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Conflict of Laws by Sempio Diy
Conflict of Laws by Sempio Diy
*w{rt isf,,
CONFLICT OF I-AWS
W'i Pdnted'SY'
and bar reviewees Clarence Evangelista and Russei N'liraflor in encoding
her manuscript and preparing it for prtnung ts herebv gratefullr- and
sincerclv acknorvledged.
MPC Printers
8-F Pahutan St. Veterans Village
ALICIA V. SEMPIO.DIY
Proiect 7, Quezon Ciw
Quezor Ciry
lvlav 2t)04
TABLE OF CONTENTS
Page
i In General 1
CHAPTER
IN GENERAL
L"Defrne Conflict of Laws.
It is that part of law rvhich comes inro plav rvhen the issuc
before the court affects some fact, event or transaction that is so clearlr'
connectedwith a foretgn svstem of Ia$'as to necessttate recou.rse ro that
svstem (Clieshire, Private lnternauonal Ll ', 194i ed., p. (r).
Anl c^"e which invoh'es facts occuning ur rnore than onc statr'
or nauon, so that in deciding thc case. ir rs neccssan' to make a choicc
berween the laws of drtterent srxrcs or coLrnrrles. is l C.onluct of Lau-s
CONFLICTOF LAWS CONFLICTOF LAWS IN GENERAT
I
IN GENERAL
al.so poliUcal subdirrtsrons of states oL countrics v'hich l-rave their internationai personality, such as the United Nations Organization; while
ovn legal sYStems, sr-rch as thc differcnt states Conflict of Laws governs private individuats or corporations.
constiruting the United States of America, the lederal st^tes of Austfaha,
Canada, lv{ex-tco, llrazil and Germauy, etc (b) As to nature: Public International Law is intetnationa] rn
character; Confiict of Laws is rnunicipal in character.
4. $/hy is this subiect more important in recent times than in the
past? (c) As to transactions involved: Public International Law
applies onlv to transactions rn wllich only sovereign states or entitie s with
Witir the fast advance of modern tecirnologv in the means of international personality are concerned and which generally affect public
communicatiou betrveen and among states, the rapid growth and exPansion interest; while Conflict of Laws deals with transactions stlictly pnvate in
of internatronal trade and commerce, the influx of tourists arid f,;reign nature, in which the countrv as such has genetally no interest.
traders to our countlv as well as the massive lnregatlon of our countrvmen
to rvorli and live in foreign shores, the great increase of business (d) As to remedies applied: In a dispute between sovereign
transactions of foretgn corPoratiotls n the Philippines, all these bring states or tnternational entities or in cise of a violauon of Internauonal
about manv ar-rd varied problems tn Conflict of l,aws. Hence, tlre necessitl Law, the concetned states may fitst resort to peaceful remedies iike
nor oulv for iaw]ters and judges but ft-,r: our citizens as a wholc to studv diplomatic negotiations, mediation, inquiry and conciliation, arbitratron,
this subject as an important department of lar'r,:, or judicial settlemeflt b,v international tribunals [ke the United Nations. If
these temedies fail, the states concerned may resort to for:cible remedies
5. Is Conflict of Laws part of International Law? like severance of diplomattc relari<-rns, retorsions, reprisais, ernbargo,
bovcott, non-intercourse, pacific blockades, collective measures under
No. Althougir it is sometirnes tirought of as part of International the UN Charter and finallv. war.
Law because of the presence of a foreign elemetrt in a given problem, it
is nor rnternational tn character but is part of the municipai law of each ln Conflict of Laws, recourse is had to ;udicral or admrnistratrve
state. Br' "municipal larv" rn Conftct of l-aws is meaut the intcrnai or tribunals in accordance with the rules of procedurc .of the country w'bere
iocai iaw of each state, since everr' state has its orvn iuterual or loczrl rhey sit.
svstern of lavi so each state also has its own confltct o[ Iaws.
8. What are the sources of Conflict of Laws?
6. What is the reason for the diversitv of conflicts rules among the
diffetent states of the wodd? Direct soutces: Bilateral and multilateral treaties and internatic-,nai
conventions; constitutions; condiltcations and statutes; iudicial decisions;
Thrs is because each group of peoplc havc a lauguage, cr-rlturc, and internationai customs.
mores and customs, rehgron, ideals and bc[etl, pecuiiar to sr,rcl.r group.
rvhich or" r:eflc:ctcd or exprcssed in tl'retr 12rr5 nn6i legal strsterns. For Indirect sources: the samc as other branches of jau': among
exalnpie, whilc the great rnajorin' of tlrc countr-ies of tirc rvorlci alkr.'v otirers, the natural moral laui and the rvritrngs and treatrses of thinkers
absolute ciivorce. our coul-Itr\r sttll has not legalized absolute divorce. Anci and famous writers and jurists on the subiect.
rvhile some counlries a,:e verv liberal in grnntlns drvorces. others are not
so libeml.
CONFLICT OIJ LAWS CONFLICT OF LAWS JURISDICTION AND CHOICE OF LAW
clehned as ti,e ll()wcr to irear anci dctcrrnrnc crses oF ti-rc general class tt,
whrch d-re proceedrngs in cluesuon bclons.
a
(b) In the PhrJrpptnes, prnsdictron o\jer the sr"rbject-marrer is found
CHAPTER in the Constitution and the.)udicrary Reorganizauon Act, as arnended
fludrcrarv Acr of i94ii; Batas Pambansa BIg. 129, as arnended bv Rep.
Act 7691).
()r powcr of r
-lurisdrcuon over thc pers()1r is the competencc
(a)
T'here are threc liinds of jurisdiction: (11 jud.61.ri<xr over thc
c()rlrl t() rendcr r luclgrnent that rvill brnd thc parues ttrvolvcd: thc
sublect-matter:, (b) iurisdrctron over rirc person, and (c) jurisdiction ovel
piantrff or pctitloncr, ancl thc dcfcndant or respondent.
tlrc t'es
f\e- '^
ccu''r\,n:l* (b) .lunsclictrr)n ()ver the piaintrii rs acqutrccl thc tr<xnent ht'
-
Jurisdiction over the srrbiect-matrer.. ^ rnvoiics thc pr-rrvcr of the court bt, ilr.t tuttng tirc acttou il tirc prolrct'
picaciing..f unsdicrit,n over thc clcfcndat-rt is acqurlccl rvircti hc eutcrs hts
lurisdicuon orrcr tirc subjccr-rnattcr is conferrcci lrl larl arrd is
lul)l)ext,r)cc ot'Lrt ti-rc coercivc pos'cr oi lcgal 1>roccss cxcrtccl bv tht
CONFLICT OF LAWS
JURISDICTION AND CHOICE OF LAW CONFLICTOTLAWS JURISDICTION AND CHOICE OF LAW
c()Llrt can accluire jurisdicUon over thc Pcrsol) of dre dcfendant (Pantuleon ln acdons ifi psfflnam, scrvice oi
summons mat bc bt llcrsonal
u. ,'lrundon, 1 05 Phi/. 76 I : .\'eqnttt a. I-,e/ronclo. I 0 5 Phil' I 1 )9)"lbus'
servlce
service or subsututed service, as pornted out above. Sen'ice bv publication
on a \2-year old daughter of the defendarrt is not vahd substituted would not be sufficient, whether the defendant is in tl.rc i)hilippincs or not
se rvice because of tire child\ lack of suitable age and drscretion
(Sequitrt u.
(Pantaleon u. Arundon. 105 Phil 75/).
Itlrondo,,/). Howcver. tite quesuon t>f cr(>ncous scrvtce of summous
tnLlsr l)e raised bcforc judgnent is rcuderccl. or tl-ris woulcl be a clcar casc When, then. is setvice by publication allorved? Summons br
r>f rvaiver (J,tranilia u. c)Lniule.s. 96 Pt)i/. j) Nioreover, deiccuvc scn'ice pubhcation is authorizcd onit'iu thrce cases:
rnav bc cured bv actr-ral receipt o[ the strnrtrtons bv thc clcfcudant. or if in
anY other lTranner. knowledge of thc exrstcncc of the casc si-tt>uld comt (a) lf the acrt<>n ts in ran;
to iris attenuon (Sequito u Lttrondtt, id ) (b) if dre acuon rs quati in rum. or
statr-rs of the plarntifi
(c) It tl-re action involves thc Pcrsonal
'(Rule 14. sec. 15. 1997 Rules on Civil i)rocedure i
CONFLICT OT LAWS CONFLICTOFLAWS
IURISDICTION AND CHOICE OF LAW AND CHOICE Or LAW
'URISDICTION
When rr-ral extraterritorial service oi sumrnous be effecteci-: to the PhiJ-ippines on vacation. while here, he had an affak w,rth and
Sec. 15. i{ule i-t. id.. provicies fcrr four rnstanccs wi-rereln exffaterrttortai impregnated Rose. Learnrng of Rose's pregnancy, Mar took the firsi
servlce of sumtlons tnat bc mircie: llamci\': availabie piane to the L'.S. rf, after the birth of het child, Rose fiies an
action against Mar, who happens to have some properties in the
(a) \\hen the dcttnciant does not reside and is not found in tl're Philippines, for. recogmuon of her child with supporq would the action
Phihppines. and the action affects the personal status of tire prosper, summons having been served on Mar only by publication,
plarn u ff:
(b) \lhen the defendant does not reside and is not found rn the As to the recogninon of ltose,.s bab1,, ves, beca.se that is an
Phihppines, and the actlon relatcs to or thc sr-rblect of wirich acrion that affects the srarus of the child. so tirat sumrions bv publicauon
is, propern'wrthrn the l)luhppmes treal or pcrsonal). rn which would be sufhcient for the colur to acguire j'risdrcti.n o'et N{ar (scc.
the defendant has a claim a hen or interest, actual or contingent; 15, llule L1, 1997 Rules on Crvil Procedure).
(c) When the defendant is a non-resident but the subject of the
action rs properry located in the Philippines, in whtch tire But the clernand for sr-rpport of thc child agairst l'lar will not
reiief demanded consists. whollv or in patt. rn exciudtng tl-re prosper, because it would be a judgmcnt tr puronant, ancl surnmons b.'
defendant from any interest therein; and pubhcation wouid not give the court jur-iscliction over Mar.
(d) \X'hcn propertv of a non-resident defer.rdant has been
attached n thc Phiiipprnes. (b) Joe, a Fil-ipino non-residenr, married Susan in tire pl-rilippines
while on a short vacauo'l here,
'"itir.nr re'ealing to susan tl-rat he rs
tl're last case, hower.cr, u4riie a l'rit of attachment
In alreadv a mar'ied rnar. After Joet deparrure for hrs lorergn residence.
rnav be rssr-red by the court upon apphcatron, sard v'rit cannot be Susan filed againsr, ]inr an acuon for thc declaratron of the nulhrv of their
lmplemented untll the court iras accluired jurisdictron over thc rnatriage and damages, as Joe happe's to h^r,e some properties herc.
non-residcr-rt defendant, for urithout such jurisdtctron, the court Upon the hli^g of her petitro', S'san also asked the court for a v"'rit of
has no porver ancl allthoriq' to acr 111 any manlrcr against the prelir-ninarv attacl-rmenr against some of Joe's properties in this countr\..
defendar-rt, and an1' court order to that effect rvill nor bind sard would susan's acuon lor declaration of nul[tv and damages against.]oe
defendant (.Dn,ao l)3ht and PrnuerC,o., lnc. t'. C.-'1..204 5'Cl\'1 i|) prosper, sumfi)ons having been served on thc larfer bv puithcation?
lteel )
For the declarauon of nullirv oi marriage, \,cs. because that aslis
Hov, mav extraterritorial service be effected? for a declaration of the personal statrs of Susan, equrvalent to an action
cluasi in rem.
Such serrice ma},, by leave of court, bc effecred:
(a) By personal selvice as under sec. 6, Rule i.l; But as to the demand for damages rvith a rvrit of prcliminan.
(b) Bv publicatron. but copv oi the summons and the order of attacirment, it was held in the recent case of Dauao I ght and power Co.,
the court must be senr bv registered rnail to the dcfcndant's Inc. u C..,1., .rupru. that while the court could issue said writ, it cannot bc
last known address: implemented unul the court has accprired jurisdrction ovcr the non-
(d) Irt anv other manner that dre court mav deem sufficient. Irbr resident defendant, which can be done onlv bv personal or subsuruted
example. bv rcgistered mail service of summons on the latter, because a judgment for damages is a
(,N\idge4' t FernandeT. 61 SCK'1 23). iudgment in pertonam.
(c) X. credrtor of Y (a residenr of Spain), filed an acrion agarnst
4. Illustrative cases on the problem of jurisdiction: Y for tire foreclosure of mortgage over a propern- given to hrm br, \' as
securin' for tl-re pavmenr of a dcbt conrracred br' \' while he rvas i. tirc
(a) Mar, a Fiirpino permanenr residenr of Cahiornia. USA, carne Pirrirppines. In iris acuon, X l)so pravcd for dehcrencl, juclgrncnt ln casc
10 IURISDICTION AND CHOICE OF LAW CONFLICT OF LAWS CONFLICT OF LAWS
IURISDICTION AND CHOICE OF LAW 1I
thc properw tnortgavccl lvor.rld not bc suificicnt to satlsfi'thc debt. ,\gatr-r, plai.tiff r-rrgirt h^'e trled the casc rn thc
ir.rlur_' meleh. rc,
sumlnons was servcd on Y b-r'pubiicauon. \\buid the actton ptosperr secllrc l)focccir,rr.el adlantag.cs 01. t() ;lnlr()\,
or ltrrrass the
.lt'icntirrr::
As to foreciosure of n-rortgagc. \'es. bccatlsc lt is an ncuon
tl-re r'e)'firc forura iras Do lraLuctrlar inrcrcst t. tirc casc,
thc paruc:;
quai in rem.Butas to the detnand for deficiencv judgrnent. no. because it not beillEr ciuze's .f t'e 10rr-r'r or are resrcle'ts elsewhcre;
or
rs asking for a iudgment in pcnonum agarnst Y the subject-rnr -ter of trrc casc ertolvecl s.mervhere
elsel
(f) other collrts are ope' and trrc case rra'rre better
triecr said
5. Mention othet points to remember on the matter of iurisdiction: ceLtrtsl '
'I'he rnadcc|.ra., of trre local j*drcial
ft) maci''c^. for effccrr_rafi'.,
o
(a) Once the plainuff hies an action before a Pirilippine court, thc nght sorrgl-rt tc.r l>e enforced by thc plarntrfL ot
wl.retl'rer he be a Fihpirro ciuzen or a foreigner, a resident or non-resident (h) 1'he difficuln. of asccrraining the ibrcign larv apphcablc.
of the Philrppines, he submits hrmself to the iurisdictlon of the court afld (See Strmson, Co'fhct of Larvs, pp 3ag-352; (.anacla A,laltitt3
Co.
puts the iudrcialmachinerv into actron. Flence, he is now subiect to anv t. Paftenon .Stcanthil>, 28i Lr..f . 1l ). 12 j: Hdre t,. Neu )b* 1n.,,. (0..
counterciaims, cross-clatms, etc' that the defendant nlal' Put up under 15 l;ct/. (2(/)#q
Philipprne larv. In choosrng n Paructlllir forum, tl-re plandf[ has acceptcd
the entire judiciai machiuery of ti.re forurn completeil', so that he must Example: Several Gcrm^n crtize's brought rnsurarcc craims
accept not onlv tts benefits but its burdens as well. against the Nerv \brii Life lrs. cr. .' insnralrcc policies issrecl in
Gerrnanr. -\lthougb the plarntifir- were citizcns and resrdc'rs.f
(b) As for the defendant, he becomes subiect to the court''s iunsdicuon Germanv and wrs a Ne*'\brk CorPoration, suit was brought
de fendar.rr
as to all subsecluent matters in the same suit, like appeals. And even if he in oregon, u.S.A. rvhcle defendant hacl an agent on .rrl',orn sunrr.,rc-,rr.
leaves the state o[ dre forum prior to tl-re final clcterminatiotr c.'f tire v"'as se-rved.
actron agarnst hrrn, jlrrisdiction of the court over him contintles.
Issue: Nfat' thc Oregon court. in the exercise t-rf rts discretion.
6: Explain why the court may refuse to exercise jurisdiction over a refusc to taiic cognizance of tlic casc?
case on the basis of the principle of forum non conveniens.
Held: Yes, on the groun c1 of .1orum noft LankntcttL.e becar-rse:
As has been said before, even tf the court has jr"rnsdictioll over a (a) Bodr parrics werc non-rcsidcrrtsof the forum;
confltcts case, it ma1,, bv rnvoking the princrple of forun nzn tluuunreni. (b) 'fhe courts of Germanv and Net, yor:li arc opcn ancl
rcfuse to exercise cr assttlne that ltrrisdiction, in vies'of an'{ oi the iu'crl()lrrng, and sc^'icc ca' bc rlirde .' thc dcfe'dant
following practical reasons: crrirer jru'isdrcuon; 'r
(.) 'lb requirc dcfencia'r ro clcfe'cl the acti.n in tl.rc forun rv.ulcl
(a) The evidence and the witncsses m2l'not be readtil avarlabie in in'rpo"^e upon it great and unnecessar-t.lnconvcrlencc ancl compcl
the forum; it to produce records and papers whicir rverc of daill usc in
(b) The court dockets of tl.rc forum ma1' alreaclt be clogged s<r its current business;
that to pennit additional cases iran-rper the speedr' (d) 'fhe case could consume months of ti.re rirne of rhc cr>urr.
"vouid
administrauon of iustice; resultiug rri dclay, inconvcnience, ancl expense t() ()the r
(c) The belief that the matter can bc better uied and decided rn Lrrgants rvho are entitlecl to involie thc coult's jurisdiction.
another iurisdiction, either bccause the main aspccts of the (.Hcint r. \n,)brk )t,;. Co.. supr.ti)
case transpircd there or the rnaterial wrtnesses have their
residence therel Warning: Itemernbcr, however, that the doctrinc shoulci
(d) To curb the evils o[ "forum si-ropping";1.e., the non-resident generalh' appll onlv if the defendant is a corporation. lior if ti.rc
72 IUIIT'DICTION AND CHOICE OF L,AW CONFLICI OF LAWS CONFLICT OF LA}^'s JURISDICTJON AND CHOICE OF LA}\' I.1
clefcriclant ts an inciivrdual. thc propcr: forum tnm' not be ablc to '.'tctlultc -This rs the sec'nd case rvhercrn the rntel'ai .r clor",-,e sdc iau, .i
ir-rnschctron over httl ifor examplc. )'rc rlugirt not bc'resicirue t)-rerc'). thus tire forum (itx tori) rvill be appiiecl: th:rt is. when tire proper foreig. iau
leavrng tlrc piarnufi *'itirciut anl rencdt iJttnt.trtti, .w.bn':. has not bee' properlv pleaded and proved. 'rirc reason i, thnt ,r,r.
courts cannot take ludicial noucc oi forergn iarvs, So that if thc Droper
7. After the court has acquired jurisdiction over n conflicts case forcign lau'is pleaded (rn tirc cornpiarnt c,r peuu.,n. or in rhe irnsr,,,ct
and has decided to assume that jurisdiction, u'hen is it bound to
'ot
or an\r othcr rcsllonsrve pleadint) ancl is not pl'()vcn :Ls a fact, the cor.Lrr
aPPlv the internal or domestic la'w (lex fotr)? bas the right to presnlDe that tire aPpliclbie forergn iarv is tire sa'rc as thc
internal or dolncstlc law of the t<>rurn a'd should, theref'r-c. app)v tht
Tl-rere are at lexst three (3) instance s rvl.rerr tire forr'un has to appil latter law (4don.qu. Cheon1ScngCrc, 4J Pl)il. 1);5.1 loc I-.ton3u. ,\'),quza, /6
tl'rc inter nal or dorncsltc lnxv (lex fo..ilrn clcciding a casc in conflicts of lau', Phi/. 1)7; Itn y. Collector, 36 Pltti. 172; I'luenr u. I li.c. 5l Pltil. 6/0; ln ra
t,i:,, 'l-ettate I'-stutt ol Suntql, 95 P/ti/. 500).
(a) \\hen the larv of the f<-lrtul exptcssh'so provides tn rts (a) In connection with the foregoing quesrion, lror:r.. is a
conflicts rulcs; foteign law proved under our Rules of Court?
(b) \!hen tl.rc proper forcign lru' has not been ptoperll' pleaded
ancl proved: If rhc larv is written ir r-nat' be proved b1':
(c) \\,hen thc casc invoh'es anl of the exccptions to tire application
of the ploper torctgn 1211'; ii.c.. e\ccptions t,-r courttt-). (1) ,\n official pubhcation rher'cof. or
(2) A copv ofthe larv attestcd bl thc otttcer har-ing iegrl
8. Give examples of cases rx'hich require the application of custodri of rlrc- rccolcl or b',' his clcPr,rt1,, irccr>nrpaniccl
Philippine internal or domestic law' (lex for\. lrl a certiIcatc ol rrrl l)hihppinc cmbassl. c()r)suilr.
or forcigr-r sclvicc oft]ccr rrr thc tbrcign c()Llrrrr\'\\ [re'jc
(a) \lhencver lencl involved itr+ire suit rs locatecl rn thc I)hilrpptnes, the recc-ird is kcpt, and auther.rticatecl bl rhc scal oi
Philrp1;rne iarr'ol thc lc.>: silu.t rs apphcd (.\rt i 6. titst par., New his offlcc. (lturlc 132, scc. 25. Rer'. Rr.rlcs of (.<;urt)
eivrl (-,rdc.,
(b) l{cg;rrtling thc pt'opcrrv rtlaltt>t.ts of thc sPr.,uscs. ;\rt 8() of li tl-re las' is rrnu'ritten. it nlav bc 1>rovccl l-ly:
tirc lranrh-(,odc provicics tbat tlt-the allsctlcc of .a corltrarl
stipr,riati<-rn ur a tnarriagc scttlcment. the propertt'relatiotrs of (1) 'I'hc oflrl tcstrttrol'tr- of c.rpe rt wirncsscs. ,ir'
the spotrses sl-rrll bc g<.,r'cmccl bv PLrilipprnc laws, rcsardlcss (2) B,v printccl atrcl publishcd boolis of rcpor,:s rif
oi thc placc of thc cclcll-ation of thc tnirrriagc anci their dccisions of the c<-lur-rnf inr,oived, if provcrl to bc
rcsicleucc.'fhc onlt,exccPtttlrt ts rvhcu both sllouscls arc alictls. commt.rnll aclmittcd ir.r irs ccurrs. (RLrle 1 3(), scc. -15,
(c) \X/ircn r Filqlrr<, tathcr t'itlr ,\tncricatr cirrlclrcn (rvho bccrtnc rd)
such utrdcl thc rulc of ./t1., .rr,1, dics, itis sttcccssiou shtll be
soverncd bv Philpprnc lar'" (scc. par:., -\rt. 1(r, Ne*' (,ivil (b) What is meant bv the "proccssual" presumption of lar.v?
Cr>de).
(d) if a rviil cxeclrted bv au alicn abt'oacl is revolictl in otrr couuft\', This rule mcans that rvircn the l)rc)per f<rrcrgn l:rs. hes
the revocntiott urttst crxrplv ri'ith thc fomulitic.- of J)irilippine noI bccn proprerh ltr<tved. thc c<>Ltrt o1- tirc ft;mnt rnirr'
iarv (-\rt. El9. Nc*' Civil (-,rcic). Plcslurrc that satcl forcipr-r iau i:r tht.salrtc as rrs l,rcai oi
clomcstic lat', rl'iricir it cen norv apnlr',
9. Explain rvhv the foreign lau' cannot be applied if it has not
becrr pleaded and proved. 10. How is a foreign larv that has been duly pleaded and pnn'ed to
.11 IURISDICTION AND CIIOICE OF LAI\ CONFI,ICT OF LAWS
CONFLICT OF I,AIVS JURISDICTTON AND CHOICE O}. LAW 15
be interpreted bv our courts? xgreemcnts'ndcr fo'cign iar's ti-rat cor.rupt tire propc'
ldrnttrtstrrttorr rri itisLlcc .)r'tr'wilrcl cl.lrnci: a.rrr,raa,- t.,n'da,
,'\s a gencral ruie. a folergn lx\\,tirnr hls bccn duiv plcadecl lnci torelgn ial's to cernrl)t publrc offrcrajs: ancr rn gerrcral.
trallsacttons thitt tnirtngc goi-rcl
ntoralrn' ^rl
plor.ed should irc ql'en bv tire sarnc intcrprctatlon as thai
or-rr cr)ur:ts .,r.r,j"rat',rod br. th.
^r
forum anci thosc rncor-rsisrcnt u'itir tj-rc bcsr rlrtcrcsts oi its peoplr.
qtven bt the toreign tribr.tnals of thc countn'rvhcrc ti'rc iat,cor-nes frorn.
A possibie excep[on is a casc t4rcte sotnes.hcre in our lav"'s, (c) When the foreign law involves procedural matters
thcrc ts ir statute s'orded idenxcallv as thc iorcign iarv. s<; thirt our courts
'fhere no.r'cstccl nqircs ur n_rlcs of procedurc; hcncc. a
cannot bc blamecl if thev disregarci thc forcign inter:pretation oi sard ar-e
tbrergn lav' and grve it tirc same interprt)tadon prcvlousl,v gl.en bv our paf n'to au action n-rrrst submrt himsclf to drc proceciural fcrrnra.htres
coufts. of the fon-rm. e\cept rvhc:n the lau' is both procedural ancl
substantn'c, hlic the rules on prescliptlon. and thc Statutc of
lL. When a case involves any of the exceptions to the application l;rar.rds rvhich undcr Phiiipprne larv are substantivc. l-Iencc. an
of a foreign law-, the rulc is that the foreign law cannot be applied American cannot insist on a jr.rrt, trial in the 1)hilippines: neitl-rcr
and the courts should instead applv the domestic or local lau'. can he insist in the applicatron oi Amcrican procedural lau,s in a
Wltat are these exceptions? case in the Phihpprncs rvlrcrc' irc is a parq'.
(a) When the application of the foreign law would run (d) When the foreign law is penal in characrer:
counter to a sound and established public policy of the forurn.
Crimes committed in foreign countries are violations
Examples: ofpenal laws ofthose counfties and cannot be prosecuted here.
especially as we follow the pdnciple of territoriality in crirninal
(l) \\,e cilnnot enforcc in this coutrtrv a. dn'orce lau, of a law:
foreign corlntr\r if the prrttcs arc- Fiiipir"rc,s. If. however.
tire prrtics are a ljiiiprr.r<; and a forcigr-rcl and the latter ,\ "pcn:rl clause" Ln a contfact cntc-rccl lnto abroad lrra\.,
vaiidir. obtans a divolce abroad capacitating him or her horvever, bc enforccd lrcre bccansc such clausc is not crirrinai in
to femattl'. the Filipino spouse can also marrtr again (-1f t. natute bur onh,' provicies for hcpridrtccl dan'rages.
26. scc. par.. Famtlt Coclc).
(e) When thc law is purelv fiscal (i.e., revenue-producing)
(2) exccutcd br. Fiirprnr,s iocaih' ol lr a forcign
-\ ioint t'ili or administrative in llature:
countrl is not vaLid (Arts. [118, ti19. Nerv Civil (,ode).
\\c are not bour)J t,r cnforcr.tirreign re\'('nu(.,)r-
(3) Incestuous marnagcs r.urcicr fhc Ijanrih'Codc and those administrative lau's. \\'e are llot conccrne cl rvith thc collccrion
considered vord bv tl-rc Codc br reas<>n oIpublic policl. oI taxes b1' foreign coulrtries or.r'tth forcign laws rclating tcr
are nuil and r-oid. even if thel lre val-id ir-r other counuies governmt'ntal functrons or m;lttcrs.
(Arrc. 3?. 3ti. I;amrlv Codc). Horvevet, thcse provisions
applv onlv to Filipinos. (f) When the foreign law might work undeniable injustice
to the citizens or residents nf the forum:
(b) When the foreign law is contrary to the almost universallr.
conceded principles of moralitv (contra bonos mores): I rrrt'tgn i;rrvs that s'ould result or cau.ie ru;usrict. r,,
"Cornirr. in thc lcgal sense. is neither: a fitatter comitv based on the persuasiveness of a foreign judgment.
oi absohrtc obligatron. on the r>nc irancl. nor of mere Note: In our 1997 Rules or-r Cir.il llroceclr.ue.
courtcst anci goocirvili. r-rpor-r tire othcr. But it is thc u'c still follou' tire plurcinle of recipr6crrr. hclj rn tire
l'ecognlrlon rvhich one statc allos's .r.'ithrn rrs tcr-rrtor\. oici i:iiiton case because ln Sec. 4.9 of ltule 39 on tire
ro the legisiarrve, execuuve. or judrcrai acts of anothcr "ctfcct oF foreign 1r_rclgnnenrs or frnal orders',. a forcrgm
narlon, having due regard both to international dr-rfi'and final jLrdgmcnt or <-,rder "rs presumpuve cvidcncc of a
convcnience, and to the rights of its orvr-r citizens, or of right as benvecn the parues and dreir successors in rntercst
otirer persons rvho are undcl the protecdon of its larvs." bl a subseqtrer.rr title" aud "mav be lcpeiled lrv evidence
(1se u.s. 113 [18es]) of a rvant of jurisdicuon! want of nouce to the par:q',
collusion, fraud, or clear mrstake oF law or Fact".
In the above firench citrzen sued an American in
case, a
a French court..luclgmcn! was rcnder:ecl in favor of thc plarnuff (b) The vested-rights theorl
Frcnch. rvho latcr Frled an i1r an ,\r-nerican c()Lut to cnforcc
^ction
thc judgment. 'I'he An.rcrican colrrr found that the rnal tr.r the Llncler tl'ris theorl', our courts enforce not tite forcign
Frcnch court \\?s latr and rmpartial br-rt even in such a casc, I irench larv ot foreign judgn-rent but thc right or rights ti-rat have bccn
rribunals do not regard .\mcrican decisions r.r,rtir tlnaiin, but thcl vested uncler such 1a\\ or iudgmenr. Rigirts once accluired undcr
still revict'tirc latter's clccrsions on the merits; i.e., thcv arc a foteign larv or juclgment slror.rld l>e enfolccd rcgardicss of
regarde d mcrclv as pirna.lat)e evtd,encc of plaintifl .s claim. Fience, rvhere tire suit for its enlorccrlcnt rvas filcd, 'l'l-rus. tl-re ideal of
the satne etfcct should bc givctl bv ^\n-rertcan c()llrts t() Irrench uniformin'and predictabiln,of results rvould be achreved. II a
decisior-rs or-r "the pnncrplc c,,f reciprocitr''. foreign lau'givcs a person a rrght, the mert: fact that thc larv ol
the forr-un does r-rot gn'e hinr l similar or the same right is n<r
Ilorvever, rn a 1926 dccisi<lr. thc U.S. (_oru:t c_,f .\ppeals reason to refuse to help hir-n get what bclonEs ro hrr"n. J'l'rc
crf lierv Ycrrli rcfuscd to npplr thc abolc casc of l'li/ton y. Gurot. cxcepilon is, iI the forcrgn larv is against thc pubhc pol-icv of tl.re
ln this casc. an -\rlcncan sr-rccl thc clcfendant lrrcnch citizen for fonrm. It is a pnncrple oi cvcn' civihzcd larv that vestec{ nghts
rvrt.,t-rgful cicln'en- of goocls ur an ;\mcrican court. 'fhe defendant should bc plore ctcd. 'fhis prir-rcrplc dso discor-u:ases frrrum-shoppino
sct r\r tire clcttr-rsc that tl-re same lnfltter rvas alrcarl\'decrded ur
his lavor l-r an carhcr casc Frled 1l' the -\merican in a ]irench An exarnple of dre applicauor.r of dr-rs drcon'rs tl, c Amcncarr
coLut. The lorver court rcfusccl to givc e tfect to thc cadrel lrrcncl-r case of Grai't Cra1.8z-Ar.1-l. 82 (1 9)-+).In this case, N,Irs. Gral
dccision or.r the theon o[ rhc o]cl Fliltor case. ltcvcrsing thc lower filed an actior-r in Nerv lJarnpshire fol
damaqes against l.rcr
court. the L].S. Suprcme (,otrrr rulccl that surce it rvas the --\mcrican hnsband Nlr, Crav f<rr pctsor.ral injur:ies alleged to have been
rviro hled the carlicr casc wrth a .lircnch cr-rurt s,hclcin hc lost, hc caused to her bv the Iattcl rvhile drivrng fron.r their home in Nes'
could not laterimpeach smcl juclgmcnt agair.rst irim on thc punciplc Harnpshire to N{arne u'hcre tl.re accident irappened. In N{ainc,
of comrq', t'hich grves conclusiveness to the Frcnch decisrcxr and the spouses are barrcLl florr rnrirrrrining an ;rcuon against cach
bars his subseqr-rent acuou frlcd rvith an ;\merican coutt. 'I'hc basis -fhere
other. is no sr-rch prohibitron in Ncu' I lampshire.
o[ corlitv rvas srared as the persuasiveness of the foteign
judgment. not the princrple of reciprocin- as held rn the old f'he ,\mericarr court mled tn the al>ovc cxsc that forcisn
I Iilton case. (lohn.ran u. (ompanit: Generale -[iunta/i,tnliqur,. j42 -\. ). torts should be govcrned bv the /rr" loi tlelitri tommi.r.ri.,{ nght
]8/ , U..l. Ct'urr o/' .'lppcai: o/' N.).. 2+: N)- JSl) I-ravinS becn creatccl bl thc appropr:iatc iarl thc r.cosnrtion,'i
its existcncc foiiorvs cr.crr-lvhcrc. (Sce also ,\'['tJ)onuia t'. ]Ltintttt^,.
J'irus, nvo pflnclples havc bcen given upon rvhiclr the 71 X.11. 118: lht3u. Jarria,6, \.\. 21;L"ouik.i r'. .\'ranciard Oi,' (a.
thcon'of courin: rests: the comitv bxsed on reciprociq, and the ol lt,cw \-ork. 225 N.1. 148)
THEORIES THAT JUSTIFYTHE CONFLICT OF LAWS CONFLICT OF LAWS THEORIESTHAT'USTIFYTHE 21
l0
APPLICATION OF THE FOREIGN LAW APPLICATTON OF THE FOREIGN LAW
(c) The theorl- of local lau' 3. There being manv theories as to the proper choice of law that
should be applied in each particular case, what, then, should be
Tl're adirerentsof tiris thcon' beijeve tilnt ve rppil a considered the right theorv?
forergn lau.'not because it rs iorergn, but because our ou.'n iau'
bv appiving a srmilar rule requires us to do so; hcnce. it is as if tirc In the v'ords oi tire late Jusuce Edgardo L. Paras:
foreign }aw has become par:t oi our o\\n internal or domesuc
law "It rvill be observed that thc theories hereinabove
adverted ro do not rnutuall1' exclude onc another; perhaps,
A good example of this theorv is Art. 16. par. 2, Neu' the uuth rnav be found in their ccmbinltron. Certain\., it tire
Crvil Code. rvhich requires us to appl-v the nattoual larv o[ tl"re wolld ls to progress in uoderstanding and judgment, it must
deceased in the mattet of his testate or llttcstate succession lf recognrze this rmperative postulate: tirat sorneumes, we have ro
the deceased rvas a Chinese aithough thc children are alreacll' apply the proper forergn law because courtesv. conveniencc, and
Filipinos, we arc requlred to applt' Chirrese iarr,', not becausc it is internationai dury so demandl because there are vested rights rve
the appropnate foreign lav; but because our o\\'11 Crvil Code cannot conceivably ignorel because a1i too often, tl.re foreign law
tells us to do so. has become part and parcel of our law; because idenucal sinrations
should be resolved bv ider.rtical rerncdres, ilrespecdve of dre forr-rm;
(d) The theory of harmony of laws and fir-rall1, because to do otherr.vise mav ultimatelv result rn thc
negatlon o[ justrce." (Paras, id., p 73)
Undcr this theorl', tdentical or stmilar problems should
be given identical or smilxr solutious, thr.rs resulting in harmonv Liliclvisc, fonncr Scnator Salonga states thus:
of laws. Certaintr,- of soiutions to titc same or srmtlar problems
are of particular rmportance in areas where tl-re Pirrties are hkeh'
"r x x in the absencr t l an apphcable prt;visron in the
to think ur advance of the leeal coltsequences of therr transactiolls. code or statute, the various theorics shouid be examined and
For example, transactions invoiving tcal properti' should be weighed as thev bear on a given conflicts problerrr. No single
governed bv thc /ex iht.s,in the intercst of certaintv and uniformin' theon' contains the whole truth, no one approach is completelv
of result. Srn-riiarlr., a pers<.,n'.s civil stltus must bc governed bl a vahd. .\s one author puts it:
singie lau, for thc sake oi ccrt^inn'; e.g.. u'hcthcr a pcrson is
sinqle or marricd. The apphcauon oi tl-re samc t)r sl-nilat solttuon ' The policies behind all o[ the theones have
also ptevents the bad pracdce oF forurn-sho1'rpirlg vahdin. This suggests that thcy are not entirelv exclusive.
lndeed, there mav be a gain in using different theories at
(e) The theorv of justice different places to make morc rcadilv apparent the
change in pohcres deemed dominant as the situations
Sincc thc puryose oiall law's. includlng (,onfhct oil-arvs. vAf \.."'
rules?
Thev are:
Examples:
In other words, tl-re first part states ccrtain operatrve facts, the
legai consequences wirich are determined in the second part; that is,
<-,f
tl.re first part raises, rvhile the second part answers or solves, a legal
questlon.
Niost wrrters hoid rhat ()n the grounds oI practicai necessrtr. a'd
con\ren1el]ce. rt is the torum. or rire ,e.r 7un. that should cietermrne tire
probiem'.s char;rcrerization. uniess tl-re result would be a. clear rnjusuce.
Lrs assurne that under l-nglish lar'"', the perrod to sue ()n tire promissorr-
nore 1-cfour i4) r,ears. In thc Phihpoines. thc period .i prescriptrt)n rs ten
(1()t vears. If acuon rs idcd rn rhe i)hihpnrnes bo'ond 4l,.or. irom rhc
issuance ol tl-re note but r'"rthrn 1{) vears, sirould rve hoid the action as
prescribed? \'es, because English iarr,. was evidentl_r' intended b1, the partres
t() govern their transaction.
lil
CHAPTER
PERSONAL LAW
THEORIES IN DETERMINING
ONE'S PERSONAL LAW
It mar, be his national lav'. tirc iarv of hrs domrcile, or ti.re iarv of
the situs of thc event or cransaction rvhcrcin he was involvcd, dcpendurg
on the theorl' applicd aud enforccd 1n thc forum.
"Capacrn'". on the other hanci. is onlv part of one's status, and The united States, like other common raw countries, follows the
mal be delned as tire sum total oiirrs rtsitts and obirgations {Graveson. domiciliarv theorv.
Confuct of i,au's. p.96,.
6. Is petsonal law the 6ame as national law?
Under out Ctr,rl Cr,dc. therc .trc n\'() \:l h:rnds of clPacln:
(a) juridical capacitl qrassivc capacin-) - rviricl.r ls thc litncss tc) In countries that follow the nationaliry theory like the philippines,
bc tl-rc subject of iegai rclartorts: lnd yes. In countries that follow the domiciliary or eclectic or situs theoty, no.
(b) capaciw to act lactr\-e cxp^crtf, - rvhtcir is thc powcr to do
acrs rvith legal eff-ects. 7. Is national law the same as the law of one's citizenship? In
iArt. 37, Neu' Civil Code) other words , ate a person's nationality and citizenship the same?
.l. babl has jr,rndical capaciq', but it l-ras no crlli1c1.\' t(' 1lct. "Nationality" refers to membership in a political communiq',
one that is personal and more or less permanent, not temporary. A ciuzen,
3. What a(e the characteristics of status? on the other hand, is one who owes allegiance to, and is entitled to the
ptotection of, the State. In the held of Confhct of Laws, however,
(a) itrs cc>nferred prtncipailv bv tl.rc statc. not bl thc ndrvidual. nationality and citizenship are the same; o!, "national" and "citizen" are
(b) it rs a ffrattcr of pubhc or sc-,cirl iutercst. the same. When our law refers to one's national law, therefore, the law
(c) Ileurg a concept of sociai ordcr^ rt cann()t casilt bc tcrr-r-ri means the person's law of citizenship. Thus, the national lawof Filiprnos
natcci rt thc nrcre u'il] or .lcstrc oI tl'rc partics couccttrecl. is Philippine law. While the national law ofan alien is the lav' of his
(.j It ts a umr-crsal character. \\then a
qcnerallv sr,rpposcd t() havc citizenship (e.g., Art. 16, sec. par., referring to the "national law" of the
certain status ctcated
r.s bv tl-re inq'oi ()nc c()urrtr\'. tt rs deceased). Once a Filipino citizen, however, is naturalized in another counrry,
get"reraih' rccognized iril ovel tlre rvotld. his national law already becomes the law of his new citizenship; the former
Filipino'citizen. once naturalized an American, is now an Amedcan citizen,
4. State the different theories on horl' the personal laq' of an and his national la'v is now Amedcan lavr
individual is deternrined.
8. What are the reasons why some countries adopt the nationality
(a) The nationalifi'theor\, tlist, c:irllccl tirc pclsotr:rl tltc()r\:) - b\' theory, while others adopt the domiciliary theory?
virtue oi rl.hich the status and cePaciti o[ a persotr ts clctcr-
ntnecl bl tl-rc iau'oi irts natior-ralttr',.,r hts trattonrl laui Civil law countries, like the Philippines, follow the nationality
theory. In such countdeq the nationaliry theory has been consideted justified
(b) The domiciliarv theon-- bt'r,irtr.rc of rvl.rrch thc status itnd on practical considetations of convenience and expediency. The people
capacin- oi
a 1:crson ts clctct:rntncd bv the larv of hts dornicile of these countries are considered bound by a spint of national unity, by
(also caliccl ti-re tcrr:ttorial theort). a coffunon history and mores, so that the identity and legal position of
their otizens are guaflnteed by the consistent application of theu national
(ci The situs or eclectic theort' - r','hich vicrvs thc particular laws on status and familv relations wherever they may go and even when
place or sitr-rs oi an e\:ent L)r ua1)s:rctlol) as getrcralh thc corrtrolhng they migrate to other counfties. Note that manv Filipinos \r'ho have
Iat'. become naturalized in other countries still want to come back to the
5. What theorv does the I'}hilippines follos'? What about the United Phihppines and die here because they sull consider themselves as FiJ-ipinos.
States?
The domrcihary theory, on the other hand, assumes that the
\\c ftrlioN rhc rr:irronaiitr thr.<,fl.fiftfiUl tn !rr
fy attributes which make up one's status and petsonal relations are intimately
CONFLICTOF LAWS
CONFLICT OT LAWS
r32
connected viith the country where they have made their home. It is
adopted bv the United States and other cornrnon law countries, whose
populations consist of peoples of different nationahucs with vannng tradi-
dons, cuinrre, and ideals, and whose uniw mav be consideted achieved bv
adopting the law of their domrole as the law that govems their status and
family relations. Countries with mixed populauon brought about by the
migation of foreigners to their shores need the dor'niciliary principle to
certain fusion of their populatron and to avoid the necessity of
^ttdn ^
appli4ng a different law to ptactically every case.
Filiprno citizens are either natural-born citizens. or 4.who determines whether a person is a citizen of a certain state
naturalized citizens or countrv? For example, who detetmines whether a person is a
Filipino citizen or not?
(a) Natural-born cidzens are tilose u'i-io are ciuzens tiom btth
\,.rthout iravrng ro perfonn anY act to acquire oi: perttct therr PhiJrpprne Each countr'or state has the sole porver and authonh ro determrne
cruzensl-rtp (Art. I\i sec 2' 1987 Constirution) under its internal or rnunrcipal ]av' ud-ro are its citrzens or nauonals. r\s
provided in Art. 2 of tire Haguc Conven[on on conflict of Nationa[n.
Ongrnallv classificd as citizens by election verc tllose born Laws (April 12,19301:
before rbe 1973 Constrtuuon of Fihptno motl-Iefs blrt of ahen fathers
wlro, upon reaching the age of 27 ot wrthin a reasonable drne thereafter, ',{nv question as to .rvhetirer a person possesses
electetJ Pl-iihppine citizenship. But rvith the provision of the 1987 the nationai:rv of a particular state should be detenruned
Constitutron aiso considering as natural-born citrzens "those born before in accordance wrth thc larv of tl-:at state.',
Philppines u'ho sull rriaintain therr allegrance to the counrries of their (a) In a case where a Frlipino (because his parents are F-ihpin.s)
ongrn. Thus. tor candidates for pubhc oihcc rvrtl-r dual citrzensirrp. suffice was born in Arnerican soil, he rs a Fihpr'o urder the rule of
1r tirar upon tire irhnp oi tireu-cerdircate of candiciacr. tirer, elect Phiirpprne
.jut ,iogoion
wlrile lre is an ;\mericao under the ruie oi.iut toli.
crtrzensl-rip to terminate their status as pcrsons rvtth ciual crrrzenshrp.
considering that tirerr condrnon is thc unavordable consccluence of (b) If a Fdrpino \r/oman marries a foreigner wirose natronai iau,
conflictrng larvs of different srares. (Mertutio u. LlanTano. )07 .taR.1 530 aliows her to becorne a citjzen of her husband's country like China br,
1999 t
such marriage. she still retains her Phrltpprne citizenship under Art IV ,.i.
4 of the 1987 Consutution, unless bv l-rer act or omission, she is deemed
7. Considering, then, that it is the Philippine law that determines to have renounced her PhiJrppine ciuzenship. Therefore, she would be
who are Filipino citizens and who are not, so that it does not both a FiLpino and a Cirrnese citizen, if she does nothing to renounce her
determine whether a Filipino is also an American citizen or a Philippine citizenship.
Chinese citizen, etc., when would the problem of dual citizenship
of a Filipino arise? 9. Give an example of a problem involving an alien who, ftom the
point of view of the Philippines, has dual citizenship.
Such questron would arise onlv from the point of view of a
third state. For example, if a gtl rvirose parents ltre Fihprnos but who Example: A woman who is a Japanese citizen bv blood but a
rvls bo.rn and has lived all her life in Cahfornia. U.S.,\.. is appiyrng for Chinese citizen by marriage, dies, leaving some properties in our count]-
scholarship in a French universiq', the French authoriues will regard her vzhere she did some business before her death. Since Art. 16, pat. 2, of
not as a Fihpino but as an American. as hcr (lalift>rnia citizensirip rs the the Nerv Crvil Code, requires us to appiy her national law in determining
n:x>re effective connecting factor in determurtng what is her citizenship, who are her hehs and how much is the share of each, we should know
Filiprno or Californian. Tlls is appllnng the theorv of effective nationality which iaw a Philipprne court should applv to her succession; whether
embodied in Art. 5 of tire Hague Convcnuon on Confhct of Natronahq'
Japanese law or Chinese law.
Larvs rvirici-r ptx.icles :
lhird countrv, like Singapore? Will the solution to the problem be substantiar errors like citizenship cannot
be corrected tirerein. Hower-er.
tltr riame? tlrs rulrnglras aireadr been supersecieci b'subsecluenr
cases (.Toientin, t.
Para.,. I I'J CR I 16..Rm. z: Lt,en,..t /.i
tJ aR J ;:..R
The soluuon rvould nout be drfferent because u/e can no ionger il,.*,,ir,l)rr,','.' , ,O
rrv that she was.more closeiv connected to J apan or Chrr-ra, the countries 'Ck4
/ ii, among odrers)
all pr";;;;;ffi;;r,
to the effect tirat rf
of Rure i 0g are foto*'ed and ali persons with
ii
rntercst rn the wrong entrv ifi
rrl wlrich she was a cirizen at the ume of her deatl-r. In this case. then, the had been notified and a full biown t'al is held. ,h. p;;.:J;;il,;:
--*^rbJ (rL r iifl
tlomicilian theorl' comes to the rescue and will consider tl-re countr-u- o[ longer summary but adversarial, and substantia,
I errors Lke crtizenship iitr
lrcl domicile at tire time o[ her death (Singapore). So, rve sirould Ftrst arreadv be corrected under Ruje i0g. can
Hf,f
applv the nauonaliry theory by taking her rwo natronal laws (]apanese and fis
()hinese) and applyrng them together insofar as thev are consistent and
15' who are citizens of the philippines under
harmomous with each other. BLrt if thev are inconsistent and in conflict the 19g7 constitution?
witi-r each otirer. then we should alreadv apply the law of Singapore, $tr
Art I\" Sec. 1 of
the 19g7 constitution enumerares the {s
which was her domrcile and home at the time of her deadr. ciuzens
of the Phrlippines as follows: ,Jtr
"o rhose wrro a'e ciuze's of rhe phiLppines at the time $#
12. Suppose the person whose succession is in question before a adopuon of rhis ConsuruLion:
of tire :3t
Philippine court is stateless. How should the court decide the case? (2) Those rvhose fathers ormodrers
are ciuzens of trre prrihpprnes; iff
(3) Those born beforeJanuarv Ii,1g73,
Srnce the person tn questron is stateless and, therefore, has no
olFilipino nr;;;;r.
who elect phrhppine crdzenshrp upon reachrng
national law, we cannot apply the nationalitv theory (Art. 16, sec. par., rt," ng. .f ;;;;;,y,
and
New Civil Code) to hrm. ln this case, ,rEain the domrcrhaq' theorv comes (4) Those who are naruralized in accordance
to the rescue, and the court shall appll' the larv of hts domicile or if he has with law.,,
none, tire law of the country of his temp<,rrar_v domicile. were citizens of the philippines under
Yn.
19' the 1923 Consdtu_
uoni
13. May a declaration of Philippine citizenship be made in a
petition for naturalization? Art. IIL Sectron I (l)
"f the 1973 Constrtuuon provides that the
follow:ng are cirizens of the philippines:
In Comn. o/' lmmtgralion u. Carctu, L-28082..|une 28. 1974, the
Supreme Court held that the court. in a petiuon for narureirzation, cannot "0) Those who ate ciuzens of the philippines
make a deciaration that the apphcant is alreadv a Fitliprno ctttzen for the ar the ume of the
adoption of this Constitution;
reason that rn this jurisdiction, there can be do independent actron for the (2) T'ose w'ose fathers or motrrcrs
judrcial declaration of onet ciuzensirip. Courts of jusuce exist onlv for are ciuzens of thc pl'lippines: r:li:
(3) Those who ,.:,.It{OO-e cruzenshrp pursuant to the prousions
i!:
the settlement of jusuciabie controversres, which rmpi,v a given nght, of the Constirution of 1935; and
,;Lr
rili
legally demandable and enforceabie, an act or omrssion violative of said (4) Those who are naturalized in accordance i;:
nght, and a legal remed)' for the breach of sard right. wrth law.,, iri
Itl,
ii4
17' Since the 1973 constitution considers
as F'ipino citizens those
14. May a declaration ofPhilippine citizenship be made in a special who were such at the time of the adoption
proceeding for correction of entrv under Rule 108 of the Rules of of said constitution on
Januarv 1711973, who are those refetred to in said provision?
Court?
They are those enumerated in Art. I! 1935
In a long line of cases, the Supreme Court fotmerlv heid that Consutu tron, t0 at:
"(1) Those who are citizens of tire philippines
since a petiuon under Ruie 108 contemplates a summa4 ptoceedrng. ar the ume of the
adopuon of the Consnrutron of rhe phihpprn.s;
CONTLICT OT LAWS
IO NATTONALITYTHEOR} CONFLICT OF LAWS NATIONALITYTHEORY 4I
12) Those born in the Phihpprne Isiar.rds of ioreign parents who. 20. where do vou find the lau'providing for election of philippine
befcire ti-rc adootron ol tiris Constitutt<-,n. ir:rd been elected to pubirc citizenship under the 1.935 Constitution?
office in the Piri)rpprnc Isiands:
(3J Tirosc u'hosc iatl.rers arc cltrzcns of rhe Phrhpptne"^: 'fhe lau'is Commonwealth ,\ct No.
625.
(.t) Those v,'hose mothers are citizens oi the i)hthppurcs and.
upon reaching the age of majortq', clect Phiirppine cicizenship; 2l"v/ho were Filipino citizens at the time of the adoption of the
(5) Those who are naturaLzed rn accordance rvtth lav":" L935 Constitution on May 14, 1935?
18. Differentiate the citizenship of children born of Filipino mothers (1) Those born in the phil_ippines wjro resrded therein on April
and alien fathers under the 1.935 Constitution, from those born of i1, 1899 (the date of the ratification of the Treaw of paris b.r-".n
Filipino mothers and alien fathers under the 19'73 and 1987 Constitutions. the U.S. and Sparn) and were Spanish subjects on rhar date, unless
thev l.rad lost therr Phihppinc citizcnshrp on Nfar. 14,1935;
V4rile the 1935 C<-,nstitutron consrders as irihprno ciuzcns at brrth
or as natural-born citizer.rs only those whose fathers were Filipinos at the (2) Nauvcs of the Spanish i)eninsula u4ro resrded ln the Philippines
time of therr brrth. rvhle those born of Filipino mothers and ahen fathers on,'\prrl 11, i899. and rvho did not declare tirerr intentron of
still had to elect Philippine citizenship upon reaching maloriq' before they preserving their Spanisl-r nauonalN between tl-rat date and Octobcr
could be Fihpino citrzens, tiris injusuce tc-, children of Filiprno mothers 11, 1900 (tl're tirnc provided for doing so), unless ther.had losr rherr
(wiro are really Fihprnos because Frliprno blood flows through their veins) citizcnshrp by lltai' 14, 1935;
was iater corrected b,v the 1973 and 1987 Constitutions, rvl-ricl.r alreadl'
consider as natural-tlorn citizens those born of Fiirpino mothers, even if (3) Narurahzed citizens of Spain who resided in the phrhppines
the fathers were ahens. ln other words, those born after tire effectivtq' of on April 11 ,1899 and who did rrot declare thcir intentron of
the 1973 Constitution on Januan 17,1913 of Fdrpino mothers but of preser'ing their Spanish nationahn'between that date and ()ctober
ahens fathers are alread-r' IrrJrpuros at blrth rvidrout need of elecung Phdtpprne 11, 1900, unless they had lost therr cirizenship bl Mar, 14. 1935;
citizenslup.
(4) Chiidren born o[ 0). (2).and (3) subse<;uent to April 11,
19. In the case of election of Philippine citizenship under the 1935 1899, unless tl'rer,had lost their i)hrhppine ciuzenship bv N,Iav I1.1935;
Constitution, as of what time should the mother be a Filipino? At
the time of her marriage to an alien, at the time of the childts (5) Persons rvho becamc narurahzed citizens of the phrhpprnes in
birth, or at the time of the child's election upon reaching the age accordance rvrtir the procedurc sef forrh in the Naruralization Law
of rnaiority? since rts enactment on March 22, '1920. unless tlrey had lost therr
Philippine ciuzenship on or before May 14. 1935;
At tl're tirne of the mother's marnage to an aiien. F-or if we
require the mother to be a Filiprno at the time of the childt birth, verv (6) Childlen of persons embtaccd rn (5), uniess thev had lost
few childlen wtll be benetrted by ths provision because the mother would theu'Phrhppine citrzenship on or betbre \.{av 14. 1935;
have alreadi' become an alien at the time of her marriage (followrng the
irusband's alien citizenship) and before the child's brrth. Likewise, if we (7) Fihpino women who. after havrng iost Phijrpprne cruzenship
requite that tire mother should be a Irilipino citrzen at the ume of the by matriage to forergners, irad subsequenth' become wrdou,s and
child's election, again ven' few children would be able to eiect, because regained Philrpprne cruzensirrp on or before lvlar'14. 1935
their mothets would have alreadv become a[ens when tirey got married
to thet ahen husbands and iong before tire birth of the children. of (7) who were stiil under 2i vears of age ar the
(8) Children
ume tlreirmothers regained Phrirppine ciuzcnshtp (Roa t: Collector,2)
CONFLICT OF LAWS CONFLICT OFLAWS NATIONALITYTHEORY {3
NATIONALITYTHEORY
Filiprnas who married Chinese husbands legally. Since under
25' 195)'
L9i GR L'5t97' Sept' the law of China, they followed their husbands' citizenship,
Phil. i2l;Talarocl'
I
got marned to they all became Chinese. That is why many Filipinas later
who' before Mav 14' 1935'
(9) Forergn women opted not to marry their Chrnese husbands legally, so that
citizens of the Phrirpp-t"
*i; *nt themseives be lawfuiiv naturalzed on they would remain Filipinos and theit children, being
n^i fott their Philippine citizenship
n the Phiiippi"tt, "t'r"l' 'nty illegitimate, are also Filipinos.
or before MaY 14' 1935;
the strength (2) Under the 1973 Constitution: A female citizen of the
Philippures who' on
All other persons born in the
(10) the Roa case' Philippines who marries an alien shall retain her Philippine
n of thejut nli docmne in
of the erroneou' "ppht"oo cidzens' unless they citizenship, unless by her act or omission, she is deemed,
tt"tts.";ltrtgino
were mistakenly dtd;;;'tr" citizens by tvr under the law, to have tenounced her Philippine citizenship
1'g3' These are
had lost thti' titizt"li*it *t 14'
(Art. Ill, Sec.,2, 1973 Constiuion)
tuit'' GR L47616' Sept' 16' 1947:
iadicata. (See Tan Ch;;;"1'i' 'J'
Talaroc u. L5l, suPra) (3) Under the 1987 Constitution: Citizens of the Philippines
who marry aliens shall tetain theu citizenship, unless by their
122-na)
Paras' suPra' PP' act or omission, they are deemed, under the laq to have
renounced their Philippine citizenship (Att. ry Sec. 4, 1987
citizenship under the 1935
22. \(hy is the law on election of Constitution).
law?
Constitution a transitorY
of Note: Unlike the similar ptovision in the 1973 Constitution, the
it was effective only aslong as there were children
Because above provision of the 1987 Constinrtion now applies to both males
wetJdlo*ed to elect Phihppine
FrLpino mothers ""d.'il;;;*'*i'o from and females who marry aliens.
otizenshrp ,rpot' "^tn-g
2l years'.H:*:u"t after 1994 (21 years
those who
there vrere no longer
the effectivity of th" tS;iot'sutt'tion)' have already
could elect Philipo-t ';;;;;'
itt^ttt ^[ of them would 25. What is the citizenship of an alien woman who marties a
or did not elect at all' in
teached 2l andtl"y ti;;;;iaheady
elected
of Filipino husband?
followrng the citizenship
which latter case they t;;il;
be aliens
their fathers' (1) In the case of Zita Ngo Burca u. Repablir, Jan.20, 1967, ir was
held that the ptopet proceeding vuherein an alien'woman married to a
mother of a child born under the 1935
23. Suppose the Filipino is Filipino can herself be declared a Filipino citizen is a naturalization
to her alien husband' what
Constitution-"" "J;;^ti;"'ata ptoceeding in a court of justice, and that any such declaration by any
the citizenshiP of the child? other office or agency is null and void.
the rnother
followed the ciuzenship of
The child, berng ille gttrmate' from birth' Many Filipinos criticized said ruling because it imposed more
the chrld is a Filipino
without need of tttJ;""' fit"te' stringent requirements on an aLien wife of a Fiiipino husband vrho ordi-
marries a nadly follows the citzenship of the latte4 than an applicant for naturalization.
of a Filipino woman who
24. Vhat is the citizenship Fortunately, this ruling was later abandoned.
foreigner?
If she acquired the nauonality Q) h MEa Ya Lin of Innigration,4l SCk4 292
Yao a. Comm.
(1) Prior to the 19?3 Constitution: (1971), the Supreme Court reversed the Burca ruling and held that "under
lost her Philippine citizenship'
of her aiien husband' she the many Sec. 15 of Commonwedth Act No. 475 [the Revised Naruralization Law]*
Filipino' Examples are
O'htt;;' tttt tt*"-ta a
44 NATIONALITYTHEOR\ CONFLICT OF LAWS CONFLICT OF LAWS NATIONALITYTHEORY 45
an aiion wolrran rrnlr\,l11e a I;ihtrino. uailr'c-born oi naturirlized. bccon-tcs The modes of acq''rngPhilippine citizenship bv naturarizadon are:
tp.tl.iltiio a irilipino pu'idccl sl-rc is ur-rt ciiscluahired to be a cruzcn oi tirr
PhrJrppu"res undcr Scc..l r;f'thc sarnc iat:"
'l'his cleciston
rn cifecr ruic.i (1) By iudicial process in accordance with Commonweaith Act
that rt is not neccssarl ror tirc ai-rclr rvilte oi a .l-ihpr1cl hssband 16 p16;1rg 1n No. 475, as amended bv Repubiic Act No. 530;
a courr plocecding that sirc possesses ail thc guahficadons ser tortir rn Scc.
2 and nonc of thc discluaiihcauons unclcl Scc. -1. both of thc Rcvrsccl (2) By legislative process; i.e., when Philippine citi.zenship is
\vatulahzation l,at; ]t rs cnougir ther sl'rc 1-rlolcs rhat sl'rc is nor drscluahiiecl confeted by a special act of Congress on deserving aliensi
to l:c a Filipin o crilzen not necessarih- in court but even bcf<_,rc an agencr
Llic rlrr' Lnrnirlratron (.orlnrissiorr. (3) Byadministrative process, under Rep. Act No. 9139, otherwise
known as "The Adminis&ative Naturalization Law of 2000",
Note also lhat an ahcn woman rnarrrcr-l t() ;tn aiien liusband approved in 2001. Under this laq a Special Committee on
rviro (tl-re husbancl) is subsccprentlr.naturalizcd als<.r follt.,l,s the l)hrJ_rppinc Naturaiization is created, with the power to approve, deny or
'ot suiicr f'.m a'r .f
citrzenship c;f her husband, pro'idecl shc d.cs reject applications for naturalization irled with said Committee.
rltt tlrstltrahficluutts tlrtd('r )cc. -l , tlrc s;rrrrt l(t.r rscd \rrLrrairznti.,l l-,ru,
'f Members of the Committee are the Solicitor Geneml as chairman,
'l'lirs is
a casc of derivative naturalization (slr-rilar ro rhc ninor clrildren and the Secretary of Forergn Affairs or his representative and the
ol :r uarurali;zcd ljilipint citizcn;. National Securiw Adviser as members.
(3) i.{orvevcr:, rn the rccent case ot: l.)lumanton u. I)omtn.qa. 24(t Derivative rr"*r.ti""tion is Philippine ciuzenship conferred
S(.]t,\ 7+6. ti.rc Sup.rcnrc C,rurt hcicl thar tircr-e is no lau,g,r^rinn,i,lg on: (l) the rvife of ftar'xaLzed husband; (2) the mrnor children of a
alicns n-rarr:icd t. Fil4rrnrs thc riEht t. bc acimrttccl lnr.. nruch lcss givcn ^
naturalized father; and (3) the a[en wife of a narural-born or nafuralzed
l)crlnallcllt rcsiclcrlcc irl. thc l)hLiipltitrcs. l'ltlr oi aircns rtt() rl-lc l)l-rilpprlcs citizen, in the latter case, the mariage having taken place after the husband's
rflti t]rctr ldrrrtssr,,t) 1ls lltlnllgr;lltts ts j)(,1 :l llt;tttct.,rl r.rqlit. cr.en il tht,r naturalization.
arc icgallr,marrieci tc, .Fihprnos. i\iarrrrrgc oi an alcn w()n-]an to a i-rusbancl Be it remembered that during the penod of Martral laq Pres.
d<.rcs r-rrr tp.ro .fat/a *rakc her a fiiliprn' citrzcn l'd docs crcuse he:: Marcos issued Letter of Instruction (LOl) No. 270 providing for
'.t
fror.n her failure to dcpart lrorn thc PhrLppure Lrpon rhe expiration .f her naturalization by Presidential Decree. The applicants'were screened by a
cxteuded sta\- hcrc as an ahcn. Special Committee in a summary manner, which then recommended
those found eligible for natutalization under said LOI to Pres. Marcos,
Note: Unliiic t|'t': i\10):tt Drt rt.;t rvhelc the aLcn lrornan marliccl who would issue a decree declanng as naturalized Filipino citizens those
to a liiliplro hr.rsba'd drd not appear r. ha'c anl drscluaLtrcation for included in the list recommended by the Special Committee. Said
traturalization, the ahcn \\'onlan in thc abo'c Df umanton case re fused tc.r Committee is similar to the Committee on Naturafization created by the
It'ar c tlris coulltf\ r'r't'n aflcl tlrc cxl'rrrari,,n ,,t'ir.ir.cxterrr-lt.ri stei. ltere and recently approved Rep. Act No. 9139.
itsteail g()t ll?rrrlccl to a l''ihpino. apparcnth't, avoid ircr d(,portat1on.
27. What are the qualifications fot iudicial naturalization under
26. What is naturalization, and rvhat are the clifferent modes of Sec 2, C.A. No. 475, as amended?
naturalization?
(1) The petitioner must not be less than 21 yeats of age on the
Naturalization is tl-rc pr()ccss of conienrng on :rn airen the date of the hearing of the petition;
citizenship of another coLultr\-, bl anr'of rhc lncans pr-or.idecl bu iar,": It
is cousidered not a rlatrcr oi rigirt bur orrc of pnvilcgc arrcl mar bc (2) He must have, as a rule, resided in the Phiiippines for a
cr.rjoved onh' r-rndcr thc precise conditions prcscriirccl br. l;ru: continuous period of not less than ten years;
CONFLICT OF LAWS CONFLICT OF LATVS NATIONALITY THEOR\
16 NATIONALITYTHEORY
(3) He must be of good moral charactet, and believes in the rvho )rave not cvtnced a snccre destrc t<., learn aud etlbract.
principies undetlving the Philippine Consdrution' and must the custorrrs, tradrtrons. and ideals of the liilipinos:l
have conducted himself in a proper and irteproachable 17) Crtrzens or sub jects of naurns rvith rviro' tl-re Phiirppir-rcs rs
manner during the entrre perlod of his residence in the at war: and
Philippines in his relarion rlrth the constituted government (8) Ciuzcns or subjecrs of a iorergrr countn,k;ther than the United
as well as with the cornmuniry in which he is living; States) wlrose lat,s do not grant Frlprnos the nght tr.r
bccomc naruralizcd crtizcns or subjccts thercof.
(4) He must orvn real estate in the Pliihppines worth not less than
P5,000, Plllippine currenc\'! or tnust ltave some iucrauve trade, 29. What are the qualifications for administrative naturalization
prr-,fession. or occupauorl: under Sec. 3 of Rep. Act 9139?
(5) Fle rnr-rst be able to speali itnd u'r'irc l:nglish or Sparrish and (1) The applicant must bc boln in the Phdrppines and resrding
anv one of the pnncipal Philipprne languages; and therein srnce birth;
(6) He must have enrolled ]ris minor children of school age in (2)'fhe appltcant must not bc lcss than eigl.rtecn (1ii) vear. of .gc
ant'ol the pubhc or pnvate schools recognizcd bv the Buteau at the ume of the Frhng of hrs/hcr petluon;
of Prtvatc Schools where Phllippine historr'. government,
and civics are taugirt or plescnbcd as part of the school (3) The applicant must be o[good moral character and beiievcs
cutrtculutn ciuriug the elltire pcliod of tire testdence lequu'ed in the underl,ving principles of thc Constitution, ancl must har,c
of hrm. prior to the hearing of his petiuon ti;r naturalization conducted ilmself/hcrseliin a proper ancl u'rcproachablc rnanner
as cigzcn. during his/hcr enrire pcriod r>i residence in the Phihppines in his
relatron with the duiv constitutecl government as rvell as rvith the
28. What are the disqualifications for natutalization under C'A' communirv in u'hrch hc/sirc rs hvrng;
No. 473, as amended?
(a) fhe applicant lnust have recetved hislher pnrnarv ancl
r\ccording t() Sec. 'l of said Act, tl.re foliowrng callnot be secondari' educatron in anv pubirc school or private educational
na turalizcd as Plrilipprne ciuzens: insurutior.r dulv recognized bl thc Department of F.ducation.
Culture and Sports. where Phihppine irist<-rr1'. governmt:nt anri
(1) Persons opposed to organized goverflment or afFrliated wrth, civics are taught and prescribed as part of tl'rc school curnculun-r
any association or grouP o[ persons rvho uphold and teach and where enrollment is not limited to anv race or nationaLn;
doctrines opposine all organizcd governments; Pmuid.ed, that sirould he,/she havc rninor children oi school agc.
(2) Petsons defending or tcaching the proprietl of vtoleuce, he/she must have enrolled tirem in simiiar schooisl
personnl assauit or assassination for the success and pre-
dotntnance of their
rdeas; (5) The applicant must have a known trade. business, profession
(3) Pol,vgamists or believcrs in tire practicc of pol,vgam,v; or larvful occupation, from which hc/she denves incornc sufficier.rt
(4) Persons ccrnvicted of a crirne involving m<-rral turpirude; for ins/her suppon and if helshe ts rnamed zndf or has dependents.
(5) Persons suffering frou mental alienation or incurable also drat of his/her familr': Prouiticd. howeuer. Tirat thrs shall not
contagrous disease: applv to app[cants whc.r are coliege degree hoiders but are unable
(6) Persons of therr residence in the
.r'l.ro, during the period to pracltce their profession becausc the'r'are drsqualitlcd to do s,:,
Phihppines, have not rnrngled sociall,v wrth the Filiprnos' ot bv reason of their ciuzensirrp;
4H NATIONALITYTHEOR\ CONFI,ICT OF LAWS CONFLICT OF LAWS NATIONALITYTHEORY 49
(6r 'i-irc irpplrcent mLlst i)c:ible r<, rcrcl. t'rrtc and spcak Friinin<, (3) B.v subscribing to an oath of aliegiance ro supporr rhe
or anr of tirc tiiaiects ol- ti-rtr l)htiipt-rtncs: enc] constitution or laws of a foreign countrv upon attainrng
fwentv-one vears oi age and more
irl 'I'irc applicant must hn\-e nrnqlr.i u'ltir ti)c f"ti-tllnos and (4) Bv rendering service tq or accepdng commission in, the armeci
eviuced a sinccre desrle to learn anci clnbrxcc thc customs, forces of a foreign country; .rl!
traditrons and rdeals oi thc Fihpirro people. (5) By cancellation of the certificate of naturaiization; f{
,cq
(6) By having been declated by competent authoriry a deserrer of
nt
30. What are the disqualifications for naturalization under Rep. the Philippine armed forces in time of wat, unless subsequentlri ifl
iIi
Act. 9139? a plenary pardon or amnesty has been granted; and :1',ri
;t
(7) In the case of a woman, upon her marriage to a foreigner, if .,d
,ii
Sec. -{ of said .\ct provrdes tl-rat tirc iollorving arc not clualified by virtue of the laws in force in her husband's countrl', she l$
'ti
to bc traturaiized undcr tire same : acquires his national-ity. :ll
,,.t
i1) 'I'hose opDosed to orsanlzt:d government or aiftirated rvrth Note, however, that under the 7973 and 1987 Consututions, the
anl associatron or grollp of pcrsons u'lro uphoid and tcach woman in No. (7) above retains her Philippine citizenship unless bv her
cloctrines opposmg all organtzeci govemlnen ts ; act or omission, she is deemed under the law to have renounced her
(2) 'i hosc cleiendrng or teaching thc ncccssitr of or propricn' of Philippine citizenship.
ltoience. personal assault ol rss;rssinrtlon for the success or
plcdormnance oi their ideas; 32. How may Philippine citizenship be reacquired?
(3) Polvgamrsts <x beher.ers ln the practlcc of pr.,lvgarny;
i-l)
'fhose c()nvlctecl oi crimcs rrrr-r,lr-ing, r-r'rolal turpitudcl Under Sec 2 of Commonwealth Act No, 63, as amended bv
(5) I hose strffcring irron-r r-ne rrtl1 lh.'rration or incura[rle Rep. Act No. 106, Philippine citizenship may be reacquired as follo'*'s:
con tagl(r Lls tltseas cs ;
'I'hc.,sc
(6) u,irrr. dLrmg thc 1-rcnoti oi thcil rcstdcr:cc jlr thc J)lilrpprlcs. (1) By naturalization; Pnuided, that the applicant possesses none
havc n<,t rmngled socialh'l.".ith i,hprnos- or rvhc.' havc not of the drsquahfications prescribed in Sec. 2 of Act No. 2927:
cr.iucecl ?r slncerc clcsirc to lcar:n ancl ertrbrace tirc custotrts.
traditir.,ns ancl iclcals of thc iirhpinos: (2) Bv repatriation of deserters of the Armli Nary, or Air Cotps
(7) (-iuzcns or sr.rbjccts l<-,inationslrvith u'horn tire Phrirppines is Proaidcd,That a woman who iost her citizenship bv reasor
at t,at' cilrt'nrg thc pcriocl of sLrcir r."'rr: and of her mariage to an alien may be tepatriated in accordancr
(.9;Cruzens ol srrblccts ol u forcrgrr countn l.i]ose lzrs.'s clr not wrth the provisions of this Act after the termination of th(
grnlrt I;iill)ur()s thc flshr f() l)c nlrtluxi-rzecl ci[zens or sublccts mafital starus; and
thercoi
(3) By direct act of the Nauonal Assembly (now Congress).
31. Hou'mav Philippine citizenship be lost?
33. What is the procedure incident to reacquisition of Philippin,
L,'r-rdcr (lon-rruout'<'altit .\cr. 6i l;r llcp. ,\cr, \-o.
:r: tlttcndccl citizenship?
Iti(r. " 1' Ltn no crcizcrr rlr,.' iosr. l-ris ciuzcnsiriP in arl oi the foli<;s'ing
Sec. 4 of the same C.A. No. 63, as amended, provides as followr
Iil naturaiizatron in n tirrcrgn coulrtr\'; "The procedure prescribed fot nztvrabzation undet Act292i . a
I\' cxprcss r('1)LLllciiltri )n oI crttzc nshilr amended, shall apply to the reacquisition of Philippine citizenship b
NATIONALITYTHEORY CONFLICT OF LAWS CONFLICT OF LAWS
'O
E
CHAPTER
government as well as 'with the community in whrch he rs
livrng; and
(3) That he subscribes ro an oath declating his intention to
renounce absolutely and perperually all faith and alleg'iance
to the foreign authorir)', state .or sovereignw of which he
was a citizen or subject.
THE DOMICILIARY THEORY
34. How about repatriation? How can it be effected?
1. What is the domiciliarv theory in Conflict of Laws?
Rep. Act 8171 on repatiarion of Frhpino women who married
alens and natural-born Filiprno who have lost their Philippine ciuzenship,
It is the theorv wherebl tl-re starus, condition, rights, obligati<;ns,
provides:
and capactrt' of a pclson are gor.-crncd l>i thc larv <-,f his domicilc or the
"Sec. 1. FiJipino women who have lost their Philippine ciuzenship
by mariage to al-iens and natural-born Fil-ipinos who have lost their
l* cloniilii.
Philippine citzenslup, rncluding thet minor children, on account of pohtical
2. Define domicile.
or economic necessity, may re-acquire Philippine citizenship through
repaftiation in the manner provided in Section 4 of Commonwealth Act
No. 63, as amended: Provided, That the applicant is nor a:
It ts thc 1>lace rvherc a pcrsol'l "l-ras l'ris trlrc. Ftxed. permanent
home and pnncipal cstabhshmer-rr, and to rvhich. whencver he is absent.
(1) Person opposed to organized governmenr or affiliated with
Iie has the intcntron oF returning" (Storr; (,onflict of l,aws, sec. 41).
an association or group of persons who uphold and teach
doctrines opposing organized goverflmenr.
It is "thc placc rvhere a pcrs()n has a settled connection for cerrain
(2) Person defending or teaching the necessity or propriery of
legal purposes, either because hts hon-rc is tl.rere or bccause that is the
violence, personal assauit, or association for the predorninance
placer assigned to hirn bJ-lotu"' (lrrrst llcstatelnent, scc. 9).
of their ideas;
(3) Person convi,cted of crimes involving moral turpitude; or
"For ti-re exercise of crvtl rights and fulfrllmcnt o[ crvil obligatrons,
(4) Penon suffering from mentai alienation or incurable contagious
thc domicile oi natr.rral persons is the place of their habttual residence."
diseases.
[\rt. 50, Nes' Civil (]ode).
Sec. 2. Repauiation shall be effected by taking the necessary oath
of allegiance to the Republic of the Ph-rhppines and regrstarion in the
3. Are ttdomicile" and ttresidence" the same?
propff civil registry and in the Bureau of lmmigration. The Bureau of
Immigration shall thereupon cancel the pertinent alien certifrcate of
reg'istration and issue the certificate of identification as Fil_ipino citizen to
" s r x rt is an established principle in Confuct of Laws that
'dornicile' refels to thc reiattvelr' rrlorc perrnanent abode of a person
the repatriated citizen."
CONFLICT OF LAWS CONFLICT OF LAWS THE DOMICILIAITY THEORY
.1 THEDOMICILIARYTHEOIIY
glr-ctl Diacc" bv tlrc lau' tire place in *'irich rre resicie-.. or according to thc
rvltrlc.'resider-rcc'apphcs t() a tctr)P()fx1-\rstlt\'()i1Persoll tu a 'f
ll',rtl, t'. C.. 1.. =0 .\CR. 1 :t8, formairtres obsen'ed rn his counrrt'. or rn conformin, wrth tirose
u4.uch ti-ris Codc prescrtbes," (-\rr. 81(r. znl
"Rcsidence' is used to tncLcate a pl^cc of abode' w'hethcr
pcrmanent or temPorar\'; 'domicile' denotes a fixcd' Petmanent residence (3) In the case i,i srarelcss indn-rdu.,rls. or those r.vith dual or
t,,.rrl-uch..r,,hen absetlt. one has thc intention of rettlrning. A man
tnal' multiple nationa[ties. the domtcihan' tlteor-r, runs ro tl-re rescue of the
lrave a residence in one place and a dornicilc in another. i{esidence is not nationaliw theorr'.
rlorntcile. but domicilc is residence coupled rvitlr lntentrou tr) fel1]aln tol
nrr unl-ilruted trme. ,\ lll^n can have one dornrcilc for onct and the same (4) Dunng tl-ie earlv vears of American colonization of thc
l-Ia\re nufiler()us places of residence"' Philippines, our Supreme Court ur solrrc cases apphed the domrcilian-
l)rlrpose at an\' tlme, but he mav
(litt/enq.rtr t'. Rcp.,95 Plttl. 890) tl-reor1'. like the case of the vahdiri' of a drvorce decree obtained abroad.
4. Distinguish "domicile" from "citizenship"' 15) Crtrzens of countries [ke the U.S. or Great Britain, wl.ricl.r
follorv the dornicihaly dreor1,, rnav bccome rnvolved in iiiigatron in our'
Dorniciie in gencral speaks of one's perrnanent Place of abode' countr)., rvhich follorvs the nationahfi- theor\'.
rvhile citizer-rship or nauonality indicates ties of allegiance and
lovalti A
domiciharl' of
pcrson ma\. be a crtrzen or national of one state and n (6) ,\garn, srxne great ccruntrics hkc the Ll.S. ancl Grcat Britarn
.;rll()rhcf. irilrpiflos rvhcr are imrnigrants abroad' hkc thc holders of grcc[ follow the domiciiiari- theor)', so that it rvould do rvell For us tr-r rnake a
cards in the Lj.S.. stjll Frhpino citizens. but therr dcxnicile 1s thc. coutltfv comparatle studv oi thc nationalitv and dorniciharr tirconcs.
^rc
to rvhere thev havc per-rnanentll migratcd'
6. What law determines one's domicile, his national lau'or the lex fori
5. considering that our countrv follows the nationality
theorl', whv
theorv? The prcvarirng rule is that thc iorurn applics its orvn concept ()i
is it still important for us to know and studv the domiciliarv
domicile in deterrruning the dornicrle of a htrsant bctbrc its courts.
For several reasons! tratr-relt: 7. Wrat are the different kinds of domicile?
(1) lnsome cases' our own larv nakes the hrv of the domrcile (a) Domicile of origin: "I'hc domtcile assisnccl b)'in*'t,, a pcrs()1r
. oi ()i c()nfllcts cases' at the rnoment oi his bu-th.
a persor-r the controllir-rq tactor in thc soluttt,lr
(b) Constructive domicile ot domicile by operation of la\\':
Example: "'l-i'rc rev'lc'ltl()rl of a r'vill clouc bt' a Persoll firc domicile assigncd bv lau' to a person after birth on account ()f r]
clutstcicthcl)hilrppincsbr.aPels()llrr,lrrldoest.t(}tllavelrisdo' legal drsabihn'. lilie nrinorth'. insanin. inrprrsonmeut. ctc-
tire /rr
micile in the Phiiippines is vahcl rvhcu donc according to
/ocz celebralionil. o1. n...,.d'.'g to thc ialv oi tl-re piacc t;f tlre testatelr,.s (c) Domicile of choice: fhe dc-,nrrcrle of a person tui.luri.r bccause
domicile at the time " (Art 829. Neu' Civil Codc) he has his l-rorne tl-rerc and to u'htch. lvltelter.er abscnt. l-re intcnds to
retLll1t.
(]) Sornetimes. our larv makes either the larv of one's natlonalitv
or that of hrs domicile rs the contrt.rlhrlg thctor' Note: I)onricile oi ongur is acquired at birtl.r: tireleforc. it ncver
cirangcs. \\'lrilc consrructtrrc domiciic ts gl'cn aftcl btrtir tci those u'ltt,
Example: " flre will of ln alien wlro is abroad produces 1:r,-ir. clplcrtt to chr.rosc thelr c-ru,n clou"rtctlc. Iikt'tttttr,'rs. ittsattcs, etc.
(3) A natutal person, lree (not a prisoner) and vi jui.r (one of Famrly Code).
age and under no drsabiliw) can change his domicile at pleasure. ' (c)In case of absence or death of either parent, rhe
(4)A domicile once acguired, is retarned until a new one is gained. domiciie of the presenr parenr. Even in case of the remarriage
(5) The presumption being in favor of the continuance o[ an of tire surviung parent. stili hrs/her domrcile determines the
exisdng dornrcile, the burden of proof is on the one who construcrive domicile of tl-re minor child.
alleges that a change oF dornicile has taken place. (d) If the cirild is adopted, the domicile of choice
(6) 1b acquire a new domicile of choice, the follorving must concur':
of
the adopter is the child\ construcdve dornicile.
(a) residence or bodilv presence in the new- localiry;
(b) an intenuon to remain there(.animu.s manendl; ar.d
(2) Insanes, idiots, imbeciles
(c) an rntentron not to return to the former abode -
(animu.r not reuerl enci)
Since insanes and other mentallv rncapacitated persons
(Calie,go t' I ara, 7J Phi/. 45)) cannot select their own domicile, the larv assigns their domicrle
to them.
9. Give some rules in determining one's domicile of origin. (a) If fiey arc below the age of majontli rhe rules <;n
minors applr, to thern.
(1) if the child is legitimate, irrs domicile of origrn rs that of hrs p) If they are of age and have guardians, thev follou,
parents at the tlme of irrs birthl if thc parents are separated, the domicile the dorrucile of ch'ice of their- guardrans. If thev ha'e no guardrans,
of tl-re custodial parent. tireir consrructive do'ucile is their domicile of cr-roice before
thev becamc insane.
Ifthe child is illegitimate. hrs dor-mcile of origin is that of the
mother at the time of his birth. (3) Married women -
If the child is legitimated, the dormcile of his fatirer at the time If fie
(a) marriage is valid;
of ils binh controls, since tire eflects of legrtlnauon rctroacts to the (i) The consrrucrn'e domicile of the wife is tl-re
time o[ the child's brrth (Art. 1tJ(]. l;amrh'Code).
domrcilc of borl.r spouses, ur.rless the larv alk;u,s thc
wifc to have a separate domicile, tor valid and
(2) 1'he domtcilc of c-'ngrn o[ an adopted child is tire domrcile
compelling reasons (Art. 69, Jiarnilv Code).
of his real p^rents at tirc tune of his brrth, not the domicilc of the adopters
(ii) If there rs legai separauc_,n bcrween the spouses.
THE DOMICILIARY THEOR} CONFLICT Of LAWS CONFLICT OF LAWS
56
Art.16, tlrst par.. of the Nerv Civil Code provldes that "real
properw as well as personal ProPert) is subiect to the law of the countrv
where it rs siruated". Thus, if tl-re act or uansaction involves properq-'
BII
whetl-rer real or personal, the law that deterrnincs the validiry of dle tfansacdon
ts thc /ex rttar or /ex rei ilae. Flven the capacifi of tire pardes t() the uansactron THE PROBLEM OF THE *RENVOI''
ts governed by the /er titu.t or /ex rvi .silu.r, r-rot bv tl-le lex nalionaki of the /sI
rhnuiti. 1. What is meant by "renvoi"?
Everv internai or municipal hu'oix. state has two pnrts; (1) its
purelv internal or don'reshc iav rvhicl.r appLies to dornestic cases; and (2J
Its rules in Conflict of Laws rvirich tt appires to cases wlth some forergr.r
elernent.
r-vhetlrer the reference bv the iex/an (the lau' of the countr-v where the
problem arises) to the foreign larv irrvolves (l) a refercnce to the internai
larv of tl.re forergn larv or (2) a reference to the entlrer\ <.rf thc foreign iau,'.
inciudrng its confucts rules.
In such casc, if thc hrst statc firllorvs the nationahn, thcorr', and
the second statc fbllorvs the domtciiral\' tbcort, tiic problcrn of "rcnvoi"
wiil rn<-rst probabli artsc.
counrry for 50 years andwho dies here, leaving a sizable estate. Art. 16, ptobiem back to us, which would result in internauonal
sec. par., of the New Civil Code provides that in testate or intestate we should applv Phiirpprne lau, (the law of tl:
football. Hence.
succession, we should appi,v the national law of the deceased which. in
this case..is Califotnia iavr But Cal-iforniat tnternal lav'has one ruie for its
d'e c ted bl, th. .or' flrcts rure s o f c arifornia,
makes acknowledged narurar children forcecr rre*s
*,iffi:tt;rfffi11i:
own citizens who reside there, and another rule fot its ciuzens who have of ,rr" p*."i. ,J.t"gr*ug
them, while Carifornia ia.r'pro'ides no legitrme for
their domiciles abroad. In the latter case, California law provides that the such
result, Helen. the Fihpino child, rvas gir.en a legrume .
.hrr;r;;.;.
^
Iaw of the domicile of its deceased citizen should apply. Thus, while our
Civil Code refers the matter to California law (the national law of the Note: The Supleme Cor-rrt,-s ruirng was obviously rntended
deceased), California lavr refers the matter back to us, telling us to apply to
favor the Filipino child. \x&at if no Filrpino .iur.n was
the law of the deceased's domicile, which is Philippine lavz Should the involved, tike, fo,
instance, if those Frghtrng over the estate of trre deceased
Philippine court tasked to setde the estate of the deceased accept the wire alr Californra
citizens? \ibuld our Supreme coutt have still accepted
"renvoi" and apply Philippine law, or insist that California intetnal law the .,renvoi,, and
applv Phihppine lau'?
binding on its own citizens-residents should be applied, the same being
the deceased's national law? This is the "tenvoi" problem. Therl arc actually four (4) solutions that the court
4.
can adopt when_
everit is confronted with a "renvoi" probrem like the
3. Discuss why out Supreme Court accepted the ttrenvoitt in the case. What are they?
chistensen
case of The Mattet of the Testate Estate of Edward Christensen,
Adotfo Aznat and Lucy Christensen v. Helen Christensen Garcia.
(a) Wb may reiect the .,renvoi".
7 SCRA es 0e63).
This means that tl-re court d.es not want the probrem r<,,
The case teferred to above is the first case decided by our be sent
back to us. That is, as in the case of the testate or intesrate
Supreme Court which raised the "renvoi" problem. succession <-rf
a foreigner but domrciied in our countr.l; we w<;uld simplv appl1. iris
nadonal law, or the internal law of his countr\,,.
The facts of the case are: The deceased Edward Christensen
was a California citizen who had resided in the Philippines for a long time
(b) W'e may accept thc ..renvoi,,.
prior to his death; hence, a domiciliary of the Philippines. In his vdll, he
left almost his entire estate to Lucy, an acknowledged natural child in
As in the Christensen casc, our Snpreme Court accepted thc.
Califomra, and ga'l'e a small legacy to Helen, an acknorvledged narutal
referral or the transrnissio' of the casc back to us. so tirat instead
child in the Phrlippines. Under California internal law, its deceased citizen of
applying tire foreign rnrernal la*i prrirrpprne rarv rvas apphed.
may dispose of his estate by -ill in any manner he pleases, However, berng thc
lau'of the deceased'.s domicrle, as direcred bv our .wn law (Art. 16, ,"..
Califotnia law also provides that where its deceased citizen tesides in par., Neu,. Civil Code). Thrs rs a case
another country, the law of his domicile should determine his succession.
of single ..r.,rol or single
transmission.
Thus, while Lucy contended that the will of the deceased should be given
effecg follou'ing California internal law, Helen insisted that Philippine law,
(c) We mal follow the theory of desistment, or tire murual_
the law of the domicile of the deceased. should be applied, under which
disclaimer of jurisdiction theory.
she is a forced heir and is entided to a legrtime.
Here, u'e refrain from applt,rng thc national Larr, of the dcccasecl
The ruling: Recognizing that there \r/ere two sets of ruies under
foretgner, althougl.r our larv telrs us to d. s<>, if said rau, foil<;u,s
California internal iaw, one for its citizens who teside there and another tr.rc
dorrucihan theo.' and drrects that wc appr' tire lau, of thc domicile
for its citizens 'q/ho reside in other jurisdictions, the Supreme Court held of
the deceased. So, in the end, w.e still anoh, philinnne law:
that if it should refer the matter to California lau'. said law will toss the
rl fi
CONILICT OF LAI\| S I'HE PROBLEM OFTHE "RENVOI" 63
Under this tireor\i v'e would simpll do u.hat the tbreien courr rvould 'tcras. LlS,\.
ri:i
:ii,i
do if confronted wrth the same case. So ti.rat ri the Ca[fornia court (as in
t
:,i;r:
the Christensen case) would applv Ca[fornra internal larq we would do iJ:
Tire facts: lJelLs. Iciuzcn unci rcsrcicnt r>i'lexas at that trn-rc oi'
the same. If, however, said court would applv Phriiporne 1aw, u'e would ,*r
--i&
i-1s clcath. lcit sonrc propertlcs in tirc l)hihpuincs. lJciolc his dcath, irc :6'
follou,' suit. The advantage of this theorv is that regardless of forum, the *
e\ecutecl rrvr, u'ills. onc iirllorviug'lcxas las'disPosinu oi hrs propcrtres 'l{
appiicable lav'will be the same. But rt can also result in internauonal 'l'exas, and anoti1cr. follorving l)hilippinc iaui clisposins of his
in properties ft
ptngpong if we do what the Califomra court would do, br.rt the California
in thc l)hihppincs. Bellis hacl sevcral illcgitimatc chilcr,rcu in thc l)hrJ.ippincs -lt
court would do what we do, erc. ,il
bgt in l-rrs trvg rvrlls. hc dici nor sivc anvrhins to his iliegitrmare childrep
5; What is meant by t'double renvoit'?
l)unng thc scttlcmcur oliris cstate. lhc ilicgtmrrate chilclrcn t-,pposcci ir<-rtir
r.vills bccausc thel had irecn cleprivcd ,.'f therr: lcgrtin-rcs. and rnsisting tirat
Phil-rpprnc larv sl-roulcl l:e altplied.'l'hcrc arc uo cc>urpttls<.rn' heirs r-rtrdcr
This occurs when the local court, rn adopung the foreign court
'I'exas laq'. ancl -I'cxas lar',i iurtltcrrrtorc, docs tt()1 itavc conflicfs rulcs
theorl', dtscovers tirat the foreign court acceprs the "renvoi." But since
governing thc strcccssron rtf tts citizcns.
the foretgn law remits the case to Philippine law, being the iaw' oi tire
deceasedt domicile, thc f<-'reign courr lrral discover thar Philipprne larv
Helcl;'lirc illcgitlr-ratc cl.rilc'lrcn not cntiitrccl to atl' lcgittmc
does not accept tire remission (as it applies the national larv o[ the ^rc
bccausc unclcr'fcx',ts lnv'. rvhicl-r is thc ttattot-titl larr' r.,f tl-rc deccascd and
deceased), so the foreign court, sitting as a Philipprnc courr, would stdl
t'hrcl-r rvc urust apph'r-rucier,\lt. 16, par. lrvo of thc Civil Coclc. thcrtc arc
appl,v rts own rnternal lav": This is then rvirat our court will applr'.
no compulson- ircirs and no lcgttimcs.
6. Vhat about the theory of "transmission"? Is it the same as ttrenvoitt? r\s ior thc oppositors'aLgttttrcnts that sit-rcc thc deccascd
cxecnted tn'o rr'ills. ou.c t() go\-crn his cstate lr tl-rc l)irihppincs and tl-rc
()thcr to g()\'crn his 'l'cxas cstatc. lt tlust havc bccn thc itrtention ol tl-rc
Thev are not the same becausc u'hile "renvoi" invoh'es two laws,
deceascd to i1?rvc l)irihpprne 1211' garlct-t1 his propcrtics in the Pl-rilippurcs,
transmrssion actually involves three larvs.
thc Suprcrrc (,our:t hcld tirat i'trllorvlrg '\Iitiano r' lJt'ittto. i0 Pltil. 867. tr
"'lransmission" is the proccss oi applvrng thc larr,' provision rn a torcrg'ncr'.s u,ill to tl-rc cftcct lhrt lis pr<4rclrrcs ur thc i)hilipplnes
of a forergn
state thru the law of a second foreign state. shall be drstnbutecl in lccordancc u'rth l)l-rilqtprnc iat' :tt'tti t'tot tn '.rccordanct'
u'rtl-r hrs nlttional larv rs illcgal atrd votd.
CHAPTER
CONFLICTS RULES ON
STATUS AND CAPACITY
1. Considering that one's status starts with the beginning of his
personalitl', when does human personalitv begin under our law?
T lrv otrr Civil Codc (-\rts. 38,t,385. and 386). (See 'laalingu. I'ernandc\.
l)lti/. 3 1'1
lf death under Art. 391 of the Nev- Civil Code. an
vears is enough (e/.).
absence of rwo (2)
6. [Jnder what conditions mav a person be declared an absentee In either case. a summarv ptoceeding fot the deciaration of the
under Philippine lawrand what are the legal effects of such declaration? presumptive death of the absent spouse under Arl 42 of the Fam_il1
Code is necessary.
(a) \\'ithrn rwo (2; veats aftcl a person\ drsappearance without
leaving an agent to administer his propertv, or having left an agent. the (b) For all other purposes except succession, an absence of
power of the latter had expired, any intcrested person. relativc. or lriend seven fl) years, it being unknown whether or not the absentee still lives, is
may ask tire competent court to appoint a person to represent the absentee necessary (Art, 390, New Civil Code).
in all that mav be necessary'(Art.381, Nerv Civtl Code).'fhe Present
spouse is, however, preferred in the apporntment when there is no legal The procedure is found in Rule 107 of the Revised Rules of
separatron (Art. 383). Court.
(b) After the lapse oirwo (2) vears wlthout anl: news about the (c) For the purpose of succession, an absence of ten (10)
absentee or since the receipt ol the last nelvs, and frve (5) years if the vears is required, except if the absentee disappeared after the age of
absentee iras left an administrator of his properry'his absence mav be seventy-five P5) yeats, in which case an absence of five (5) years is enough
declared (Art. 38-1, id). to open his succession (fut. 390).
\Who may ask for the declatation of onets absence? The procedute is again Rule 107 of the Revised Rules of Court.
.\nv of the Follorvns: 9. In what cases would an absence of four (4) years be enough for
(a) The present spolrse; a declaration of presumption of death because of danger of death
(b) The heirs insututed in tl.re will of the abscntee. rviro mat (otherwise known as .(extraordinary absence)?
present an authentjc copv of said will;
(c) 'fhe intestatc heirs,
if the absentec le ft no rvill; According to Art. 391, New Civil Code, the following shall be
(d) Those w-ho rnay have over the propert-r' of tl.re absentee presumed dead fot all purposes, rrcluding the division of the dstate
some right subordinated to the condrtion oFhis death. (Art. among the heirs:
385. rd.)
(a) A persoa on board a vessel lost during a sea voyage, or an
The procedure for dre declaratron of one's absence is found in aeroplane which is rnissing, who had flot been heard of for four (4) years
Rule 107 oftl-re Revised Rules of Court. Horvever, "thc iudrcial declaration silce the loss of the vessel ot aeroplane;
of absence shall not take e ffect until 6 n.ronths after the publication in a
newspaper of general circulation" (ALt. 386. td.). (b) A person in the armed fotces who has taken part in war, and
has been missing for four (4) veats;
8. When may the absentee be presumed dead, and forwhat puqposes?
(c) A person who has been in danget of death under other
For the purpose of remarriage. tire absentee mav 16 presumed
(a) circumstances Qike earthquake, volcanic eruption, landslide, fte, dangerous
dead after four (4) J'ears of absence. the present spouse having a well- expediuons, etc.).
founded belief that the absentee is alreadv dead (Art. {0 Familv Code).
Rernernbeq thougta that for the pqpose of rernardage, extaordinary
However, in case of disappearancc whcrc t[Tere is danger of absence of two (2) .vears is enough (Art. 40, Family Code).
CONFLICT OF LAWS CONFLICT OF LAWS CONFLICTS RULES ON STATUS AND CAPACITY 7',
STATUS AND CAPACITY
N CONFLICTS RULES ON
in Conflict of Laws? their national law), as well as the extrinsic and intrinsic vaiidiw of the
10. Vhat determines one's age of maiority donation. the subject-matter of the donation being located in Fiori<ia.
status' it is the personal law
Since age is part of one's personal
.r""uo"^t law or the law of the domicile) of
a person that
(whether tt. Former Senator Salonga, however, mendons some criticisms
vrhether he has reached the age of maioritv or not'
i.,.r-t., leveled by U.S. and former Soviet Union authorities to the use of one,s
law? personal law (whether his national law or domiciliary law) to determine
11. What is the age of maiority undet Philippine
his capacity to enter into business transactions with foreign elements, in
13' 1989' amended that "it would be nothing less than outright infringement of the reasonable
Republic Act. No' 6809, approved December
of maiority to 18 years expectations of the contacting parties, and would result in erecting a
htt.234 of ,n. f"-ity Code by reducing the age
law in special cases' But the age formidable barder to intemational trade and intercourse". For every person
r"* ,ft. excepdons esiablished by existing
under the same "who entets into a transacnon with a foreign nadonal or domrcijiarlwould
of contacting marriage without parental consent has'
of twenry-one then be compelled to gauge the capacity of the lattet by refetdng to the
law, remained at the age
unfamfiar law of some foreign country". (Salonga, Private Internationai
Note that also under the same Rep' Act No' 6809' thc responsi- Law, 1995 ed., p. 250).
and guardians' for
bility of parents (if the children live in theit company)
of age' How' indee4 can we subject a foreigner who enters into a business
tt. tort, committed by their chiidren and 'watds below 21 years
contact with a Ffipino in the Phrlippines but who has no capacity to
hasbeenfetained.TheresultisthatsuchParentsandguardiansarestill
(as to patents) and contract under his personal la$/, to Philippine lavr and hold him liable
responsible for the damages caused by thel childten
even ifthe chdd is above 18 years ofage (the aqe under the transaction, unless in determining his capacity to contract we
*.rd, 1", to guardians)
-but apply the lex loci contractt$ which is Philippine lawl Thus, foliowing the
below 21 yeats of age' The defect of the provision
is
of maiority)
practice in American courts, Senator Salonga suggests that Art. 15 of the
respect to guardians of minor chil&en, because if
the chil&en are
with
18, they do not need guardians anymore' unless they
are Civil Code applyrng the nationality theory be hmited to strictly familv and
already
"Uor.. domestic transactions, wh-ile the law goveming the contract should govem
under some other drsabiJrtY'
ordinary day-to-day business contracts (id., p. 256). An example is the
is our conflicts rules on capacity to contract? early decision of the Supreme Coutt in Iuular Coat- a. Frank, I t Phil. 236
12. $7hat
(909), where said Court applied Phitippine law, being the law of the
place where the contract was to be perforrned, and not the national law
In counuies that follow the nationality theory like the Plulippines'
the capacity to contract of a person is governed by his
national law and of the defend^nt, ai Illinois citizen, in determining his capacity to enter
countries like the U'S' and Great into a contractwith the Philipptre Government to work here as a stenographer.
follovrs him vrherever he goes, while irr
Britain that follow the domrcil-iary theor,v, one's capacity to conttact ls
governed by the iaw of his domicile' In other words, a petson's capacity ti.What about the use of names and surnames, which is also part
."o .o.,o,.. is governed by his petsonal law, whether
it is the lex nationalii of onets status? What is the law on the matter?
of the lex danicitii.
The exception in the Philippines ate contracts involving real
ot Traditionally, a. person's name was not regarded as part of his
sitae applies includrng status because he could change his name at wiil, but our law nov'
personal properry;in which cases the lex titu or hx rei
(Art' 15, New Civil Code)' provides that "no person can change his name ot sumame u,ithout judicial
ifr. .up".i.y of the contractrrg panles
authority" (Art.376, New Civil Code), and the procedute for the change
For example, a Filipino who owns a' piece of property rn Fiorida' of one's name is Rule 103 of the Revised Rules of Court. As held in
in the Phillppines' REublic u. CA. and lVong, G.R No. 97906, May 21, 1992, "a change of
USA, wants to donate sard property to another Filipino
name is a special proceeding to establish the stalus of a person involvrng
Forthedonationtob.,r"lid,therespectivecapacitiesofdonorand
law' which is his relation with others, that is, his legal position in, ot with regard to, the
donee shalt be govetned by Florida law (not by PhiJippine
CONTLICTOF LAWS CONFLI
N CONFLICTS RULES ON STATUS AND CAPACITY CONFLICT OF LAWS TS RULES ON STATUS AND CAPACITY 79
14. May foteigners with titles of nobility continue using said titles
in the Philippines?
The right to use a title of nobiliw depends upon the national lav'
of the person concerned (X.abel, Conflict of Laws, Vol. I, p. 169). Such
persons may condnue using thet titles of nobility in our country, but if
they apply for nattrafization, they must renounce any hereditary tide or
r"
CONFI"ICT OF LAWS
CONFLICTOFLAWS CONFLICTSRULESOFMARRIAGE 75
of the contracting parties who must be maie and female; and (2) consent
freely given in the ptesence of the soiemmzing officer (Art. 2). While the
formal requisites are:
M
personal deciaration that they take each othet as husband and wife in
the presence of not less than two witnesses of legal age. (Art. 3, id.)
The Familv Code presctibes essential as rvell as i:.tT^l requlsltes 3. What about foreign marriages of Fitipinos? Are they valid?
fotthevalidiwofarnatriage.Theessentialrequisitesare(l)legalcapaclt},
Under Art. 26 of the Family Code, "all martiages outside the
CONFLICT OI LAWS CONFLICTOF LAWS
76 CONFLTCTS RULES OF MARRIAGE CONFLICTS RULES OF IUARRIAGE 7'
phihpprnes in accordance w-1th the larvs in force in the countn'- rvhere thev i.e., marriages between ascendants and descendants. and broti-rers and
u,ere solemnizecl and yaiid there as -sucl'l. sirall also be valici in thts countrv. sisters: and marriages that are hrghlv irnmoral (bigamous or poir,,gamous
except those prol-ribiteci undcr Arucies 35ii). ('l). (5; and (6). 36' 37 and rnarriages rn Chrisuan countries thar prohibrt such marnagesT.
38"
(2) \\e proxj tnaruages., w-hile thev are nor allowed under philipprne
In other words. we follo"v tire rule of ux iot'i rciebrationt.r: rf vaLd internal law, tlre rule in dre U.S. is tl-rat where perrnitted bv the law of tire
in the countn' of celebrauon. tl-re n-rarriage rs also valid tn the Pl-rihpprnes. pla.ce where the proxy particrpates in the marriage ceremoo)., thev are
except tir<-rse enumeratecl in sard Art. 26. entitled to recognition at least insofar as the fonnal valditv of the
marriage is concemed. This rule is intended to protect the wife and chii&en
But, a for:eign marriage of Filipinos in a foreign countrv rvill stiil (Salonga. supra, p. 266).
be toid in tire Philippincs if:
(3) As to rnarriages on board a vessel on the high seas, since tl:e
(l) Either or botir parties did not havc the legal capacirv to gct country whose flag the ship is flving has juusdrctron over the ship, the rule
. rrrarried 1Art. :5 {l}); is that compliance with the iaw of tire said countrf is recluired for tiie
2) The marriage rs irnmoral for being bigamous or poiygamou marrlage to be valid. In the LI.S. where each state has irs own law- on
(Art. 35 {a}) marriage, the lav' of tire domicrle of the ship owner governs (Salonga.
(3) Consent of one partl is lackrng because of mistake as to the supra, p. 267).
identttv of tl-re other (Art. 35{5}).
(-l) Onc of tire parties was psvchologrcall,v incapacitated at thc (4) IF the parties or at ieast the husband is a lvluslim (s'hose
tirne oi the rnarriage to cornpll rvith the essenual marital religton allows piural malriages), it is beheved that we would recognize
obligations (Art. 36); up to four marriages of dre same irusband (as recognizcd by the PhrJrppine
(5) Tlie marnage is incestuous (Art. 37); ot Muslim Code on Personal Laws) to protect the rights of the wives and
(6) The marriagc is vord bl reason of pubhc pohcy (Art. 38). children.
Consular rnrrriagcs of Fiirpinos abroad are rahd. As provided 5. What about marriages between a Filipino and a foreigner abroad,
in -'\rt. 1i) of thc Famih'Codc: i.e, a, mixed martiage?
"Marriages between Frhprno crtjzens abroad may If the rnarriage rs valid under the law of one of the spouses
be solcmrizcd bv a consul-general, consul or r,ice-consul rvhiie void under the law of the other. r'c should uphold the validrn' of
<-rf the Republic of tire Phiirppines. Thc issuance of the the marriage, uniess thc martiage is universallv tncestuous or liighh
marriage [ccnse and tl-re dr.rues of the iocal crvil reglstrar immoral (the same rule as to foreigners rvho get rnarried abroad).
and of thc solemnizing oftlcer rvith regard to the
celebrirtior-r of m:rrnage shall be perfonnccl bi' said For exampie, a Filipina rnalnes hcr,\merican first cousu.r ui Califorrua.
consr.rlar otfrcial." where the marriage is valid, If the parties are both FrJrpinos, said martiage
wouid be void fot berng against public pohcv (Art. 38 (l), Farnilv Code)
4. Vhat are the conflicts rules on marriages between foreigners But since the martiage is mixed and it is valid under rhc iex loti ce/ebrationil.
solenrnized abroad? we should uphold the rnarriage. tc-r avoicl absurdrfi, and to do justrcc t<,
the wife and children, if anv. After all. tl.re rnarriaqe rvas perlormed in a
0) \\c sn}1 applv dre r:ule of
nlehaliolr, but not the excepdons
lex lo,t forergn shore and is not bv itsclf immoral or univers2ill: 1n6srgu6ss.
rn the flrst par. r.,f Art. 2(r oi rvhich appll onlv to
tire Fami11' Code. Indeed, Art. 149 of the Famrh-Code provides that "ti-re familr,. berns thc
FiLprnos. But universallv consiciered rncestr.xrus rnarriages are exceptedl foundation oI the nation, is a basic social institutjon rvhich pubhc policv
CONFLICT OF LAWS CONFLICTSRULESOFMARRIAGE 79 i
CONFLICT OF LAWS Iil
7E CONFLICTSRULESOFMARRIACE
As a general rule, the personal reiations of the spouses are r
cherishes and Protects " go'erned bv the national law of the husband. Reason for this is because
'urhen a woman marries a foreigner, she usuallv loses het nationaliry and
6. What about a mixed marriage in the Philippines; i'e',
one be- instead foilows that of the husband. Another reason is that the husband is
tween a FiliPino and a foreigner? usuaily the head of the famrly, so that the husband's personal iaw governs
the personal relations of the spouses.
It the FrLpmo -that is. PhiLppine
is believed that the national law of
law- should be followed; otherwise, our public policy would be violated. In the Philippines, an alien woman who manies a FiJiprno husband
This is true both as to the extrinsic and lntrinsic validiW of the marriage. ipsofarto becomes a Filipino citizen if she does not suffer under any
Thus. a Frhpioo cannot marfi' his or her American frst cousin in the disqualification for naturalization as a a FiJipino citizen (Ahojta l-in Yao a.
PhrJrppines, sucl, marriage being prohibrted by the Familv Code' Thev Conn. of lnnigration,4l SCRA 29Q. At exception was, howevet, held in
cznnot also marrv without a marriage license, unless the mardage is one Djananton a. Domingo,240 SCLA746 (l gg5),wherein the Supreme Court
exempt from such [cense. ruled that "rnauiage of an alien woman to a Filipino husband does not
tpto faao make her a Filipino citizen and does not excuse her from her
failure to depart from the country upon the expiration of her extended
B. MARRIAGE AS A STATUS stay hete as an alien".
1. What are the two aspects of marriage as a status? As for a Filipina who maffies an alien husband, our Constitution
provides that she "shall retain her Philippine citizenship, unless by het act
Marnage as a stalus carries with 1t mplications in rwo aspects: or omission, she is deemed, undet the larg to have renounced her citizenship".
the aspect of personal rights and obiigations of the spouses, and the
aspect of their properry relations. As to the first asPect! the rights and What law, then, should govern the personal telations of a Filipino
obligations of the spouses are purelv personal to them and are not wife, who retains her Philippine citizenship, and her alien husband?
ordinarily interlered with bv the courts. As to the aspect of the properq''
relations of the spouses, the law lavs down certain ruies and ludicial By p*ity of reasoning with Art. 80 of the Family Code on the
sanctions, as thef mav afFect public interest' property relations of husband and wife, which provision has abandoned
fut. 124 of the New Civil Code providrng that the national law of the
2. What law governs the personal relations of the spouses in husband shall applv to the property telations of spouses of different
Conflict of Laws? nationaiities, it will be the national iavr of the wife or Philippine law, that
would govern the spouses'personal reiations. This change of rdle was
personal ;:elations of the sPouses are
In the Philippines, intended by the framers of the Family Code to protect the Filipino wrfe
governed by Philippine law since we follow the nationahtv theon (Art' (because in many cases of mixed mariages, it is the rrtrfe who is the
15, New Civil Code). Other countries that foliow the natlonali* theo{' Filipino) ftom the harshness or sttictness of the personal law of the al-ien
aiso apply tl-re spouses'nadonal iar.v in determining their personal reiations husband, thus depriving her of her basic, fundamental rights. Many alien
to each other. On tl,e other hand, in countries tl-rat follou'the domicrliarl, husbands have divotced their Filipino u'ives under their petsonal laws.
theorl', the personal reiations of the spouses are governed bv the iaw of This should not, however, preclude the wives from claiming the rights
theit domicile. due them under Philippine law as such wives of their alien husbands, like
the rights to support, to the custody of thet minor children, as heir of
3.Suppose the spouses are of different nationalities, what law will
the husband, and in the division of the properties acquired dwing the
govern theit personal relations, the law of the husband or the law marriage. (See Minutes of Committee meetings of Nov. 75,22 and 24,
of the wife? 1e86)
CONFLICT OF LAWS CONFLTCT OF LAWS CONFLICTSRUL6SO[ MARRIACE
80 CONFLICTS RULES OF MARRIACE
(2) lf thc husband alonc ciraugcs iris naticirraLty n[1st ,i.t. (a) The 1nnnagc1l1ent of the ht>usehold shnll bc the ttght rnd
rnarringe, tl-re larv oF thc last com!n()n natlonaiit\- of the s1;ouses rvould dun of both sPouses ('\rt' ?f id')'
govern. to avoid preiuclice tc., the rvifc rvho r.r'or:id suf[er a cirangc in her
rights .,r'rthout rnr free erercise of chciice on her part (as provided in dre (5) \\'hen one of the spouscs neglccts his or i-rcr cllrtles tti thc
)-Iague Convention oi 1905) cr-,niugal ulltoll or .a"rt'"'t"' acts u'hich tend tc' brrng dal'rt{er'
dishonor. c-rr: to tilc otilcr {)r: tlle fatl'Iih" t}re aggr:tevecl
ir-riui'r'
spouse n'rav appll' to the colut for reLef (Art
72' id )'
(3) ii the spolrscs retain thel' diifcrcnt nauonalities after the
rlarriage, it l'ras beet.r suggested that the national larv of both slrouses
((r) Erther sPouse mav excrosc anr lcgrtin.rate profcssion' occuPxuoo'
slrotrld govern (l{abcl, rd.. p. 327). Anothcr rvriter. lrorvever. offers a
busrness, or actrvitt'' wlthout the consent of the
otiler' lhc
bettcr sohrtion; i.c., applr' the lav' of the l.rusband rt the time of thc' qrouncls
nrirrriage (\\blf, Prn atc lntemational J--a*',361), 361). 1'he result, rt is clauncd, latter nlav ob;ect only orl valicl' serit>tls' atlcl moral
rvill rrot necessarih'bc unfair to ti-rc wife, bccause the tiren national lal' of ('\rt. 73. id';
the husbtnd r-nay c\relr bc urorc far-cilablc to her than hcr o*'n nxt1ol1al
rvife' rvhat
lav: llcsiclcs. sirc shotrld aL'eaci1. knorv t'hl[ thc husbanci's nxtionxl lfl\\i 6. Going now to the propertv relations of husband and
rvas rvhen thev got tr-rarricd. are the conflicts rules on the matter?
tl-re proper.q.
in tlre ?}rilrpprnes, stnce we foilorv tlre natronalin. dleorr;,
5. Finally, what are the personal dghts and duties of husband and
reladons of thc spouses are, in the absence oF a marrrage settlcmcllt
wife under Philippine law?
bets,eeu them, governed br- Phihppine lar'"" rcgardiess
of the place of- thc
(A't. 80, Fan-rllt' Codc)
(1) The spoLlses are obiiged to iivc togethet. observe rnutual celebrarion of the rnar.r.iage and ihei-esid"nce
iove, respect and fidclitr, and render urutual help and
support (Art. 68, Fanill'Code). If tlri' spr,uses lre r-'f differcnt trrttonlhuts' h"rvcvct-'.rD,urnint'
thatoncoithespousesrsaliiliprno;rr-rdt1-reot,hef.andjen,sdl]1)1ri|lp-ptnc
-fl'ris.rvas the rntcutton ot,ttl'
(r) The spouses have the right to fix togcthcr tire far-mh' dor.mcile. ialv rvill govcrn tl-rerr pr,opctn relauons
(,ode. consrderir-rg tl-rat ln mtlst mtxed
Ilorvever, in case of disasreemcnr berlvecn them, thc court Commrttee that frarned tlre Familv
the Committee r'vanted tc'
shall decide. marriages. tt is tl.re rlrire who is the Frhpino' and
r
CONFLICTOFLAWS CONFLICT OF LAWS CONFLICTSRULESOFMARRIAGE
S2 CONFLICTSRULESOFMARRIAGE 83
(2) !7ith tespect to the extrinsic validrty of contracts affecting C. ANNULMENT and DECLARATION
real properry whether situated in the Phijippines or in a foreign counttl-, OF NULLITY OF MARRIAGE
in rvhiih cases the lex situt wlll govern the formal-ities to be observed for
the contract's validrty (Art. 15, New Civil Code) 1. Distinguish annulment from declaration of nulliw of marriage.
7. Suppose the husband or the wife or both change nationalities, Annulment is thc renredv if thc mar:riage is r'oidable or annullable,
will the rules stated in the preceding question be the same? i.e., r'alid until annullcd; rvl-ulc declaration of nullitv of marriage is thc
remedy if the rnarriagc is void ab initio.
Yes, under the doctrine of immutability of matrimonial
regime of the spouses; i.e. regardless of the change of nationahry by the
Sincc a voidable rratriaqe rs r.ahd until annr.rllecl brt a coun r,i
husband or the wife ot both, the originai Property regime that Prevailed
c<xnpe tent jurisdrctron.it has ccrtain legai effects: narnelr':
at the startof their marriage prevails. The reasons for this doctrine are:
mantal peace in the spouses' ptoperty telations is more or less guaran-
(1) lt can be crxrvalidated eithcr ll' frec cohabitation or prescription.
teed; the sPouses will not be able to preiudice creditots, who in nrm
(2) Thc s^1nc propcltr rcglrn(':rs in a valid marriagc is
cannot leopardlz.e the interests of the spouses; and even the spouses may
estabiished betrveen thc spouses.
protect themselves from each oth.4 0 Rabef Conflict of l,aws, pP. 453, 354)
(3) 'fhc chilcllcn are legidnratc if conceivcd bcfor:c thc i.c,:.. ,f
annulnrcnt.
8. Is immutability of the property regime of the spouses the same
(a) fhe marriagc car-urot be attackcd collatcralit,: i.c.. there mnst
as immutablity of the law governing said regime?
be a dccree of annultlent to sct aside the nrarriage.
No, forwhile a subsequent change of nationality by the husband (5) The rnarriaEe can n() longer be impugncd after the death of
or the wife or both does not change or affect the otiginal ProPerty the spouses.
regime, the law that creates and governs said regime may change'
However, maffiages solemnized before the neur law takes effect are still On the othcr l-rar-rd. sincc a void r-narnagc is absoiirtch incristcnt.
governed by the old laur
(l) It cannor bc contalld;rtctl.
A good example is the change that the Famil;' Code introduced (2) The onlv propcrtl' rclationshrp bctwccn thc parties is a
in the prcperw relations of the spouses. Whiie the New Gvil Code established co-ownership (see Arts. 147-1.lti, Fanril' (,ode).
\
CONFLICT OF LAWS CONFLICT OF LAWS CONFLICTS RULES OF MARRIAGE
64
l'i CONFLICTSRULESOFMARRIAGE
(3)'fhc chiidrcn are illesitilrratc' c\cePr chjidrcn of votcl Tl-re above article also protects tl-re spouse who behe'cs that
his
(-oclc or her marriage rs null and void fr'm being crrarged rvitir brgamv
mrrriagcs tttlclcr' t\rts' 3(r and 53 of thc i'ar-l'rii'' if he or
she marries agar'. because tirerc would alread. be a iudicral declarauon
{'1)'l'hc matriaqc mav be artackcd ciirccth'or cciliaterallr'
of the nullirr- oi l-us or her marriagc before the remarriage. And thrs
(5)'l.hcnauiagccal]suiibctt-t.rprtgtrcdevcnal.tcrtlrcdcatlrclt
provision is retroactir.c.
the spouses.
2, May an alien who had divorced his Filipino spouse in his home
(a) The petitioner or respondent had his or her habitual
counry come back to the Philippines and ask for legal separation residence in the state v'here the divorce was obtained;
and separation of property against his Filipino wife on the ground
(b) If both spouses were nationals of said state; or
of the latterts adultery? (c) Although the petrtroner was a national of another
country, he or she had his or her residence in the place where the
No, because a spor-rse who accuses dre other of adultery must be divorce was obtained.
an offer-rded spouse: i.e, he must sull be married ro tite latter. Hcre, the
alien had no legai standing to accuse his forrner FiLpino wife of adultery (2) In the United States, a state has the du.ry to recognize a
because their malital bond had alreadv been severed r.vhen he filed the divorce obtained in a sister state if the spouses were domiciled in the
adulterv- case and could no longer be an offended spouse (Pilapil u. Ibay latter st2te.
Somera, /74 SCk4 6tJ
":/98E).
(3) A divorce obtained in a foreign countty would be
3. Compare the above Pilapil v, Ibay-Somera case with Van Dotn recognized under the same circumstances that a divorce obtained from
u. Romillo, 139 SCRA 159 (1985). a sister state is grven recognitron. (Rabel. Conflict of Laws,. 1968, po.
s00-s27)
T'ire rwo cases are similan In the Van Dorn case, fuchard Upton,
the American husband of Alice Reves, and thc latter, obtained a divorce (4) In dre Phfippines, if both spouses are aliens. we recognize a
in Nevada, U.S.A. Thereaftcr, Alice Reyes marrie d agarn in Nevada. Later, decree of divorce obtained by them abroad if valid under tbeir
Upton came back to tire Phihppines and claimed that a business in the national law. Thus. in Recto u. Harden L - 6897, l'lou. 29, 1956, <>ur
name of ALce Reves was their conjugal properfir and that the latter should Supreme Court held that -
render an accounung and let hirn managc sard business. The Suprerne
Court held that the drvorce obtuned b1, Upron frorn ,\hce rcleased rhe "In as much as Mt. and Mrs. Harden are
latter from their marriage, and Upton had no legal standrng to sue Alice admittedlv citizens of the United States, their status
LUNI.LII T (JI LAW5 CONFLIC TS RULES OF MAI{RIAGE 91
CONFLICT OF LAWS
90 CONFLTCTSRULESOFMARRIAGE
under the personal law of the husband as welr as those avaiiable u'dcr
bv the laws of the
and dissolution thereof are governed tire larv of tl-re wrtt are ali availabie grounds for granung the leeal
United States which sanction divorce'" separation. (Hague Conr.'enuon on l-esal Separation. .\rt. 8).
DTVORCE
E. LEGAL SEPARATION OR RELATIVE 4. What coufts ma)' grant legal separation? Or, in what counrrv
should the case be filed?
1. What is legal sepatation and how does
it diffet from divorce?
Jurisdicuon rn tl.re case of ahens is not assurned by the forum
(a)
the mardage and
Absolute divorce (a vinato natinoni) dissolves unless the nauonal larv of the parties is rviliing to recogmze its jurisdictron.
the pames can marry again'
(b) In the Philipprnes, foreigners rnal ask for legal separatron
tlnm) is only separation
Legal sepamtion or relative divorce (a nerca
et
here. even if thev drd not get married in tiris countnr \X,'hat is importanr
from bed U"ta but the Parties remain married'
"--"a is that the court has iudsdiction over both parues.
or a chiid of the peuuoner to elrgage rn prostrtuuon, or connrvance rn 10. [f one of the parties in a legal separation
such corruptron or inducement: case dies during the
pendency of the case, should rhe case be dismissed
i-1) i'-inal iucigmer.rt sentencing the respondent to lflrpnsonmenr survive?
or dis it
of tnore tiran (r vears, even if pardoned;
(5) Drug addiction or habituai alcoholism of the respondent
The case should be dismissed because it is purely
(6) Contracung bv the respondent of a subsequent bigamous a personal one.
This is true even if properties are involved. po.*itiro,rt
marriagc. wirether tn the Phiiipprnes or abroad; d:.;;;;;;;
separation, there can be no effects, "
(7) Lesbianrsm or hornosexualigv o[ the respondent;
(8) Sexual infidehty or petversionl Does the offended spouse inhsril from the guilty spouse?
11.
(9) Attempt bv tl-re respondent agaurst the life of the petitioner Vhat
about the guilty spouse, does he or she inherii nom ihe irrrro"".r,
(10) Abandonment of peutioner bv respondent without justifiabie spouse?
cause for more than one vear.
(Art. 55, Familv Code) Of course the offended spouse inherits from the gr:ilty spouse
because the parties are still martied to each other.
7. What are the defenses to legal separation under Philippine
internal law? As for the guilty spouse, he or
- she is drsqualified ftom inheriting
from innocent spouse bv intestate succession, aod provisions in
tJ-'e
the
(1) Condonauon oF the offense or act complarned ofi will of the latter favorable to hrm or het are revoked by operauon
(2) Consent of the aggrieved parry to the commlssion of the act of
law (Art. 63 (4), Family Code).
ot offense cornplarned of;
(3) Connivance berween the parties in the coramlssion of the Hovrever, to disquali$, the guilty spouse from inheriting from
offense or act constiruting the grourld for legal separatron; the innocent spouse by intestate succession, the latter must Flre
Ias" of
(4) \lhere both parues harre grven ground for legal separauon; "
legal sepatation against the former. This is provided in Art. 1002,
New
(5) Collusion berween dre parties to obtain legal separation; civil code, stating that "in case of legal separation, if the surviving spouse
(6) Prcscripuon. L\rt. 56, Famill Code) gave cause for the separation, he or she shalr not have any of the
nghts
granted rn the preceding articres" (meaning the right to inherit by
inteJtate
8. Vhat is the prescriptive period for the filing of the action in the succession). But there must be a decree of legal separation as
stated in
Philippines?
Question L0 hereof.
\\tthrn tive (5) r'ears from the un.re of the occurrence of the
cause (Art. 57, Familv Code)
9. Can the wife drop the name of the husband after the decree of
legal separation?
No. because therr are still married. And this is truc wl-rether she is
t}-re guiln parn or not.
As heid tn Ltperal u. Repuhitc,6 SCl..1 J57. tl'te wrfe who has been
gtanted legai separation cannot petiuon to be allowed to revert to her
marden name.
CONFLICT OF LAWS STATUSOFCHILDREN 95
CONFLICT OF LAWS
of children?
1. What are the conflicts rules in determining legitimac;- 5. Vhat are the rights of legitimate and legitimated children
under Philippine law?
(a)the Parents are o[ the same nationaliq" their common
If
larv of therr dornrcile' will The rights of legttimate and legrtrmated children under Art. i 7'l
personal Ia*, whether their national 1au'or the
be applied. (I Rabei, suPra)' of the Iramrly Code are:
lau of (1) To bear the surnames of the father and the mother, in
lf rhe percnts are of different nattotraiiues' tl-Ie Pcrsonal
the fatl-rer gol'erns (Rabel. id')' conformity wrth the provisions of tire Civil Code on surnames;
theory (Art
(b) In the Phrlippines. since lve foiiow tl.re nationaLrrl (2) To receive support fron.r their Parents! their ascendants.
lau' of the Pa(ents applies' and in proper cases, their brothers and sisters, in conforrniw rvitl.r thc
15. Nerl Civrl Code)' th" common national
narional law of the father
and tf thev have diffetent naoonalioes' the provisions of this Code on support; and
goverfls.
(3) To be entrtled to the legiume and otl-rer successionai rights
under Philippine
2. Who are legitimate and illegitimate children gtanted to them by the Civil Code.
internal law?
Note: The legiume of eacl-r legitimate child rs half of the parent's
Art l(r4 of. the Familv Code defines legitimate children as
estate divided bv dre number of legltimate cirildren (Art. 888, Nev' Cn'il
..clrildrenconcetvedorborlrdurrngt}remarriaqeoftl.reparents',;u'lrile Code); while in intestate succession. iegrumate children inherit equallv (pcr
rilegiumatechildrenaredefinedbvtl-,..,'....drngArt.165as..children upita) v;rthout distinction as to age or sex, and even if they spnng from
conceived and born outside a valid, marrlage' xx
x unless otherwise different marriages (Art 979. id.)
provrded in this Code"
CONFLICT OF LAWS CONFLICT OF LAWS STATUSOFCHILDREN 97
96 STATUSOFCHILDREN
(a) If
the child is legrtimate as determined bv the above rules, 2. \7hat is the internal law of the Philippines on legitimation of
either the common personal law of the parents, or the Personai law o[ children?
the father if the parents are of different nationalities, governs. (R-abel, id.).
Our internal law on legfurnadon of children rs found in Arts. 177
(b) if
the child is illegtdmate as determined by the above rules, to 182 of the Familv Code.
the personal law of the mother is clecisive, unless the chiid is subsequently
tecognized by the fathet, in which case the rules on legitimate childten Under Art. 177, the foliowing requisites lrrust colrcur in order
will be apphed (R.abel, id.). that a child rnav be legitinrated:
(r) The chiid was cotrceived and bom outside lawful rvedlocli.
(c) In the Philippines, agarn since we follow the nationaiity theorl', (b) The parents. at the time of the child'-s conception. rvcrc
the law of the mother governs if the child rs illegtimate. unless the child not dtsqualified by anf impediment to lnarrv each other.
is again tecogruzed by the father, in which case the personal law of the
fathet (whether it is the same as the mother) appiies. Note: 'fhe addrtional requirement under Art. 270 of the Ncrv
Civil Code tlrat the parents must have acknowledged dre child first be-
6. What is meant by the doctrine of immutability of status? fore or after theil rnarriage, is no ionger necessary under the Familv Codc,
because this Code has deletcd recogrrition ofnatural children and alreadv
This doctrine means that the status oFa child (whether legitimate conFers on legrtimate and illegitimatc children their status at the moment
or illegttimate) is not affected by a subsequent change of nationaliw of of btth. Chtldren that fali under Art. 177 of the Family Code are, there-
the parents. But the nghts and duties of patent and child, or child and fore, ip.ro -farto legitimated upon the subsequent marriage of the parents
parent, would, after the parents' change of nationaliry be governed bv no matter how lonE a period of ume has elapsed from tl-re birtl'r of said
the new national law of the Parents (I Rabei, id., pp. 606-607) children to the time oF the matnage of tI-reir parents.
(See also comments by this samc author on Arts. 177 tr,r
CONFLICT OF LAWS CONFLICT OF LAWS STATUSOFCHILDREN 99
98 STATUS OF CHILDI(Li\
I82 of the Farnih' Code in her "Handbook on tl.re Famtlr, bv former Pres. Corazon Aqurno on December 11 ,1986 regardrng non-
Code of thc Phiirppmes"; resident aliens u'ho were aiiou'ed to adopt under pD 6L)3.
3. If the personal la'.r' of the parents, or of the father in proper (c) Subsequenth: ali the provisions of PD 603 and E.recurive
cases, changes, is the legitimation of the child affected? Order No. 91 on substanttve marters were repealed bv'fitle \rII of the
Familv Code. Certain procedutal provisions of IrD 603 on adoption
No, because legirlnauon crextes a permanent starus of tire child, (Arts. 32 to 38) were not, hov'ever. repealed bv the Familv Code.
so this starus is irnn.rutable. However. the rights and duties of parents and
legitrmated children tlav be modified b,v a change of the personal law of Under the Famil,v Code. aliens v!'ere not allowed to adopt in tirc
thc parents or of the f:rthcr. as the case rnal be. PhrJrpprnes anvmore except those reterred to rn Art. 18.+ (3) thereof. and
non-resident a[ens were allowed to adopt FiLpino children oniv under
The immutabhw of the status o[ a legrumated child is verv clear the iau' on Inter-Countr,v Adoption (Republic Act No. 8043) which wa.
under Art 180 of the Family Codc which provides tirat "the effects of signed by former Pres. Fidel V Ramos on.]une 7 7995 Under this law, tl.re
legitimatron shall retroact to the tjme of tire cirild's blrth". Aiso, Art. 178 adoptlon proceedings are to be heid in tire home countrv of the adopters.
provides tirat "the annulment of a vordable marriage shall not affect the
legrumauon". (d) StlX later. on Februarv 25, 1988, former Pres. Ramos signed
Republic Act No. 8552, other-wise known as the "Domestic Adoptron
4. What are the rights of legitimated children under Philippine Act of 1998", amending manr provisions of the Famill'Code on
lau'? domestic adoption.
T'hev have dre same rights as legltrmate chrldren (Art. 179), namelv: 2. State the concept and tationale of adoption.
bv Rep. Act 8552 are requtred to be related to the ciriid to be adopted 7. What are the legal effects of adoption under Philippine lau'?
N.rthln the .ltfi degree of consangutnrfi'or affrnrn. Art. 184 of tirc
Famiir Code wirrch the above pror.isiou of Rep. Act 8553 arnends drd Rep. Act 8552 enurnerates the legal effects of adopuon as folior,r's:
not Lmit the degree of consanguinin' betu'een tl.re adopter and adopted
child. On the otirer irand. Sec. 7(b) of Rep. Act 8552 includcs children (1) All legal ues
berw'een the biologrcal parent /parenrs and
related within the 4tir degree of afhnin' to rhe adoprlng parenr. which the adopted child are severed and the same shall be vested in rhe adopter/
relationslrip of afhnin was nor included in Art. 184 of the Famiiv Code. adopters, except in cases where the broiogrcal parent is the spouse of the
adopter. In other words, parental authorltv over tile adopted child is
This author cannor understand, though, whv Rep. Act 8552 rn uansferred to the adopter.
the above prol-ision hmits the degree o[relauonshrp bv consanguinlfl, 6f (2) The adopted child shall be considered for ail intents and
rhe adopter and tire adopted child onlv ro rhe 4rh degree, This means that purposes to be the iegrtimate chrrld of the adopter/adopters, and as such
a former Filipino would not be able to adopt the child of his or her hrst rs entltled to all the rights and obligations provided bv law to legrtimate
coustn (5th degree) or his or her second cousrn (6th degree). Since the children.
important consideration here is the iove and protection that (3) in legal and intestate succession' the adoptet/adopters
a relative bl'
blood, who is now an alien, can glve to the child once the latter is brought and the adopted child shall have reciprocal tghts of succession witirout
to the adoptert foreign home, it is irnmarerial how close thev are related dlstlnctlon from legrtirnate hliatton. 'Iestamentary succession will, however,
by blood. appll if the adopted child and the adoptet or adopters had left a will.
(Secs. 16, 17, 18, ReP. Act 8552)
6. The cases of Republic u C,A. and lfughes, 227 SCRA 401, and
Republic u Judge Toledano, GR. 94147, June 6, 1994, decided by 8. There are still other important points to remember regarding
the nature of adoption in the Phitippines law; namely:
the Supreme Court, denied the joint petitions for adoption filed
under the Family Code by former Filipino wives, nou'funerican
(1) Adoption proceedings in our count4'are always iudlcial and
citizens, and their American husbands, because what the Famill'
in rem ; i.e.. publication is tequired as constructive notice of tl-re petition
Code only allorved was ioint adoption b,v Filipino cirizens and their
for adopuon to the whole rvorld, since adoption creates statlls.
aliens spouses. Are these decisions still good under Rep. Act 8552?
This is particulady tme if both the adopter and the adopted child
are nationals or domiciliaries of the Forum that decreed the adopflon (R-abel,
WILIS, SUCCESSION, and ADMINISTRATION
id., p. 6a7).
OF THE ESTATE OF DECEASED PERSONS
10. Does adoption confer on the adopted child the citizenship of
the adopter? 1.What law applies in the transmission of successional rights upon
the death of a person?
No, adoption does not confer on the adopted child the citizenship
of the adopter. Adopuon is a matter politicai. and not civil, in nature, and There are two theories or svstems in determirung the proper law
the ways in which tt should be conferred lav outside the ambit of the for the transmission of successional nghts; the unitary or single sys-
Civil Code (LIgt l)ndanand Tberkehen u Republir. I 2 SCk4 400; aho Ching tem, and the split or scission svstem.
L-eng u. Galang, L-/ 1931, 2i OcL 195E.
Under the unitary or single system, onll' one iaw determtnes
transmission of real as well as personal properties. In countries following
the nationality theory like the Phfippines, the national iaw of the deceased
governs the transmission of both real as well as personal propertles,
while in common iaw countries or countries that follow the domicihan'
theorl', it is the law of the domicile of the deceased that governs.
(a) if a Filipino makes a will abroad, ire mav cornply with the 5. rJflhat are the conflicts tules on the intrinsic validity of willsl
formalities of Philippine law (lex nationalit) ot the lex loci nlebrationi.r (the
larv of the place rvhere ire was at the time of the execuuon of tire wili general ptoposinon. conflcts rules on tl,e inuinsic vahdrry
As a
l.\rt. 815, Neu' Cir.il Code). oF wrlls are determined by the /ex nationalii of the deceased in countries
T'hus, a FiJrprno docror u'orking in Neu']brli rnav execute a will that foiiow the nationalin' theory. and bv the lex donui/it at tl'Ie ume of
rn accordance with Philippine iaw 01 New lbrk lauz death, in countlies that follow the dorriciliary theorv
(b) If an ahen makes a will abroad. he rnav complv witl-r the 6. In the Philippines, what law govelns the intrinsic validiw of
forma]rties of his /ar nationa/ii (the law of the countrr, of which he is a wills?
citrzen). t.he lex donidlii (the law- of his domicile) (Art. 816, Neu, Cir.,il
Code), or tlre /e.:y /oct ce/ebrationit (the law of the country rvhere he,was at The New Civil Code applies tlte lex nationalii of the decedent irr
the tirre of the execuuon of the will). (Art. 17. i.d.). par. 2 of its Art. 16. This was also followed b)' the SuPreme Court in
Midano u. Bnmo, 50 Phil. 867; Be//u' u. Be//it, 20 SCk4 558; antl Ca.vtlano r.
(c) If
an al-ien makes a wil] in the Philippines, he may comply Leonidal 129 SCK4 524.
rvitlr tlre forma-lities of his own country (/ex nationalil or of philippine
last (/ex lod celcbrationi.) We must not forget, however, that in case <-rf confhct berrveen
the nationalry theorv and the domiciltarv theory, w€ can treat the case as
(d) As for a holographic will. u'hrch musr be entuelv writren, one of "renvoi" as in the Christensen case cited ear[et in this rvork, so
dared, and signed bv the hand of tl.re resraror hlnself, it rs subject to no that we can still appl,v Philippine law even if the deceased was a. cittzen
other form and mav be made in or our of the Philippines. and need nor of another countrv.
be witnessed (Art. 810. New Civii Code).
?. What are the conflicts rules if a Person dies intestate?
4. rWhat are our conflicts rules on ioint wills?
In civil law countries hke tire Phihppines. the nauonal larv of the
CONFLICT OF LAWS CONFLICTOFLAWS WILLS, SUCCESSION, and ADMINISTRATION 109
108 WILLS, SUCCESSION , and ADMINISTRATION
OFTHE ESTATE OF DECEASED PERSONS OFTHE ESTATE OF DECEASED PERSONS
deceased apphes. ln common law countnes likethe t,I.S. and Great Bntain
(a) As in contracts. the provisions of a wili shalr be
which follov, the spltt or scission svstem. rb,e iex riomialit of the deceased intelpreted in
at the rime of death appLies rvith respect to personai6" while the rcx situ.t accordance wrth tire testator's intenuon. If the terms ar. .le^r and
unambrguous, the hteral meaning of dre supulauons shall control. otherwise.
apphes with respect to real properfi.
the evident intention of the testator must prevail by not only refernng to
of wills, what are our conflicts rules? the context of the will but also taking into account the contempor".r"Lr,r,
8. What about revocation
and subsequent acrs oI the restaror (Arts. 1370 to 1378, Nerv Civi] Code).
(a)Undet Att. 829 of the New Civil Code, a revocation done
outside the Philippines bv a person who does not have his domrcile here,
(b) If
the testator's intention cannot be ascertained by the
rs valid if done accordtng ro: preceding rules, the interpreration of ambiguous words must be made
(i) The law o[ the place where the will vras rrrade (/ex lotz in accordance wrth the law which was mosr probably rn the mind of the
celebrationis); or testator when he used those words and with which he is presumed to be
(2) The law of his domicile at the time of revocation (/ax most fami[ar.
donicili).
(c) If dre will admrts of different interpreta[ons, that which will
A problem here wouid arise if the testator revokes his make the dispositrons operative shall be preferred. The interpretation
vdll while domlciied in one country and later, changes hrs that will grve the will rhe mosr favorable construction to accomplish rts
domicile, then dies in the latter state. If the laws of hrs former purpose shall be made (Arts. 788-792, Nerv Civil Code).
domicile and irrs domrcile at rhe time of l-ris death are different,
which law applies? Common sense and logrc should applv (d) Every effort shouid be made ro prevent intestacy in keeping
the law of the domrcile at the time of the testatork death' with the policv of respecung the will of the testator, provided that this
but this is not what our law savs can be ascertained.
I-lkewrse, suPPose a non-domrciiiarv makes the revocation 10. What is probate, and what are the conflicts rules on probate of
in accordance with the law- of the place where he *'as at the wills?
trme, are we not going to recognize the revocation? Why
indeed does the Civil Code ignore the law o[ the place of (a) Probate is the process of proving before a comperenr court
revocation, when we follou' rhe lex /oct ceiebrationts tn the due executron of a will, that the testator u/as possessed of tesramentary
determining: the validity of rvills executed abroad? Is not capacity, and the approvai by said court of the will.
the desite of the testator to revoke his wili as imPortant as his
desLe to make a will? (b) The allowance or disallowance of a will is essentiallv
procedural, so that the lav"'of the forum applies to all procedural matters.
(b) If the revocation is done in the Phihppines, tt is valid if made
in accordance with the provisions of our Civil Code (Att 829' id')' (c) Under Art. 838 of the first paragraph of the New Civil Code,
"no will shall pass either real or personal properry unless it is proved and
(c) the revocation is done outside the Philippines bv a Person
if allowed in accordance wrth the Rules of Court".
who is domiciled here, it rs yalid if made in accordance with our law (the
tex d.onirzli) or the /cx ioti actu of the revocauon (the place u'here the (d) Tirere is no period of prescupuon for tiie probatc oia will.
revocaoon was made) (see Art . 17 , pzr- 1. New Civil Code)' For the probate of a wiii is not exclusivelv established ur thc interest of
the survrtng heirs but primarilv for the protection of the tcstator's ex-
9. What law should be applied in the interpretation of wills? pressed wishes in the disposrtron of his properties. Since the probate of
110 WILLS, SUCCESSION , and ADMINISTRATION CONFLICT OF LAWS CONFLICTOFLAWS WILLS, SUCCESSION, and ADMINISTRATION 111
OF THE ESTATE OF DECEASED PERSONS OFTHE ESTATE OF DECEASED PERSONS
validlr. executed u'ills is requted bv pub[c poiiq,. tl-re State could not havc appointed by the testator rn his will). an administrator vzith a will annexed
intended the Starure of Limrtauons to defeat said pohct (,Gueuata t. Gaeuara. (one who is appointed bv the court if there is a will but no execuror is
'CR L-5105,
.lan. )/. / 956;. designated therein), or an administrator (if there is no will, the court
appoints an administrator of the estate of the deceased).
(e) Wills proved and aliowed in a forergn countr\! according to
the laws of each counnv. may be allowed, frled. and recorded by the (d) The executor is qualified, and the administrator of the estate
proper court in the Philippines (Rule 77, sec. 1, Revised Rules of Court). is appointed, by the court of the counw where the deceased was domiciled
at the time of his death; or if he was a non-domiciiiary the countrv
(f Although a forergn u.dl had alreadv been probatedin a forergn where his properties are found.
countr\, it still has to be reprobated in the phiiippines in accordance with
our procedural lau; because a foreign judgment, no matter how intnnsicallv (e) The rights, powers, and duties of the executor or administrator
meritorious. cannot ha'e. as a general rule, automatic extraterritorial are coextensive with the terdtorial jurisdiction of the court that qualihed
effect. But instead of provrng all over agarn the due executjon of the urdl. or appointed him. Thus, an executor or administratot qualified or
it rs ordina'ilv sufficient to ask for the enforcement here of the foreign appointed by a Philippine court has jurisdictron only over the properues
judgmenr of the probate abroad. of the deceased located in the Philtppines.
(b) Lik" probate, administration is procedural in narure. Therefore, There are rwo theories adopted bv different states so that they
it is tlre lex.fori that go'erns, not the larv tirat determines how the estate of may claim the properties ieft bv a deceased who left no heirs and no will.
the deceased is ro be drstributed.
First, some countries includrng England and most American states
(c) In charge of the admrnistration is an esecuror (rf one is adopt the theory that such propenies have become ownedess (bona uatantici);
112 WLLS, SUCCESSION, and ADMINISTRATION CONFLICT OF LAWS CONFLICT OT LAWS
OF TI{E ESTATE OF DECEASED PERSONS
hence, thev should revert to the state uzhere thev are situated bv escheat.
in the Philipprnes and some civil iaw counuies, the theory adopted
is that the State is the last het of a deceased person. Hence, the State
succeeds to the propercies left bv sard deceased as an heL.
E
in other states? How can those othet States claim for themselves
the ptoperties left by the deceased? CHAPTER
logrcal' 'As
c on c e rn
t'e pr'ce'whe'e
i n s re a r p
il ;. ;, :";1i: .. ::l :,:rr. fl":::Tj
rop er n.. +
.1:
its borders"; i.e., the Philippines should regard said prcperties as owner-
nghts ovsr rt. evervbody ^
*:,;;a
,r.in! is rhe natural cenrer of
less or bona uacaxtia.In short, the properties pass to the Phiiippines as an
reckon wrth the law of
.o"..;;;;,ir'rlr. ,n.* mav be expected
iuch pir.",;6ri"iii*' to
incident of soverergnty, not as afl heir @lackt Law Dictionary, Abridged,
564). Indeed, u ."r.r.n."
to Laq p.
5th ed., p. 92). the /ex i/u.,.of real J-1'l5"io-.nal
ro r c
expectations
er tai n qi predic
of
ta bil*i; ;;,il;;;' iJTff T J ^,X."t::,:l'jffi :
the parues, ,, d.oL;;;i'rr.i proo.rq,.
Tl-re same cannot be
said of the law
movables. The old rule ,
Personal properq,' or
during the Middle
0 n a m, s in c e
p en
p er s o n d p r; ; ;-" ; ^H "on o: r rr:;::
rff :.:,:
personal effects or b.longings
of the ": : ;;r^:
u'herever he wenr. Therefir.l "*'* i"t ra. he carried with hrm
sir.; ;;;lro.,
sltus, an artificial situs aa not have , n*"j
rv glven to them; namely,
ov/ner. "s the personal l^*
"a;lr;
Recendy, in ma countnes' tbe lex
b.." itat or lex rei tilaa has at.so
^d;;;;;ft;'r#:t
:il;;;;:;;il^i;1Tl:1i.#::":#lT:*11ili.ff::,i:l
for the patties and thrd persons
*ho -uy be affected by ights in
ren
CONFLICTOFLAWS PROPERTY II5
114 PROPERTY CONFLICT OF LAWS
created over personal properues to have those nghts enforced and made Example: X, a California ciuzen domiciled in Caiifomia, sells to
effecuve 0il,blff. rd.). As the place wi'rere tl.re ProPerties are located has a Filipino domrciled rn the Philippines a piece of land located in Florida,
the iegal and coetctve power to enforce sald rlghts, the lex .rltu.t or tlex rei USA.
sitae zpphes to said properues (Goodricir, Confuct of Laws, p 470;.
of tire rransacuon
(a) The exrnnsic validrn' (the formalitres) is
governed bv tire iex itus (Floidalawi.
2. How about in the Philippines, have we also adopted the rule of (a) The capacities of both vendor and vendee are govetned by
the lex situs or lex rei sitaewith resPect to personal properties? Fiorida Law
(b) Tire rntinsic validiry of the transaction is govemed bv Flonda
Yes, for Art. 15 of the Neu'Civil Code provides that "real law
properw as well as personal properly is subiect to the iav/ of the country
(See also pars. (2) and (3) of Art. 80 of the Famrly Code
<:f iex rci ilae also to movables" and intestate succession, vrhether the properties are real or
personal and wherever thev tnav be located' is governed by the
lndeed, it l-ras been held that personal Properrv mav be separated natlonal iaw of the deceased, not the lex sitas. including the order
from its owner, wiro mav be taxed on its account at the piace where the of succession, the amount o[ successional nghts' and dre intrrnsic
vahdrr,v of testamentarv disposiuons (Art' 16, par. 2, New Civil
property is located. althougl'r ire is not a domrciiiarn citrzen or resident of
tlre state which imposed the tax (L4anila Ga.t Cor. u. Colleclor, 62 Phi/' 89r. Code).
In fact, the concept of movabie proPern, has so grown in tl-re Philrpprnes Capacrw to succeed is also governed bl the nauonal iaw of
that even lntangible properties like sltares of stock in a corporation' the deceased (Arr 1039. id.).
franchises, credits and tl-re like are nou' considered movable propern'
although thev have no phvstcal or materiai srtus. (2) Contracts involving real properw but do not deal with
trtle or reai rigirts over the ProPert)', the issue being the contractual
4. What matters connected with real property are governed by the rights and liabiliues of the parties, are governed by the ProPer
Iex situs? Iarv of the contractl i.e., either the lex /oci t'o/unlalzs or the /ex ha
intenlionA .
(3) in conttacts where reai ptoperhr is grven as secunw b,v (2) Goods in ftansit are governed as follows:
wav of mortgage to secure a principal contract (such as a ioan), (a) As to liabfity for loss, destrucuon, or deteriorauon
of
the loan rs governed bv the proper laq,' of the contract berween goods in transit, the law of destination is applied (Example
the partres, while the accessory contrzct of mortgage is gov- is Art. 1753 of the New Civil Code).
erned bv rJ;'e hx itat. @) Th. varidity and effect of seizure of goods in ttansit are
governed by law of the place where the goods were seized
(a) While the valtdrq,'of a transfer of land must, as a rule, be w*rich is their temporary situs.
determined bv the lex iltus, the validiry of a contract to transfer is (c) Disposition or alienation of goods in transit is genenlly
determrned by the proper law of the contract (Salonga, Priv. governed by the propff law of the contact between the
International Law, 1995 ed., p. 473). The obvious explanation parties (the kx loci wlantath or hx loci iilentiorn).Th. reason is
for this is that while the transfer of land involves the t-itle theretq obvious: such disposition or alienarjon is effected through a
a mere contract to transfer is a personal contfact that dogs not contractual obligation.
create dghts in reru. (id.) In some states, however, the transfer of tide to chattels
is govemed by the law of the place where the chattels are
6. What are the difficulties in applying the rule of the lex situs or located at the time of the transfer, and this title will
lex rci sitae to movables or personal properties, and how ate they ordinarily be recognized in aoy other state where the chattels
to be resolved? are brought or transferred.
(1) If in possession)
the personai property is tangrble (called chose 8. What are the rules in grving constructive situs to intangible
and has a fixed sirus, there rs no problem. But there are many different petsonal ptoperties or choses in action?
kinds of personal properties that do not have hxed situs, like those that
are usually in mouon or have changrng sirus (e.g., vessels and goods in lntangible personal properties or choses in action may be credits
transit). or intangrble personal properties like rights and shates of stock in (or debts), negotiable instruments, shates of stock in corporations,
a corporation which, because they have no material existence, do not also franchises, goodwill of a business, or intellectual propetties like patents,
have material or tangible sirus. tradematks, tradenames, and copynghts. The situs 5{ven to them are as
follows:
(2) The aforesaid personal properties which are usually in
mouon or do not have tangrble existence are thus given artificial or (a) Credits (or debts):
constructive situs, which will be discussed in the succeeding questions.
(l) Involunary ftansfer or assignment of a debt (gamishment)
7. What constructive situs is given to choses in possession that are - The situs is the place where the debtor may be served.with
usually in motion? surrunons, which is usually his domicile.
(l) Vessels, in view of their inherent mobihry are governed by: (2)Voluntary assignrnent or transfer of credit - The proper
(a)The law of the flag, if it is a public vessel; Iaw of the contract controls; i,e, the proper law of the original
ft) The law of the country or place of regrstry. if it is a transaction out of which the chose in action or credit arose.
private or commercral vessel, If, however, the vessel is There are other theories like:
docked at a foreign port, said port is deemed as its (aa) The law of the place where the assignment is ex-
temporary situs. ecuted - This theory is criticized because the law of the place
where the assignment is made may be purely fortuitous or
CONFLICTOFLAWS
118 PROPERTY
CONFLICTOFLAWS
PROPERTY 119
olace where the assets of the debtor are actualiv situated (Minor, the proper law of the contract is the place where the certificate is
(3) The law drat determines the validrw of the transfer, deliverr,: (e) Goodwill of a business, and ta:ration thereon:
or negotiation o[ negotiable instrurrrent rs gencrallv the la*' of
the sirus o[ tl-re instrument at tl"re tinre of transfer. deliver)'. or Art. 521 of the New Civil Code provides that goodwill of a
business is property and may be transfered together wrth the
negotiation (Cheshu'e, Prir'. Int. Law, p. 622).
right to use the name under which the business is conducted.
(c) Shares of stock of corporations; The goodwill of a business, as well as taxation thereon, is
governed by the law of the place where the business is carried
(l) Sales of ct>rporate stocks are Poverned bv tl-re law of the on. "Goodwill" is the patronage of any established trade or
placc o[ lncorPor:rtion, since rt is there that the transfer is business; the benefit acquired by an establishment beyond the
rec.r.d.d rn thc books o[ the corporation (Reale, Foreign value of its capital stocks, funds, or property, in consequence of
the genenl public patronage and encouragement that it receives
r2O PROPERTY CONFLICT OF LAWS CONFLICT OF LAWS
PROPERTY I21
from its customers (See Menenrieiu Ho/t, 128 ti.t 514). (.6\ ln Philtps Erporr B.It. u, C4, 206 SCk4 457 (1992), the
Supreme Court reiterated its earlier ciecision in Wesnrn
E quipment
(f) Patents, copvrights, trademarks, tradenames, and and Suppn Co. u. fu1et 57 phil /t j (7927), that a corporariont
servicemarks: tigirt rouse its corporate and trade name is a proper$
nght, a
ngbr in rem,wlich is enutled to protec[on like any otl.,.,
tungibi.
/1) As a general ruie, patents, copvrights, trademarks, and properry and cannot be rmpared or defeated by subseq"uent
tradenames are, in the absence of a ueary protected onl,ir by the appropriauon bv another co{porarion in the same field.
state that granted or recognized them (lVolff, td., p. 558).
(7) Speaking of trademarks, the High Court, jn Enera/d
(2) In the Philippines. Art. 520 of the New Civil Code Cament MJg. Cor. u CA' 25/ SCk4 600 (/ ggj),ireld that.,actual
provides that "a trade-mark ot trade-name duiv regrstered in use in commerce in the Philipprnes is an essenrial prerequisite for
the proper government bureau or office is owned bv and the acqursiuon of ownership over a trademark pursuant to Sec.
pertains to the person, corporatlon. or hrm registenng the same, 2 and 2-A ol dre Phihppine Trademark Law" E.A. 166)
subject to the provisions of special laws."
(8) in 1998, Congress passed Rep. Act No. 8293 known as
(3) Under Sec. 21-A of Rep. Act No. 166, as amended by "The Inteliectual Properq'Code" and establishing the Intellectual
Sec. 7 of Rep. Act. No. 638), any foreign corporatlon or;urisuc Property OfFrce. Under Sec. '123 of the Acq certain marks cannor
person to whicir a mark or trade name has been registered or be registered, among whicir are those -
assigned under this Act mav bring an action for inftingement, "x x x identical wrth, or confusingly srmilar to,
fot unfair competition, or false destgnatron of origrn or faise or constituting a translatron of a mark which is
description, whether or not it has been licensed to do business in considered by a cornperenr aurirority of the
the PhiJrppines under the Corporation Code, at the time it brings PhrJrppines to be rvell-known internationally and
the complaint; Provided that the country of u'hich the said rn the Philippines, whether or nor ir is registered
foreigo corporation or jurisuc person ts :r ciflzen or in whrch it is here, as being the matk of a person other than
domiciled, by tteaty, convendon, or larv, grants a similar pnvilege the applicant for registration, and used for
to corporations or jurisuc persons of the Phihppines. idenucal or similar goods or services".
(a) As to copynghts, the formel ruie is that a copyright is Sec. 3 of the same Act provides that forcrgn
protected only bv the state that granted or recognized it, absent a corporation, being a national or domiciliaq' of ^ny
a country which
ueag. Thus, a copvright in State X could not be enforced in our is a partv to a convention, ueat\! or agreement relating to intellectual
country in the absence of a treary unless a similar copvright was properfv ngirts to which the Phihppines is also a partv or which
also applied for and granted in the PhiJ-ippines. extends reciprocal rights to our nationals by law, "shall be
entitied to benefits to the extent necessarv to give effect to any
(5) On September 27, 7965, the Phiiippines became p^rw provision of such convention x x x". Such foreign corporauon
^
to dre Union Convention for the Protection of lndustrial Property even if it is not engaged in business in the Philippines may
adopted in Paris on March 20,'i993. Art. 8 oi said Convention nevertheless bring a civil or admtnistrative action for opposition,
states that "a trade name lmeaning, a corporate name] shall be cancellation. infringement, or unfat compefltion, as provided
protected in all fie counftles of the Union ulthout the obligauon for in Sec. 160 of the Act. However, under Sec. 156, same Acr,
of hhng of registration wirether or not it forms part of the onlv ownerc of registered marks may recover darnages from
ftadename". anv person who infringes his rights.
CONFLICTOFLAWS CONTRACTS 123
CONFLICT OF LAWS
M
shall be governed by the laws of the country in which thev are executed".
And Sec. 9 of the American Resratement Second, considers as binding
the "formalities which meet the requirements of the place where the
parties executed the conttact".
"Contract" is dehned bv Art. 1305 of the Civrl Code of the (a) Suppose a contract is entered into by parries in rwo
Phihppines as "a rneeting of minds betrveen lwo Persons whereby one different countries bv cablegram, telex, or fax. \fi/hat is the place
binds hlnseif, with respect to the other, to give somedting or to render of execution?
some service".
(l) Arl 1,319, par.2 of our Civil Code states rhat
Although conftact may create a status like rnarriage, or creates
a "acceptance made by letter or telegram does not bind
or uansfers real rights or title to properry (like sale), the specific subject the offeror except from the time it came to his knowledge.
of "contract" in Confuct of Laws is limited to purely civil or commercial The contract, in such a case, is presumed to have been
transactions. entered in the place where the offer was made.
In the PhJrppines, the bx loci alebratioaziis, therefore,
Every state, in the exercise of its sovereigntl', has the nght to the country of execuuon.
determine its own law on conuacts. As long as there is no foreign
element in a contract, questions pertaining thereto are governed by the (2) In American laq however, a contract is deemed
Iarv of the forum state. It is when there is a foretgn eiement in a contract entered into in the place where the acceptance of the
that problems arise, for then, the forum v'ill have to decide what ]aw offer is posted or mailed.
shouid be applied in deterrnining the existence or non-existence of a
contract, as well as its validrq', bodr extrinsic and intrinsic, and the capacity @) Suppose the place of execution was meteiy casual or
of the conftacting parties. accidental like a Chinese and a Filipino who, meeting accidentalll'
in Hoogkong, entered into a certain contract or agreement there
to be performed in the Philippines.
CONFLICI OFLAWS CONFLIC-T OF LAI,VS CONTRACTS 725
124 CONTRACIS
has the most significant 3.what law will govern the incapacitv of the alien in the following
Itt stttlt :r clls(" lh( l;r*'rvirich specific problem?
shortlcl bc applied ln .tircrrvords'
reiel.t.tlsltlptt' ti"l ''^"t"t tt.tt
rvhich the partres must hav-c
tht'c.rtrl tttt"'ttl 'q-t1''t' 'i'tt iarl. An 18-yr. old alien, who has no capacitv ro contracr under iris
tc; qt'-c eifect t() tilclI
transactl()n'
assrttrctl ri'ottitl lrc aPPitecl nadonal iaw wherein the age of maioriry rs 21, enters mro a contract in the
namelt' I thriqlPrllc larri Phihppines. can he later plead his incapacrtv under his national raw to
wiren the
x1s' lex loci clnfracla! er.ade the contract?
(c) 13vwav oi other excePtlons
contravenes an established and rmportant
ctr lu loti ielebrationi't to No, because to apply the narional }aw (or iaw of dre domicile)
to it wouid work gross injusuce
pohcv of tt-" toru-; or ^PPI\; bonot mores' of the alien in determining his capacity ro conftac would require Fil_ipinos
the people tr i*"*; orli tire ftan'saction is contra to fust ascertain what the personal law of thar alien is. sometimes with
'i"
Remembettit"'ft"t""tcementolaforeignlavrsonlvamatt:r to comlq'' great difficulry such drat busjaess uansactions.xrith aliens would be greatly
cases arc clear excepuons
of conuq" and tire foregorng impeded.
B. CAPACITY OF PARTIES 4. The weakness of applying the national law of the conracting
of the party as to his capaciry in the foregoing cases is thus seen. How
What are the conflicts rules
in determining the capacitv can such difficulties be avoided under our law?
1.
contract?
Parties to a
gc,l':t"td
(a) If
the conrract is entered into in the Phiiippines, or rhe
contracts is generalll'
(a) Capacrn' to enter lnto -:'i^'n'
ln performance of
ti're contract would be in the Philippines, vre should
tiril is the natlonti larv of the parues apply, not the personal law of the parties, but the proper law of the
personal la'r' oi tire O^'Jt" ff
theorl" and bv tl-re law of
the domrcile
countries followrng the nadona[w conff2cts
contract or the law mtended bv the parues, to determine tl.reir capacity.
tl-'et'rv' Excepuons are
in countries r"["*"g t;Jt"ttiiiti"u botl.r reai and
(see Paras, supra, ciring dre Geneva Conventibn and the German Civil
of p'op"'ties'
involving aliet'otioriot encumbranct to'lt'"cttng parties is governed Code)
in which *'"t t^p*'* t'f
tl-tt
personal, (b) We should limit the application of Art. 15 of the Civii Code
bl the /ex rilzt' (on capaciry to conftact) to agreemenrs involving familv and domestic
telati.ons, while we should apply the proper law of the contract in business
in the
(b)
llilpp,n.,t1,::.^':?:'[,il;r:T".,,
thrt cepaciw of I Frirprno ls
governed Dr I
* iJ:i:: or commercial transactions (Salonga, supra, citing Rabel).
theort''
b".nrr.. ve folion' the nadonaliry
C. INTRINSIC VALIDITY OF CONTRACTS
of the Filipino in the follorving
2' What law governs the capacitv
sPecific Problem?
the age
1. What are the conflicts rules on intrinsic validity of contacts?
into a contract in ltaiv where
A 20-vr' old Filiprno enters under ltalian (a) Broadly speaking, the intrinsic validiry of a conuact is
plead irrs incapacin
cii maiorrtv i' 21 ;' ;:;ililer under tht contract? governed b1' the proper 1aw of the contract; i.e., the /ex loti uo/antatit
ceiebralionu) to avoid [abiiiw
Iau' (tr"lrich is the /rr ioct or the lex lod inlenlionis.
wiren the change is so revoluuonarl' that it could never have been con-
(2) According to ti-re Second Restatement' howcver' the tempiated bv tl-re parues Oiblff. supra. zl30--131).
la.r, to be applied should bc the larv clrosen br. the parues: tt
none' the lav'of the state u'hrcir has the most slgnlllcxni (c) Several laws mav be selected. each o[ which u'ill govern ti-r€
relationship to the parties or to the transacilon different elements of the transacuon (Chesirue, Private International Lau,
p.236)
(3) Prof. Raleigh \4rnor advocates the application of the
followtng different laws: (d) If under the selected law, the contract is legal. but in the place of
nkbrationit'
(i) As to the perfectlofl of the contrac t - lex loci performance, it rs illegal, the selected law should prevail and the contract
(ii) As to the validrry of the consideration - hx loci should be considered legal (II Rabel, supta, p.537). Orherwise, the place
considzrationis. of performance, which couid be merely accidental, wili control. Besides,
(') A.,.Gff;::T#::f;ilffi /;;i;ci ntu'ln ni: the place of performance mav be different under different larvs fWolfi,
supra. p. 135)
p) If the law selected should change' rt ls the new law that should
law can
be applied, for it may be presumed that the Parties knew that
is'
b. chanped as times and condiuons change' The exception
^l.,uou.
12S CONTRACTS CONFLICT OF LAWS coNFLIcroFLAws
coNTRAcrs t2g
M
.t done. Such fauit or negJigence, if there is no pre-existing contractual
tn
<. s relation between the parties, is called a quati-dtlict and is governed
E by the provisions of this Chaptet."
TORTS 3. In Conflict of Laws, what law governs liability for torts, and
1. What is the meaning of "tort"? what ate the reasons for the tule?
person or proPerry
"Tort" is a legal wrong cornmitted uPon
(a) (a) Liabfity for torts in general is govemed by the /ex loci delicti
independent of contract^ commbii; i.e., the lav of the place where the delict or wrong was
committed.
aqailiano
(b) In Spanish lavr, the concePt of "quasi-dehct"
or
lalpa
fault or negligence caus$g
-.t ra.. all acts or omissions committed through @) Reasons for the rule:
damage to anothet. independent
of contract' (1) The state where the social disturbance occutted has the
primaty duty to redress the wrong and determine the effects
through
damage to another
It covers aII cases where a Person causes of the rnjury; and
do so; i'e'' unintentional wrongs' tle victim for the damage or injury
negligence, or with no tntentiorto (2) To compensate
suffered.
"tort"-has a broader'meaning' for it
(c) In American lavi however'
through negligence' but also 4. In applying the rule of lex loci delicti conmissii , how is the
covers legal wrongs toi o"fy commrtted
those committed with *^Utt t'
willfi:l tntent' but of course' independent locus delicti determined, especially if the wrongful conduct is
of conftact and covered by
of conffact' Otherwise, it *tt U" breach committed in one state and the iniuries are sustained in another,
another field of law, conuact law or the conduct is a continuing act that spans several states (like in
the U.S.)?
2.Vhatistheconcept'of'(tott''inthePhitippines?
There are at least three (3) theories tn determrningwhere the bcat
Civil Code is a blending
Our concept of "tort" under the New ddictik:
American tort' which mav be
of the Spani sh cr'tlpa-aquiliana and the
but also with malice
. committed not onlY ifttotgft fauit or negligence' (a) Civil law theoty - the loat the act began. This
dekcti is v.rhere
andwillful intent' is so since the rules on tort are intended to regulate human
conduct, such that a person who willfully and negligendy
provides: "Every Person
Thus, Art' 20 of the New Civil Code acts contrary to the social norms must be held liable for the
CONFLICTOF LAWS
CONTLICT OF LAWS TOf,TS ur3
132 TORTS
which has Here, our Supreme Court held that Philippine law should
(c) Theory of Dr. Rabel - The locat delictiis the place
wtongful act' applyi because it was in the Philippines that private tespondent
the most substanrial connecdon wlth the working for respondent
deceived pla:nnff-stewardess; plainbff was
here; plaintiff's natrona]itv and domicile rvere here; we were
Example: The situs of the radio station whete a
intrmatelv concerned with the ultrmate outcome of the case not
]ibelousbroud.".tismadeisr\elonsdzlicti,evenifthe
onlv for the benefit of tl-re litgants but also for the vindication of
broadcast is heard in manv Places'
our country's svstem of lau'and justice in a ttansnadonal setung.
the locus delicti Hence. the lorus drlittiwas the Philippines
5. Because of the diffrculty in determiningwhere
is, some modern theories have been developed
in determining
liabitity for totts. Please state what thev are' (b) The interest-analysis apptoach:
case should be constdered tbe ioul deJicil. applied bv the forum wirere tl're case is rrled
@aras, supra. p. 39.r. citing
Amencan cases).
(c) Qaver's principle of preference:
7. Is a foreign tort actionable, or may be the subject of an
action
Under this theory, a irigher standard of conduct and for damages, in the Philippines?
Frnancial protectron given to the iniured party by one State is
applied by the State where the iniury happened, if the latter (a) Yes, provided we acquire lurisdictron over the defendant
State adopts a lower standard oI conduct and financial (because an action for damages is an actron in penonam)and certain
protectlon to tl-re iniured. conditions are present, namely:
(1) The foreign tort musr nor be penal ln nafure;
Example: As a resuit of an illegal sale of iiquor (2) The enforcement of the torrious habi[n, shouid nor con_
to X in the State of Minnesota, T, a passenger in the car travene our public policy: and
driven bv X in an intoxicated state, was hutt in an accident (3) Our judicial machinerv must be adequare for such
that occurred in the State of\nisconsin. Sued for tort by enforcement.
f in Minnesota, X moved to dismrss the case on the gtound
that the accident happened in Wisconsin, the law of whiclr (b) Remembet, however, that while all procedurai matrers are
required that rvrongful act and the injuty should happen governed bv the lex.fbi (.i.e., PhrJrppine law), since the case is hled here, ali
in the same State before the recoverv can be irad. substantive matters are governed bv the lex lon dc/itli .rommzL.Lz7. Thus:
Held: To appiy Minnesota law to the case would
be more in conformiry wlth the princrples of equiry and (1) The period of prescriprion of the action rs governed by
justrce since X'.s wrongful conduct was completed s'ithin the kx loLi de licti nmmis.riibecause in Philippine larg prescripuon is
N.&nnesota where X became intoxicated befote leaving substantive, not merely procedural.
said State and before going to Wisconsin rvrth T. Besides, (2) The proper parties, the measure of damages, and the
the parties both lesidents of \4tnnesota whose law questron whedrer d1e act complained of rs considered the proxrmate
"vere
dernanded a higher standard of conduct than that oF cause of the injury, are ali governed bv the lex loci delicti tommixij.
Wisconsin rvl.rere the accident happened. (SclLnidt u Dnlcoll (3) The burden of proof and the defenses drat may be rnterposed
Hotel. 249 Minn. 375, N. LV'. 2'/ 365 119a7iS by the defendant are aiso governed bv hx loti de/icti commnit.
6. What are the conflicts rules on maritime torts? (c) Example of a foreign tort actionable in the Philippines:
X and I both Ftlipinos, were vacationing in Hongkong. One day, while
(a) If thc tort is committed aboard a pubhc vessel, whether on driving a rented car, X ran over \'. rvho was walkrng. causing tl.re latter to
the high scas or rn foreign tcrritorial waters. tire law of tl-re flag rs the /rx be hospitalized in Hongkong. Upon rhe rerurn of both to the Phiirppines,
io ti de li cf i cont n i.r.r i t. Y sued X for damages adsing from the rott commirted bv the latter
(b) If thc tort ts committed aboard a private or merchant vessei while thev were in l{ongkong. Will tlie action prosper?
on the lrigh seas, thc larv of regisuv is the lex loti delicti commissii. Yes, provided rt is hled within dre period prescribed by Flongkong
(c) lf trvo vcsscls c<-rl[de and are from the same state, the ]2w of of prescriptron is subsrantive
Iaw, dre lzx bci rhlicti tvmmhlii, since the penod
registq is rhc l'.r /a,r r/c hilt ,rtmmit.rii. and not procedural. The kinds and measures of darrrages recoverable b1-
(d) ll-tlrt' r't'ssc'ls come trom different states rvith identical Y, and the defenses that X mat' put up, should also be governed bv
lau's, appll s;ritl rtlctrttcrl linvs. Hongkong law, which is rhe lex lott delicti commilsii. But all procedural marrers
(c) ll- tlrc vcsst'ls cot::t' frotn different states urith di[ferent laws, hke the period for filtng the answer, the period for appeal. etc., sl-rould be
tlre /r-v /oti rbhrtt tontntt.t.tu ls llt(: llcnerlrl maritimc law as understood and governed 6v rhe lex./ori. whrch is Phihppine law.
136 CONFLICT OF LAWS
CONFLICT OF LAWS
8. What is thc Alit'rr 'lirrt Act, and do vou know if it has been
applied in cast's lilctl lrr trilipinos in the United States?
(b) It was under the above law that the United States Court of
Appeals upheld the jurisdrction of the distnct court of Hawaii over a
class actron for damages filed by almost ten thousand Filipino victims of
human nghts abuses and tortw'e comrnitted bv dre iate President Ferdinand
Marcos and his ofhcials rn the Philippines during the Marcos reglme,
resulung in a nearll US$2 briiion judgrnent in favor of the victims andf or CRIMES
their lrerrs (Tralano a. Marcot-Manotoc, / 25 LEd. 2d 661 , 17 3 S. Ct. 2958.
1. Distinguish tort from crime.
(a) Whiie both tort and crime are wrongs, a tort violates pnvare
rights u'hile a crime is committed against the State.
(b) Tort acuons are instituted by the mlured person against dre ttongdoer
in a civii case the purpose of which is indemnifrcatron fcrr damages
suffeted; wirile crimes are prosecuted in the name of the State agarnst the
offender in crimirrai actions the purpose of which are the protection and
vindication of the interests of the public as a whole, the punishment of
the offender, the reformation of the offender, or to deter others tiom
committing the same act.
'lhis theort mav be of two kinds: In the PhiJrppines, we foliow as a genetal rule the territorial theorl',
and by wav of exceptron, the protectrve theorl'.
(1) The subjective, territorial principle - under which the
state wllere the crime was begun may prosecute the same, even
if it was complcted in another state. .In other words. we cannot prosecute a cdme committed abroad
(Like bigamy, rape, or murder) in the Philippines, because it is committed
(2) The objective territorial principle - under which the
outside our territorial jurisdicuon.
state can prosecute crimes begun abroad but completed rvithin
its territory.
We also follow the rule o[ generaltrv in criminal lau'; i.e., al]
fParas and authorities cited, supra, p. a0a)
persons, whether Fihpinos or aliens, are subject to our penal laws and can
be prosecuted ior theirviolauons (Art. 14. Civrl Code of thc Phihppines).
(b) Nationalitv or personal theory - The countrv of which
the criminal is a citizen or sub;ect has jurisdrcnon to tn'hrm for crimes
5. In what cases do we follow the protective theory, such that
allegedly cornmrtted b,v him, whetirer inside or outsi.de its tetritory,
even if the crime was committed outside our territorial jurisdic-
provided it is a crime under said countr,vh penal lau,.
tion, the crime is triable bv our courts?
(c) Protective theorv - Anv state whose nacionnl interests
Thev are the cascs tncntloned in Art. 2 c,rf thc l{evised l)cnal
mav be jeopardtzed has lurtsdictron over cnmrnal offenses. even if
Code, lo wil:
comrnitted outside its territorii and in some cases. even if committed
"Except as provrded n thc treaties and laws of prei-crenna)
bv an alien.
CONFLICTOFLAWS CONruCTOFLAWS
140 cRlMlrs CRIMES 141
(a) In matters reiating to the internal order and Art.27 ofsaid Convention pardy provides:
drscipline of the vessel; and
(b) Those which affect soleiy the ship and its "Criminal jurisdiction on board a foreign ship
occupants such as minor or petfv criminal
offenses committed bl' members of the 1. The criminal junschcuon of thc coastal State should
crerJ/. not be exercised on board a forergn ship passrng through the
(?aras. id., p. 410, citing Hyde, International territorial sea to arrest any person or to conduct any rrvesugation
Laq Vol. I, p. 739) in connection with a crime committed on board the shrrp during
CONFLICT OF LAWS
CHAPTER
(1) The theory that the personal law is the law of the
place of itlcorporation:
(2) 'l'lr tlrt.orv of the place or center of management: For the purpose of determrnrng
a corporanon,.s domrcile. Sec.
14 of corporauon Code requrre. ,rrn, ,i,"
tl-re
( )rrc tlrllrtrrltv of thrs theoq'rs tl-rat tire board mav meet in arilcles of rncorp.ration
.f n phrirppinc corp( )rauo, ,)Lrsr srare
,n. rrio.. ,"lr"r; ,;. ;;;;",:;;.
tlrllclt'rrl st;rtt.s, ulthough ti-us defect mal be cured bl expresslv of the corporation is to be estabrrsireci or ..whicrr
lc,cated. piace must be
pt,,r'ttltttl' rrr tlrc articles of ilcorporaUon ot bv-iaws w]rere tire withrn the Phiirppines". Thus, the place
of incr )rPoralon of a PhrJrppine
prtrrctp;rl n)('cur)g place of the board is. corporatlon rs also its domicile.
(3) 'l'he theory of the place of exploitation As for a foreign corporation that has been
granted a jtcense t<;
operare or r() do busrness rn the phi,rppines,
-l'l.re it o.quo., ao*r.rr. i., ,rri,
de fect of this theory is that the corporation may have countrv by vrrrue ol said license. As heid
bi, the Suprem Coun in C*)i*
its enterprise scattered all over the rvorld. Besides, the physical
acts of thc corporation are not as unportant as the decisions
lr.;s6i4 1 s, a. Mirt aa t,,. S t.r / enr. l n t.. l g 9 S Cll I O J t'(t ;;rl" ;"';'JJJ::1.
fre,rule.requiri"g foreig.r corporatlons ro secure a rrcense to do business
reachcd bv rts board oF directors. in the PhrJrppines is to enabrc the courts ro
exercise jurisdiction ,";;;;
or the regulatron of tl-reir activitres rn our counff\,.
(Paras, supra, and authorities cited, pp.420-421).
5. Vhal are the exceptions to the theory
that the personal law or
3. Among the foregoing three theories, what theor-v do we the nationality .f a coqporation fotows the
place of its incoqporation?
follow in the Philippines?
The exceptions are:
in tlre Phrlippines, we follou,' the theorv of the place of
incorporation. (a) For constitutional purposes, even rl corporauon was
incorporated in the phiJrppines. it ."r.no, exproit ^
or d.-relop o.,, ,r^,..rr"'
This is rmphed from the deFrnrtion of a foreign corporation by fesources nor operate pubhc urrhties unress
6070 0f the capriai is Firiprno
our Corporauon Code as "one formed, organized or existtng under any owned (Art. XII, secs. 2, 10-11, 19g7 Consurutron)
lar.vs other than those of the Philippines x x x". In other words, if the
corporadon organized rr the Philippines, it is a Phrlpprne or domestic (b) For wartime purposes, we adopt rhe control
"r'as
corporation; if organized elsewhere or abroad. it is a fotergn corporation. pierce of coryorate rdentin. and go lrrto t1.,.
';;;; we
test; i.e..
.the 'eil
controlJrng stockholders to deter'rinc *l-retrrer
a
"^"";;
corporauon is an enem',
4. Vhat about the domicile of a corporation? Where is it? corporarion.
Thus, a German_controlled corporation, even
According to Article 51 of the Ner.v Civil Code, "When the larv
ii
incotporated in the pl-riJippines, was considered
an coemr.
creating or rccognizing them, or anv otirer provision does not F1x the corporaflon during the last Wbrld War for the purpose
of freezrng
domicilc of jr-rndrcal persons, the same shall be understood to be the its assers (Dauid Winethop u phil. Tnul. L_)g69.
/an. , 195?).
3/
place whcrc tlrcrr legal representation is estabiished or where thev exercise The doctrine oi pierciog the corporate veii or
dreir pnncipal hrnctions." drsregarding tie corporate fictt<_in also permrts the courts r<r
lmpose personal riabilrn, on the stockholdcrs if
the c'rporadon
l'.r,crr l tk'li.cttvclv organizcd corporation which the lau'regards form has been used_ ro defeat the pubhc ..,nlr",rr"r.",
as de.falo ursofar 1rs lnll()c(.nt third persons are concerned can possess a wrongs, or protcct fraud
lurtif,
or crtme (.l.art lJoon Bet anrl Lo. u..i.
domicilc ftrr tls r/r //.r,/, ('xlst(.ncc (Mal)onald zr FN'CBAI', L-7991 , Majt Jarencio, I 61 .\Ck,1 205).
27. / 95().
l.16 BL5l\l 55 ,\55(,L1,\llOi\5 CONFLICI'OF I ,\\VS
BUSINESS ASSOCIATIONS I47
6. Vhat matteis are governed bv the personal law of the corporation? 9.How may our coufts acquire jurisdiction over
a foreign corporation
doing business in the Philippines?
'I'hc pc,rsonll lau' of tire corporati()n (rvhrch. rn thc Phihppines. is
tire placc ()l rnc()rp()ra[on) governs the tequisttcs for t]re formation of Bl service of sumrrons on:
tire corporatt<)n. thc reclulr'ed nurnber of mcorporators and tire members (a) rts resrdenr agent designated in accordance
wirh ra*,for
,.,f ti.re floard of I)trectors. the kincls of shares of stock aliowed, thc r hat purpose;
transfer ()[ stocks in a rval tl-rat it wr>uld be bindrng on ti-rc corporation. (b) If no such agent, on rhe governrnent official
desrgnated
the rssuance, aln()unt and legahw of tirc diviclends, and the powers tncl by law ro thar effect; or
duues of the offtcers. stockholders, and mernbers. (c) On any of its officers or agents within the philipprnes.
(Sec. 12, Rule 14. 1997 Rules on Civil I'rocedurej.
7. ttr(/hat law determines the validity of corporate acts and contracts?
10. suppose a foreign corporation transacts business
without first
T'he vahditl of corporate acts and contracts is determined br' ,btaining the necessary license, what is the status of its contract?
tl.rc lav of the placc of incorporation and bv the larv of the place of
pertormance. To be vahd and binding, such acts or contracts must bc The conrract
is unenforeceable; i.e.. the corporation cannor sue in
authorized bv both larvs. If valid in the place of incorporation but void , )ur courts until the necessaq' license is obtained. After the
issuance of tire
in tlre place o[ performance, or atce uer.ra, the vahdiq' of said acts or license, suits mav be instiruted even on the pre-license contrzcts
which are
contracts is doubtlul and it mav not be griven effect at all, without prejudicc considered vahd ( Marrhell-lV,e/h s, Co. 1,. hher Co., tupre.
to the principle oi estoppel (Sec. 119, Corporatton Code; Paras, supra,
and authorities cited, p. a29). But the person who contracted with the corporation may be
considered in estoppel if ire had received benefits from the ..rnr.n.,
8. May a foreign corporation sue and be sued in the Philippines? ;lrietcher, vol. I, cvclopedia of Law of pr-ivate corporations, sec. g520).
Yes, if it has the necessarv hcense to do business here (Sec. 123. 11. May a person sue a foreign corporation that transacted business
Corporation Codc). The license is required not to forbid the foreign rvith him without a license?
corporation from perfolnng single acts but to prevent it flrorn acquiring a
domicile for purposes of business u'ithout takrng the steps necessanr to Yes, because the corporation cannot put rrp by way of defense
render it amenable to suit in the local crsutts (hIarcltall W'e 1l.r d:" Co. u. E/vr tts own failure to comply with the lauz (Gen. Cor. of the phi/.
I/. (J nion In.r.
Cu.. 16 l'hti. -11 \ode! of' Canton, 48 OG #1 ,
Jan. 1952, p. 7). But rhe court must be abie
to acquire jurisdiction over the corporadon.
'Iiansacting ol dorng business connotes a continuity of business
dcalings and arrangemenrs (Mentholulum Co. u. EllerCo..72 Phil. 521). 12' If the corporation sells its products in the philippines through
an agent, is that doing business here?
llvcn a single rct or transaction ma); however, l;e an act of
<>rdinalv l>ursiness o[ the corporation if it is not merell incidental or If the forergn corporation sells its products in the phihppines
czisual blrt of srrcir charactcr as to drsunctlv indrcate n purpose to dc-, other rhrough a resident rnerchant on commrssion basis. it is rhe merchan,. .r.r,
l>usincss rr tlr(' statc and to make the state a base of operations for thc the corporation, thar is doing business here. But if the foreign corpora-
conduct ol' a part of tlre forcign corporation's ordinan' business ( R;r tion sells its goods in the Philippines througrr an cxclusive ;istnbuung
I '.r.sl Jnlrrntltontl lml,rnl tnJ [\Vorr Corporalion Nankai Kogyo Co., Lld., L agent, it is doing business here, because thc agent is acungonl'in behaii
"'.
lli2l. \ot'. 10. l()6:'\. oi its princrpal (Mentholatan (.0. t'. Man,p!/inaz, supra).
l{E BUSINESS ASll(r('lAl loNS CONfLICTOFLAWS coNrLIcroFLAwa
AssocIATIoNs teg
"usINEss
lit. May a forcign corporation not doing business in the Philip- allowed to sue on ,
pines euc? the cessation €ntered into ptevious
l1'11lt""ln'.1lif#:T:.""1 to
to contracrs""'- enhcal rule should
also apply
Ycs. tn (a) rsolated transactrons;
entered into p'or to the
corporatronis rrcense. of the forergn
(b; to protect its reputation, corporare nam{and goodwilt 6norur, ,rpr^. ;d;;;:'-::."t1on.
ronues cited, p.
43g).
Thus, a foreign corporatioa can ask a local coutt
to restrain some Filipinos from organizing a local B. PARTNERSHIPS
corpontion with the same name and the same business
1. Vhen does a partnership exist?
(lYestern Equipnent Supp! Co. a. Rga, 5l Phil. I l r,
provided a similar pnvilege is granted to Philippine
partnershrp exists when
corporations by the plaintiff's home state (Sec. 3, .1 two or more Ders^nc l-;_ r -r
to contnbute money, properff bind themselves
Rep. Act 8293). or indus,,v ,,"tPttton'
(c) for infringement of trademark or rade-name, ; ;i' p;#' ;;;ffi ;;:T"::(TT? #:3#* i::
unfair competition or false description of products, and "?'il$ffi il"1i
infringement of patent (Sec. 160, id.).
like a corporation, have juridic
3; l_r.j;!"rtnership, al pers onatity
14. What about mul 'national or transnational corporations, what
law applies to them?
ln the phrhpprles. a parrnership .,has a.;urichcal
separare and distinct from les. personaliry
These ate actually branches of a big, mother corporation in a that .o.1, of the iartners,, (Art. 176g,
id.).
hfttrly industroli"ed, hrghly developed foreign country but doing business
However, in the United
in many countries of the world through branches that have been States rnd sorne countries
and Latin America, parrnerships in Europe
incorporated under the law of each country .or state where it has are nor ,"g.i.a ;, ;:;.;i.."r
extended its business, in association with local businessmen. Since they
with ju.drcal pcrsonalitie.
of tlr.r, r"Xl;.
.rw-i-.i..', For the purpose
tnscrlverrcl proceedings (Sce
Canpo., t\r,r,ao jJ'Co. t: puc.
of
are incolporated under the local law of each state rvhere they are doing Cont. Co. 14 phil.
91 6). However.
in the ,T,."0 Sor.J .a^,
business, the branches are sE)arate entities govemed by the said local , n.-_ ,r_.1. has been developed,
getting away from dre old
laws, but in reality, the major decisions in their operation and management common
simply an aggregate of individuar,.
i;;;;;p""n rhar a partnershio rs
are controlled by theit mother or parent corporation. However, the
end& distlnct from the partners.
;";;;rr* treating ir o ,.porrr.
branches, having incoqporated in the states where they are established, are ^,
govemed by the intemal law of the said states, and their personal laws are
3. Vhat is the personal
the local laws of the host states. or governing law of a partnership?
IJke Ph'ippine colporatl.ns,
trre personar or governing
partnership is the law of raw of a
15. May a foreign corporation be sued after it had already with- the countn'#;."; is creared (See Art.
Code of Commerce). 15
drawn from busineee in the Philippines?
Thus, marrers iike organiza,.ron,
on contracts previously entered into by it. After all, fairness
Ye s,
demands that the citizens and residents of the Philippines be affotded the
o f its ct., tr., r.,n uirrn,
con tra
persons, dissolution" and
;?;il; ;.i; l;:i ;jffi:: ::':,:Xf.:
caDacin
wrndrng rp.
opportunity to sue thcse foreign corporations locally, instead of requiring personal law or the taw of ^,. ^ttgnl,*n".1 lr.,, thc partnership,.s
t1.," ,,oi" *h";:; ;;,
them to sue in thc foreign countries where they are domiciled. By the crcated.
same token, thc f<rrcign corporation that has with&awn should also be
For example. in a New \brk case wl:ere a limited partner under
CONTLIC-I OF LAWS
150 llllslNl 'rr'. Atrrrl rl lA lll lNrt CONFLICT OF LAWS
(.rrlr;rrr l,ru, \\',r1, ru('{l tlr l'.1('\r Yrttl' tot lllcach of contrlrct entefed lnto b\
the liurtted partner
tlrc rrl,.nr l),nlnr'r',lrt1, ttr l'Jt's'\irlh .l1 vils irelcl that
(
wa:, ilr)l lt,rl,l, ,rtr,l llr,rl l\t lr \'"tli l'ltu'c()Llld n()t
enl;rrge thc liabihn'oi-
\t'il:
a hililtt rl ltl('l llll(l( l ( .ttl>rltr lalv sll)IPII bccause tht contfact
lt,rt
clrt( f'( (l f ttl,, trt Nt's \ "rli (irrrlq t'' \''trrju' 6t N)- 2a 187 '\'S'
(.(llill I'rt{ l,rtt lrtrllrltlr ltl tfl rtt4 (t i ,l lilrllrtil(il1 'rl ,r lrrt(.tptt ( Qlltl illroil
,r A
qn[' 'rj'"':?slw
', i. ,r i, l"
?l sl)('( rltr lltttr!'t rt,,r', rrltr,r,lt , lil'rlrlrtt rl r ililr lilrit\,( illxrtl llt(. ltllr. to tlr<.
lltrtlrt scr. ,lll. lLulc 1(), ol tlrc l()()/ l{rrlt.:, orr (,tvtl l)ror-t:tlufc,
ltou,t'r''r'r. itll ;rrtl1|ttcltls (,t ()t'(l('rs ol lor<'t1'rr ( oulli\, wllt'llrcr rn rcn ot itl
Penonutt, ilr(' c()nsidrrccl rncrclv fnrnil filtr( ( )r l)r('sunll)lrv(. cvrclcncc of a
right bctwcr:n the partrcs at)d th('rr su(( cssr)ts ut ult('r('st Iry a subse<1ucnt
ude, arrd both kinds of ;udgmcnts,rr('riul)l('('t to tlrc tlrlcnscs of want o[
jurisdrction on tbe part of thc foru:r11r c()rrrt. w,ult o1'notrcc to the defen-
dant or respondent, collusion, fratrrl or t:lt:ar rlrstake of law or [act.
**************)k*