earlier, we discussed the case of Esteban Galacgac
(now an American national who calls himself Steve Ga-
lacgac) who is arrested at the NAIA for illegally carrying a
six-shooter. Accused of illegal possession of firearms be-
fore the RTC, he moves to quash on the ground that his
own constitution guarantees his right to bear arms. The
motion to quash should be denied under the principle of
territoriality expressed in Article 2 of the Revised Penal
 LectTuRE No. 6 79

Code, as well as the principle of generality enunciated in

Article 14 of the Civil Code.
Now then, at the trial, the accused moves for a trial
by jury.
The motion must be denied. When the foreign law is
procedural in nature, it cannot be applied here. This is one
of the eight basic exceptions to the application of the
proper foreign law. Procedure is always determined by the
lex fori.
May Steve be represented by an American lawyer?
No, practice of law is restricted to Filipino citizens. The
second paragraph of Section 14, Article XII of the Consti-
tution, declares, “The practice of all professions in the
Philippines shall be limited to Filipino citizens, except in
cases provided by law.” (See Sec. 34, Rule 138 and Rule
138-A, Rules of Court, for the exceptions.)

BAR QUESTION (1994): What is a “bor-

rowing statute”?
ANSWER: (A “borrowing statute” is not
the law governing contracts of loan.) The Su-
preme Court, through Justice Quiason, answered
this question in December, 1994 (after the bar
examinations in September where the question
was asked) in the case of Cadalin v. POEA, 238
SCRA 721.

“As a general rule, a foreign proce-

dural law will not be applied in the forum.
Procedural matters, such as service of proc-
ess, joinder of actions, period and requisites
for appeal, and so forth, are governed by
the laws of the forum. This is true even if
the action is based upon a foreign substan-
tive law (Restatement of the Conflicts of
 s
80 Review Notes IN CONFLICT OF Law

vate Interna-
Laws, Sec. 685; Salonga, Pri
[p- 761]
tional Law, 131 [1979]).”
XXX XXX XXX

the characterization of a
“However,
tantive law
statute into a procedural or subs
untry of the
becomes irrelevant when the co
d stat-
forum has a “borrowing statute.” Sai
of treating the
ute has the practical effect
of sub-
foreign statute of limitations as one
, 152-153
stance (Goodrich, Conflict of Laws
ects the
[1938]). A “borrowing statute” dir
stat-
state of the forum to apply the foreign
g claims
ute of limitations to the pendin
, 183
based on a foreign law (Sigel, Conflicts
ds of
[1975]). While there are several kin
ides
“borrowing statutes,” one form prov
e it
that an action barred by the laws wher
rum
accrued, will not be enforced in the fo
even though the local statute has not run
against it (Goodrich and Scoles, Conflicts of
Laws, 152-153 [1938]). Section 48 of our
d
Code of Civil Procedure is of this kind. Sai
section provides:
“If by the laws of the state or country
on
where the cause of action arose, the acti
is barred, it is also barred in the Philippine
Islands.”
“Section 48 has not been repealed or
amended by the Civil Code of the Philip-
pines. Article 2270 of said Code repealed
only those provisions of the Code of Civil
Procedure (as to) which were inconsistent
with it. There is no provision in the Civil
Code of the Philippines which is inconsis-
 LecturE No. 6 81

tent with or contradictory to Section 48 of

the Code of Civil Procedure (Paras, Philip-
pine Conflict of Laws, 104 [7th ed.]).”

NOTE: Ultimately, however, the Supreme

Court ruled in Cadalin that “Section 48 cannot
be enforced ex propio vigore” because it “would
contravene the public policy on the protection to
labor.” (p. 762)

The Supreme Court said,

“In the Declaration of Principles and State
Policies, the 1987 Constitution emphasized that:
“The State shall promote social justice in all
phases of national development.” (Sec. 10)
“The State affirms labor as a primary social
economic force. It shall protect the rights of
workers and promote their welfare.” (Sec. 18)

In Article XIII on Social Justice and Human Rights,

particularly the first paragraph of Section 3, the 1987 Con-
stitution declares:

“Sec. 3. The State shall afford full protec-

tion to labor, local and overseas, organized and
unorganized, and promote full employment and
equality of employment opportunities for all.”

The Supreme Court refused to apply the statute of

limitations of the proper foreign law which provided a
prescriptive period of one year, it being contrary to the de-
clared public policy to afford full protection to labor, local
and overseas, organized and unorganized. The Court ap-
plied instead the prescriptive period of three years under
the Labor Code.
 82 Review Notes iN Conruict oF Laws

V. Fifth Exception

When the foreign law is fiscal (revenue-producin

be
such as a tax law) or administrative in nature, it cannot
enforced here.
A law is considered fiscal if it has something to do
with the financing of the government. It is administrative
if it involves the exercise of governmental functions, If We
cannot even collect taxes from our citizens and residents
which will go to support our own government, it would be
presumptuous for us to assist in the collection of taxes dye
a foreign government.

VI. Sixth Exception

When the foreign law, judgment or contract works

injustice to citizens or residents of the forum, we should
not apply it. The most important function of the law is to
render justice where justice is due. If the enforcement of
the foreign law will result in a grave injustice to local resi-
dents, such law should not be applied. Let us take care of
our own.

QUESTION: Does this mean that in a liti-

gation between a non-resident and a resident,
our courts should always take the side of the
resident?
ANSWER: No. Justice may be on the side
of the non-resident. The courts should always be
on the side of justice. That is why they are called
courts of justice.

An employment contract under which Filipina

“Guest Relations Officers” (GROs) are obliged to render
service in.a foreign country may work injustice to their
husbands back home. It all depends on the meaning of
 LECTURE No. 6 83

“relations.” Our courts should think twice before enforc-

ing such contracts.
VII. Seventh Exception
When the foreign law, judgment or contract is con-
trary to the vital interests and national security of the state,
it would be treasonous for our courts, which are creations
of the state, to enforce it.
A contract for the supply of explosives to a terrorist
group operating within our borders is detrimental to our
national security and should not be enforced by our courts
regardless of what the proper foreign law provides.
There is a proposal for the government to impose a
ban on purchases of cough syrup preparations. The cur-
rent thinking is that the drugs are not only ineffective;
they are a major cause of drug addiction. Should such a
policy be adopted, contracts entered into abroad to pro-
vide local suppliers with these cough remedies would be
deemed injurious to the local population. They would
therefore come under the sixth, and possibly the seventh,
exception.

QUESTION: What then will be the sub-

stitute for cough syrup?
ANSWER: Ask Ernie Baron.

The case of REPUBLIC V. COURT OF APPEALS

227 SCRA 401 (asked in the bar)

Facts: James Anthony Hughes, an American, married

Lenita Mabunay, a Filipina. Lenita became an American
citizen. James and Lenita filed a petition with the RTC of
Angeles City to jointly adopt Ma. Cecilia, Neil and Mario,
all surnamed Mabunay, the minor niece and nephews of
 84 Review Notes IN CONFLICT OF
Laws
] t

couple even befy

living with the
who had been
Lenita,
ition, -
the filing of the petition. The RTC granted the pet
The Republic questioned the adoption in the Court af
nt of the petition,
Appeals, but the CA affirmed the gra
Rep ubl ic que sti one d the CA ruling in a petition
The
the Supreme Court.
for review on certiorari with
hony is not qualifieg
Held: It is clear that James Ant
Art icl e 184 of the Fam ily Code expressly prohib.
to ado pt.
ipino child.
its an alien from adopting a Fil
is disqualified, may
If it is James Anthony alone who pect to res
for adoption prosper with
not the petition
Lenita?
t under par. 3(a) of
Lenita herself is qualified to adop
tion by “(a) A former
the said Articl e which allows adop
p t a relative by consan-
Filipino citizen who seeks to ado
* ity.”

the Family Code

The problem lies in Article 185 of
must jointly adopt.”
which mandates that “husband and wife
and her husband must
Lenita cannot adopt alone. She
es Anthony is not
both be qualified to jointly adopt. If Jam
adoption. A husband
qualified, then there can be no joint
Both must adopt
alone, or a wife alone, cannot adopt.
jointly.
Said the Supreme Court:
the grant of
“The respondent court, in affirming
the lower court, has theorized that James
adoption by
as a nominal or
Anthony should merely be considered
of the appellate
formal party in the proceedings. This view
that is
court cannot be sustained. Adoption creates a status
ation
closely assimilated to legitimate paternity and fili
with corresponding rights and duties that necessarily flow
from adoption, such as, but not necessarily confined to, the
exercise of parental authority, use of surname of the
adopter by the adopted, as well support and successiona
 Lecture No. 6 85

rights. These are matters that obviously cannot be consid-

ered inconsequential to the parties.
We are not unmindful of the possible benefits, par-
ticularly in this instance, that an adoption can bring not so
much for the prospective adopting parents as for the
adopted children themselves. We also realize that in pro-
ceedings of this nature, paramount consideration is given
to the physical, moral, social and intellectual welfare of the
adopted for whom the law on adoption has in the first
place been designed. When, however, the law is clear and
no other choice is given, we must obey its full mandate.”

COMMENT: The rule that husband and wife must

jointly adopt (Art. 185, Family Code) means not only that
they join as co-petitioners; it also means that both of them
must be qualified to adopt. If only one of them is qualified,
the petition cannot be granted with respect to him or her
alone, because of the rule that husband and wife must
jointly adopt.
In other words, if one of the petitioning spouses turns
out to be unqualified to adopt, the entire petition must be
denied.
Suppose the joint petition was filed before Lenita be-
came an American citizen, could both Lenita and James
have jointly adopted the children?
Yes, Article 184 of the Family Code allows an alien to
adopt if he “(c) x x x is married to a Filipino citizen and
seeks to adopt jointly with his or her spouse a relative by
consanguinity of the latter. The timing of the adoption was
all wrong.
Take note, however, of R.A. 8043 (The Inter-Country
Adoption Act of 1995) and R.A. 8552 (The Domestic
Adoption Act of 1998).
 ay
LECTURE NO. 7

VIII. Eighth Exception

or personal Property
When the case involves real
law, judgment or con.
situated in the forum, the foreign
dience to the
tract must give way to the /ex fori in obe
applieg
paramount rule of lex rei sitae. The lex fori will be
because it happens to be the lex situs.
Code de.
The first paragraph of Article 16 of the Civil
clares:

“Real property as well as personal property

is subject to the law of the country where it is
situated.”

Nothing could be clearer than that.

Real property, particularly land, forms part of the ter-
ritory of the State where it is situated. Logic demands that
it be subjected to its laws. (Beale)
We used to follow a different rule for personal prop-
erty, the rule of mobilia sequuntur personam, under which
personal property followed the owner wherever he would
go. (Article 10, old Civil Code) But now we have aban-
doned the “split or scission system,” and adopted a
worldwide trend, called the “unitary system,” under
which there is only one rule for both real and personal
property.
The primacy of the lex situs

To understand the primacy of the lex situs, observe

that the lex loci celebrationis, as expressed in the first para-

| 86
 LEcTurRE No, 7 87

graph of Article 17 of the Civil Code, bows down to the lex

situs in case of contracts involving property situated in the
forum. The forms and solemnities, or extrinsic validity, of
contracts entered into in a foreign country but involving
property situated in the forum, shall be governed by Phil-
ippine law.

PROBLEM: A sells a parcel of land in Ba-

guio to B by means of a deed of sale executed in
Bangkok. The law of what state governs the ex-
trinsic validity of the deed of sale?
ANSWER: Philippine law. The case in-
volves property situated in the forum, so the lex
loci celebrationis must bow down to the superior
rule of lex situs. The case falls under one of the
basic exceptions to the application of the lex cau-
sae.
NOTE: To be able to register the deed of
sale and obtain a new certificate of title in his
name, B, the vendee, must satisfy the require-
ments of Philippine law. If he does not submit
an instrument registrable under Philippine law,
the Register of Deeds of Baguio will deny regis-
tration, regardless of any contrary provision in
the foreign law. (His duty to register is ministe-
rial only if the document is registrable. In any
case, registration will not validate an instrument
otherwise invalid.) The Register of Deeds en-
forces only Philippine law, not the lex loci celebra-
tionis, which, in this case, is a foreign law.
BAR QUESTION (1995): A, a national of
Afghanistan, executes a deed of sale in London
under which he sells a parcel of land in Baguio,
which he had inherited from his mother, to F, a
Filipino. The law of which state governs the ex-
 88 Review Notes iN Conriict OF Laws

trinsic validity of the deed of sale? The Capacity

of A to make the alienation? The intrinsic valjg-
ity of the deed of sale? Explain.
ANSWER: The extrinsic validity of the
deed of sale shall be governed by Philippine law.
While there is a proper foreign law or lex causae,
which is the lex loci celebrationis, in this case Brit-
ish law, such law must yield to the paramount
rule of the lex situs because the case involves
property situated in the forum.
(It may safely be stated as a rule of thumb that eve.
rything concerning property is governed by the law of the
place where the property is situated, including the forms
and solemnities, or extrinsic validity, of contracts affecting
the title to the property.)

With respect to the capacity of the national

of Afghanistan to alienate the property, it is also
governed by the /ex situs. While as a rule, capac-
ity is governed by the law of the nationality of
the person concerned (Article 15, Civil Code),
where the case involves property situated in the
forum, the lex nationalii must give way to the
paramount rule of lex situs.
With respect to the intrinsic validity of the
sale, it is usually governed by the proper law of
the contract, or lex contractus, which is either the
law voluntarily agreed upon (lex loci voluntatis)
or the law intended by the parties (/ex loci inten-
tionis), but if the case involves property situated
in the forum, as in the above problem, the lex si-
tus must prevail.
 LECTURE No. 7 89

QUESTION: Does it not seem odd that the

capacity of a person is governed by a law other
than his personal law?
ANSWER: Not really. Under Article 1039
of the Civil Code, the capacity of an heir to suc-
ceed is governed not by his national law but by
the national law of the decedent.
Note that while the extrinsic validity of contracts is
governed, as a rule, by the law of the place of execution, or
lex loci celebrationis (1st paragraph of Article 17, Civil
Code), intrinsic validity is a different matter.
The intrinsic validity of a contract includes its consid-
eration or cause, the interpretation of its provisions, and
the nature and consequences of non-performance. These
matters should be governed by the “proper law of the
contract” or lex contractus. The lex contractus is either the
law stipulated (/ex loci voluntatis) or, in the absence of
stipulation, the law deemed intended by the parties (lex
loci intentionis). (Rabel)
With respect to intrinsic validity, the parties may
choose the law to be applied. They are free to stipulate as
to the determinative law. (Manresa) The right to stipulate
is recognized by the Civil Code.

“Art. 1306. The contracting parties may

establish such stipulations, clauses, terms and
conditions as they may deem convenient, pro-
vided they are not contrary to law, morals, good
customs, public order, or public policy.”

QUESTION: How is the law intended by

the parties (lex loci intentionis) determined?
ANSWER: It may be implied from such
factors as: the law having the most substantial
 90 Review Notes IN Conruict oF Laws

connection with the transaction; the national;

and domicile of the parties; the law most ae
able for the efficacy of the contract, as it is
_
sumed that the parties intended to be a |
at qua pereat.”
their agreement. “Ut res magis vale ‘
(Cheshire)
nge, then it should
If the law selected should cha must be presumeg ap-
for it
ply as changed or amended, the dynamic nature oh
we re no t un aw ar e of
the parties change is so endl
is when the
law. The exception
radically changed fox
that it must be presumed that the .
parties. (Wolff)
was never contemplated by the
While the law that should govern intrinsic validi
ties have no
may be the subject of agreement, the par
idity. They must as a
choice with respect to extrinsic val
ere they execute the
rule follow the law of the place wh
s. (Insular Government y,
contract, or lex loci celebrationi
nk, 13 Phi l. 236 cit ing Sc ud der v. Union National Bank
Fra
406 ) The sam e rul e app lie s to capacity. It is gov.
91 U.S. domicilit) of
nationalii or lex
erned by the personal law (lex ject of stipula-
the person concerned. It cannot be the sub
tion.
whether it is the lex loci celebrationis with re-
Even so, t
the lex contractus with respec
or
spect to extrinsic validity, the
sic val idi ty, or the pe rs onal law with respect to
to intrin reign law must yield to
a par ty, the pr op er fo
capacity of operty
su pe ri or rul e of lex rei sitae if the case involves pr
the
situated in the forum. the
to say tha t the re are no ex ceptions to
This is not se does not fa
but if the ca
rule of lex rei sitae. There are, situs reigns supreme.
th e lex
under any of the exceptions,
 LeEcTuRE No. 7 91

Exceptions to the application of the lex situs

It will help to know by heart the exceptions to the ap-
plication of the lex situs. If the case involves real property
or tangible personal property situated in the forum, and
does not fall under any of the following exceptions, it
would be safe to apply the lex situs.
1. Succession. This is the most important exception
to the lex situs rule. Under the second paragraph of Article
16 of the Civil Code, the national law of the decedent gov-
erns the order of succession, amount of successional rights,
and intrinsic validity of testamentary provisions. It also
governs the capacity of an heir to succeed, in accordance
with Article 1039.
“Art. 16. Real property as well as per-
sonal property is subject to the law of the coun-
try where it is situated.
However, intestate and testamentary suc-
cessions, both with respect to the order of suc-
cession and to the amount of successional rights
and to the intrinsic validity of testamentary pro-
visions, shall be regulated by the national law of
the person whose succession is under considera-
tion, whatever may be the nature of the property
and regardless of the country wherein said
property may be found.” (Civil Code)

“Art. 1039. Capacity to succeed is gov-

erned by the law of the nation of the decedent.”
(Civil Code)

2. Contracts involving property but which do not

affect the title to the property, or when the property is
merely incidental.
 92 Review Notes iN Conr.ict oF Laws

PROBLEM: A and B, both Taiwanese, enter

into a contract of employment in Taipei under
which A, the employer, agrees to pay B, the em-
, 20%
ployee, as the latter’s annual compensation
of the annual produce of a certain parcel of land
in Barangay Lioac, Naguilian, La Union. The law
of what state shall govern the extrinsic and in-
trinsic validity of the contract?
ANSWER: With respect to extrinsic valid-
ity, the contract shall be governed by the lex loci
celebrationis, or Taiwanese law. With respect to
intrinsic validity, what is controlling is the
proper law of the contract, or lex contractus.
The lex situs should not be applied to both the extrin-
sic and intrinsic validity of the contract because the con-
tract does not affect the title to the property. The property
is merely incidental to the contract of employment.
3. In contracts where property is given as security
for a principal contract (usually of loan), the principal
contract is governed by its proper law; but the accessory
contract of mortgage is governed by the /ex situs, subject
to the following rules:

(a) If the principal contract is valid under

its proper law (lex loci voluntatis or lex loci inten-
tionis), it does not automatically follow that the
accessory contract of mortgage is also valid, be-
cause its validity will still be tested by the lex si-
tus. (The mortgage, whether real estate or chat-
tel, has to be registered where the property is
situated.)
If the accessory contract is not valid under
the lex situs, the validity of the principal contract
 LECTURE No. 7 93

of loan is unaffected, except that the loan would

become an unsecured obligation.
(b) However, if the principal contract is
not valid as determined by its proper law, the
accessory contract of mortgage would have to be
invalidated also, even if, independently tested
by the lex situs, it might be valid. This is because
by its very nature, an accessory contract cannot
stand without a principal obligation whose per-
formance or fulfillment it is meant to secure.
(Goodrich; see also Articles 2085, 2125 and 2140,
Civil Code; and Section 3, Act No. 1508)
These exceptions apply with like force to
personal property. Inasmuch as the same rule
applies to both real and personal property, the
same exceptions should also apply to both.
“A mortgage is an accessory contract, its
consideration is the consideration of the princi-
pal contract, from which it receives its life, and
without which it cannot exist as an independent
contract.” (China Banking Corp. v. Lichauco, 46
Phil. 460 [1924])

Kinds of personal property

Generally, there are two kinds of personal property:

tangible and intangible.
Tangibles are sometimes called choses in possession,
and intangibles, choses in action. Examples of choses in
action are shares of stock, franchises and copyrights. In the
case of Involuntary Insolvency of Stochecker v. Ramirez,
44 Phil. 933, the Supreme Court held that a half interest in
a drug business is personal property, capable of being the
subject of a chattel mortgage (citing Sec. 2, Act No. 1508).
 Review Notes IN CONFLICT OF Laws

A. Choses in possession, or tangible personal Proper.

of mobilig
ties, are subject to the rule of lex rei sitae. The rule
sequuntur personam, under which the property follows the
owner wherever he goes, is obsolete with respect to tangi.
bles.
are usually
However, choses in possession which
in transit, are governed
moving, such as vessels and goods
by special rules.
of the flag or
1. Ships—If on the high seas, the law
registry is controlling, but if it is docked at a for-
arded as the
eign port, the law of such port is reg
temporary /ex situs. (Wolff)
the law of
2. Goods in transitu—are governed by
ility of the
destination with respect to the liab
common carrier. Article 1753 of the Civil Code
provides:
“ Art, 1753. The law of the country to
l
which the goods are to be transported shal
govern the liability of the common carrier
for their loss, destruction and deteriora-
tion.” (Civil Code)

NOTE: Other matters, such as the validity

of the contract or bill of lading, are not governed
by the law of destination, but by the lex contrac-
tus, or proper law of the contract. The validity of
the seizure of goods in transitu is governed by
the law of the place where they were seized (lo-
cus regit actum). It is the act of seizure that is di-
rectly in issue. The disposition or alienation of
the goods in transitu is generally governed by
the proper law of the contract (/ex contractus).
 Lecture No. 7 95

B. Choses in action or incorporeal movables. The

proper law of the contract (lex contractus) usually governs,
subject to special laws, such as laws on intellectual prop-
erty like patents and copyrights.
The thing to remember is that the rule of lex rei sitae
applies to real as well as tangible personal property.