Anda di halaman 1dari 19

ATENEO CENTRAL BAR OPERATIONS 2007

Civil Law
SUMMER REVIEWER

CONFLICT OF LAWS
Transac- Private Generally affected
tions transactions by public interest;
CHAPTER 1: GENERAL PROVISIONS involved between those in general
private are of interest only
PRIVATE INTERNATIONAL LAW individuals to sovereign
States
• That part of the law of each State or nation which Remedies Resort to May be peaceful
determines whether, in dealing with a legal and municipal or forcible
situation, the law or some other State or nation Sanctions tribunals Peaceful: includes
will be recognized, given effect, or applied (16 diplomatic
Am Jur, 2d, Conflict of Laws, §1). negotiation, tender
& exercise of good
• That part of municipal law of a State which offices, mediation,
directs its courts and administrative agencies, inquiry &
when confronted with a legal problem involving a conciliation,
foreign element, whether or not they should apply arbitration, judicial
a foreign law/s (Paras). settlement by ICJ,
reference to
• NOTE: A factual situation that cuts across regional agencies
territorial lines and is affected by diverse laws of Forcible: includes
two or more States is said to contain a foreign severance of
element. diplomatic
relations,
FUNCTIONS OF CONFLICT OF LAW RULES retorsions,
reprisals,
1. To proscribe the conditions under which a court embargo, boycott,
or agency is competent to entertain a suit or non-intercourse,
proceeding involving facts containing a foreign pacific blockades,
element; collective
2. To determine the extent, validity and measures under
enforceability of foreign judgment the UN Charter,
3. To determine for each class of cases the and war.
particular system if law by reference to which the Sources Generally Custom, Treaty
rights of the parties must be ascertained derived from and General
the internal Principles of law,
DISTINGUISHED FROM PUBLIC INTERNATIONAL law of the recognized by
LAW state; except civilized nations
any conflict of and juridical
BASIS CONFLICT OF LAW OF NATIONS law question decisions and
LAW governed by teachings of the
Nature Municipal in International in a treaty most highly
QuickTime™ and a
character
TIFF (Uncompressecharacter
d) decompressor qualified publicists
are needed to see this picture.
Persons Dealt with by Sovereign States
involved private and other entities
individuals; possessing SOURCES OF CONFLICT OF LAWS
governs international
individuals in personality, e.g., Direct Indirect
their private UN; governs Constitutions Natural Moral Law
transactions States in their Codifications Work of Writers
which involve relationships Special Laws
a foreign amongst International Customs
element themselves

—Adviser: Dean Cynthia del Castillo Head: Joy Ponsaran, Eleanor Mateo; Understudy: Joy Tajan, John Paul Lim;
Subject Head: Laarni Pichay;
Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

Treatises and
International 12. Lex Non Scripta - the unwritten common law,
Conventions which includes general and particular customs
Judicial Decisions and particular local law

13. Lex Patriae - national law


DEFINITION OF TERMS:
14. Depecage – where different aspects of a case
1. Lex Domicilii- law of the domicile; in conflicts, involving a foreign element may be governed by
the law of one's domicile applied in the choice of different systems of law
law questions.
15. Renvoi Doctrine - doctrine whereby a jural
2. Lex Fori - law of the forum; that is, the positive matter is presented which the conflict of laws
law of the State, country or jurisdiction of whose rules of the forum refer to a foreign law which in
judicial system the suit is brought or remedy is turn, refers the matter back to the law of the
sought. Substantive rights are determined by the forum or a third State. When reference is made
law where the action arose (lex loci) while the back to the law of the forum, this is said to be
procedural rights are governed by the law of the remission, while reference to a third State is
place of the forum (lex fori) called transmission.

3. Lex Loci - law of the place 16. Double Renvoi – occurs when the local court, in
adopting the foreign court theory, discovers that
4. Lex Loci Contractus - the law of the place the foreign court accepts the renvoi; ultimately
where the contract was made or law of the place then, it is the foreign internal law that will be used
where the contract is to be governed (place of
performance) which may or may not be the same 17. Desistment – mutual disclaimer of jurisdiction
as that of the place where it was made
18. Foreign Court Theory – the local forum, in
5. Lex Loci Rei Sitae - law of the place where the deciding the case, will put itself in the position of
thing or subject matter is situated; the title to the foreign court, and whatever the foreign court
realty or question of real estate law can be will do respecting the case, the local forum will
affected only by the law of the place where it is likewise do
situated
19. Nationality Theory - by virtue of which the status
6. Lex Situs - law of the place where property is and capacity of an individual are generally
situated; the general rule is that real property is governed by the law of his nationality. This is
governed by the law of the State where it is principally adopted in the RP.
situated
20. Domiciliary Theory - in general, the status,
7. Lex Loci Actus - law of the place where the act condition, rights, obligations, & capacity of a
was done person should be governed by the law of his
domicile.
8. Lex Loci Celebrationis - law of the place where
the contract is made 21. Long Arm Statutes - statutes allowing the courts
to exercise jurisdiction when there are minimum
9. Lex Loci SolutionisQuickTime™ - lawand of the place of contacts between the non-resident defendant
a
solution; the lawTIFFare
of(Uncompressed)
the place where
decompressor payment or and the forum.
needed to see this picture.
performance of a contract is to be made
CHAPTER 2: JURISDICTION
10. Lex Loci Delicti Comissi - law of the place
where the crime took place • In international law, it is often defined as the right
of a State to exercise authority over persons and
11. Lex Mercatoria - law merchant/commercial law; things within its boundaries, subject to certain
system of laws adopted by all commercial nations exceptions.
and constitute as part of the law of the land; part
of common law JURISDICTION OVER THE PERSON

Page 252 of 297


Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

CHAPTER 3: WAYS OF DISPOSING CONFLICTS


1. Jurisdiction over the person of the plaintiff is CASES
acquired from the moment he invokes the aid of
the court and voluntarily submits himself by 1. DISMISS THE CASE FOR LACK OF
institution of the suit through proper pleadings JURISDICTION
2. Jurisdiction over the person of the defendant is
acquired through: 2. DISMISS THE CASE ON THE GROUND OF
a. Voluntary appearance or FORUM NON-CONVENIENS.
b. Personal or Substituted service of summons
DOCTRINE OF FORUM NON-CONVENIENS
JURISDICTION OVER PROPERTY
• A forum may resist imposition upon its jurisdiction
• Results either from seizure of the property under even when jurisdiction is authorized by law on the
a legal process or from the institution of legal ground that the forum is inconvenient or the ends
proceedings wherein the court’s power over the of justice would be best served by trial in another
property is recognized and made effective. forum or the controversy may be more suitably
• This kind of jurisdiction of jurisdiction is referred tried elsewhere
to as in rem jurisdiction. Another form of
jurisdiction is quasi in rem which affects only the • ELEMENTS
interests of particular persons in the thing. a. The forum State is one to which the parties
• NOTE: Summons by publication is authorized in may conveniently resort to;
three cases: b. It is in a position to make an intelligent
1. If the action is in rem decision as to the law and the facts; and
2. quasi in rem c. It has or is likely to have power to enforce its
3. Involves the personal status of the plaintiff decision.

3. ASSUME JURISDICTION AND APPLY THE


FORUM LAW
MINIMUM CONTACTS TEST AND FUNDAMENTAL
FAIRNESS TEST INSTANCES WHEN INTERNAL LAW SHOULD BE
APPLIED:
• Due process requires only that in order to subject
a defendant to a judgment in personam, if he is a. A specific law of the forum decrees that internal
not present within the territory of the forum he law should apply
should have certain minimum contacts with it
such that the maintenance of the suit does not • EXAMPLES:
offend traditional notions fair play and substantial i. Article. 16 of the Civil Code - real and
justice. personal property subject to the law of the
• In both in rem and quasi-in rem, all that due country where they are situated and
process requires is that defendant be given testamentary succession governed by lex
adequate notice and opportunity to be heard nationalii
which are met by service of summons by ii. Article 829 of the Civil Code - makes
publication. revocation done outside Philippines valid
according to law of the place where will was
LONG-ARM STATUTES made or lex domicilii
QuickTime™ and a
iii. Article 819 of the Civil Code - prohibits
• Statutes whichTIFFspecify
(Uncompressed) decompressor
thethis picture.
are needed to see kinds of contacts Filipinos from making joint wills even if valid
which jurisdiction will be asserted over a in foreign country
defendant outside of state territory.
b. The proper foreign law was not properly pleaded
JURISDICTION OVER THE SUBJECT MATTER and proved

• Jurisdiction over the subject matter is conferred • NOTE: As a general rule, courts do not take
by law judicial notice of foreign laws; foreign laws must
be pleaded and proved
• The following actions may be resorted in case of

Page 253 of 297


Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

failure to prove and plead the proper foreign law: it is as if the foreign law has become part &
i. Dismiss the case for inability to establish parcel of our local law
cause of action 4. Theory of Harmony of Laws – we have to apply
ii. Assume that the foreign law of the same as the foreign laws so that wherever a case is
the law of the forum (processual decided, that is, irrespective of the forum, the
presumption) solution should be approximately the same; thus,
iii. Apply the law of the forum identical or similar solutions anywhere &
everywhere. When the goal is realized, there will
3. The case falls under any of the exceptions to the be “harmony of laws”
application of foreign law. 5. Theory of Justice – the purpose of all laws,
• EXCEPTIONS: including Conflict of Laws, is the dispensing of
a. The foreign law is contrary to the public justice; if this can be attained in many cases
policy of the forum applying the proper foreign law, we must do so.
b. The foreign law is procedural in nature
c. The case involves issues related to property, CHAPTER 4: RECOGNITION AND
real or personal (lex situs) ENFORCEMENT OF FOREIGN JUDGMENTS
d. The issue involved in the enforcement of
foreign claim is fiscal or administrative • A foreign judgment is recognized when it is
e. The foreign law or judgment is contrary to given the same effect that it has in the state
good morals (contra bonos mores) where it was rendered with respect to the parties,
f. The foreign law is penal in character the subject matter of the action and the issues
g. When application of the foreign law may work involved. Where the foreign judgment is being
undeniable injustice to the citizens of the presented as a defense to the claim of the
forum plaintiff, what is involved is the recognition of a
h. When application of the foreign law might foreign judgment.
endanger the vital interest of the State • A foreign judgment is enforced when, in addition
to being recognized, a party is given affirmative
4. ASSUME JURISDICTION AND APPLY relief to which the judgment entitles him. When a
FOREIGN LAW plaintiff asks the court of one state to carry out
and make effective a judgment obtained by him
• As a general rule, no rule of Private International in another state, what is involved is the
Law would be violated if the courts should decide enforcement of a foreign judgment.
to dispose of cases, according to the internal law
of the forum REQUISITES FOR RECOGNITION AND
ENFORCEMENT OF FOREIGN JUDGMENTS
• EXCEPT: Where a foreign, sovereign, diplomatic
official, or public vessel or property of another 1. Foreign judgment was rendered by a judicial or a
state is involved, or where a state has by treaty, quasi-judicial tribunal which had competent
accepted limitations upon its jurisdiction over jurisdiction over the parties and the case in the
certain persons or things. proper judicial proceedings in which the
defendant shall have be given reasonable
THEORIES WHY FOREIGN LAW SHOULD BE notice and the opportunity to be heard.
GIVEN EFFECT: 2. It must be a judgment on civil and commercial
matters.
1. Theory of Comity – foreign law is applied 3. The judgment must be valid according to the
because of its convenience & because we want
QuickTime™ and a
court that delivered it;
to give protection to our
TIFF (Uncompressed) citizens,
decompressor residents, &
are needed to see this picture.
4. Judgment must be final and executory to
transients in our land constitute res judicata in another action;
2. Theory of Vested Rights – we seek to enforce • ELEMENTS: The judgment must be
not foreign law itself but the rights that have been a. Final
vested under such foreign law; an act done in b. Rendered by a competent court
another State may give rise to the existence of a c. On the Merits
right if the laws of that State crated such right. d. Involve the same parties, subject matter and
3. Theory of Local Law- we apply foreign law not cause of action.
because it is foreign, but because our laws, by 5. Foreign judgment must not be contrary to the
applying similar rules, require us to do so; hence, public policy or the good morals of the State

Page 254 of 297


Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

where it is to be enforced; and


6. Judgment must not have been obtained by fraud, STATUTE OF FRAUDS
collusion, mistake of fact or mistake of law.
7. The foreign judgment must not be barred by 1. Substantive – If the words of the law relate to
prescription under the law of the State in which it forbidding the obligation
was promulgated or under the law of the State in 2. Procedural – If the law forbids the enforcement
which its recognition/enforcement is sought. of the obligation

STATUTE OF LIMITATIONS
DISTINCTION BETWEEN RECOGNITION AND
ENFORCEMENT 1. Substantive – When the limitation was directed
RECOGNITION OF ENFORCEMENT OF
FOREIGN JUDGMENT FOREIGN JUDGMENT
PROOF OF FOREIGN LAWS
Courts will allow the Plaintiff wants courts to
1. Written Law foreign judgment to positively carry out and
a. By written publication be presented as a make effective in the
b. Copy attested to by the officer having defense to a local State a foreign
custody accompanied with a certificate that litigation judgment
such officer has the custody and sealed by Involves merely the Virtually implies a direct
the appropriate public officer (section 24 rule sense of justice act of sovereignty
132 of the Revised Rules of Court) Does not require Necessitates a
either an action or a separate action or
2. Unwritten Law special proceeding proceeding brought
• By the oral testimony of expert witnesses or precisely to make the
writings of jurists foreign judgment
effective
EFFECTS OF FOREIGN JUDGMENTS May exist without Necessarily carries with
enforcement it recognition
• Under the Rules of Court, in case of a judgment For BOTH recognition and enforcement, proof
against a specific thing, the judgment is of the foreign judgment has to be presented.
conclusive upon the title of the thing. Moreover, the requisites or conditions for the
• In case of a judgment against a person, the recognition or enforcement of foreign judgments
judgment is presumptive evidence of a right as must be present.
between the parties and their successors-in- to the newly created liability specifically to
interest by a subsequent title; but the judgment warrant a qualification of the right
may be repelled by evidence of want of 2. Procedural – If it operates to bar the legal
jurisdiction, want of notice to the party, collusion, remedy without impairing the substantive right
or clear mistake of law or fact. involved.

CHAPTER 5: CHARACTERIZATION • NOTE: Borrowing statutes direct the state of the


forum to apply the foreign statute of limitations to
• The process by which a court at the beginning of the pending claim based on a foreign law (treats
the choice of law process assigns a disputed the statute of limitations as a substantive law)
question to the proper area in substantive law
DEPECAGE
QuickTime™ and a
STAGES IN CHARACTERIZATION:
TIFF (Uncompressed) decompressor

are needed to see this picture.
The phenomenon where the different aspects of
1. Determination of the factual situation the case involving a foreign element may be
2. Characterization of the factual situation governed by different systems of laws.
3. Determination of the applicable Conflicts rule
4. Characterization of the Point of Contact or the TESTS OR FACTORS TO DETERMINE POINTS OF
Connecting Factor CONTACT:
5. Determination between procedural and
substantial matter • Circumstances which may serve as the possible
6. Pleading and Proving of the proper law test for the determination of applicable law:

Page 255 of 297


Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

1. The nationality of a person, his domicile, either the nationality of the country of which he is
residence, his place of sojourn, or his origin. habitually and principally resident, or the
2. The seat of legal or juridical person nationality of the country with which in the
3. Lex Situs circumstances he appears to be closely
4. Locus Actus connected.”
5. The place where the act is intended to take
effect, the place of performance of contractual MULTIPLE CITIZENSHIP ARISES DUE TO:
duties, or the place where the power of attorney a. Through a Naturalized Citizen’s Failure to
is to be exercised Comply with Certain Legal Requirements in
6. Lex loci intentionis the country of origin
7. Lex fori – applies to procedural matters and b. From a combined application of Jus Soli and
whenever the content of the otherwise applicable Jus Sanguinis principle
foreign law is excluded from application in a c. By the legislative Act of States
givem case for the reason that it fails under one d. By the voluntary Act of Individual concerned
of the exceptions to the application of foreign law.
8. The flag of the ship, which in many cases is 2. STATELESSNESS
decisive of practically all legal relationships of the • Stateless persons are generally subject to the
ship and of its master or owner as such. law of their domicile or habitual residence, or in
default thereof, to the law of their temporary
CHAPTER 6: PERSONAL LAWS residence.

• The law which governs a person’s family STATELESSNESS ARISES DUE TO:
relations, capacity or status. a. Deprivation of his citizenship for any cause,
• Three most common personal laws are the such as commission of a crime
Nationality Rule, Domiciliary Rule, Eclectic b. Renunciation of one’s nationality by certain
Theory acts, express or implied;
c. Voluntary release from his original state;
NATIONALITY LAW THEORY d. If born in a country which recognizes only the
principle of jus sanguinis of parents whose
• The Philippines adheres to the nationality law law recognizes only the principle of jus soli
theory. • NOTE: The Convention on the Adoption on the
Reduction of Statelessness (1961) mandates that
Art. 15. Laws relating to family rights and duties, the jus sanguini country grants its nationality to
or to the status, condition and legal capacity of person born within its territory if he would be
persons are binding upon citizens of the otherwise stateless, and the jus soli country to
Philippines, even though living abroad. extend its nationality to a person who would
otherwise be considered stateless when of his
PROBLEMS IN APPLYING THE NATIONALITY parents is a citizen of the contracting state.
PRINCIPLE
DOMICILIARY THEORY
1. MULTIPLE CITIZENSHIP
• The individual’s private rights, status, capacity
• In matters of status, he is usually considered by and conditions are determined by his domicile.
the forum as exclusively his own national, his
additional foreign nationality is disregarded DOMICILE
• In case the litigation arises
QuickTime™in and
a athird country, the
TIFF (Uncompressed) decompressor
law most consistently
are needed to see this picture.is that of the
applied • Is that place where a person has certain settled,
country of which the person is not only a national fixed, legal relations because:
but where he has his domicile or habitual 1. it is assigned to him by law at the MOMENT OF
residence, or in the absence thereof, his BIRTH (domicile of origin)
residence. 2. It is assigned to him by law AFTER BIRTH on
account of legal disability caused for instance by
• NOTE: Article 5 of the Hague Convention on the minority, insanity or marriage in the case of a
Conflict of Nationality laws provides: “ a third woman (constructive domicile or domicile by
state shall, of the nationalities which such person operation of law)
possesses, recognize exclusively in its territory 3. he has a HOME there – that to which whenever

Page 256 of 297


Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

he is absent, he intends to return (domicile of will apply the foreign law.


choice) 2. Accept the renvoi
• If the conflict rules of the forum refer the case to
• NOTE: The forum determines domicile according the law of another state, it is deemed to include
to his own standards the totality of the foreign law (internal law and
conflicts of laws rule). Thus, the court will
GENERAL RULES ON DOMICILE: recognize the referral back and apply local law.
1. No natural person must ever be without a 3. Desistment theory
domicile • The forum court upon reference to another
2. No person can have two or more domiciles at the state’s law sees that such law is limited in
same time, except for certain purposes, and from application to its own nationals domiciled in its
different legal viewpoints territory and has no provision for application to
3. Every sui juris may change his domicile nationals domiciled outside of the territory.
4. Once acquired, it remains the domicile unless a Hence, the local court will apply local law.
new one is obtained: • This has the same result as the acceptance of
a. By capacitated persons the renvoi but the process used by the forum
b. With freedom of choice court is to desist applying the foreign law.
c. With actual physical presence 4. Foreign Court Theory
d. And Provable intent that it should be one’s • Foreign court assumes the same position that the
fixed and permanent place of abode, there foreign court would take if the case is litigated in
should be animus manendi (intent to remain) the foreign state. Hence:
or animus nonrevertendi (intent not to return) a. If the foreign court would accept the renvoi,
5. The presumption is in favor of the continuance of the local court shall apply the foreign law.
domicile. The burden of Proof is on the one who b. If the foreign court would reject the renvoi,
alleges that a change of domicile has taken the local court shall apply lex fori.
place. c. If the foreign court would apply the
desistment theory, the local court shall apply
Vellila v. Posadas – abandonment of one’s the foreign law.
domicile required deliberate and provable choice d. If the foreign court would use the foreign
of a new domicile, coupled with actual residence court theory, then international pingpong
in the place chosen, with a declared or provable would ensue.
intent that it should be one’s fixed and permanent
place of abode DOUBLE RENVOI THEORY
• Occurs when the local court, in adopting the
foreign court theory, discovers that the foreign
court accepts the renvoi.
SITUS OR ECLECTIC THEORY
TRANSMISSION
• The capacity, legal condition, or status of an • Process of applying the law of a foreign state thru
individual should be governed by the law of the the law of a second foreign state.
place where an important element of the problem
occurs or is situated.
Testate Estate of Amos G. Bellis – The renvoi
CHAPTER 7: RENVOI doctrine does not apply when the referred foreign
law does not have a conflict of law rule on the
• A procedure whereby aQuickTime™legal matter is referred by same subject matter. The referral to the foreign
and a
the conflict of laws rules of
TIFF (Uncompressed) the forum
decompressor to a foreign law shall immediately pertain to the internal laws
are needed to see this picture.
state, the conflict of laws rule of which, in turn of the foreign state.
refers the matter back to the law of the forum
(remission) or a third state (transmission). CHAPTER 8: RULES ON STATUS

SOLUTIONS TO THE RENVOI • Status, is the place of an individual in a society


1. Reject the renvoi and consists of personal qualities and
• If the conflicts rules of the forum refer the case to relationships, more or less permanent, with which
the law of another state, it is deemed to mean the state and the community are concerned.
only the internal law of that state. Thus, the court

Page 257 of 297


Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

FACTUAL POINT OF CONTACT parties to follow the formalities of the place of


SITUATION celebration. (this is followed in the Philippines)
(1) beginning of (1) national law of the 2. Optional theory – parties may follow either the
personality natural child lex loci celebrationis or their national law. This rule
persons (Article 15, Civil Code) is followed in most countries.
(2) ways and effects of (2) national law (Art. 15) 3. Ecclesiastical rule – the formalities of both the
emancipation lex loci celebrationis and the national law of the
(3) age of majority (3) national law (Art. 15) parties must be complied with.
(4) use of names and (4) national law (Art. 15)
surnames FACTUAL POINT OF CONTACT
(5) use of titles of (5) national law (Art. 15) SITUATION
nobility Celebrated Between G.R.Lex loci
(6) absence (6) national law (Art. 15) abroad Filipinos celebrationis
(7) presumptions of (7) lex fori (Arts. 43, Exceptions:
death and survivorship 390, 391, Civil Code; (1) Arts. 26, 35 (1),
Rule 131, Sec. 5 (jj), (4), (5) and (6), 36,
Rules of Court) 37 and 38 of the
Family Code
(bigamous,
CHARACTERISTICS OF STATUS polygamous and
1. Status is conferred principally by the state not by incestuous
the individual. marriages)
2. Status is a matter or public or social interest. 2) consular marriages
3. Status being a concept of social order, cannot Between G.R. Lex loci
easily be terminated at the mere will or desire of Foreigners celebrationis
the parties concerned. Exceptions :
4. Status is generally supposed to have a universal (1) highly immoral
character: when a certain status is created by law (like bigamous
of one country, it is GENERALLY judicially and polygamous
recognized all over the world. marriages)
(2) UNIVERSALLY
CHAPTER 9: RULES ON MARRIAGE considered
INCESTUOUS,
MARRIAGE AS A CONTRACT i.e., between
brothers-sisters
• Marriage as a contract has two kinds of and between
requisites: ascendants-
1. Formal – generally do NOT affect the validity of descendants
the marriage. Art 3 of the Family Code provides Mixed Apply rule on
for three formal requisites namely: marriages between
a. authority of the solemnizing officer foreigners – to uphold
b. marriage license the validity of the
c. marriage ceremony where the contracting marriage
parties appear before the solemnizing officer. Celebrated Between National law (Art. 21,
2. Essential – affects the validity of the marriage; in the Foreigners Family Code) provided
Art 2 of the Family Code
QuickTime™ and a prescribes two
Phils. the marriage is not
TIFF (Uncompressed) decompressor
essential requisitesare to marriage:
needed to see this picture.
highly immoral or
a. legal capacity of the contracting parties who universally considered
must be male and female incestuous
b. consent freely given in the presence of a Mixed National law of the
solemnizing officer. Filipino (otherwise
public policy may be
THEORIES ON THE FORMAL REQUISITES OF militated against)
MARRIAGE Marriage Lex loci celebrationis
1. Compulsory theory – It is imperative for the by Proxy (with prejudice with
(NOTE: a the foregoing rules

Page 258 of 297


Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

marriage by personal laws (either domiciliary or nationality)


proxy is
considered MARRIAGE AS A STATUS
celebrated
where the • Marriage as a status carries with it implications in
proxy two fields:
appears) 1. Personal rights and obligations of the
spouses – personal affair between husband and
wife and will not ordinarily be interfered with the
RULES GOVERNING EXTRINSIC VALIDITY courts of justice. Includes mutual fidelity,
cohabitation, respect, assistance and support;
• GENERAL RULE: lex loci celebrationis right of wife to use husband’s name; duty to
1. All states recognize as valid those marriages follow husband’s residence.
celebrated in foreign countries if they comply with • GOVERNING LAW - National law of the
the formalities prescribed therein (Hague husband. Subsequent change on the nationality
Convention) of the spouses are proposed to have the
2. The forms and solemnities of contracts, wills and following effects:
other public instruments shall be governed by the a. if both will have a common nationality – the
laws of the country in which they were executed new one
(Article 17, Civil Code) b. if only one will change – the last common
3. All marriages solemnized outside the Philippines nationality
in accordance with the laws in force in the c. if there never was any common nationality –
country where they were solemnized and valid the national law of the husband at the time of
there as such shall also be valid in this country the wedding (Hague Convention)
(Article 26, Family Code) 2. Property Relations
• GOVERNING LAW – in the absence of a
• EXCEPTIONS: The following are void marriages contrary stipulation in the marriage settlement,
between Filipinos even if valid in the foreign national law of the husband regardless of the
country where celebrated or in case of mixed place of celebration of the marriage and their
marriages celebrated in the Philippines: residence. However, this rule shall not apply:
a. When either or both parties are below 18 a. where both spouses are aliens;
years of age even with parental consent; b. with respect to the extrinsic validity of
b. Bigamous and polygamous marriages; contracts affecting property not situated in
c. Mistake as to identity of a contracting party; the Philippines and executed in the country
d. A subsequent marriage performed without where the property is located; and
recording in the Civil Registry the judgment c. with respect to the extrinsic validity of
of annulment or declaration of nullity, contracts entered into in the Philippines not
partition and distribution of properties and the affecting property situated in a foreign
delivery of children’s presumptive legitimes; country whose laws require different
e. Marriages where either spouse is formalities for their extrinsic validity. (Art. 80,
psychologically incapacitated; Family Code)
f. Incestuous marriages; and • NOTE: The subsequent change of the nationality
g. Void marriages by reason of public policy. of the husband or the wife has no effect on the
spouses’ original property regime EXCEPT when
• NOTE: These exceptions put into issue the the law of the original nationality itself changes
capacity of the partiesQuickTime™
to enter and into
a the marriage the marital regime, in which case the property
and thereforeTIFFarerelate to the
(Uncompressed) decompressor
needed to see this picture. substantive relations should change accordingly. This is the
requirement for marriage. Since the personal law doctrine of IMMUTABILITY IN THE
of the parties, e.g., the national law of Filipinos, MATRIMONIAL PROPERTY REGIME.
governs the questions of intrinsic validity of
marriages between the Filipinos abroad, the
Recto v. Harden, 100 Phil 427 – Legislative
above enumerations are exceptions to lex loci
jurisdiction, aside from the authority to enact laws, is
celebrationis precisely because they are
the competence of a person’s national law to govern
controlled by lex nationalii.
his status.
INTRINSIC VALIDITY – controlled by the parties’

Page 259 of 297


Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

divorce or separation must comply with the


Ibanez, 29 Phil 606 - Both our citizens and aliens national law of the spouses and the law of the
should endeavor to have their rights established by place where the application for divorce is made.
the tribunals of the State which have coercive means
to enforce their decisions; otherwise a person runs
the risk of incurring useless expenditures to obtain a LEGAL SEPARATION
judgment that cannot be enforced. • There is no obstacle to aliens in securing relative
divorce in the Philippines, provided:
1. Their national law is willing to recognize
CHAPTER 10: ANNULMENT/ DECLARATION OF Philippine jurisdiction.
NULLITY/LEGAL SEPARATION 2. Separation is agreeable to the internal law of the
national state of the parties.
ANULLMENT/DECLARATION OF NULLITY
• Grounds for annulment (if the marriage is • NOTE: Grounds for Legal separation are the
voidable merely) and grounds for declaration of cumulative grounds provided by the national law
nullity (if the marriage is void ab initio) are of the parties (lex nationalii).
governed by the law alleged to have been
violated; in other words, it is the law of the place
of celebration (lex loci celebrationis) subject to
certain exceptions, that furnishes the grounds.
CHAPTER 11: LEGITIMACY, LEGITIMATION &
1. Jurisdiction to annul – in practically all civil ADOPTION
countries following the nationality principle,
nationals of the forum are permitted to sue for
annulment irrespective of their domicile. In many FACTUAL POINT OF CONTACT
countries today however, jurisdiction is vested in SITUATION
the court of the domicile of the parties. 1) Paternity and 1) if legitimate – national law
Jurisdiction over the non-resident defendant is Filiation of the father (Art 15, Civil
not essential. It is the status of the plaintiff that is (including Code)
in issue. He should be domiciled in the forum. Parental Authority 2) if illegitimate – national law
2. The governing law – lex loci celebrationis (of the and Reciprocal of the mother unless
marriage) determines the consequences of any Support) – recognized by the father in
defect to form. Generally, the same applies with legitimacy, which case, national law of
reference to substantive or intrinsic validity. But legitimation, the father (Art 15, Civil
with regard to capacity of the parties to marry, recognition, Code)
their national law is determinative. presumptions of 3) determination of whether
legitimacy, rights legitimate or illegitimate
ABSOLUTE DIVORCE and obligations of (national law of the father,
parents and as a rule) – (Art. 15, Civil
• GENERAL RULE: our courts only observe children, including Code)
relative divorce (legal separation). Any divorce parental authority,
sought in Philippine courts will not be granted. and reciprocal Doctrine of Immutability of
Filipino couples cannot obtain absolute divorces support. Status – change of
abroad and neither shall a valid divorce obtained parent’s nationality does
abroad by Filipino couples be recognized here. not affect the status of the
QuickTime™ and a
child
• EXCEPTIONS: TIFFare(Uncompressed) decompressor
needed to see this picture. 2. Adoption – 2) in general, national law of
1. Valid divorce obtained abroad between creation of the the adopter
foreigners whose national laws allow divorce. status of adoption;
2. Where a marriage between a Filipino citizen and rights and NOTE: In the Philippines.
a foreigner is validly celebrated and a divorce is obligations of adoption by a Filipino does
thereafter validly obtained abroad by the alien adopter and not confer Filipino citizenship
spouse capacitating him or her to remarry, the adopted on an adopted alien child.
Filipino spouse shall have capacity to remarry 3. Guardianship
under Philippine law. a) over the person
• Hague Convention provides that the granting of 1) appointing 1) court of the domicile of the

Page 260 of 297


Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

court ward
LAWS REGULATING RELATIONS BETWEEN
2) powers of 2) coextensive with those of LEGITIMATE/D CHILDREN AND PARENTS
guardian the appointing court (law of
the appointing state) • Personal law of the father controls the rights and
duties of parents and children.
b) over the • EXCEPT: parental interest in the immovable
property property of the child which may be regulated by
1) appointing 1) court where the property is the lex situs.
court found (lex rei sitae) • NOTE: Reference to the personal law of the
father may result in joint exercise of parental
2) powers of 2) coextensive with those of authority over the property of the child by father
guardian the appointing court (law of and mother (Art. 221, Family Code). Father’s
the appointing state) personal law could grant parental authority to the
mother of the illegitimate children (Art. 176,
c) over the person c) see 3(a) and 3(b) Family Code).
and over the • NOTE: Change in the nationality of the male
property parent affects the consequent relations between
4. Funerals Where the body is buried. the parents and child.

RIGHTS AND OBLIGATIONS INVOLVED UNDER


GOVERNING LAW ON THE LEGITIMACY OF A PHILIPPINE LAWS INCLUDE:
CHILD:
• The legitimacy of the child is determined by the 1. Personal Care
national law of the parents. If the parents belong 2. Parental Authority
to different nationalities, legitimacy of the child is 3. Provide for Education
determined by the national law of the male 4. Reciprocal Support
parent.
• NOTE: Presumptions of Legitimacy are not LAWS REGULATING RELATIONS BETWEEN
mere rules of evidence but are considered as ILLEGITIMATE CHILDREN
substantive law, hence governed as well by the
national law of the male parent. • Relations between the mother and the illegitimate
child are governed by the mother’s personal law.
RIGHTS OF A LEGITIMATE CHILD: • If the child is later legitimated, personal law of the
1. To bear the surname of the father and the mother child follows that of the father.
2. receive support from their parents, brothers and
sisters, in proper cases; RIGHTS OF AN ILLEGITIMATE CHILD
3. to the legitime and other successional rights. 1. To use the surname of the mother
• NOTE: The law governing the capacity to 2. To Support
succeed and the amount of successional rights of 3. To Legitime
the legitimate children are governed by the
national law of the decedent. ADOPTION

LEGITIMATION Adoption – an act which renders a child legitimate


in relation to the adopting parents, to whom the child
Legitimation – is the act QuickTime™
by which and aa person not born may or may not be related.
TIFF (Uncompressed) decompressor
legitimate, is placed upon the same
are needed to see this picture. footing as a
legitimate child.
LAWS REGULATING RELATIONS BETWEEN 1. Jurisdiction to Grant Adoption – The Philippine
Courts shall have jurisdiction to grant petition for
• GOVERNING LAW: The National law of the male adoption but must apply the lex fori with respect
parent at the time of the marriage shall govern: to procedural matters.
a. Whether legitimation has been effected 2. Capacity of Aliens to Adopt – According to
b. Whether or not the legitimation will have Salonga, the cumulative substantive
retroactive effect requirements of the forum and of the national law
c. Other connected matters of the adopter must be complied with.

Page 261 of 297


Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

3. Effects or Consequences of Adoption – Means of


a. Successional rights – governed by the Transportation
Conflict Rules on Succession.
b. Parental Authority – governed by the national Vessels Law of the flag (or in some
law of the adopter cases, place of registry)
4. Recognition of a Decree on Adoption – The
Philippines recognizes the principle of foreign Other means Law of the depot (storage
adoptions validly rendered and recognized where place for supplies or
effected. However, such adoption is still subject resting place)
to municipal law i.e. the obligation to register said Things in transitu
adoption in the civil registry. EXCEPTION, such (these things have a
adoption shall not be recognized if it is contrary to changing status
public policy or residents’ interest forbids its because they move)
enforcement (Agpalo)
Loss, destruction, Law of the destination
CHAPTER 12: RULES ON PROPERTY deterioration (Article. 1753, CC)
Locus regit actum (where
RULES ON REAL PROPERTY Validity & effect of the seized) – because said
seizure of the goods place is their temporary
• GENERAL RULE - Lex rei sitae (Article 16, CC) situs
Disposition or alienage Lex loci volutantis or lex
• EXCEPTIONS:
of the goods loci intentionis – because
1. Successional rights – National law of decedent
here there is a contract
(Article 16 par. 2, CC)
2. Capacity to succeed – National law of decedent
(Article. 1039) INTANGIBLE PERSONAL PROPERTY
3. Contracts involving real property which do
not deal with the title thereto - The law INTANGIBLE PERSONAL PROPERTY (CHOSES IN
intended will be the proper law of the contract ACTION)
(lex loci voluntantis or lex loci intentionis) FACTUAL SITUATION POINT OF CONTACT
Recovery of Where debtor may be
TANGIBLE PERSONAL PROPERTY debts or effectively served with
involuntary summons (usually the
• GENERAL RULE - Lex rei sitae (Article 16, CC) assignment of domicile)
• EXCEPTIONS: same as those for real property debts
(garnishment)
RULES GOVERNING DIFFERENT KIND OF Voluntary Lex loci voluntatis or lex
TRANSFERS: assignment of loci intentionis (proper law
debts of the contract)
1. Voluntary transfers of interests in chattels
(other than assignment for the benefit of Taxation of debts Domicile of creditor
creditors) – validity and effect of conveyance as Administration of Lex situs of assets of the
between the parties are determined by the local debts debtor (for these assets
law of the State which, with respect to the can be held liable for the
particular issue, has the most significant debts)
relationship to the parties. Negotiability or The right embodied in the
2. Acquisitions of title QuickTime™
by operation of law (e.g. non-negotiability instrument (for example, in
and a
acquisition byTIFFare(Uncompressed)
prescription decompressor
or adverse of an instrument the case of a Swedish bill
needed to see this picture.
possession, validity and priority of attachments, of exchange, Swedish law
levied of execution, statutory liens) – governed by determines its
lex situs. negotiability)
Validity of In general, situs of the
TANGIBLE PERSONAL PROPERTY transfer, delivery instrument at the time of
(CHOSES IN POSSESSION) or negotiation of transfer, delivery or
FACTUAL SITUATION POINT OF CONTACT the instrument negotiation
Effect on a Law of the place
corporation of the incorporation

Page 262 of 297


Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

sale of corporate ii. Lex domicilii


shares iii. RP law (Article 816, CC),
Effect between Lex loci voluntatis or lex iv. Lex loci celebrationis (Article 17(1))
the parties of the loci intentionis (proper law
sale of corporate of the contract) – for this is • NOTE: Joint wills executed by Filipinos whether
shares really a contract; usually in the Philippines or abroad, even though
this is the place where the authorized by the foreign country which they may
certificate is delivered) have been executed, shall not be valid in the
Taxation on the Law of the place of Philippines (Art. 819 Civil Code). This prohibition
dividends of incorporation only applies to Filipino nationals. The validity
corporate shares of a will as to its form depends upon the
Taxation on the Law of the place where the observance to the law in force at the time it is
income from the sale was consummated made.
sale of corporate
shares INTRINSIC VALIDITY OF WILLS
Franchises Law of the place that
granted them • It concerns itself with the order of succession, the
Goodwill of the Law of the place where the amount of successional rights, and the intrinsic
business & business is carried on validity of the provisions of the will. It is governed
taxation thereto by the national law of the person whose will is
Patents, In the absence of a treaty, under consideration in force at the time of
copyrights, they are protected only by death.
trademarks, trade the State that granted • Capacity to succeed – law of the nation of the
names them decedent (Art. 1039, Civil Code)
NOTE: foreigners may sue
for infringement of THEORIES ON THE PROPER LAW FOR THE
trademarks and trade TRANSMISSION OF SUCCESSIONAL RIGHTS
names in the RP ONLY IF
Filipinos are granted 1. Unitary or single system – one law governs the
reciprocal concessions in transmission of BOTH real and personal property.
the State of the foreigners
2. Split or scission system – one law governs real
property while another determines successional
rights to personal property.
CHAPTER 13: WILLS, SUCCESSION &
ADMINISTRATION OF CONFLICT RULES Caduciary rights – refer to the right of the state to
claim thru escheat proceedings the properties within
its territory of a decedent when the decedent is not
EXTRINSIC VALIDITY OF WILLS
survived by any heirs.
• Deals with the forms and solemnities in the
making of wills. REVOCATION OF WILLS

GOVERNING LAWS 1. Done in the Philippines - Lex loci actus (of the
revocation) (Article. 829)
1. If the Testator is a FILIPINO 2. Done outside of the Philippines:
QuickTime™ and a
a. Executed inTIFF Philippines
(Uncompressed) – Philippine law
decompressor a. By a non-domiciliary
are needed to see this picture.
b. Executed in foreign country – i. Lex loci celebrationis (of the making of
i. Lex nationalii the will, NOT revocation)
ii. Lex loci celebrationis (Article 817) ii. Lex domicilii (Article 829)
2. If the Testator is an ALIEN b. By a domiciliary of the RP
a. Executed in the Philippines i. Lex domicilii (RP law)
i. Lex nationalii ii. Lex loci actus (of the revocation) (Article
ii. Lex loci celebrationis (Article 815) 17)
b. Executed abroad
i. Lex nationalii PROBATE OF WILLS

Page 263 of 297


Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

interpretation of the instruments, and amount of


• If the will is not yet probated abroad, Lex fori of damages for breach is governed by the proper
the RP applies as to the procedural aspects, i.e., law of the contract – lex contractus (in the broad
the will must be fully probated here and due sense), meaning the lex voluntatis or lex loci
execution must be shown. intentionis.
• If the will is already probated abroad, lex fori of • NOTE: The parties may stipulate that the
the RP again applies as to the procedural contract be governed by a specific law, such will
aspects. Although it has been probated abroad, be recognized (lex loci intentionis) subject to the
the will must also be probated here, but instead limitation that it is not against the law, morals and
of proving due execution, generally it is enough public policy of the forum and it must bear a
to ask for the enforcement here of the foreign substantive relationship to the transaction.
judgment on the probate abroad. 2. If there is no effective choice of law – the
governing the law of the State with the most
EXECUTORS AND ADMINISTRATORS substantial connection with the transaction and
the parties.
1. The executor is qualified, and the administrator is • The contacts to be taken into account in
appointed, by the Court of the place where the determining the applicable law to an issue are the
deceased was domiciled at the time of death; or ff:
in the case of a non-domiciliary, where the assets a. Place of contracting
or properties of the deceased are found. b. Place of negotiation
2. Their rights, powers and obligations are co- c. Place of Performance
extensive with the qualifying of the appointing d. The location of the subject matter of the
court – powers may only be exercised within the contract
territorial jurisdiction of the court concerned. e. The domicile, residence, nationality, place of
• NOTE: these rules also apply to principal, incorporation and place of business of the
domiciliary, or ancillary administrators & receivers parties.
even in non-successive cases
VCEPI v. Philippine Gurantee – The Philippines
CHAPTER 14: RULES ON CONTRACTS has no express Conflict rules regarding the intrinsic
validity of contracts. The SC held that in such
EXTRINSIC VALIDITY OF CONTRACTS instances, the party may apply the law expressly
agreed upon by the parties or the law intended by
• Governed by lex loci celebrationis the parties to govern their transactions. The lex
• EXCEPTIONS: intentionis may be inferred from the nationality of the
1. Alienation & encumbrance of property - Lex situs parties, their residence, place of performance, etc. In
(Article 16 [1]) this case, the parties did not agree upon on which
2. Consular contracts - Law of the RP (if made in law shall apply. Hence, the SC applied the law with
RP consulates) the most substantial connection to the transaction.
Absent any proof of the law of the proper state, the
SC applied the doctrine of processual presumption,
that such law is the same as the law of the forum.
Rule on Validation – parties entering into a contract
upon equal terms intended their agreement to be
binding, and the law will give effect on their intent CAPACITY TO ENTER INTO CONTRACTS
whenever it can do so under any law whose
application the parties can be reasonably be • PHILIPPINE RULE: the capacity of the
assumed to have taken into account.
QuickTime™ and a
contracting parties is governed by their
TIFF (Uncompressed) decompressor
are needed to see this picture.
respective national laws.
• EXCEPTION: In alienation and encumbrance of
• The rule on validation especially becomes property, the capacity of the contracting parties
significant in cases involving multi-states contacts are governed by the lex situs (Art. 16 (1))
and there is difficulty determining where exactly • The doctrine of estoppel may be invoked in case
the contract has been celebrated. a party incapacitated to enter into a contract
under his national law later invokes such law to
INTRINSIC VALIDITY OF CONTRACTS evade his obligations. PROVIDED: The other
party entered the contract in good faith.
1. The intrinsic validity of contracts including the • The Courts must uphold the Justified

Page 264 of 297


Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

Expectations of the Party, especially in cases CHAPTER 14: TORTS


where the national laws of the parties are
incidental or without substantial connection to the • As a general rule, the liability and damages for
contract. torts are governed by Lex loci delicti (law of the
place where the delict was committed)
OTHER THEORIES ON CAPACITY
1. Lex loci celebrationis (defect: this makes CHARACTERIZATION OF THE PLACE OF
possible the evasion of the national law) WRONG (locus delicti)
2. Lex nationalii (defect: this may impede
commercial transactions) 1. Common law theory – looks to the place where
3. Lex loci solutionis (law of the place of the last event necessary to make an actor liable
performance) (defect: there may be several for an alleged tort occurs (where the injury is
places of performance sustained)
4. Prof Minor’s solution: 2. Civil law theory – view the situs of torts as the
• Perfection – lex loci celebrationis place where the tortuous act was committed.
• Cause or consideration – lex loci
considerations OBLIGATION THEORY
• Performance – lex loci solutionis (defect: this
theory combines the defect of the others) • The tortuous act gives rise to an obligation, which
is transitory and follows the person committing
CHOICE OF LAW ISSUES IN CONFLICTS the tortuous act and may be enforced wherever
CONTRACT CASES he may be found.

1. Choice of Forum Clause MODERN THEORIES IN TORT LIABILITY


• Parties may stipulate on the venue of the suit in
case of litigation concerning the contract. 1. Doctrine of Elective Concurrence – Either the
However, a case arising from a contract will be laws of the state where the actor engaged in his
litigated in the forum chosen by the parties if the conduct and where the injury was incurred may
choice of the forum clause specifically identifies it be invoked.
as the only venue. 2. Theory of Most Significant Relationship – The
• When there is no fraud or overreaching, and applicable law shall be the law of the country
there is no showing that the choice of forum which has the most significant relationship to the
clause would be unreasonable and unjust, the situation. In determining the state which has the
clause must be given effect. most significant relationship, the following factors
are to be taken into account:
Pakistan International Airlines v. Ople – The a. place where the injury occurred
Supreme Court held that where the relationship b. place of conduct causing the injury
between the parties is affected with public interest c. domicile, residence, nationality, place of
and the multiple and substantive contacts of the incorporation and place of business
contracts are with Philippine law, Philippine Courts d. place where relationship between the parties
and agency may not be ousted of their jurisdiction. is centered
3. State-interest Analysis – This principle provides
2. Contracts with Arbitration Clause for the following methodology:
• Many courts apply to arbitration agreements the a. Determine false or spurious conflicts (i.e.,
law of whatever place the parties have internal laws of the different states have the
designated as governing, QuickTime™thusand a sustaining their
same result or when only one state has an
TIFF (Uncompressed) decompressor
agreement to arbitrate.
are needed to see this picture.
interest in applying its tort law.
3. Adhesion Contracts b. If there is True Conflict:
• When there is no proof of arbitrariness, abuse of i. If Interested Forum – apply the law of
power, or gross negligence, the contract or such State which has greater interest in
stipulation will be enforced. upholding its tort law.
ii. If Disinterested forum – Dismiss on the
ground of Non Forum Conveniens.
4. Special Contracts (Please Refer to Conflicts 4. Caver’s Principle of Preference – guideline on
Table 1) which rules on torts may be applied by States in
absence of statutory provision:

Page 265 of 297


Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

a. Where the State of Injury provides for higher 2. If the tort takes place aboard a private or
standard of conduct or financial protection merchant vessel on the high seas , the law of
against injury than the State where the the flag is likewise the lex loci delicti commissi.
tortious act was done, the law of the former 3. If the tort concerns property, whether real or
shall govern. personal, the lex situs is usually also the lex loci
b. Where the State of injury and conduct delicti commissi.
provides for lower standard of conduct and 4. Maritime torts
financial protection than the home State of a. if the colliding vessels are of the same state, or
the person suffering the injury, the law of the carry the same flag, said law is the lex loci
State of conduct and injury shall govern. delicti commissi
c. Where the State in which the defendant has b. if the vessels come from different states,
acted has established special controls over whose laws however, on the matter are
conduct of the kind in which defendant was identical, said laws constitute the lex loci delicti
engaged, the special controls and benefits commissi.
must be applied although the State has no c. if the vessels come from different states with
relationship to the defendant. different laws, the lex loci delicti commissi is
d. Where the law in which the relationship has the general maritime law as understood and
its seat imposed higher standard of conduct applied by the forum where the case is tried.
or financial protection than the law of the
State of the injury, the former law shall
govern. Le Forest v. Tolman – In order to successfully
maintain an action of tort, the act which is the
CONDITIONS FOR THE ENFORCEMENT OF TORT cause of the injury and the foundation of the
CLAIMS action must at least be actionable or
punishable by the law of the place in which it
• The tort is not penal in character was done, if not also by the law of the place
• If the enforcement of the tortious liability won’t here redress is so ght
contravene our public policy
• If our judicial machinery is adequate for such
enforcement
CHAPTER IV: CRIMES
PHILIPPINE RULE
• Salonga suggests for the following methodology • GENERAL RULE: The essential elements of a
in solving Torts Problems in the Phils: crime and its penalties are generally determined
a. Ascertain and weigh the purpose underlying by the law where the crime was committed (locus
the tort law of the forum. If the Tort law of the regit actum).
Philippines embodies a social or economic • EXCEPTIONS:
policy, then the law of the forum on Torts 1. crimes committed by state officials, diplomatic
shall be applied. representatives and officials of recognized
b. If the Philippines has no concern or interest international organizations (based on the theory
in the application of the internal law and the of state immunity from suits)
other States have interest, apply the law of 2. crimes committed on board a foreign vessel even
such state. if within the territorial waters of the coastal state,
• NOTE: the State where an injury has occurred as long as the effect of such crime does not
has interest in compensating the injured party. affect the peace and order of the coastal state
Whereas, the State where QuickTime™ the
and aactor has acted
3. crimes which, although committed by Philippine
TIFF (Uncompressed) decompressor
has interest in regulating
are needed to see this conduct
the picture. of persons nationals abroad are punishable under the local
found in its territory. law pursuant to the protective principle of criminal
jurisdiction (ie.e. Art 2 of the RPC)
SPECIAL RULES
THEORIES AS TO WHAT COURT HAS
1. If the tort is committed aboard a public vessel, JURISDICTION
whether on the high seas or in foreign territorial
waters, the country to which the vessel belongs is 1. Territoriality theory – where the crime was
the locus delicti; the law of the flag is thus the lex committed
loci delicti commissi. 2. Nationality theory – country which the criminal

Page 266 of 297


Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

is citizen or a subject false representations were made)


3. Real theory – any State whose penal code has representation
been violated has jurisdiction, where the crime Conspiracy to Where the conspiracy was formed
was committed inside or outside its territory commit treason, (not where the overt act of
4. Protective theory – any State whose national rebellion, or treason, rebellion or sedition was
interests may be jeopardized has jurisdiction so sedition committed)
that it may protect itself NOTE: Other
5. Cosmopolitan or universality theory – State conspiracies
where the criminal is found or which has his are NOT
custody has jurisdiction penalized by
6. Passive personality theory – the State of which our laws
the victim is a citizen or subject has jurisdiction Libel Where published or circulated
Continuing Any place where the offense
ƒ NOTE: In the Philippines, we follow the crime begins, exists or continues
territoriality theory in general. Hence, our penal Complex crime Any place where any of the
laws apply only to crimes committed within the essential elements of the crime
country. took place
ƒ EXCEPTION: Article 2 RPC, stresses the
protective theory:
a. Offense committed while in a Philippine
vessel or airship.
CHAPTER XV: BUSINESS ASSOCIATIONS
b. Forging or Counterfeiting any coin currency
note of the Philippines, or any obligation
CORPORATIONS
issued by the government.
FACTUAL POINTS OF CONTACT
c. Introduction into the country of the
SITUATION
abovementioned obligations and securities.
d. While being public officers and employees, Powers and General rule: the law of the
any offense committed in the exercise of their liabilities place of incorporation
functions. Exceptions:
e. Crimes against national security and the Law • For constitutional
of the nations as defined in Title 1 Book of purposes – even if the
the RPC. corporation was
incorporated in the RP, it
is not deemed a Filipino
THE LOCUS DELICTI OF CERTAIN CRIMES corporation & therefore
can’t acquire land,
Frustrated and Where the victim was injured (not
exploit our natural
consummated, where the aggressor wielded his
homicide, weapon) resources, and perate
public utilities unless
murder,
60% of capital if Filipino
infanticide &
parricide owned
Attempted Where the intended victim was • For wartime purposes –
homicide, etc. (not where the aggressor was we pierce the
situated) – so long as the weapon corporation veil & go to
or the bullet either touched him or the nationality of the
fell inside the territory where he controlling stockholders
was
QuickTime™ and a
TIFF (Uncompressed) decompressor
to determine if the
are needed to see this picture.
corporation is an enemy
Bigamy Where the illegal marriage was
(CONTROL TEST)
performed
Theft & Where the property was
Formation of the • Law of the place of
corporation incorporation
robbery unlawfully taken from the victim
(requisites); kind
(not the place to which the
of stocks, transfer
criminal went after the
of stocks to bind
commission of the crime)
the corporation,
Estafa or Where the object of the crime was
issuance, amount
swindling thru received (not where the false

Page 267 of 297


Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

& legality & (center for administration or siege social) (center


dividends, powers office principle)
& duties of 3. Law of the place of exploitation (exploitation
members, centre or siege d’ exploitation)
stockholders and
officers WHEN DOES THE PERSONAL LAW OF THE
Validity of • Law of the place of CORPORATION GOVERNS?
corporate acts & incorporation & law of 1. requisites for formation of the corporation and its
contracts the place of performance legal character
(including ultra (the act or contract must 2. The capacity and powers of the corporation: Note
vires acts) be authorized by BOTH however that two questions should be asked in
laws) determining the legal effect of an act of a
Right to sue & • Lex fori corporation: First, is the corporation authorized
amenability to by its charter to do the particular act? Second, is
court processes & this act permitted by the law of the place where
suits against it the act is done?
Manner & effect • Law of the place of 3. Kinds of stocks allowed and transfer of stocks in
of dissolution incorporation provided a way that would be binding on the corporation
that the public policy of 4. Issuance, amount, and legality of dividends;
the forum is not militated 5. The internal organization of the corporate
against enterprise, the rights and liabilities of
Domicile • If not fixed by the law shareholders, members, directors, officers, their
creating or recognizing relations inter se, and stockholders’ participation
the corporation or by any in the management and in the profits.
other provision – the 6. Alteration or modification of the charter and the
domicile is where it is dissolution of the corporation.
legal representation is
established or where it
exercises its principal PHILIPPINE JURISDICTION OVER FOREIGN
functions (Article. 15) CORPORATIONS
Receivers • Principal receiver is • Consent doctrine – a foreign corporation will be
(appointment & recognized and will be allowed to transact
appointed by the courts
powers) of the State of business in any state which gives its consent.
incorporation; ancillary (Secs. 125, 126, 127 and 128 Corp. Code)
receivers, by the courts • NOTE: all foreign corporations lawfully doing
of any State where the business here in the Philippines shall be bound
corporation has assets by all laws, rules and regulations applicable to
(authority is CO- domestic corporations EXCEPT provisions for the
EXTENSIVE) w/ the creation, formation, organization or dissolution of
authority of the corporations or those which fix the relations and
appointing court liabilities or duties of the stockholders, members
or officers of the corporation to each other.
THEORIES ON THE PERSONAL AND/OR
GOVERNING LAW OF CORPORATIONS: RIGHT TO BRING A SUIT
• GENERAL RULE: if a corporation doing
1. Law of the place ofQuickTime™ incorporation
and a – this is business in the country is not duly licensed or
TIFF (Uncompressed) decompressor
generally the rule being
are needed adhered
to see this picture. to by the authorized to transact business in the Philippines,
Philippines. it cannot be permitted to maintain or intervene in
• EXCEPTIONS: any action, suit or proceeding in any court or
a. Exploration and Exploitation of Natural administrative agency of the Philippines BUT it
resources can be sued before any court or administrative
b. Media tribunals on a valid cause (Sec. 133 of Corp
c. Wartime Rule Code).
d. Piercing of Corporate Veil • EXCEPTIONS:
2. Law of the place or center of management 1. Isolated transactions
2. action to protect trademark, trade name, goodwill,

Page 268 of 297


Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007

patent or for unfair competition Creation of branches RP law (law of the


3. agreements fully transacted outside the in the RP; validity & place where branches
Philippines effect of the branches’ were created) (Article
4. petition filed is merely a corollary defense in a commercial 15, Code of
suit against it transaction; & the Commerce)
5. In case of Estoppel. A person who enters into a jurisdiction of the
contract with a foreign corporation and receives court
benefits from the contract is estopped from Dissolution, winding RP law (Article 15,
setting up the failure of said corporation to up, & termination of Code of Commerce)
comply with the requirements for doing business, branches in the RP
in order to avoid liability. Domicile If not fixed by the law
creating or recognizing
A corporation is “doing business” when it is
the partnership or by
continuing the body or substance of the business or
enterprise for which it was organized. The term any other provision –
implies a continuity of commercial dealings and the domicile is where it
arrangements and contemplates, to that extent, the is legal representation
performance of acts and works or the exercise of is established or
some of the functions normally incident to, and in where it exercises its
progressive prosecution of, the purpose and principal functions
objective of its organization. (Article. 15)

MULTI-NATIONAL CORPORATIONS

• Cluster of corporations of diverse nationalities


joined together by ties of common ownership and
responsive to a common management strategy.
• Jurisdiction over a local counterpart may amount
to jurisdiction on the parent company if the local
counterpart is only a branch and is without
separate juridical personality from the mother
company and when such local counterpart is but
a conduit or alter-ego of the parent company.
• However, if the local counterpart is a subsidiary
with an entirely distinct personality, jurisdiction
over the local counter-part is not jurisdiction over
the parent company.
• NOTE: A subsidiary is one which is incorporated
separately from the mother company, thus
obtaining its own juridical personality.

PARTNERSHIPS
FACTUAL SITUATION POINTS OF CONTACT
QuickTime™ and a
The existence or non- The personal
TIFF (Uncompressed) decompressor law of
are needed to see this picture.
existence of legal the partnership, i.e.,
personality of the firm; the law of the place
the capacity to where it was created
contract; liability of (Article 15 of the Code
the firm & the partners of Commerce)
to 3rd persons (Subject to the
exceptions given
above as in the case
of corps.)

Page 269 of 297