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CONFLICT OF LAWS That part of law which comes into play when the issue before the court affects some fact, event, or transaction that is so clearly connected with a foreign system of law as to necessitate recourse to that system. Part of the MUNICIPAL LAW of a state (not part of International Law).
Determine whether to apply the INTERNAL or FOREIGN law.
Per Atty. Torregosa [PAT]: The study of conflict of laws is based on one universal truth that each state/country has its own body of laws. And its body of laws consists of two sets of laws: (1) internal laws which apply to purely local or domestic cases which do not involve foreign elements and (2) conflict of laws which applies to cases involving foreign element. Every body of laws has these two kinds of classification of laws – purely internal and conflict of laws.
CONFLICT Private Individuals or Corporations Municipal in character. Strictly personal in nature. Judicial or administrative PIL Sovereign States, UN, etc. International in character. Generally affect public interest Diplomatic negotiations, mediation, etc. OR reprisals, embargo, war
PERSONS NATURE TRANSACTION
JURISDICTION is conferred by law. SUBJECT - Defined as the power to hear and MATTER determine the cases of the general class to which the proceedings in question belong. - Must be invoked by filing the appropriate COMPLAINT or PETITION [C/P]. - Generally, the court needs only to look at the face of the C/P to determine w.o.n. it has jurisdiction. - If there is prima facie showing of jurisdiction TRIAL. If evidence shows that it has no jurisdiction DISMISS. - BUT, in Conflict, the POSSIBLE ENFORCEABILITY of its Decision in foreign states must also be considered. PERSON - The competence/power of the court to render a judgment that will bind the parties involved. - Plaintiff acquired the moment action is instituted. - Defendant when appearance is entered voluntarily OR by the coercive power of legal process (summons). *personal appearance = consent, but not when it is for the sole purpose of questioning the jurisdiction of the court. SUMMONS [when in Pesonam] a. Personal Service i. To the defendant in person; or ii. Tendering it to him b. Substituted Service i. With some person of suitable age and discretion in defendant’s residence ii. With some competent person in charge of defendant’s office - Over the thing/particular subject-matter in controversy. - The purpose of the suit in this case is to affect interests of all persons in a thing [binds the whole world]. *quasi in rem affects the interest of particular persons in a thing. SUMMONS [when in Rem] a. Personal Service b. Substituted Service c. By Publication Only in rem, quasi in rem, involves personal status of the Plaintiff. d. Extra-territorial Service
CONFLICT OF LAWS CASE any case which involves facts occurring in more than one state or nation, so that in deciding the case, it is necessary to make a choice between laws of different states or countries. *States here do not only mean foreign sovereign countries but also political subdivisions of states (i.e. State of Texas, New York, etc.).
PAT: The case involves foreign element when some of its events, facts or transactions occurred in more than one state and affected by the diverse laws of the states involved.
JURISDICTION & CHOICE OF LAW
HOW TO DEAL WITH CONFLICT PROBLEM 1. Determine if the court has JURISDICTION If YES It should then determine whether it should assume jurisdiction or dismiss case based on forum non conveniens.
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS – LAW TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE. Based on Sempio-Diy Book
CONFLICT OF LAWS
i. By Personal Service ii. By Publication [but copy of summons and order must be sent by reg. mail to last known address] iii. In Any Other Manner that the Court may deem Sufficient Grounds: D does not reside and is not found in the Phils. and the action affects personal status of the P D does not reside and is not found in the Phils. and action relates to property w/in Phils. w/c D has a claim, lien, or interest (actual or contingent). D is a non-resident but the subject of the action is property located in the Phils., in w/c the relief demanded consists, wholly/in part, in excluding the D from any interest therein. When prop. of a non-resident defendant has been attached in the Phils. SERVICE OF SUMMONS IN EXCCEPTIONAL CASES ENTITY W/OUT Service to any one (1) of them. JURIDICAL Service to person in charge of the PERSONALITY place of business. PRISONER Serve to the jail warden (automatically considered deputized). MINORS AND MINOR: To minor and his INCOMPETENTS parents/guardian INCOMPETENT: the incompetent and the guardian DOMESTIC President PRIVATE Managing Partner JURIDICAL General Manager ENTITY Corporate Secretary Treasurer In-House Counsel *enumeration is exclusive; substantial compliance argument is no longer compelling FOREIGN Corporation must be doing business PRIVATE in the Philippines. JURIDICAL If with designated resident agent – ENTITY++ serve to the designated agent (15D to file Answer). If w/out designated agent – serve to the appropriate Phil govt. officer (30D to file Answer). *When foreign corp. not doing business in the Phils. – cannot be sued. *if not doing business in the Phils. but agrees to be sued – apply Sec. 15
(extraterritorial service). Republic of the Phils. – Solicitor General Provinces/Cities/Municipalities – Executive Heads/Legal Officer
++Dissolved Corporation – serve to the last set of officers. ++Doing Business in the Phils. – there must be a continuity of conduct and intention to establish continuous business. FORUM NON CONVENIENS – court may refuse to exercise or assume jurisdiction, in view of the ff. practical reasons: a. Evidence and witnesses not readily available b. Court docket is already clogged c. Matter can be better tried and decided in another jurisdiction (main aspects of the case transpired there or witnesses are there). d. Curb evils of forum shopping e. Forum has no particular interest in the case f. Other courts are open and the case may be better tried in said courts g. Inadequacy of the local judicial machinery for effectuating right sought to be enforced h. Difficulty of ascertaining foreign law available. INSTANCES WHEN INTERNAL/DOMESTIC LAW HAS TO BE APPLIED 1. Law of the FORUM EXPRESSLY SO PROVIDES in its conflicts rules 2. When the PROPER FOREIGN LAW has NOT BEEN PROPERLY PLEADED AND PROVED *the court assumes that the foreign law is the same as the internal law [aka PROCESSUAL PRESUMPTION]. To Prove Foreign Law: Written a. Official Publication b. COPY OF THE LAW ATTESTED by the OFFICER HAVING LEGAL CUSTODY of the record or his deputy, accompanied by a CERTIFICATE of any Phil. embassy, consular, or foreign service officer in the foreign country where the record is kept and AUTHENTICATED BY THE SEAL of his office. Unwritten a. Oral testimony of EXPERT WITNESS b. Printed and published books of reports of DECISIONS of the country involved (if proved to be commonly admitted in its courts). 3. Case involves any of the EXCEPTIONS to the application of the proper foreign law. *Foreign law is to be interpreted in the same way as the courts of the country where it comes from interprets it. EXC: when we have a statute worded identically – we can apply the interpretation of our courts.
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS – LAW TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE. Based on Sempio-Diy Book
Similarly. 3 RJ & ELI . Case involves real or personal property located in our country. either Oman or China. HELD: SC ruled against Filipino and cited the ff: 1. h. EH 404. Attracted of the offer. Phil court is NOT THE CONVENIENT FORUM. ADEQUACY OF JUDICIAL MACHINERY [FORUM NON CONVENIENS] The court is not compulsorily obliged to assume jurisdiction. Foreign law involves procedural matters d. The only link there is that the complainant is a Filipino. by appropriate government officer designated for that purpose. But doesn’t follow that jurisdiction over them cannot be acquired. employer being a foreign corporation. It depends on the nature of the business that a foreign corporation is engaged in. Phil court has the POWER or likely to have the power to ENFORCE ITS DECISION. Only jurisprudence. c. The service of summons maybe effected upon the resident agent designated by the foreign corporation. all of them took place abroad. try the case and render judgment. the Court is given discretion to desist from assuming jurisdiction when it finds that local judicial machineries are not adequate to decide the case. Phil court is NOT IN THE POSITION TO INTELLIGENTLY DECIDE ON THE FACTS AND LAWS OF THE CASE. 2. negotiation. Even if were to be assumed that the court is in the position to decide on the factual and legal issues of the case. Otherwise. How? Reserved when we discuss foreign corporations later. try and decide the case involving foreign element. China. these only apply when foreign private entity is doing business in the Philippines. termination. perfection. nevertheless there has doubts if it can enforce the judgment. or in the absence of such resident agent. Phil court has NO AUTHORITY TO ENFORCE THE JUDGMENT. Why? Principal employer was not even impleaded and served summons. 2. b. All these factual issues are to be decided on the basis of evidence available outside. all these pertains to foreign countries . main witnesses are nonresidents of the Philippines. while we have specific rules on serving of summons insofar as foreign private juridical entity is concerned officers. The requisites for the PAT: THREE STEPS IN DEALING WITH CASES WITH FOREIGN ELEMENT 1. Based on Sempio-Diy Book . It runs counter to sound and established public policy of the forum. the Filipino got an employment offer from a Chinese Palace Hotel based on Beijing. 3. or by any of the corporation’s officers or agents within the Philippines. While in Oman. CHARITY. It is penal in character e. is asked to satisfy itself that local judicial machineries are adequate. Phil court is in the position to INTELLIGENTLY DECIDE on the facts and laws involve in the case c. He went home and filed an action against the ER as well as another corporation before the NLRC. proceed to trial and decide the case. Who are these officers authorized to receive summon for foreign private juridical entity.CONFLICT OF LAWS Midterm Reviewer WHEN FOREIGN LAW CANNOT BE APPLIED a. Before these requisites are complied with. Take Note: in the Rules of Court. Requisites: a. Banking – summons should be served to superintendent of the bank Insurance – service is effected upon insurance commissioner Other business . In cases involving foreign element. MANILA HOTEL V.LLB III. NLRC QF: Filipino works in the State of Oman as a printer. It also considered that the contract was executed abroad. the Filipino resigned from his employment in Oman and accepted the employment and eventually worked in Beijing. Application would endanger the vital interests of the State. Why? All the essential components of the contract. Foreign law is contrary to the almost universally conceded principles of morality. For the forum court to proceed. DETERMINE JURISDICTION – (refer to discussion above). the forum may proceed to assume jurisdiction. It is purely fiscal/administrative in nature f. Will work undeniable injustice to the citizens or residents of the forum g. the forum court may decide to dismiss the case on ground of forum non-convenience. AND GRACE. the Phil court not in the position to intelligently decide on the facts of the case because the alleged termination of the contract and the circumstances surrounding and leading to termination. Phil court is the CONVENIENT FORUM where the parties to the case will resort b.through SEC Take Note: There’s no provision in our rules which provides for service of summons insofar as foreign private juridical corporations not doing business in the Philippines. And under the law on lex loci celebracionis – should be determined by the laws where the contract was entered into. UNIVERSITY OF SAN CARLOS – LAW TRANSCRIPTS c/o JIZZA. Before the expiration of his term. place of employment. the Filipino was terminated on the ground retrenchment.
Yao kee failed to prove the Chinese laws and customs on marriage. 4. Even if the foreign law is the law applicable. there was no valid marriage to speak of. WHILE COURT MAY DISMISS ON BASIS OF FORUM NON-CONVENIENCE.LLB III. FOREIGN LAW IS PURELY FISCAL OR ADMINISTRATIVE IN NATURE. RAYTHEON V. to go around the PhilSec Investment ruling. 17 (3) Prohibitive laws concerning persons. ROC of the US cannot be applied in the Phils. Governed by lex fori or where the court sits. one of the formal requisites on marriage is a valid marriage ceremony which requires the presence of solemnizing officer. therefore should have been applied in the case. HELD: From these facts. HELD: The propriety of dismissing a case on the ground of forum non-convenience REQUIRES FACTUAL DETERMINATION. cannot be applied in the Philippines. E. There are instances which although involving facts. should be proved as a fact. the forum court is helpless but to apply Philippine law. WHEN THE FOREIGN IS PENAL IN NATURE. public policy and good customs shall not be rendered ineffective by laws or judgments promulgated. CA QF: The defendant in the case filed in the Philippines filed a motion to dismiss in a civil case pending in the Philippine courts on the ground of forum non-convenience. GONZALES QF: Case involving a dispute over the estate of Mr. the defendant in Raytheon filed a motion for hearing of affirmative defenses on forum nonconvenience. occurrence or transactions affected by foreign laws. Even if valid there. prove the facts.g. After his death Aida Gonzales. Basis: Art. there are instances when the forum court has no other choice but to apply the internal law. 5. No MTD since it was prohibited so he moved for a motion for hearing of affirmative defenses instead. their acts or property. Based on Sempio-Diy Book . It is now presumed that Chinese laws on marriage are the same as our laws on marriage. Guidelines available designed to aid the court in making the proper choice of law in deciding cases involving foreign element: FIRST GUIDELINE: Not all cases involving foreign element requires the choice of law. her effort to prove that indeed she is the lawful wife unfortunately. et al filed an action to settle the estate of Sy Kiat and Aida prays that she be appointed as administratix of her father. 3. ROZY QF: Defendant alleged forum non convenience by way of affirmative defense in an answer. This petition was opposed by Yao Kee claiming that she is the lawful wife of Sy Kiat. COL is a choice of law problem. And. Forum nonconvenience cannot be used as a ground for a motion to dismiss. E. the forum court. because the transaction happened there and most of the parties are in the States. Same also with administrative laws or internal laws cannot be applied in the Phils. 1. 2.CONFLICT OF LAWS Midterm Reviewer Phil courts. tax laws in the US cannot be enforced in the Phils. UNIVERSITY OF SAN CARLOS – LAW TRANSCRIPTS c/o JIZZA. crimes are governed by the place where crime is committed.g. During trial. SECOND INSTANCE: When the case falls under any of the EXCEPTIONS to the application of a foreign law. only then that the court can determine if forum non-convenience warrants the dismissal. and those which have for their object public order. AND GRACE.g. to assume jurisdiction are not present. It is improper for a party to file MTD only on the ground of forum non-convenience implying that you go to trial. PHIL SEC INVESTMENT V. Refers to revenue laws or tax laws. Processual Presumption foreign laws courts cannot take judicial notice of foreign laws. IT MAY DO SO ONLY AFTER VITAL FACTS ARE ESTABLISHED WHERE SPECIAL CIRCUMSTANCES ARE SHOWN TO JUSTIFY THE COURT’S DESISTANCE FROM ASSUMING JURISDICTION. Instances: FIRST INSTANCE: WHEN THE APPROPRIATE FOREIGN LAW HAS NOT BEEN ALLEGED AND PROVED OR HAS BEEN ALLEGED BUT NOT PROVED. Phil court is not the convenient forum. Since there was no solemnizing officer in the marriage of Yao Kee and Sy Kiat. SC applied the processual presumption. Forum non-convenience is more properly a matter of defense. The forum court is helpless or has no other choice but to apply the Philippine law instead. The Principle of Processual Presumption takes place. CONTRARY TO UNIVERSALLY RECOGNIZED PRINCIPLE OF MORALITY. HELD: Still Not allowed! FACTUAL determination is required. Sy Kiat (decedent). law legalizes corruption or incestuous marriage. CHARITY.essentially. WHEN THE FOREIGN LAW MIGHT WORK UNDENIABLE INJUSTICE TO THE CITIZENS OR 4 RJ & ELI . law legalizes prostitution. this situation calls for the application of the internal law. Failure to prove the foreign law obliges the court to presume that the foreign law is the same as our laws. Cannot be applied here because we adhere to the principle of territoriality. CHOICE OF LAW . therefore. EH 404. And in our laws. Although the SC did not categorically say that you go to trial [no other inference can be made]. E. 3. FOREIGN LAW INVOLVES PROCEDURAL MATTERS. YAO KEE V. or by determinations or conventions agreed upon in a foreign country.
Public policy proscribes the splitting of a single cause of action. properties were foreclosed ad bought by a third party during the foreclosure sale. SC said even if the laws in England do not prohibit the institution of foreclosure proceeding during pendency of an action for collection. properties. Eventually. One the exceptions to the application of foreign law. validity of contracts. the filing for collection abroad amounts to waiver of the American Bank to institute foreclosure proceedings.LLB III. refers to the facts. 2. Amiri Decree in Bahrain where employment took place. The case calls for 3 conflicting rules on prescription. Not also 1 year under the Amihri Decree although it is deemed incorporated in the contract. 36. or transactions that occurred in various states and affected by various laws. condition and capacity should be determined by the laws where that person concerned is a national Art. (5) and (6). These factual situations are classified into various categories depending on the nature of the problem: status and capacity. 1144 of the NCC an action to enforce a written agreement prescribes in 10 years. crimes. Each category corresponds to a POINT OF CONTACT/SOLUTION. 26 lex loci celebrationis all marriages solemnized outside the Philippines. 15 status. SECOND GUIDELINE. FACTUAL SITUATION essentially the problem. On the question of choice of law clause. this foreign law cannot be applied in the Philippines. Art. Borrowers failed to pay the loan as restructured. Based on Sempio-Diy Book . It cannot be 10 year-prescription in Art. Alleging violation of the employment contract returned to the Phil and filed an action against the foreign ER and local recruitment agency. and valid there as such. under the laws on England.process of assigning these factual situations to its proper legal categories. in accordance with the laws in force in the country where they were solemnized. of marriage. torts. there’s no problem with a creditor pursuing both remedies (collect the loan and foreclose the mortgage). POEA QF: A class suit filed by less than a hundred complainants who were OFWs. 17 lex loci celebrationis the form and solemnities of contracts. According to American Bank. American bank waived its right to avail of foreclosure as a remedy. 7. AND GRACE. CHARACTERIZATION . HELD: SC ruled it is 3 yrs. AMERICAN REALTY CORPORATION QF: Three (3) borrowers got American Realty (a domestic corporation) to execute a REM to guaranty the loans involving properties located in the Philippines. prescription is 1 yr. Case at bar: Saudia Arabia Airline v. wills. WHEN THE CASE INVOLVES REAL OR PERSONAL PROPERTY LOCATED IN OUR COUNTRY. 1144 because that applies only in contracts other than employment contracts. On the basis of Philippine laws. American Realty went to court against American Bank questioning the validity of foreclosure proceedings contending that by filing cases abroad to collect loan obligations. American Bank argued that the parties expressly stipulated that any dispute arising from the transaction should be resolved by laws England. CADALIN V. The parties had stipulated a choice of law clause specifying the laws of England. HELD: SC ruled otherwise and said that the law to apply here is the law of Philippines which prohibits the creditor to avail of the two remedies. 37 and 38. CHARITY. Availment of one remedy amounts to a waiver of the other. American bank filed cases abroad to collect the balance. WHEN THE APPLICATION OF THE FOREIGN LAW WOULD ENDANGER THE VITAL INTERESTS OF THE STATE. shall also be valid in this country except those prohibited under Article 35(1). 2 cases were filed in England. Crucial issue raised in this case dwells on the matter of prescription. AMERICAN BANK V. and other public instruments shall be governed by the laws of the country in which they are executed. FACTUAL SITUATION A PROBLEM INVOLVING CAPACITY. etc. CONDITION OR STATUS POINT OF CONTACT Art. 1 case filed in HK. (4). 291 LC action arising from ER-EE relationship prescribes in 3 yrs. While cases were pending. EH 404.CONFLICT OF LAWS Midterm Reviewer RESIDENTS OF THE FORUM. Milagros 6. it cannot be applied because to do so is contrary to sound and established public policy of the forum – PROTECTION TO LABOR. UNIVERSITY OF SAN CARLOS – LAW TRANSCRIPTS c/o JIZZA. events. By Characterization it makes the job of the court in making the choice of law much easier. TWO COMPONENTS of every Conflict of Law situation: 1. when it contravenes the sound and established public policy of the forum. some worked in Bahrain. EXTRINSIC VALIDITY CONTRACT OF VALIDITY OF MARRIAGE 5 RJ & ELI . 8. American Bank instituted an action for foreclosure against American Realty. The court can easily determine the proper solution or the point of contact.
filed a case for damages against her ER based on Art. 2 Principles (Based on…): Reciprocity Persuasiveness of a Foreign Judgment Vested rights should be protected. but because our own law. the reciprocal courtesy w/c members of the family of nations owe to one another. and there she learned that she was under trial for adultery. It is the Philippines because: ONE. requires us to do so. events and transactions involved in the case which occurred either in the Philippines. 19 and 21 of the CC. what determines is the totality of the injury sustained by the complainant. THE COUNTRY OF THE MOST SIGNIFICANT RELATIONSHIP OCCURRED IS THE LEX LOCI DELICTI COMMISI. ER raises two essential issues: jurisdiction and choice of law. SC disagreed and held that while it is true that the factual situation is of TORT. not Philippine laws. THEORIES THAT JUSTIFY APPLICATION OF FOREIGN LAW 6 RJ & ELI . Involves the RENVOI. no one approach is completely valid. Then. The basis of the complaint of Mila is the human relations provision in the NCC which is within the jurisdiction of RTC. Identical or similar problems should be given identical or similar solutions. THIRD. THE DECEIT WAS EMPLOYED WHILE MILA WAS IN THE PHILIPPINES enticing Mila to go to Saudi Arabia in the guise of helping the investigation but it was the intention really to charge. On the issue of choice of law. the corresponding connecting factor is the lex loci delicti commisi. These abuses were committed in Saudi Arabia. Rights once acquired under foreign law or judgment should be enforced regardless of where the suit for its enforcement is filed. (please see page 9). Courts enforce not the foreign law or foreign judgment but the right or rights that have been vested under such law or judgment. Mila returned to the Phil and made her last stand. abuse of rights.LLB III. try. In their defense. it doesn’t follow that Saudi law is the lex loci delicti commisi. therefore. the various theories should be examined and weighed as the bear on a given conflicts problem. jurisdiction over the case should be lodged before the Arab courts. It’s not accurate to say that lex loci delicti commisi is the Saudi Arabia. Judging from the allegations in the Complaint. MILAGROS QF: Mila worked as a flight attendant. Using the guidelines. EXC when foreign law is against public policy of the forum. SECOND. 19 and 21 on human relations. the place where the tortuous act was committed. prosecute and convict Mila. SECOND GUIDELINE. UNIVERSITY OF SAN CARLOS – LAW TRANSCRIPTS c/o JIZZA. etc. There were investigations. THE COMPLAINANT IS A FILIPINA. CHARITY. SC rejected this and held that jurisdiction should be determined on the basis of the allegations in the Complaint and existing applicable laws.e. Saudi Arabia or Jakarta. it may happen that the court will decide to apply the appropriate foreign law— allowing the foreign law to operate in the Philippines. AND GRACE. There was attempted rape. there were various facts. THE ER ALTHOUGH FOREIGN BUT DOES BUSINESS IN THE PHILIPPINES. We apply the foreign law not because it is foreign. EH 404.NO SINGLE THEORY contains the whole truth. NATURE & COMPOSITION OF CONFLICT RULES A conflicts rule or provision of law is a provision found in our own law which governs a factual situation possessed of a foreign element. therefore the connecting factor is lex loci delicti commisi. She was terminated by her employer. Saudia Arabia argued that the factual situation is of TORT. Based on the allegations in the complaint. SC applied the STATE OF THE MOST SIGNIFICANT RELATIONSHIP RULE which states that when the tortuous acts consists of various acts. therefore. The proper foreign law should be applied to attain the dispensation of justice VESTED-RIGHT LOCAL LAW HARMONY LAWS JUSTICE OF *NOT EXCLUSIVE – in the absence of an applicable provision in the code or statute. She was convicted but pardoned. PAT: So there are basically three guidelines in making the proper choice of law in order to resolve a case involving a foreign element. Is it derogation or violation of sovereignty of the state? No. ER argued that Mila’s purported cause of action Art. as justified by the following theories: THEORY OF… COMITY No foreign law would be allowed to operate in another state except by the ‘comity of nations’ i. HELD: On jurisdiction. Based on Sempio-Diy Book . It appears that most of the acts were committed in Saudi Arabia therefore it should be governed by the laws of Saudi. by applying a similar rule. ER deceived her to go to the head office. This case involves SERIES of alleged tortuous acts.CONFLICT OF LAWS Midterm Reviewer SAUDIA AIRLINES V.
Art. paternity and filiation DIFFERENT THEORIES ON HOW THE PERSONAL LAW OF AN INDIVIDUAL IS DETERMINED: a. In case of a STATELESS PERSON he has NO NATIONAL LAW! Therefore the nationality theory cannot be applied. 7 RJ & ELI . the law of the country of his temporary domicile. our country is not concerned if he has any other citizenship. c. tort.CONFLICT OF LAWS Midterm Reviewer 2 KINDS 1. UNIVERSITY OF SAN CARLOS – LAW TRANSCRIPTS c/o JIZZA.LLB III. we follow the NATIONALITY THEORY.e. Based on Sempio-Diy Book . the court shall apply the law of his domicile or if he has none. condition. *In the Philippines. i. EH 404. Art. 2 of the Hague Convention on Conflict of Nationality Laws). By categorizing the legal problem (i. STATUS Consists of personal qualities and relationships. Each country or state has the sole power and authority to determine under its internal or municipal law who are its citizens or nationals (Art. succession. AND GRACE.: Civil status of a person.e. POINT OF CONTACT OR CONNECTING FACTOR The 1st states certain operative facts.e. family relations and the consequences of his action. capacity. Therefore. as long as he is a Filipino citizen.a. FACTUAL SITUATION 2. DIFFERENT KINDS OF CITIZENS IN THE PHILIPPINES: 1. they have become Filipino citizens. wills. 17. The NATIONALITY THEORY(aka personal theory) status and capacity of a person is determined by the law of his nationality or his national law The DOMICILIARY THEORY (aka territorial theory) status and capacity of a person is determined by the law of his domicile The SITUS or ECLECTIC THEORY the law of the particular place or situs of an event or transaction as generally the controlling law. and other public instruments shall be governed by the laws of the country in which they are executed. ALL-SIDED/MULTILATERAL RULE – indicates whether to apply local law or the proper foreign law. legislative or administrative process. with which the state and CAPACITY Only part of one’s status. more or less permanent. or in the same instrument. (669) the community are concerned. Two or more persons cannot make a will jointly.k. i. CITIZENSHIP OF A FILIPINO WOMAN WHO MARRIES A FOREIGNER PERSONAL LAW. NATURAL-BORN CITIZENS who are citizens from birth without having to perform any act to acquire or perfect their Philippine citizenship 2. a. either for their reciprocal benefit or for the benefit of a third person. the law that generally governs his status. CHARITY. nationality and citizenship are the same [nationality=citizenship]. The forms and solemnities of contracts. the legal consequences of which are determined in the 2nd part (the 1st part raises while the 2nd part answers). In the field of conflict of laws. b. contract. ONE-SIDED RULE – indicates when Philippine law may apply. PARTS OF EVERY CONFLICTS RULE 1. Citizens BY NATURALIZATION formerly aliens but by judicial. 2. etc. THE NATIONALITY THEORY The NATIONALITY THEORY (aka personal theory) status and capacity of a person is determined by the LAW OF HIS NATIONALITY OR HIS NATIONAL LAW. classification or qualification LEX FORI – determines the problem’s characterization [on the ground of necessity and convenience]. 818. *unless the result would be a clear injustice.e.THEORIES ON DETERMINING PERSONAL LAW PERSON’S PERSONAL LAW that which attaches to him wherever he may go. In this case.) the court or the parties involved reach the proper solution whether to apply the local law or the proper foreign law. Characterization – process of assigning a certain set of facts or factual situation to its proper or correct legal category. i.
Based on Sempio-Diy Book . imprisonment. it should be noted both Spouses Harden are Americans. Note: an alien woman married to an alien husband who (the husband) subsequently naturalized also follows the Philippine citizenship of her husband provided that she does not suffer any of the disqualifications. etc. Art. the domiciliary theory runs to the rescue of the nationality theory d. may become involved in litigation in our country which follows the nationality theory. Hence. Harden obliged to pay Rectostipulated attorney’s fees. A void contract creates no right. Domicile of ORIGIN – domicile assigned by law to a person at the moment of his birth. 8 RJ & ELI . DOMICILE defined It is the place where a person has his true. our law makes either the law of one’s nationality or that of his domicile as the controlling factor c. native-born or naturalized. (This provision now applies to both males and females who marry aliens) CITIZENSHIP OF AN ALIEN WOMAN WHO MARRIES A FILIPINO HUSBAND An alien woman marrying a Filipino. Sometimes. and the issue involves status. *Residence is not domicile but domicile is residence DOMICILE One’s permanent place of abode CITIZENSHIP Ties of allegiance and loyalty IMPORTANCE OF KNOWING THE DOMICILIARY THEORY (although our country follows the nationality theory) a. HELD: It is not true that the professional services were in connection to divorce. the real purpose is to protect Mrs. becomes ipso fact a Filipino provided that she is not disqualified to be a citizen of the Philippines under Sec. Conflict of Laws. although living abroad. and capacity of a person are governed by the law of his domicile. permanent home and principal establishment. Law. UNIVERSITY OF SAN CARLOS – LAW TRANSCRIPTS c/o JIZZA. fixed. he has the intention of returning (Story. permanent residence to which. EH 404. b. But what about foreigners? If a case is filed in our court. free. There’s no doubt as to a Filipino citizen because he is to be governed by Phil. Article 15 equally applies to foreigners. whenever he is absent. our own law makes the law of the domicile of a person the controlling factor in the solution of conflict cases b. divorce is valid. Harden’s rights in the conjugal partnership. How is the court supposed to determine his personal law? This was settled in the case of: RECTO V. 41) For the exercise of civil rights and fulfillment of civil obligation. HARDEN QF: Mrs. they are deemed. he intends to return. So in short. when absent.LLB III. while related. Therefore. they are governed by their national law---under US laws. Harden refused to pay. Harden is applying for divorce abroad. like minority. whenever absent. which follow the domiciliary theory. the domicile of natural persons is the place if their habitual residence (Art. It is clear that it makes reference only to Filipino citizens. In some cases. and to which. 4 of the same law. CONSTRUCTIVE Domicile/Domicile by operation of Law – the domicile assigned by law to a person after birth on account of a legal disability. However. insanity.shall be binding upon citizens of the Phils. Recto cannot enforce the contract. THE DOMICILIARY THEORY DOMICILIARY THEORY It is the theory whereby the status. According to Harden agreement is void-since divorce is against public policy in the Philippines therefore it is void. DIFFERENT KINDS OF DOMICILE a. In the retainership agreement. legal capacity of the individual who is a foreigner. Recto was engaged by Mss. 50. family rights and obligations. This may change from time to time. c. unless by their act or omission. CHARITY. Domicile of CHOICE – domicile of a person sui juris because he has his home there and to which. This never changes for a person is born only once. Atty. one has the intention of returning RESIDENCE Temporary stay of a person in a given place A place of abode. and one of age and under no disability can change his domicile at pleasure DOMICILE Relatively more permanent abode of a person Fixed. to have renounced their Philippine citizenship. whether permanent or temporary PAT: This is the theory adhered to by the Phils. Harden to protect her interest here. Sec. In cases of stateless individuals. Hence. or those with dual or multiple nationalities. condition.CONFLICT OF LAWS Midterm Reviewer Under the 1987 Constitution. NCC) No person can ever be without a domicile A person cannot have two simultaneous domiciles A natural person. 15 of the CC laws relating to family rights and duties…. citizens of the Philippines who marry aliens shall retain their citizenship. contract is valid even if assumed that contract is predicated on divorce. Citizens of countries like the US or Great Britain. AND GRACE. under the law.
the domicile of the present parent. RULES ON DETERMINING ONE’S CONSTRUCTIVE DOMICILE 1. ii. a. i. B. which regulates or fixes such matters between them. of the Filipino couple.CONFLICT OF LAWS Midterm Reviewer RULES IN DETERMINING ONE’S DOMICILE OF ORIGIN A. d. SOLDIERS – domicile before their enlistment c. In case of absence or death of either parent. the domicile of the individual concerned.domicile of choice of the adopter. they follow the domicile of choice of their guardians. and property relations. LEGITIMATED The domicile of his father at the time of his birth D. LEGITIMATE CHILD His domicile of origin is that of his parents at the time of this birth If parents are separated. Legitimate.LLB III. i. IDIOTS. status and family relations of a person are governed not necessarily by the law of his nationality. THE SITUS OR ECLECTIC THEORY The capacity. unless they voluntarily adopt their place of employment as their permanent residence.: with respect to the rights and obligations. If there is legal separation between the spouses.e. If they are of age and have guardians. – domicile is the one they had before they were assigned elsewhere. the wife can also have a separate domicile. consular officials. OTHER PERSONS a.domicile of both parents. however. AND GRACE. the wife can have her own domicile of choice If there is a separation de facto. The constructive domicile of the wife is the domicile of both spouses unless the law allows the wife to have a separate domicile.e. the rules on minors apply to them b. 9 RJ & ELI . Illegitimate. but by the law of the place where an important element of the problem occurs or situated. ADOPTED CHILD The domicile of his real parents at the time of his birth E. the governing law is the actual situs of the transaction or event. INSANE. If they are below the age of majority. the domicile of the custodial parents B. PUBLIC OFFICIALS OR EMPLOYEES ABROAD like diplomats. UNIVERSITY OF SAN CARLOS – LAW TRANSCRIPTS c/o JIZZA. VALID MARRIAGE i. b. VOIDABLE MARRIAGE Apply the same rules as when the marriage was valid After annulment. MARRIED WOMEN A. the governing law is the law of the legal situs. iii. condition. they are governed by the national law of the spouses. b. If they have no guardians.e. 4. Adopted. CHARITY. 2 KINDS OF PARTICIPATION OF INDIVIDUAL CONCERNED A. i. MINORS a. ILLEGITIMATE CHILD The domicile of origin is that of the mother at the time of his birth C.: in the act of getting married is voluntarily. 2. the law assigns their domicile to them. or the law of his domicile. their constructive domicile is their domicile of choice before they became insane. VOID MARRIAGE Wife can have a domicile separate from the husband. Active Participation when the act is done voluntarily. the wife can freely select her own domicile of choice C. FOUNDLING His domicile of origin is the country where he was found. Passive Participation the effects of the act are set forth or determined by law. that of the father unless there is judicial order to the contrary. In case of disagreement. IMBECILE They cannot select their own domicile. 3. Based on Sempio-Diy Book .domicile of the mother c. the validity of the marriage is governed by its actual situs or lex loci celebrationis B. EH 404. etc.. CONVICT OR PRISONER – his domicile is the one he had possessed prior to his incarceration.
In making now the choice of law. the conflict of laws rule of Succession is Art. it is the law of the place where the decedent is DOMICILED. Christensen is an American citizen but domiciled in the Philippines. a certain Helen who turned out to be his illegitimate child. But as I said earlier. the conflict law rule is law of decedent‘s Domicile at the time of death. ACCEPT – accepts the referral back of the case [Philippine law will therefore be applied]. Since Christensen is an American Citizen. the forum court naturally apply Art.” –meaning the national law of the decedent. xxx Art. PAT: Forum court will consider the law being referred to as internal law of the foreign country and therefore applying it in the case of Aznar. 16 2nd par. Should the court interpret the law being referred to in 16 as the internal law of the US or is it national law of the decedent. we still apply Philippine law]. Note: 2 PARTS OF EVERY MUNICIPAL LAW 1.CONFLICT OF LAWS Midterm Reviewer *If the transaction involves property. 16 simply states the national law of the decedent. Let’s say our own conflict of law rule in succession particularly Article 16 2nd paragraph of the Civil code which says that “intestate and testamentary succession. *single renvoi/transmission PAT: This is the solution in the Philippines. So the forum court was confronted with this whether or not to apply the internal law of the US or the internal law of the Phils. real or personal. So we have here a situation of an internal law on succession particularly on the amount of successional rights of an illegitimate child and conflict law rule Art. our conflict law rule is National Law. puto maya). 2. Before he died he executed a will and left an estate located in the Philippines. So while in the Phils. EH 404. There is now an issue whether or not to apply the internal law of the US or the internal law of the Philippines. 16. Rules in CONFLICT OF LAWS PAT: The problem of renvoi arises when there’s doubt as to whether a reference by the forum to a foreign law is a reference to the internal law of a foreign state or whether it is a reference to the entire body of laws including conflict of law rules. So how does a problem of renvoi arise? This is illustrated in the case of INTESTATE ESTATE OF CHRISTENSEN V.including the conflict of law rules which adheres to the domiciliary theory ? So that’s the renvoi now. So that’s the internal law of the US particularly on the distribution of the estate. shall be regulated by the national law of the person whose succession is under consideration. whatever may be the nature of the property and regardless of the country wherein said property may be found.LLB III. 4 SOLUTIONS COURT CAN ADOPT WHEN CONFRONTED WITH RENVOI 1. both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions. the opposition of Helen is w/o basis. UNIVERSITY OF SAN CARLOS – LAW TRANSCRIPTS c/o JIZZA. In the US. THEORY OF DESISTMENT – i. the law referred to by the Court is the law of the US in so far as succession is concerned. the law that determines the validity of transaction is lex situs or lex rei sitae (law of the country where it is situated) THE PROBLEM OF THE RENVOI RENVOI – means “refer back” RENVOI PROBLEM arises when there is doubt as to whether the reference by the lex fori to the foreign law involves a reference to the INTERNAL LAW of the foreign law or a reference to the ENTIRETY of the foreign law [including its conflicts rules]. Aznar—the forum court should accept the referral of the issue and ultimately apply the internal law of the Philippines. What is the conflict law rule on Succession in US? According to a case. So far. In his will. 4. No legitime. REJECT – the court does not want the case to be sent back to us. AND GRACE. he bequeathed the bulk of his estate to his legit daughter while leaving a portion to a Filipino. AZNAR. Helen objected because her legitime is impaired. Hence it is couched in general terms. Rule in the case of Aznar that foreign law being referred to should be understood as the entire body of laws including the conflict of laws rule 3. 16. On the other hand. 10 RJ & ELI . You will realize that Article 16 makes reference to a foreign law which is the national law of the decedent. we have the case of Christensen v. Based on Sempio-Diy Book . In the US there is no system of legitime. FOREIGN COURT THEORY – simply do what the foreign court would do if confronted with the same problem (gaya-gaya. that law did not specify whether it refers to the internal law or the entire laws including the conflict law rules. But you will realize that 16 does not specify whether that law being referred to as the law of the decedent refers to the internal law of the state of which the decedent is a citizen or whether that law being referred to is the entire body of laws including its own conflict rules. Under phil. Purely internal or DOMESTIC LAW 2. Art. 16 refers to the NATIONAL LAW of the decedent. we refrain from applying national law if said law follows the domiciliary theory [in the end. CHARITY. Laws the internal law involving succession particularly in this case is about share of the illegitimate daughter.e. every person has the right to dispose of his estate in any manner as he wishes.
or an aeroplane which is missing. who may present an authentic copy of the same.] If it is born alive in accordance with Art. AND GRACE. English law [following domiciliary thoey] will refer to Philippine law. acknowledged by the father. the judge. OR MORE it is alive at the time it is completely delivered from the mother's womb. (184) Art. 11 RJ & ELI . 384. and has been missing for four years. 2 years only. When a person disappears from his domicile. (3) The relatives who may succeed by the law of intestacy. OR EXTRAORDINARY – if the fetus had an intra-uterine life of less than 7 mos.e. the power conferred on the agent has expired. discovers that the foreign court accepts the renvoi. Philippine law [following National theory] will refer to Chinese law. (185) CONFLICT RULES ON STATUS AND CAPACITY BIRTH determines PERSONALITY. UNIVERSITY OF SAN CARLOS – LAW TRANSCRIPTS c/o JIZZA. would still apply its own internal law. or evn if he had left an agent. (4) Those who may have over the property of the absentee some right subordinated to the condition of his death. (2) A person in the armed forces who has taken part in war. his whereabouts being unknown. BUT TAKE NOTE OF. This same rule shall be observed when under similar circumstances the power conferred by the absentee has expired. . The following shall be presumed dead for all purposes. it may be considered to begin at CONCEPTION. given donation. EXC: when real or personal property is involved [lex rei sitae] TITLE OF NOBILITY determined by NATIONAL LAW. EH 404. and without leaving an agent to administer his property. Based on Sempio-Diy Book . AGE OF MAJORITY determined by PERSONAL LAW. and justice are to be considered in determining the course of action with renvoi problems. Chinese law will then be ultimately applied. chinese citizen domiciled in the Philippines but died with properties in England. Governed by PERSONAL LAW Art. the foreign court may discover that Philippine law does not accept the remission.e. Two years having elapsed without any news about the absentee or since the receipt of the last news. 381. his absence may be declared.CONFLICT OF LAWS Midterm Reviewer DOUBLE RENVOI – when the local court. or a friend. etc. it should live for AT LEAST twenty-four hours after its complete delivery from the maternal womb. and five years in case the absentee has left a person in charge of the administration of his property. who has not been heard of for four years since the loss of the vessel or aeroplane. ORDINARY – if intra-uterine life of 7 MOS.LLB III. relative. This is then what our court will apply. may appoint a person to represent him in all that may be necessary. sitting as a Philippine court. at the instance of an interested party. TRANSMISSION – process of applying the law of a foreign state thru the law ofr a second foreign state. 41. BUT. Fairness. being the law of the deceased’s domicile.. i. (n) **Note: For Remarriage. ABSENCE status of a person who has disappeared from his domicile. CHARITY. But since the foreign law remits the case to Philippine law. 385. DEATH extinguishes personality [physical death is contemplated here]. including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage. BEGINNING OF PERSONALITY governed by PERSONAL LAW [Nationality or Domiciliary Theory]. equity. The following may ask for the declaration of absence: (1) The spouse present. (181a) Art. his whereabouts being unknown. a PRESUMPTION OF ABSENTEE’S DEATH REMARRIAGE 4 YRS of absence (ordinary) 2 YRS if disappearance is with danger of death** Declaration of Presumptive Death is necessary to remarry (FC). so the foreign court. without leaving an agent to administer his property. 391. (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. (2) The heirs instituted in a will. CAPACITY TO CONTRACT determined by PERSONAL LAW. . Subject to the following conditions: For purposes favorable to the fetus [i. in adopting the foreign court theory. ALL OTHER PURPOSES 7 YRS of absence EXCEPT SUCCESSION SUCCESSION 10 YRS of absence 5 YRS if absentee disappeared after the age of 75. Art.
among other things: a. All marriages solemnized outside the Philippines. Art. so if they’re naturalized must be renounced. (53a. 2. WHEN 2 FILIPINOS MARRY EACH OTHER ABROAD Art. in accordance with the laws in force in the country where they were solemnized. 55a) PAT: TRANSGENDERS: Theoretically. Status of children b. JUDICIAL JURISDICTION – power of the courts to decide questions or controversies concerning one’s status. or codes of morality of countries thereby leading to different laws in determining the validity of marriage as a contract. that they take each other as husband and wife in the presence of not less than two witnesses of legal age. Suppose a country recognizes this. and (3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration We follow LEX LOCI CELEBRATIONIS – valid there. it’s possible that some countries recognized sex transplant as a mode of changing gender. Exceptions as to recognition of foreign law: when it is contrary to the sound and established policy of the forum. Between Filipinos – VOID Between Foreigners who came to the country as husband and wife as a result of such a union – VALID. valid here! EXC: 1 or both did not have CAPACITY BIGAMOUS or POLYGAMOUS No CONSENT (Mistaken Identity) PSYCHOLOGICAL INCAPACITY INCESTUOUS Void by reason of PUBLIC POLICY Marriage by 2 Filipinos abroad may be conducted by a COUNSUL-GENERAL. and valid there as such. i. UNIVERSITY OF SAN CARLOS – LAW TRANSCRIPTS c/o JIZZA. 2 and 3 also applies to FOREIGNERS who get married in the Phils. shall also be valid in this country. Absence of any formal or essential requisite will render the marriage VOID AB INITIO.e. 35 (2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so.LLB III. BUT. EH 404. (2) A valid marriage license except in the cases provided for in Chapter 2 of this Title. To deny validity to marriages that do not conform to our idea or concept of marriage would create a very serious problem in. 36. 15 Status is governed by national law. WHEN 2 FOREIGNERS MARRY EACH OTHER ABROAD 12 RJ & ELI . except those prohibited under Articles 35 (1). (4). BUT an irregularity in the formal requisite shall not affect the validity of the marriage (only party liable for irregularity will be liable). **if STATELESS person – only an Affidavit stating capacity to marry (capacity is based on law of domicile). husband and wife according to their laws. 37 and 38. COMMON LAW MARRIAGES IN THE PHILS. who are we to say they are not husband and wife? The condition of whether married or not is a question of STATUS. Visited the Philippines. 26. AND GRACE. (5) and (6). *if one or both of the parties are FOREIGNERS – Certificate of Legal Capacity to Contract Marriage must be issued by the diplomatic or consular officials of her country in the Phils. cultures. and (2) Consent freely given in the presence of the solemnizing officer. Parental authority d. LEGISLATIVE JURISDICTION – power of personal law to govern one’s status wherever he goes. our Constitution does not allow titles of nobility. That’s you fallback position there. unless these essential requisites are present: (1) Legal capacity of the contracting parties who must be a male and a female. a man becoming woman. (17a) CONFLICT RULES ON MARRIAGE Arise due to the different public policies. our courts decide the status and capacity of a person [if it has jurisdiction or if it has the power to do so] BUT using his/her personal law [because of the jurisdiction of his personal law/legislative jurisdiction]. Property relations bet. EXC: Art. No marriage shall be valid. CONSUL or VICE-CONSUL (Consular official performs the duties of the civil registrar and the solemnizing officer). 3. (53a) Art. CHARITY. Based on Sempio-Diy Book . spouses and members of their family PHILIPPINE INTERNAL LAW ON VALIDITY OF MARRIAGES Art. Married to man. Rights of succession bet. The formal requisites of marriage are: (1) Authority of the solemnizing officer. Art. *but must not be contra bonus mores or universally considered incestuous. and under his law he is legally a woman.CONFLICT OF LAWS Midterm Reviewer Persons with titles may continue using them in our country. spouses c.
CONFLICT OF LAWS Midterm Reviewer We still apply LEX LOCI CELEBRATIONIS – BUT. AND GRACE. Personal Rights and Obligations of the Spouses (Personal Relations) purely personal to the spouses. Jointly responsible for support of the family d. To live together. c.LLB III. ANNULMENT AND DECLARATION OF NULLITY OF MARRIAGE PRELIMINARY MATTERS 13 RJ & ELI . Management of the household e. 3. UNIVERSITY OF SAN CARLOS – LAW TRANSCRIPTS c/o JIZZA. IF BOTH ACQUIRE NEW ONE BY THEIR COMMON ACT new national law will govern 2. *or those marriages highly immoral i. Avoid Prejudice to Creditors c. PROPERTY RELATIONS BOTH FILIPINOS Philippine Law. DIFFERENT NATIONALITIES (Both Foreigners) law of the husband.o. f. Aggrieved spouse may apply to the court for relief in case one spouse neglects his or her duties. our public policy would be violated (both as to the intrinsic and extrinsic). WHEN THERE IS ACQUISITION OF NEW NATIONALITY Apply the DOCTRINE OF IMMUTABILITY OF MATRIMONIAL REGIME Regardless of the change of nationality of the husband or the wife or both. bigamous or polygamous in Christian countries. EH 404. and render mutual help and support. WHEN THERE IS ACQUISITION OF NEW NATIONALITY 1. Property Relations law lays down rules and judicial sanctions. WHEN FILIPINO & FOREIGNER MARRY EACH OTHER ABROAD (Mixed Marriage Abroad) If the marriage is VOID AS TO ONE AND VALID AS TO THE OTHER VALID! EXCEPT: universally incestuous or highly immoral. serious. EXC: National Law of the husband violates the public policy of the forum or the national law of the wife happens to be the law of the forum. **with respect to the EXTRINSIC VALIDITY of contracts affecting real property LEX SITUS governs. PERSONAL RELATIONS 1.n. WHEN FILIPINO & FOREIGNER MARRY EACH OTHER IN THE PHILS. SAME NATIONALITIES (Other than Filipino) Depends if they are governed by the Nationality Theory or Domiciliary Theory. PERSONAL RIGHTS AND DUTIES OF HUSBAND AND WIFE UNDER PHILIPPINE LAW a. the original property regime that prevailed at the start of their marriage prevails. CHARITY. Marital Peace b. For spouses to protect themselves from each other **Immutability of Property Regime is different from Immutability of the law governing said regime. and fidelity. etc. Reasons for the Rule: a. DIFFERENT NATIONALITIES (Filipino and Foreigner) *Filipina who Marries a Foreigner – she shall retain her Filipino citizenship unless by her acts she is deemed to have renounced her citizenship this means she is still protected by her national law (PHILIPPINE LAW) and their property relations will be governed by it as well. b. 26 INCESTUOS marriages are the only EXCEPTION. (Mixed Marriage Here) Our LAW should be followed otherwise. To exercise a legitimate profession without consent of the other (EXC when objections are raised on valid. IF HUSBAND ALONE CHANGES last common nationality of the spouses (to avoid prejudice to the wife who would suffer a change in her rights without any free exercise of choice on her part). it adheres to Nationality or Domiciliary Theory).e. we do not apply ALL the exceptions in Art. To fix together the family domicile (in case of disagreement the court shall decide). Based on Sempio-Diy Book . SPOUSES OF DIFFERENT NATIONALITIES Depends on the national law of the husband (w. SAME NATIONALITIES (Both Foreigners) Depends if they are governed by the Nationality Theory or the Domiciliary Theory. 2. respect. *Filipina who Marries a Foreigner – she shall retain her Filipino citizenship unless by her acts she is deemed to have renounced her citizenship this means she is still protected by her national law (Philippine Law) and their personal relations will be governed by it. and moral grounds). MARRIAGE AS A STATUS 2 ASPECTS 1. observe mutual love. BOTH FILIPINOS Philippine Law (Nationality Theory) 2.
2. Divorce obtained by Filipino citizens after they have been naturalized is recognized. 147-148). after the ANNULMENT Marriage is defective. This is meant to avoid the absurd situation where a Filipino is still married to his or her alien spouse although the latter is no longer married to the former and may already have another spouse. par. EXC: that which is validly obtained by a Foreigner from his or her Filipino spouse capacitating him or her to remarry.LLB III. Marriage can still be impugned even after the death of the spouses. Marriage attacked attacked. Grounds must exist at the time or before the celebration of the marriage. VOIDABLE MARRIAGE Can be validated either by free cohabitation or prescription. laws and our laws do not allow divorce. 26. Grounds arise marriage. LEGAL SEPARATION – only separation from bed and board but the parties remain married. As to FOREIGNERS who marry abroad exceptions are: a. Marriage may be attacked directly or collaterally. namely: a. to certain execptions). Grounds for annulment are those given by the lex loci celebrationis (subj. The law that determines validity should also be the law that determines invalidity. 26. LEGAL SEPARATION OR RELATIVE DIVORCE ABSOLUTE DIVORCE – dissolves the marriage and the parties can marry again. CONFLICT RULES 14 RJ & ELI .CONFLICT OF LAWS Midterm Reviewer ANNULMENT – remedy if the marriage is voidable or annullable. INCESTUOUS f. **BUT. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry. UNIVERSITY OF SAN CARLOS – LAW TRANSCRIPTS c/o JIZZA. DECLARATION OF NULLITY – remedy if the marriage is void ab initio. 1 or both did not have CAPACITY b.. the Filipino spouse shall have capacity to remarry under Philippine law. PSYCHOLOGICAL INCAPACITY E. No CONSENT (Mistaken Identity) d. Same property regime as in a valid marriage. The only property relationship between the parties is a co-ownership (Art. When 2 FILIPINOS marry abroad the grounds are the exceptions to in Art. Dissent of Sempio-Diy: Divorce obtained by Filipinos who have been naturalized are recognized not under Art. Art. par. Otherwise. Void by reason of PUBLIC POLICY 2. 119). In the Phils. Based on Sempio-Diy Book . BIGAMOUS or POLYGAMOUS c. a Decree of DIVORCE obtained abroad by alien spouses is recognized IF VALID UNDER THEIR NATIONAL LAW. *JUDICIAL DECLARATION OF NULLITY MUST BE SOUGHT The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void (in other words. Children are illegitimate (EXC those children of void marriages under Art. EXCEPTIONS: 1. 36 and 53). Children are legitimate if conceived before the decree of annulment. Universally incestuous marriages ABSOLUTE DIVORCE GR: Family Code does not allow DIVORCE. 2 which should apply only to mixed marriages but by applying the rules on Conflict of Laws (p. Parties are still married to each other and cannot remarry. the subsequent marriage will be considered BIGAMOUS and VOID! CONFLICT RULES GR: The LEX LOCI CELEBRATIONIS is applied. EH 404. you cannot assume!). Grounds are those given by the national law or the domiciliary law of the parties concerned (question is one of status). AND GRACE. CHARITY. 26. Highly immoral marriages b. LEGAL SEPARATION Marriage is not defective. *This does not apply when the divorce was obtained abroad by a Filipino spouse because they are governed by Phil. Marriage is set aside and the parties can marry again. cannot be collaterally VOID MARRIAGE Cannot be convalidated. Marriage can no longer be impugned after the death of the spouses.
we do not assume jurisdiction unless the national law of the parties is willing to recognize its jurisdiction. 36. By virtue of Art. General Rule: valid there abroad. 26(1) applies in this case because the parties are Filipinos. Both parties are aliens and solemnized abroad. if valid at the place of solemnization. whether in the Philippines or abroad. (4). the term "child" shall include a child by nature or by adoption. 37 and 38. What is required is for the applicant should submit to LCR a duly authenticated certificate of legal capacity to contract marriage issued by their respective consular office. 21 of the FC. 56. (2) Where the aggrieved party has consented to the commission of the offense or act complained of. And status is governed by nationality under Art. (5) Where there is collusion between the parties to obtain decree of legal separation. 15. (4). (2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation. 55. 35(1). SITUATION 2. 2. (3) Attempt of respondent to corrupt or induce the petitioner. or a child of the petitioner. Marriage between foreigners celebrated abroad. brother-sister). or (6) Where the prescription. 37. CHARITY. It is valid if it complies with Philippine laws but their capacity to contract marriage is determine by their own national law pursuant to Art. JURISDICTION In case of aliens. even if pardoned. (4) Final judgment sentencing the respondent to imprisonment of more than six years. 26. 37 incestuous (parent-child. 36 psychological incapacity Art. a common child. (5) and (6). valid in the Philippines except: Art. The exceptions provided in Art. to engage in prostitution. (8) Sexual infidelity or perversion. 26 if valid at the place of solemnization. a common child. whether she is the guilty party or not. Art. Marriage between foreigners in the Philippines. Foreigners may ask for legal separation here even if they did not get married in this country what is important is jurisdiction over both parties (and the procedural requirements are complied with). or connivance in such corruption or inducement. (3) Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation. (9a) Art. in accordance with the laws in force in the country where they were solemnized. SITUATION 3. Art. Exception: if marriage is considered as universally incestuous (parent-child. Wife cannot drop the name of the husband. Application of Art. or a child of the petitioner. (4). and valid there as such. This is enough for the LCR to issue the marriage license. DIFFERENT NATIONALITIES personal law of the husband and the wife are both available (Hague Convention). 26(1) does not apply insofar as marriages between foreigners abroad. 26 depend on various circumstances. (4) Where both parties have given ground for legal separation. (5) and (6) are void even if valid in the country where the marriage was solemnized. (6) Lesbianism or homosexuality of the respondent. The petition for legal separation shall be denied on any of the following grounds: (1) Where the aggrieved party has condoned the offense or act complained of. (9) Attempt by the respondent against the life of the petitioner. (5) Drug addiction or habitual alcoholism of the respondent. Based on Sempio-Diy Book . he can now contract marriage anywhere in the Philippines. Why? 35. 38 void marriages by reason of public policy The exceptions provided under Art. UNIVERSITY OF SAN CARLOS – LAW TRANSCRIPTS c/o JIZZA. valid in the Philippines. A petition for legal separation may be filed on any of the following grounds: (1) Repeated physical violence or grossly abusive conduct directed against the petitioner. or (10) Abandonment of petitioner by respondent without justifiable cause for more than one year.LLB III. 38 all pertains to status. Marriage between Filipinos abroad. *it is enough that the petitioner foreigner has resided in the Phils. brother-sister) Art. PAT: Our Conflict of Law rules in marriage is spell out in Art.CONFLICT OF LAWS Midterm Reviewer 1. SITUATION 1. EH 404. For purposes of this Article. SAME NATIONALITY grounds are those given by their personal law (whether national or domiciliary). shall also be valid in this country except those prohibited under Article 35(1). once issued. Art. 35(1). (5) and (6) Cases falling under Art. for 6 mos. It contemplates different situations. 26 of FC all marriages solemnized outside the Philippines. Valid if it should comply with Philippines laws on marriage but their capacity is determined by their own national law. AND GRACE. (7) Contracting by the respondent of a subsequent bigamous marriage. it should be valid in the Philippines. (100a) action is barred by Prescriptive period is 5 years from the time of the occurrence of the cause. 36. 15 RJ & ELI .
Mixed marriage but solemnized in the Philippines. this is only a consuelo de bobo. Result here is a hybrid marriage. What must be proved in the Petition for Declaratory Relief proceedings? Orbecido Case. If absolute. (3) that the DIVORCE DECREE OBTAINED ABROAD CAPACITATES THE FOREIGN SPOUSE TO REMARRY. Opinion of Paras: In a situation like this. everything should be governed by Philippine laws. Mixed marriage between a Filipino and a foreigner solemnized abroad. Based on Sempio-Diy Book . UNIVERSITY OF SAN CARLOS – LAW TRANSCRIPTS c/o JIZZA. (2) that the DIVORCE IS IN ACCORDANCE WITH LAWS ALLOWING IT. 26(2) Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry. No specific provision on this issue but there’s legal sense and logic in the opinion of Paras. VOID insofar as the Filipino. should be considered valid to be consistent with our policy that every doubt should be resolved in favor of validity marriage. We are pro-marriage. the Filipino spouse is likewise have capacity to remarry under the Philippine law.LLB III. (see also Recio Case) 16 RJ & ELI . although as a matter of policy we do not recognize divorce. relative/restricted does not. SC said the requirement of mixed marriage is determined not at the time of marriage but at the time the divorce decree is obtained. 25 of Rule 132 on Rules of Evidence. Still required the filing of a petition for declaratory relief for him/her to remarry. the law in effect acknowledges the validity of divorce. accompanied by a certification of the consular office that the custodian has the legal custody of the document. To promote fairness on the part of Filipino spouse. IMPORTANT (4) Recio v. Art. contracting a subsequent marriage does not come easy. SITUATION 6. It’s relevant to prove the kind of divorce obtained.CONFLICT OF LAWS Midterm Reviewer SITUATION 4. V. Absolute capacitates one to remarry. Art. this is possible. capacitates the foreign spouse to remarry. Theoretically. take note our courts do not take judicial notice. ORBECIDO SC made this provision applicable to a situation where the marriage is between two Filipinos but subsequently one of them became a citizen of a foreign country and while being a foreign national. Take note that this capacity to remarry is not automatic. Recio. While the law recognizes the capacity of the Filipino spouse to remarry. This is now the dilemma. It doesn’t matter that if at the time of marriage both are Filipinos so long at the time the divorce decree is obtained one is already a foreigner. Rule: it is valid if it complies with Philippine laws on marriage but the legal capacity of the foreigner is determined by his own national law. How? Sec. Rule: if valid there. 26(2) which expressly afford the Filipino spouse to remarry as well. these foreign laws should be prove as a fact. CHARITY. valid here but if that marriage falls under any of the exceptions enumerated in Art 26(1). No provision in the FC or any existing law which specifically addresses this concerned. The law still wants her/him to engage the services of a lawyer which comes with handsome fees and go to the rigors of trial with the risk of case be dismissed before he/she can remarry. A certified true copy of the divorce decree. Divorce is of two kinds: absolute and relative. the marriage is VOID insofar as the Filipino spouse is concerned. Authenticated copy of divorce decree should be submitted in court. EH 404. VALID insofar as the foreigner. SITUATION 5. It is not enough to prove the law of the place where the divorce decree was obtained. 26(2) is the only positive law in our jurisdiction which clearly acknowledges the validity of divorce insofar as Filipino is concerned by declaring that the Filipino spouse is likewise capacitated to remarry. But insofar as the Filipino spouse is concerned. Rationale: To remedy the unfair situation where a Filipino spouse remains married to an alien spouse who is no longer married to the Filipino spouse. SC said the Filipino spouse should prove: (1) the EXISTENCE OF THE DIVORCE DECREE OBTAINED ABROAD. Question: What happens if a foreign spouse who is married to a Filipino obtains a divorce decree abroad? This is addressed in Art. 24. Marriage between a Filipino and a foreigner in the Philippines. obtained a divorce decree. REPUBLIC. certified by the custodian. but just as important it is to prove that the divorce decree is valid in accordance with the national law of the party who obtained the divorce. we should consider the marriage if valid there and falls under any of the exceptions insofar as Filipino spouse is concerned. It is possible that an alien spouse is a citizen of another country and obtained the divorce in another country. Why? There’s still something to do. A divorce decree obtained abroad by an alien may be recognized valid here IF VALID IN ACCORDANCE WITH NATIONAL LAW OF THE ANY SPOUSE. Obviously. AND GRACE. Marriage between Filipinos in the Philippines. The laws of the place where the divorce decree was obtained should be proved.
21 if a foreigner wants to marry here. If ILLEGITIMATE 17 RJ & ELI . Philippine law is the basis for his legal capacity to marry. it would be absurd when there is no more marriage to speak of yet he remains married. If the applicant is a stateless individual. Alien Spouse SC said. UNIVERSITY OF SAN CARLOS – LAW TRANSCRIPTS c/o JIZZA. If you come here in the Philippines to apply for a marriage license. Philippines is deemed to be his temporary domicile. conjugal partnership. AND GRACE. But for prosecution for bigamy. Under parental authority of the mother Support Legitime (equal to ½ of the legitimate child) DETERMINING RIGHTS AND DUTIES BETWEEN PARENT AND CHILD If LEGITIMATE PARENTS HAVE SAME NATIONALITIES their common personal law. BUT REMARRIES If the Filipino spouse subsequently contracts marriage without declaratory relief I don’t think there is bigamy there since we recognized divorce decree insofar as the alien spouse is concerned. the only purpose of declaratory relief is for purposes of remarriage. CHARITY. what are the requirements? Art. one who has no country. *children born of void marriages under Art. it cannot be national law because he is not a national of any country. Based on Sempio-Diy Book . Otherwise. What is now the status? the only purpose of declaratory relief is to remarry but to avoid absurd situation when there is a hiatus between the finality of the divorce decree and the finality of declaratory relief petition. the Filipino spouse before he/she can remarry has to file petition for declaratory relief. then divorced – the moment the Filipino spouse becomes an alien. Obviously. I doubt it. This certificate of legal capacity is prima facie evidence of his legal capacity to contract marriage. I inclined to believe that the status should severed at the time the divorce decree was obtained. High seas. Rationale: involves property so Lex Rei Sitae CONFLICT RULES ON STATUS OF CHILDREN LEGITIMACY IF THE PARENTS HAVE THE SAME NATIONALITY common national law of the parents. Again. somewhere. Principle in international law. Only certificate of legal capacity if he/she intends to remarry here. etc. brothers and sisters Entitled to legitime and other successional rights. A STATELESS PERSON in the high seas. you need to go to the LCR. one who is stateless (not a citizen of any country) but it is impossible for one to have no domicile. absolute community. ILLEGITIMATE Use surname of the mother (or the father if recognized). STATUS: DIVORCED WITHOUT D. naturalized in another country. but in reality it’s not possible for one to have no domicile for purposes of marriage. the only requirement is an affidavit setting forth the circumstances of his legal capacity. The alien spouse does not have to prove the divorce decree and it validity. the requirement for marriage license is the certificate of legal capacity issued by his consular office. PROPERTY RELATIONS When at least one of the spouse is a Filipino. EH 404. all he needs is to submit certificate of legal capacity issued by his/her consular official.. ILLEGITIMATE CHILDREN children conceived and born outside a valid marriage xxx unless otherwise provided in the Code. Sometime. **children conceived as a result of artificial insemination are considered legitimate.CONFLICT OF LAWS Midterm Reviewer AS TO REQUIREMENT TO BE ABLE TO REMARRY Filipino Spouse By virtue of Obrecido. for an alien spouse to remarry in the Philippines. that’s temporary domicile. Domicile is of two kinds: permanent and temporary. Philippine laws apply on matters involving property relations.LLB III. ascendants. LEGITIMATE CHILDREN conceived or born during the marriage of the parents. it’s possible for a person to have no country. he ceased to be governed by Philippine laws. LEGITIMATE/D Bear surname of the father and the mother To receive support from their parents. Exceptions: if both spouses are aliens extrinsic validity of contracts involving properties located outside the Philippines whether executed abroad or in the Philippines. The question there is by whose law should the legal capacity be determined? Legal capacity is a matter of law. DIFFERENT NATIONALITIES personal law of the father. Filipino. 36 (psychological incapacity) and Art. IF DIFFERENT NATIONALITIES national law of the father. theoretically. 53 (born before parent delivers the presumptive legitime). unlike the case of a Filipino spouse.R.
Provided: his/her country has diplomatic relations with the Philippines he/she has been living in the Philippines for at least three (3) continuous years prior to the filing of the application and maintains such residence until the adoption decree is entered he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter. The effects of legitimation shall retroact to the time of the child's birth. were not disqualified by any impediment to marry each other may be legitimated. one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse. of good moral character. Adopter is the spouse of the adoptee's parent. LEGITIMATION Legitimization a process whereby children who in fact were born in lawful wedlock and should therefore be ordinarily considered illegitimate children are regarded as legitimate. adopter is the biological parent of the adoptee ii. if the child does not reside in the country of his citizenship personal law of the adopter OR personal law of the child and the adopter concurrently. the national law of the father governs. or ii. **this is the same as in a legitimate child because. Parental authority 3. RA 8552 (this is the one discussed by Sempio-Diy) a. DOCTRINE OF IMMUTABILITY OF STATUS Status of a child is not affected by a subsequent change of nationality of the parents. RA 8552 – Domestic Adoption LAW THAT DETERMINES RELATIONSHIP CREATED The child’s personal law (to protect his well-being). Successional rights of the adopted child 2. FILIPINO CITIZEN of legal age. emotionally and psychologically capable of caring for children. Art. after the parents’ change of nationality. or iii. 177. That the requirements on residency and certification of the alien's qualification to adopt in his/her country may be waived for the following: i. CHARITY. *in countries following the domiciliary theory. FC). The common national law of the parents governs.LLB III. 180. Use of the surname of the adopter WHO MAY ADOPT Sec. be governed by the new national law of the parents. Provided. . (269a) Determined by the same relationship of adoption. DOCTRINE OF IMMUTABILITY OF STATUS applies. BUT. Only children conceived and born outside of wedlock of parents who. a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity. (273a) ADOPTION Current Applicable Laws 1. b. GUARDIAN with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities. despite the change of citizenship/personal laws of the parents/father status as legitimated child remains. c. 7. BUT. ALIEN possessing the same qualifications as above stated for Filipino nationals. personal law of the father applies if the child is subsequently recognized. IF the parents have different nationalities.CONFLICT OF LAWS Midterm Reviewer Personal law of the MOTHER. law that created the LEGAL EFFECTS OF ADOPTION (GENERAL) 1. at the time of the conception of the former. AND GRACE. and who is in a position to support and care for his/her children in keeping with the means of the family. EH 404. in possession of full civil capacity and legal rights. 179. the law of the domicile of the parents govern or the law of the domicile of the father. one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse. Therefore. Based on Sempio-Diy Book . UNIVERSITY OF SAN CARLOS – LAW TRANSCRIPTS c/o JIZZA. Further. RA 8043 – Inter-Country Adoption 2. the rights and duties of parent and child would. has not been convicted of any crime involving moral turpitude. *sixteen (16) year difference between the age of the adopter and adoptee may be waived when: i. LAW THAT DETERMINES THE LEGAL EFFECTS 18 RJ & ELI . . *Legitimated children have the same rights as legitimate children (Art. REQUISITES IN ORDER FOR A CHILD TO BE LEGITIMATED: Art. BUT. at least sixteen (16) years older than the adoptee.
c. For HOLOGRAPHIC Wills only requirements are: it must be entirely written. 48 of Rule 39 we can recognize the foreign decree of adoption provided the foreign court had jurisdiction to render the said decree. lex nationalii or lex loci celebrationis (Phil. 2. The adopted child shall be considered for all intents and purposes to be the legitimate child of the adopter/s (same rights as legitimate child). Collusion c. 2. RECOGNITION OF FOREIGN DECREE OF ADOPTION Under Sec.). All legal ties between the biological parent/s and the adopted child are severed and the same shall be vested in the adopter/s (EXC where the biological parent is the spouse of the adopter). Want of notice b. 3. Philippines applies lex nationalii. If the REVOCATION is done outside the Philippines by a person who is domiciled here VALID if made in accordance with our law or the place where the revocation was made (lex loci actus). dated. Mere registration of the child in the civil registry as the child of the adopter is not a valid adoption. *JOINT WILLS Filipinos cannot make joint wills whether here or abroad notwithstanding lex loci celebrationis. EXC: a. (n) CONFLICT RULES ON WILLS. INTRINSIC VALIDITY GR: Determined by LEX NATIONALII or LEX DOMICILII. Joint wills made by an alien and a Filipino are valid only as to the alien if his lex nationalii. When one spouse seeks to adopt his/her own illegitimate child b. B. Two governing laws: 19 RJ & ELI . Where spouses are legally separated other spouse can adopt alone without the consent of the other. SPLIT OR SCISSION SYSTEM – succession to real property is governed by lex situs while succession to movable or personal property is governed by law of the domicile of the deceased at the time of his death. lex loci celebrationis. EXTRINSIC VALIDITY a. d. lex domicilii. AND GRACE. law). UNITARY OR SINGLE SYSTEM – only one law determines transmission of real as well as personal properties. and signed by the hand of the testator himself (no other req. Also there should not have been: a. or according to the law of the place in which the testator had his domicile at the time. FILIPINO Abroad he may comply with the formalities of Philippine law or the lex loci celebrationis. is valid when it is done according to the law of the place where the will was made.LLB III. SUCCESSION. Clear mistake of law and fact VALIDITY OF WILLS 1. Mere agreement of adoption is not a valid adoption COURT DECREE is required. PAT: Revocation of Wills – depends where it was revoked: Revocation is made outside by someone who is not domicile of the Philippines. and if the revocation takes place in this country. lex domicilii. Extrinsic Fraud d. UNIVERSITY OF SAN CARLOS – LAW TRANSCRIPTS c/o JIZZA. ALIEN in the Phils. when it is in accordance with the provisions of this Code. Capacity and right of the adopter is determined by the law enforced at the time petition is filed. by a person who does not have his domicile in this country. we apply lex nationalii. Based on Sempio-Diy Book . Joint wills made by aliens in the Philippines are void as a matter of public policy. 829. 2. lex domicilii.. Adopter/s and the adopted child shall have reciprocal rights of succession. and ADMINISTRATION OF THE ESTATE OF DECEASED PERSONS 2 THEORIES IN DETERMINING PROPER TRANSMISSION OF SUCCESSIONAL RIGHTS LAW FOR 1. or lex loci celebrationis allows it. CHARITY. ALIEN Abroad lex nationalii. In the Phils. if valid according to lex nationalii. A revocation done outside the Philippines. When one spouse seeks to adopt the illegitimate child of the other c. Joint wills made by aliens abroad shall be considered valid in the Phils. or lex loci celebrationis. INTESTATE SUCCESSION Law of the country where one is a citizen or law of the country where he is domiciled. Adoption proceedings are IN REM (Publication is required). EH 404.CONFLICT OF LAWS Midterm Reviewer RA 8552 requires HUSBAND and WIFE to adopt jointly. LEGAL EFFECTS OF ADOPTION (UNDER PHILIPPINE LAW) 1. REVOCATION OF WILLS Art.
d. Laws of the foreign country on procedure and allowance of wills were followed. CHARITY. Every effort should be made to prevent intestacy. If the will admits of different interpretations that which will make the disposition operative shall be preferred. Procedural in nature therefore lex fori governs. the rule is you don’t need to prove all over again the genuineness and due execution of the will. REVOCATION DONE IN THE PHILIPPINES – should be done in accordance with Philippine laws INTERPRETATION OF WILLS a. b. In proving the genuineness and due execution of the will. No need to bring in witnesses from abroad and testify before the court where the re-probate is pending. The will had been admitted to probate in said country d. in accordance with out procedural law. Note: DOMICILE not citizen. etc. DOMICILE AT THE TIME OF REVOCATION. or if made in accordance with the law of the domicile at the time of revocation. EXECUTOR appointed in a will and qualified by the court to be in charge of the distribution. AND GRACE. Only a summary proceeding. He can make revoke a will abroad. 20 RJ & ELI . Only requirement is to submit to the Philippine court a copy of the judgment of the court approving the will and a copy of the will itself duly authenticated by the consular office in the place where these documents are kept. a. Evidence necessary for the probate of will probated outside the Phils. PAT: Question: Will probated abroad maybe re-probated here in the Philippines. BUT. The facts sought to be established in the probate proceeding is the will genuine and duly executed by the testator. EH 404. *Contemporaneous and subsequent acts of the testator may also be considered. c. law of the domicile or law of the place of the person who revokes the will is domiciled at the time of revocation. and recorded by the proper court in the Phils. How do you determine the validity of that revocation? Two governing laws: PHILIPPINE LAW – the one who revokes the will is a domicile of the Philippines. Wills proved and allowed in a foreign country according to the laws of such country may be allowed. A tedious process because you have to prove all the formal requirements and the fact that it was genuinely executed. that he executed the will on his own free will free form any vices of consent. How to re-probate? Probate proceedings concern with genuineness and due execution of the will. Because a person may change his domicile form time to time. The foreign tribunal is a probate court. Literal meaning shall control if the terms are clear and unambiguous. N.B. In case of a will already probated abroad and brought to the Philippines for re-probate. Either of these two laws. ADMINISTRATOR appointed by the court to take charge of the distribution (there is no will). PROBATE Probate process of providing before a competent court the: Due execution of a will That testator was possessed of testamentary capacity The approval by said court of the will Allowance/disallowance essentially procedural in nature law of the forum applies. or if it complies or observes the LAWS OF THE PLACE WHERE THE REVOCATION WAS MADE. e.LLB III. Revocation made outside of the Philippines by a person who is a domicile in the Philippines. He may be a foreigner. the payment of the debts of the estate and the actual distribution of the residue to the heirs. Due execution of the will in accordance with foreign law. UNIVERSITY OF SAN CARLOS – LAW TRANSCRIPTS c/o JIZZA. Testator had his domicile in the foreign country where the will was probated c. Based on Sempio-Diy Book .CONFLICT OF LAWS Midterm Reviewer Revocation is valid if it was made in accordance with the law of the place where the will was executed. filed. b. requirement you present witnesses to establish that the testator is of sound and disposing mind at the time the execution. it still has to be REPROBATED in the Phils. revocation done outside by a person domiciled in the Philippines is valid. no need to re-try it all over unlike in a first probate where proceeding is extensive ADMINISTRATION OF ESTATE OF DECEASED PERSONS ADMINISTRATION the process of determining and realizing the assets of a deceased person. If testator’s intention cannot be ascertained by the preceding rules ambiguous words are to be interpreted in accordance with the law which was most probably in the mind of testator when he used those words and with which he is presumed to be most familiar.
d. *the domiciliary administrator has no power over and is not entitled to the possession of properties of the deceased in another country which must be delivered to the ancillary administrator of the deceased’s estate in that country to be administered by the latter. Unlike in ordinary contract where each component is governed by different rules. GARCIA PAT: The rule is LEX RAE SITAE---the law of the place where the property is located. The rights. Based on Sempio-Diy Book . h. These matters may include the following: 21 RJ & ELI . While these may involve transfer of ownership. to what extent? LAUREL VS. f. CONFLICT RULES ON PROPERTY Art.LLB III. or Lex loci intentionis The main contract being the rights and obligations of the parties. b. A typical example of this case is a contract of design. the State shall have the right to consider his properties as bona vacantia and seize all property of the deceased lying within its borders. Tibon is an architect. *due to the growing complexity and variety of personal property no longer making them immediately connected with the person of the owner. It involves transfer of ownership from the decedent to the heir. g. UNIVERSITY OF SAN CARLOS – LAW TRANSCRIPTS c/o JIZZA. PROPERTY IS INVOLVED IN SUCCESSION Succession is a mode of acquisition of ownership. THE PROPERTY IS ONLY INCIDENTAL TO THE MAIN CONTRACT. all three components of a contract are governed by lex rae sitae. i. AND GRACE. If the contract partakes of this nature where the property is only incidental to the main contract. PRINCIPAL DOMICILIAR ADMINISTRATION – administration granted in the country of the deceased’s last domicile. you don’t apply lex rae sitae but the law on ordinary contract. Disposition. Example Mr. j. CHARITY.CONFLICT OF LAWS Midterm Reviewer *Appointed by the court where the deceased was domiciled at the time of his death or where his properties are found. This is a contract which involves property but if you look at it. title to property. etc. does not apply in an ordinary contract although that ordinary contract may involve a property incidentally. LIMITATIONS: 1. effects of ownership.) EXC (when lex situs does not apply): SUCCESSION – national law of the decedent is followed. all aspects pertaining to property are governed by lex rae sitae. In other words. 2. LEX SITUS AS TO REAL PROPERTY Covers the extrinsic and intrinsic validity of transactions over real property (alienations. ANCILLARY ADMINISTRATION – administration in other countries where the deceased also left properties. whether intestate or testamentary succession because under second paragraph of Article 16 [National Law of the decedent]. the factual situation now is on succession. e. it’s an ordinary contract of service involving the services of Mr. Tibon offers to Miss Corollo as a consideration for future marriage. mortgages. *it may also mean that a State is considered as the last heir of the deceased person and therefore succeeds to his properties as such. lex rae sitae. But the question is. CADUCIARY RIGHTS in cases where the deceased left no heirs. CONTRACTS – proper law of the contract is followed: Lex loci voluntatis. Strictly. transfers. as pointed out earlier. 15. a. LEX REI SITAE/LEX SITUS is therefore adopted for both real property and even personal property. Now. and duties of the executor or administrator are coextensive with the territorial jurisdiction of the court that qualified or appointed him. EH 404. c. Tibon. if it involves personal or real property. this is not however governed by lex rae sitae because the factual situation now is no longer a matter of property. powers. conveyance or encumbrance of property Forms and solemnities of contracts involving properties their conveyance. Real property as well as personal property is subject to the law of the country where it is situated. capacity of the parties. His expertise is engaged by Miss Corollo to design a multi-million residential house that Mr. The presence of the property there is only incidental. encumbrance disposition Ownership Co-ownership Lease Mortgage Registration Easement Prescription Capacity of the contracting parties In other words.
It’s not even relevant for purposes of resolving the issue of whether or not the property may be disposed. 2. AND GRACE. For those who advocated for the disposition of Roponggi argued that it’s not proper to invoke Article 420 of the Civil Code because the property is located in Japan and therefore it is governed by the law of Japan although they did not prove the exact law of Japan for that matter but they said that Japan law allows disposition of the property. (For intangible and movables. beyond appropriation by any individual even the government. this principle of lex rae sitae applies only when there is issue as to the title of the property involved. Problem arises when the movable is mobile or usually in motion. GOODS IN TRANSIT 1. Now the issue of whether or not the property may be sold is obviously an issue which pertains to the intrinsic aspect of the contract whether the subject matter may be the subject of a sale transaction. E. EH 404. you have the book of Sempio-Diy. Instead. CHARITY.LLB III. all aspects---conveyance. There are no conflicting claims over the ownership of the property. FRANCHISES Law of the STATE GRANTING THE FRANCHISE. formality. according to the Supreme Court. Liability for LOSS – DESTINATION. I have serious reservation on this ruling because if you read the literature on conflict of laws. INTANGIBLE PERSONAL PROPERTIES A. While lex rae sitae provides that real or personal property is governed by the law of the place where they are situated. CONSTRUCTIVE SITUS is therefore given to these movables. HELD: The Supreme Court said there was no conflict of laws in this case. GOODWILL Law of the place WHERE THE BUSINESS IS CARRIED ON. VESSELS 3. Law of the Country or Place of Registry – private or commercial vessel. intrinsic aspect. Between Parties – PROPER LAW OF THE CONTRACT. CREDITS Involuntary Transfer/Assignment of Debt – place where the debtor may be served with summons (usually his domicile). all these matters are governed by lex rae sitae. In this case of Roponggi. SHARES OF STOCK Corporation + Another Person – law of the place of INCORPORATION. Validity and Effect of Seizure – place where the goods were seized. by way of damage that Japan caused during the World War. encumbrance. you look at all the literatures of conflict of laws. Transferability – law at the TIME of transfer. it’s beyond the commerce of man. is one of the matters which are governed by lex rae sitae. *if vessel is temporarily docked at a foreign port – said port is considered its temporary situs. B. NEGOTIABLE INSTRUMENTS Negotiability – LAW GOVERNING THE RIGHTS EMBODIED IN THE INSTRUMENT. all of them are saying that all aspects---the conveyance. all these. you have the Salonga. For the Supreme Court to say that the lex rae sitae does not apply because the problem does not involve an issue of title over the property. there is no issue at all insofar as the title of the property because all along all parties to the case are one that the property belongs to the government of the Philippines. With this the Supreme Court said you don’t apply lex rae sitae. Law of the Flag – if a public vessel. 4. C. see rules below from SempioDy – discussed in passing only). 22 RJ & ELI . or negotiation. capacity of the parties. forms and solemnities. the capacity of the contracting parties. I really have a serious reservation with that ruling because as I said. according to the writers. If you look at the decision it would appear that lex rae sitae is limited only in a situation where the ownership of the property is disputed. Based on Sempio-Diy Book . lex rae sitae does not only cover a situation where there is a dispute over title of a property involved. This was opposed and one of the arguments put forward by those who oppose the disposition of the Roponggi property was that Roponggi property is a property of public dominion defined under Article 420 of the Civil Code as a property intended for some public service. Disposition or Alienation – proper law of contract between the parties. LEX SITUS AS TO PERSONAL PROPERTY There is no problem when the movable is tangible and has a fixed situs. Or the issue on whether or not there is authority to sell that relates to capacity of the contracting parties which. UNIVERSITY OF SAN CARLOS – LAW TRANSCRIPTS c/o JIZZA. delivery. you have the Agpalo. 3. D. And therefore being a property of public dominion. Voluntary – proper law of the contract.CONFLICT OF LAWS Midterm Reviewer QF: Involves the planned sale of the Roponggi property in Japan which the Philippine government acquired from Japan by virtue of a certain treaty because of the war there was that Reparation Agreement where the government of Japan conveyed to the Philippines.
insofar as the extrinsic aspect of a contract is concerned. treaty or reciprocal law. according to RA 8293 Section 3. By the way the extrinsic aspect of contracts refers to forms and solemnities---only the extrinsic. is presumed to have been entered into in the place where the offer was made. Based on Sempio-Diy Book . So that’s the last stage of the contract.Any person who is a national or who is domiciled or has a real and effective industrial establishment in a country which is a party to any convention. has its limitation. whether a contract is in writing. in such a case. c. the law of that place is the governing law. wills and other public instruments shall be governed by the law of the place where these contracts are executed. that is the last step that perfects the contract. whether the contract requires instrumental witnesses and if so. an important aspect of the contract took place in one state and the other important aspect or component of the contract took place in another state as when the offer was made in one state.a contract may undergo several stages. CHARITY. When place of execution is merely casual/incidental apply MOST SIGNIFICANT RELATIONSHIP (the law of the place with the MSR to the transaction). for purposes of lex loci celebrationis. to which the Philippines is also a party. or property in consequence of the general public patronage and encouragement that it receives from its customers.CONFLICT OF LAWS Midterm Reviewer *Goodwill – the patronage of any established trade or business. UNIVERSITY OF SAN CARLOS – LAW TRANSCRIPTS c/o JIZZA. the acceptance of the offer was made in another state. AND GRACE. how many instrumental witnesses are required. in addition to the rights to which any owner of an intellectual property right is otherwise entitled by this Act. So in this case. the place where the offer was made is deemed to be the place of execution. the moment the acceptance is known by the offeror. the acceptance shall not be binding unless it is communicated to the offeror in which case the contract is presumed to have been perfected in the place where the offer was made. International Conventions and Reciprocity. F. the form. There is no problem if the contract is executed in one place because that place is the governing law. d. funds. (n) b. In other words. But. shall be entitled to benefits to the extent necessary to give effect to any provision of such convention. (1262a) EXC to lex loci celebrationis a. So perfection. 23 RJ & ELI . So the governing law is the place of execution. or extends reciprocal rights to nationals of the Philippines by law. the contract is perfected the moment the acceptance is made known to the offeror. When lex loci celebrationis contravenes an established policy in the forum Applying it would result to gross injustice to the people of the forum Transaction is contra bonos mores PAT: Our Conflic of Laws on the matter is Article 17 of the Civil Code which says that: forms and solemnities of contracts. whether the contract requires notarization. Philippines must be a co-party in a treaty/convention of the country where the foreigner is domiciled or is a national AND there must be reciprocity of rights. The problem arises when a part. treaty or agreement relating to intellectual property rights or the repression of unfair competition. . as you will know.LLB III. INTELLECTUAL PROPERTY RIGHTS GR: protected by the State that granted or recognized them. This does not apply when the place of execution is obviously casual or incidental only to the contract as when all the important components of the contract took place in or pertain to one state and the contract was executed in another state. The problem arises when the contract. for purposes of conflict of laws rule? We have Article 1319 of the Civil Code which says that contract is perfected by the meeting between the offer and the acceptance of the offer. the physical requirements of a contract. the benefit acquired by an establishment beyond the value of its capital stocks. CONFLICT RULES ON CONTRACTS CONTRACT a meeting of the minds between two persons whereby one binds himself. Take note however that lex loci celebrationis. But if the offer was made through writing or through telegram or similar means. And since the offeror is presumed to be in the place where the offer is made. the outside. EH 404. with respect to the other to give something or to render some service. The contract. So these matters may include whether a contract is oral. EXTRINSIC VALIDITY GR: governed by LEX LOCI CELEBRATIONIS If via LETTER/TELEGRAM Acceptance made by letter or telegram does not bind the offerer except from the time it came to his knowledge. what should be the place of execution.
specifically this refers to the nature of the contract. Intrinsic validity refers to the essence or the substantive aspect of the contract. age of majority based on his national law is 21 it would greatly IMPEDE BUSINESS TRANSACTIONS. So you have to distinguish these three different components. BUT. So you will now determine the law of the contract by determining the various aspects or components of the contracts. LAW (Art. To Reconcile: Nationality Theory should be limited to family and domestic relations. If most of the important components of the contract take place or pertain to a particular state and that state claims to have the most significant relationship insofar as the contract is concerned.o. you refer to Article 15---the national law of the parties involved. What is the governing law insofar as the extrinsic aspect of the contract if the place of execution appears only as incidental to the contract? When this happens. Cannot stipulate on jurisdiction of courts or oust the courts of their jurisdiction. if an alien (18 y. AND GRACE. Cannot contract away applicable provisions of law that are impressed with public interest or involve public policy (i. PAT: Capacity of the contracting parties is a matter of personal law and therefore we apply the nationality theory under Article 15. you now apply the appropriate law of the contract. law with the most substantial connection with the transaction or the law that may be presumed to be intended by the parties to bind their transactions. you have to determine the law of the contract impliedly or presumed to have been impliedly agreed upon by the parties using the most significant relationship principle.CONFLICT OF LAWS Midterm Reviewer Casually and incidentally. Or it may be intrinsically valid but not valid insofar as the capacities of the contracting parties because these components are governed by different rules. So you apply now the most significant relationship principle. lex loci In the Phils. BUT our policy is to give effect to the intention of the parties (the expressed intention or the implied intention). Law must have connection with the transaction. whether the terms stipulated or embodied in the contract are valid or not. whether the contract by its very nature is valid like a contract of lingam massage service. Other matters falling under intrinsic may refer to the terms and conditions of the contract. d. Is it valid by its nature? So this question as to the validity of the contract by its very nature concerns the intrinsic aspect of the contract. c. EXC: contracts involving alienation or encumberance of properties (real and personal) LEX SITUS i. *aka Choice of Law *as determined by many factors – i. Or the subject matter of the contract. You review the case of Saudi Arabian Airlines. The contract may be extrinsically valid but may not be valid intrinsically. UNIVERSITY OF SAN CARLOS – LAW TRANSCRIPTS c/o JIZZA. EH 404. where the Supreme Court applied this principle although in relation to a tort case but the principle is exactly the same. INTRINSIC VALIDITY GR: proper law of the VOLUNTATIS/INTENTIONIS). Meaning to say.) enters into a contract in the Philippines. CHARITY.e. CAPACITY TO ENTER INTO CONTRACTS GR: governed by PERSONAL LAW of the parties (National Law or Domiciliary Law). 15.LLB III. he cannot later on plead his incapacity just bec. If the law selected should change. Several laws may be selected (each of which may govern certain elements of the transaction). a Filipino (18 y.e.o. Anything which relates to the 24 RJ & ELI . real or personal because if it does capacity of the contracting parties should now be determined again by lex rae sitae. capacity of the contracting parties is governed by nationality theory only if the contract is an ordinary contract that does not involve property.e. contract (i. labor) e. in which case. NCC). b. the new law shall be applied (EXC where the change is so revolutionary that it could not have been foreseen by the parties). Proper Law of the Contract business/commercial transactions So issues pertaining to the validity of the contract insofar as the capacity of the contracting parties is concerned. you don’t consider that place of execution as the lex loci celebrationis for purposes of the conflict rules. There is no specific provision of law. Some Limitations to Choice of Law a.) who enters into a contract in a country where age of majority is 21 cannot later on plead his incapacity HE IS GOVERNED BY PHIL. Limitation is when again the contract involves property. that state is deemed to be the place where the contract has been executed although in reality the contract may have been executed somewhere else. Based on Sempio-Diy Book . In short.e.
What happens if a contract does not contain a choice of law clause? Meaning. what applies now is lex rae sitae under Article 16. The contracting parties to a contract are free to stipulate anything in the contract. first paragraph. in other words. Having said this. So this is governed by the rule on reasonable connection. lex loci celebrationis is taken out of the equation. To determine this. to resolve the issue. so all these various components of the contract should be taken into consideration to determine if these or most of these components pertain to one state. CHARITY. Apply the lex loci intentionis or the law impliedly or presumed to have been agreed upon by the parties. no single state can claim most significant relationship the forum court. This is the so-called liberality of contract principle consistent with Article 1306 of the Civil Code which says that parties to the contract may establish such stipulations. You will know that there is no specific provision in our laws which govern the intrinsic aspect of the contract insofar as conflict of laws rule is concerned. So this espouses the liberality of contract principle. will now apply the law of the country or the state where the validity of the contract is likely to be sustained. However. UNIVERSITY OF SAN CARLOS – LAW TRANSCRIPTS c/o JIZZA. SPECIAL CONTRACTS 1. the stipulation on the choice of law where the parties expressly agree that any dispute arising from the contract shall be governed by the law of that particular state. BARTER. So not expressly stipulated upon by the parties. otherwise that choice of law clause can never be enforced.lex situs Capacity of Parties – lex situs 2. If it does. 1 yr or 25 RJ & ELI . this is a standard clause or provision in a contract especially foreign contracts. THERE IS HOWEVER LIMITATION TO ALL THESE PRINCIPLES. this should be analyzed with the reasonable connection with the contract so the parties cannot stipulate on the law of Pakistan for example if all the other important components of the contract are to be performed or take place or pertain to other states. according to most writers are the following: Lex loci voluntatis or the law expressly agreed upon by the parties. the place where the contract was actually executed by the parties. the place of performance.CONFLICT OF LAWS Midterm Reviewer substance as contradistinguished from form falls under intrinsic validity. it can be reasonably inferred that the parties agree that this particular law should govern their contract insofar as the intrinsic aspect. most writers suggest that for this purpose.LLB III. there is nothing in that contract where the intention of the parties can be ascertained as to the specific law that governs their contract insofar as intrinsic aspect of the contract. Now how do you determine the lex voluntatis or the law expressly agreed upon by the parties? This is commonly manifested by the so-called choice of law clause in a contract. the place where the subject matter may be found. DONATIONS Extrinsic – lex situs Intrinsic. So while the parties may stipulate as to specific law. So you see the intention. etc. LEASE OF PROPERTY If it creates REAL rights (period of more/registered) lex situs If month-to-month. terms and conditions as they may deem convenient provided these do not or these are not contrary to law. The moment a contract involves a property whether real or personal. what matters is the intention of the parties. the law of that state should be deemed to be the lex intentionis and apply that law accordingly. it says: real property as well as personal shall be governed by the law of the place where they are located. week-to-week. then that state. So the governing law that determines the intrinsic validity of a contract. make sure that this law is reasonably connected to the contract. AND GRACE. Based on Sempio-Diy Book . The principle of lex loci celebrationis and these principles we discussed in relation thereto. do not apply when the contract involves property. but under the circumstances. Again this is consistent with the policy in our jurisdiction that the intention of the parties as much as possible should be observed. the express avowed intention of the parties. How? By determining the various components of the contracts: the place of negotiation. public policy or good morals or customs. the forum court should be consistent with the policy adopted in our jurisdiction that parties are free to stipulate. EH 404. Apply the law of the country or he state where the validity of the contract is likely to be sustained. If under the circumstances it cannot be reasonably inferred that one state claims to have the most significant relationship because all the important components of the contract took place or pertain to various states evenly distributed. There is however a limitation to this rule because (1) the parties may not stipulate on a particular law which has nothing to do at all with the contract. most writers suggest that for purposes of conflict of laws rule insofar as intrinsic validity of contract is concerned. Take note! Lex loci celebrationis applies only in ordinary contracts. SALE. clauses. While the parties are free to stipulate on a specific law that they want their contract to be governed. use the most significant relationship principle.
lex situs Capacity of Parties – lex situs 4.LLB III. bad faith. ANTICHRESIS Extrinsic – lex situs Intrinsic. AIR liability for death/injury/damage to passenger or cargo is governed by the WARSAW Convention. Based on Sempio-Diy Book . so: Extrinsic – lex loci celebrationis Intrinsic.. UNIVERSITY OF SAN CARLOS – LAW TRANSCRIPTS c/o JIZZA. hence: Extrinsic – lex loci celebrationis Intrinsic. REM. LOAN Extrinsic – lex loci celebrationis Intrinsic. PLEDGE.CONFLICT OF LAWS Midterm Reviewer Extrinsic – lex loci celebrationis Intrinsic. AND GRACE.Marcus Tullius Cicero 26 RJ & ELI . liability if there is malice. .lex loci voluntatis/intentionis Capacity of Parties – personal law of the parties 3. gross negligence. improper discrimination – the carrier is liable for damages beyond those limited in Warsaw Convention. TRANSPORTATION/CARRIAGE This is a contract to render service.lex voluntatis/intentionis Capacity of Parties – personal law of the parties 5.lex loci voluntatis/intentionis Capacity of Parties – personal law of the parties *LIABILITY FOR LOSS/DESTRUCTION/DETERIORATION OF GOODS IN TRANSIT – law of the DESTINATION of the goods.lex loci voluntatis/intentionis Capacity of Parties – personal law of the parties 6. If PERSONAL CONTRACT law on contracts will apply. LEASE OF SERVICE Extrinsic – lex loci celebrationis Intrinsic.lex loci voluntatis/intentionis Capacity of Parties – personal law of the parties *** *** *** -END- *** *** *** The good of the people is the greatest law. COGSA liability may be limited unless value is declared by the shipper and such declaration is in the BOL. CHATTEL MORT. EH 404. CHARITY. IN SUMMARY (More or Less) If REAL CONTRACT lex situs.
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