Chapter I IN GENERAL 1. Define Conflict of Laws.

It is 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 (Cheshire, Private International Law, 1947 ed., p. 6). Conflict of Laws embraces those universal principles of right and justice which govern the courts of one state having before them cases involving the operation and effect of the laws of another state or country (Minor, Conflict of Laws, 1901, p. 4). Conflict of Laws is that part of the municipal law of a state which directs its courts and administrative agencies, when confronted with a legal problem involving a foreign element, whether or not they should apply a foreign law or foreign laws. (Paras, Phil. Conflict of Laws, 1996 ed., p. 2). 2. What is a 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 the laws of different states or countries, is a Conflict of Laws case. 3. When the word "state" is used in Conflict of Laws, what does it mean? It includes not only foreign sovereign countries or states but also political subdivisions of states or countries which have their own legal systems, such as the different states constituting the United States of America, the federal states of Australia, Canada, Mexico, Brazil and Germany, etc. 4. Why is this subject more important in recent times than in the past? With the fast advance of modern technology in the means of communication between and among states, the rapid growth and expansion of international trade and commerce, the influx of tourists arid foreign traders to our country as well as the massive migration of our countrymen to work and live in foreign shores, the great increase of business transactions of foreign corporations in the Philippines, all these bring about many and varied problems in Conflict of Laws. Hence, the necessity not only for lawyers and judges but for our citizens as a whole to study this subject as an important department of law. 5. Is Conflict of Laws part of International Law? No. Although it is sometimes thought of as part of International Law because of the presence of a foreign element in a given problem, it is not international in character but is part of the municipal law of each state. By municipal law in Conflict of Laws is meant the internal or local law of each state, since every state has its own internal or local system of law, so each state also has its own conflict of laws. 6. What is the reason for the diversity of conflicts rules among the different states of the world?

This is because each group of people have a language, culture, mores and customs, religion, ideals and beliefs, peculiar to such group, which are reflected or expressed in their laws and legal systems. For example, while the great majority of the countries of the world allow absolute divorce, our country still has not legalized absolute divorce. And while some countries are very liberal in granting divorces, others are not so liberal. 7. Distinguish Conflict of Laws from Public International Law. (a) As to persons involved: Public International Law governs sovereign states and entities that are internationally recognized or possessed of international personality, such as the United Nations Organization; while Conflict of Laws governs private individuals or corporations. (b) As to nature: Public International Law is international in character; Conflict of Laws is municipal in character. (c) As to transactions involved: Public International Law applies only to transactions in which only sovereign states or entities with international personality are concerned and which generally affect public interest; while Conflict of Laws deals with transactions strictly private in nature, in which the country as such has generally no interest. (d) As to remedies applied: In a dispute between sovereign states or international entities or in case of a violation of International Law, the concerned states may first resort to peaceful remedies like diplomatic negotiations, mediation, inquiry and conciliation, arbitration, or judicial settlement by international tribunals like the United Nations. If these remedies fail, the states concerned may resort to forcible remedies like severance of diplomatic relations, retorsions, reprisals, embargo, boycott, non-intercourse, pacific blockades, collective measures under the UN Charter and finally, war. In Conflict of Laws, recourse is had to judicial or administrative tribunals in accordance with the rules of procedure .of the country where they sit. 8. What are the sources of Conflict of Laws? Direct sources: Bilateral and multilateral treaties and international conventions; constitutions; condifications and statutes; judicial decisions; and international customs. Indirect sources: the same as other branches of law: among others, the natural moral law, and the writings and treatises of thinkers and famous writers and jurists on the subject. Chapter II JURISDICTION AND CHOICE OF LAW 1. How does one deal with a problem in Conflict of Laws? (a) First, determine whether the court has jurisdiction over the case. If it has no jurisdiction, the case should be dismissed on that ground. If it has jurisdiction, the court will determine whether it should assume jurisdiction over the case or dismiss it on the ground of forum non conveniens. Of course, it is the law of the forum that determines whether the court has jurisdiction or not over the case.

(b) Once the court has determined whether it has jurisdiction over the case, it will next determine whether to apply the internal law of the forum or the proper foreign law, considering the attendant circumstances. 2. How does the court determine whether it has jurisdiction over the case? There are three kinds of jurisdiction: (a) jurisdiction over the subjectmatter, (b) jurisdiction over the person, and (c) jurisdiction over the res. Jurisdiction over the subject-matter: Jurisdiction over the subject-matter is conferred by law and is defined as the power to hear and determine cases of the general class to which the proceedings in question belong. (a) Since jurisdiction over the subject matter is conferred by law, it cannot be conferred by consent of the parties or by their voluntary submission. (b) In the Philippines, jurisdiction over the subject-matter is found in the Constitution and the Judiciary Reorganization Act, as amended (Judiciary Act of 1948; Batas Pambansa Blg. 129, as amended by Rep. Act 7691). (c) Since jurisdiction over the subject-matter exists only in the abstract, it must be invoked by filing the proper complaint or petition with the court. And it is the allegations of the complaint or petition read in the light of the proper jurisdictional law, that confer jurisdiction on the court. If the allegations of the complaint show prima facie a lack of jurisdiction, the court must dismiss the case outright. No preliminary hearing on the evidence is needed. If, on the other hand, the complaint or petition, on its face, shows the presence of jurisdiction, trial must be held. Should the evidence show that the court really has no jurisdiction, the case must be dismissed. (d) In the realm of Conflict of Laws, however, there is another element which the court must consider in determining the matter of jurisdiction; i.e., the possible enforceability of its decision in foreign states, subject to the rights of said states (see Fenwick, International Law [1948], p. 342). This is because in Conflict of Laws, jurisdiction is the power of the court of the forum to render a decision that will create legal rights and interests which other states will recognize and enforce. Jurisdiction over the Person: (a) Jurisdiction over the person is the competence or power of a court to render a judgment that will bind the parties involved: the plaintiff or petitioner, and the defendant or respondent. (b) Jurisdiction over the plaintiff is acquired the moment he invokes the power of the court by instituting the action by the proper pleading. Jurisdiction over the defendant is acquired when he enters his appearance or by the coercive power of legal process exerted by the court over him. A plaintiff, under the rule of submission, may sometimes by filing suit with the court be deemed to consent to its exercise of jurisdiction over his original cause of action including counter-claims filed by the defendant, and he would then be subject to the judgment of the court. As for the defendant, his personal appearance or appearance by counsel is tantamount to his giving consent to the court's exercise of jurisdiction over his person, except if his appearance or that of counsel is for the sole purpose of questioning the jurisdiction of the court.

(c) Jurisdiction over the defendant may be acquired through his voluntary appearance, as already stated, or by personal or substituted service of summons on him under the Rules of Court. This is referred to as the coercive process in the manner provided by law. Personal service: Sec. 6. Service in person on defendant. -Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him. (Rule 14, 1997 Rules on Civil Procedure) Substituted service: Sec. 7. Substituted service.- If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof. (id.) Strict compliance with the above rules is required before the court can acquire jurisdiction over the person of the defendant ( Pantaleon v. Asuncion, 105 Phil. 761; Sequito v. Letrondo, 105 Phil. 1139 ). Thus, service on a 12-year old daughter of the defendant is not valid substituted service because of the child's lack of suitable age and discretion ( Sequito v. Letrondo, id.). However, the question of erroneous service of summons must be raised before judgment is rendered, or this would be a clear case of waiver ( Jaranilla v. Gonzales, 96 Phil. 3) Moreover, defective service may be cured by actual receipt of the summons by the defendant, or if in any other manner, knowledge of the existence of the case should come to his attention (Sequito v. Letrondo, id.). Jurisdiction over the Res: Jurisdiction over the res or thing is jurisdiction over the particular subject-matter in controversy, regardless of the persons who may be interested therein. The basis of the exercise of this jurisdiction is the presence of the property within the territorial jurisdiction of the forum, even though the court may not have personal jurisdiction over the persons whose interests in the property are affected. This is because the purpose of the suit is not to impose a personal liability on anyone but it is to affect the interests of all persons in a thing. Examples are land registration cases and admiralty cases where the purpose is for the judgment to bind the whole world insofar as the subject land or vessel is concerned and not just the interests of specific persons. This kind of jurisdiction is referred to as jurisdiction in rem, as distinguished from jurisdiction in personam which binds only the parties and their successors-in-interest. What about actions quasi in rem? In an action quasi in rem, the purpose is neither to impose a personal liability or obligation upon anyone, nor to affect the interests of all persons in a thing, but to affect the interests of particular persons in a thing. In such case, the court may render valid judgment when it has jurisdiction over the particular persons whose interests are affected. Examples are foreclosure of a mortgage, partition of land, or an action to quiet title to property. An action affecting the personal status of the plaintiff is also classified as an action quasi in rem under Rule 14, sec. 15 of the 1997 Rules on Civil Procedure. In actions in rem, actions quasi in rem, or those involving the personal status of the plaintiff, extraterritorial service of summons by publication is allowed. 3. How may service of summons be effected? In actions in personam, service of summons may be by personal service or substituted service, as pointed out above. Service by publication would not be

sufficient, whether the defendant is in the Philippines or not ( Pantaleon v. Asuncion, 105 Phil 761). When, then, is service by publication allowed? Summons by publication is authorized only in three cases: (a) If the (b) If the (c) If the (Rule action is in rem; action is quasi in rem; or action involves the personal status of the plaintiff. 14, sec. 15, 1997 Rules on Civil Procedure)

When may extraterritorial service of summons be effected? Sec. 15, Rule 14, id., provides for four instances wherein extraterritorial service of summons may be made; namely: (a) When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff; (b) When the defendant does not reside and is not found in the Philippines, and the action relates to or the subject of which is, property within the Philippines (real or personal), in which the defendant has a claim a lien or interest, actual or contingent; (c) When the defendant is a non-resident but the subject of the action is property located in the Philippines, in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein; and (d) When property of a non-resident defendant has been attached in the Philippines. In the last case, however, while a writ of attachment may be issued by the court upon application, said writ cannot be implemented until the court has acquired jurisdiction over the non-resident defendant, for without such jurisdiction, the court has no power and authority to act in any manner against the defendant, and any court order to that effect will not bind said defendant (Davao Light and Power Co., Inc. v. C.A., 204 SCRA 343 [1991]). How may extraterritorial service be effected? Such service may, by leave of court, be effected: (a) By personal service as under sec. 6, Rule 14; (b) By publication, but copy of the summons and the order of the court must be sent by registered mail to the defendant's last known address; (d) In any other manner that the court may deem sufficient. For example, by registered mail (Midgely v. Fernandez, 64 SCRA 23). 4. Illustrative cases on the problem of jurisdiction:

(a) Mar, a Filipino permanent resident of California, USA, came to the Philippines or vacation. While here, he had an affair with and impregnated Rose. Learning of Roses pregnancy, Mar took the first available plane to the U.S. If, after the birth of her child, Rose files an action against Mar, who happens to have some properties in the Philippines, for. recognition of her child with support, would the action prosper, summons having been served on Mar only by publication?

As to the recognition of Rose's baby, yes, because that is an action that affects the status of the child, so that summons by publication would be

sufficient for the court to acquire jurisdiction over Mar (Sec. 15, Rule 14, 1997 Rules on Civil Procedure). But the demand for support of the child against Mar will not prosper, because it would be a judgment in personam, and summons by publication would not give the court jurisdiction over Mar. (b) Joe, a Filipino non-resident, married Susan in the Philippines while on a short vacation here, without revealing to Susan that he is already a married man. After Joe's departure for his foreign residence, Susan filed against, him an action for the declaration of the nullity of their marriage and damages, as Joe happens to have some properties here. Upon the filing of her petition, Susan also asked the court for a writ of preliminary attachment against some of Joe's properties in this country. Would Susan's action for declaration of nullity and damages against Joe prosper, summons having been served on the latter by publication? For the declaration of nullity of marriage, yes, because that asks for a declaration of the personal status of Susan, equivalent to an action quasi in rem. But as to the demand for damages with a writ of preliminary attachment, it was held in the recent case of Davao Light and Power Co., Inc. v. C.A., supra, that while the court could issue said writ, it cannot be implemented until the court has acquired jurisdiction over the non-resident defendant, which can be done only by personal or substituted service of summons on the latter, because a judgment for damages is a judgment in personam. (c) X, creditor of Y (a resident of Spain), filed an action against Y for the foreclosure of mortgage over a property given to him by Y as security for the payment of a debt contracted by Y while he was in the Philippines. In his action, X also prayed for deficiency judgment in case the property mortgaged would not be sufficient to satisfy the debt. Again, summons was served on Y by publication. Would the action prosper? As to the foreclosure of mortgage, yes, because it is an action quasi in rem. But as to the demand for deficiency judgment, no, because it is asking for a judgment in personam against Y. 5. Mention other points to remember on the matter of jurisdiction: (a) Once the plaintiff files an action before a Philippine court, whether he be a Filipino citizen or a foreigner, a resident or non-resident of the Philippines, he submits himself to the jurisdiction of the court and puts the judicial machinery into action. Hence, he is now subject to any counterclaims, cross-claims, etc. that the defendant may put up under Philippine law. In choosing a particular forum, the plaintiff has accepted the entire judicial machinery of the forum completely, so that he must accept not only its benefits but its burdens as well. (b) As for the defendant, he becomes subject to the court's jurisdiction as to all subsequent matters in the same suit, like appeals. And even if he leaves the state of the forum prior to the final determination of the action against him, jurisdiction of the court over him continues. 6. Explain why the court may refuse to exercise jurisdiction over a case on the basis of the principle of forum non conveniens. As has been said before, even if the court has jurisdiction over a conflicts case, it may, by invoking the principle of forum non conveniens, refuse to exercise or assume that jurisdiction, in view of any of the following practical reasons:

(a) The evidence and the witnesses may not be readily available in the forum; (b) The court dockets of the forum may already be clogged so that to permit additional cases would hamper the speedy administration of justice; (c) The belief that the matter can be better tried and decided in another jurisdiction, either because the main aspects of the case transpired there or the material witnesses have their residence there; (d) To curb the evils of "forum shopping"; i.e., the non-resident plaintiff might have filed the case in the forum merely to secure procedural advantages or to annoy or harass the defendant; (e) The forum has no particular interest in the case, the parties not being citizens of the forum or are residents elsewhere; or the subject-matter of the case evolved somewhere else; (f) Other courts are open and the case may be better tried in said courts; (g) The inadequacy of the local judicial machinery for effectuating the right sought to be enforced by the plaintiff; or (h) The difficulty of ascertaining the foreign law applicable. (See Stimson, Conflict of Laws, pp 348-352; Canada Malting Co. v. Patterson Steamship, 285 U.S. 413. 423; Heine v. New York Ins. Co., 45 Fed. (2d) 426) Example: Several German citizens brought insurance claims against the New York Life Ins. Co. on insurance policies issued in Germany. Although the plaintiffs were citizens and residents of Germany and defendant was a New York Corporation, suit was brought in Oregon, U.S.A. where defendant had an agent on whom summons was served. Issue: May the Oregon court, in the exercise of its discretion, refuse to take cognizance of the case? Held: Yes, on the ground of forum non convenience because: (a) Both parties were non-residents of the forum; (b) The courts of Germany and New York are open and functioning, and service can be made on the defendant in either jurisdiction; (c) To require defendant to defend the action in the forum would impose upon it great and unnecessary inconvenience and compel it to produce records and papers which were of daily use in its current business; (d) The case could consume months of the time of the court, resulting in delay, inconvenience, and expense to other litigants who are entitled to invoke the court's jurisdiction. (Heine v. New York Ins. Co., supra ) Warning: Remember, however, that the doctrine should generally apply only if the defendant is a corporation . For if the defendant is an individual, the proper forum may not be able to acquire jurisdiction over him (for example, he might not be residing there), thus leaving the plaintiff without any remedy (Stimson, supra). 7. After the court has acquired jurisdiction over a conflicts case and has decided to assume that jurisdiction, when is it bound to apply the internal or domestic law (lex fori)? There are at least three (3) instances when the forum has to apply the internal or domestic law (lex fori) in deciding a case in conflicts of law, viz: (a) When the law of the forum expressly so provides in its conflicts rules; (b) When the proper foreign law has not been properly pleaded and proved;

(c) When the case involves any of the exceptions to the application of the proper foreign law; (i.e., exceptions to comity). 8. Give examples of cases which require the application of Philippine internal or domestic law (lex fori). (a) Whenever land involved in the suit is located in the Philippines, Philippine law or the lex situs is applied (Art. 16, first par., New Civil Code) (b) Regarding the property relations of the spouses, Art. 80 of the Family Code provides that in the absence of .a contrary stipulation in a marriage settlement, the property relations of the spouses shall be governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence. The only exception is when both spouses are aliens. (c) When a Filipino father with American children (who became such under the rule of jus soli) dies, his succession shall be governed by Philippine law (sec. par., Art. 16, New Civil Code). (d) If a will executed by an alien abroad is revoked in our country, the revocation must comply with the formalities of Philippine law (Art. 829, New Civil Code).

9. Explain why the foreign law cannot be applied if it has not been pleaded and proved. This is the second case wherein the internal or domestic law of the forum (lex fori) will be applied; that is, when the proper foreign law has not been properly pleaded and proved. The reason is that our courts cannot take judicial notice of foreign laws. So that if the proper foreign law is not pleaded (in the complaint or petition, or in the answer or any other responsive pleading) and is not proven as a fact, the court has the right to presume that the applicable foreign law is the same as the internal or domestic law of the forum and should, therefore, apply the latter law (Adong v. Cheong Seng Gee, 43 Phil. 43; Sy Joc Liong v. Syquia, 16 Phil. 137; Lim v. Collector, 36 Phil. 472; Fluemer v. Hix, 54 Phil. 610; In re Testate Estate of Suntay, 95 Phil. 500 ). (a)In connection with the foregoing question, how is a foreign law proved under our Rules of Court? If the law is written it may be proved by: (1) An official publication thereof, or (2) A copy of the law attested by the officer having legal custody of the record or by his deputy, accompanied by a certificate of any Philippine embassy, consular, or foreign service officer in the foreign country where the record is kept, and authenticated by the seal of his office. (Rule 132, sec. 25, Rev. Rules of Court) If the law is unwritten, it may be proved by: (1) The oral testimony of expert witnesses, or (2) By printed and published books of reports of decisions of the country involved, if proved to be commonly admitted in its courts. (Rule 130, sec. 45, id.)

(b) What is meant by the processual presumption of law? This rule means that when the proper foreign law has not been properly proved, the court of the forum may presume that said foreign law is the same as its local or domestic law, which it can now apply. 10. How is a foreign law that has been duly pleaded and proved to be interpreted by our courts? As a general rule, a foreign law that has been duly pleaded and proved should be given by our courts the same interpretation as that given by the foreign tribunals of the country where the law comes from. A possible exception is a case where somewhere in our laws, there is a statute worded identically as the foreign law, so that our courts cannot be blamed if they disregard the foreign interpretation of said foreign law and give it the same interpretation previously given by our courts. 11. When a case involves any of the exceptions to the application of a foreign law, the rule is that the foreign law cannot be applied and the courts should instead apply the domestic or local law. What are these exceptions? (a) When the application of the foreign law would run counter to a sound and established public policy of the forum . Examples: (1) We cannot enforce in this country a. divorce law of a foreign country if the parties are Filipinos. If, however, the parties are a Filipino and a foreigner and the latter validly obtains a divorce abroad capacitating him or her to remarry, the Filipino spouse can also marry again (Art. 26, sec. par., Family Code). (2) A joint will executed by Filipinos locally or in a foreign country is not valid (Arts. 818, 819, New Civil Code). (3) Incestuous marriages under the Family Code and those considered void by the Code by reason of public policy are null and void, even if they are valid in other countries (Arts. 37, 38, Family Code). However, these provisions apply only to Filipinos. (b) When the foreign law is contrary to the almost universally conceded principles of morality (contra bonos mores): Examples: Foreign laws recognizing prostitution; agreements under foreign laws that corrupt the proper administration of justice or reward crimes; contracts under foreign laws to corrupt public officials; and in general, all transactions that infringe good morality as understood by the forum and those inconsistent with the best interests of its people. (c) When the foreign law involves procedural matters There are no vested rights in rules of procedure; hence, a party to an action must submit himself to the procedural formalities of the forum, except when the law is both procedural and substantive, like the rules on prescription, and the Statute of Frauds which under Philippine law are substantive. Hence, an American cannot insist on a jury trial in the Philippines; neither can he insist in the application of American procedural laws in a case in the Philippines where he is a party.

(d) When the foreign law is penal in character: Crimes committed in foreign countries are violations of penal laws of those countries and cannot be prosecuted here, especially as we follow the principle of territorially in criminal law: A "penal clause" in a contract entered into abroad may, however, be enforced here because such clause is not criminal in nature but only provides for liquidated damages. (e)When the law is purely fiscal (i.e., revenue-producing) or administrative in nature: We are not bound to enforce foreign revenue or administrative laws. We are not concerned with the collection of taxes by foreign countries or with foreign laws relating to governmental functions or matters. (f) When the foreign law might work undeniable injustice to the citizens or residents of the forum: Foreign laws that would result or cause injustice to citizens or residents of our country should not be enforced or given effect here, An example is a foreign law putting the age of majority at 21 and refusing to recognize contracts of Filipinos abroad who are above 18 but below 21, considering that the age of majority in our country is 18. (g) When the application of the foreign law would endanger the vital interests of the State: The national interests and security of our country should not be jeopardized by foreign laws, nor should we enforce foreign laws that undermine our governmental processes. (h) When the case involves real or personal property located in our country. Remember that we apply the lex situs or lex rei sitae to all properties, whether real or personal, found or located in the Philippines (first par., Art. 16, New Civil Code).

Chapter III THEORIES THAT JUSTIFY THE APPLICATION OF THE FOREIGN LAW 1. What are the theories that justify the court, in a conflicts case, to apply the foreign law instead of its own domestic or internal law? Some of the traditional theories in deciding whether to apply the local or domestic law or the foreign law in a conflicts case are the following:

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(a) The (b) The (c) The (d) The (e) The

theory of comity vested-right theory theory of local law theory of harmony of laws theory of justice.

2. Please explain each theory. (a)The theory of comity According to this theory, no foreign law would be allowed to operate in another state except by the comity of nations; i.e. the reciprocal courtesy which the members of the family of nations owe to one another. In the old case of Hilton v. Guyot, the U.S. Supreme Court defined "comity" as follows: Comity, in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and goodwill, upon the other. But it is the recognition which one state allows within its territory, to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its laws. (159 U.S. 113 [1895]) In the above case, a French citizen sued an American in a French court. Judgment was rendered in favor of the plaintiff French, who later filed an action in an American court to enforce the judgment. The American court found that the trial in the French court was fair and impartial but even in such a case, French tribunals do not regard American decisions with finality but they still review the latters decisions on the merits; i.e., they are regarded merely as prima facie evidence of plaintiff's claim. Hence, the same effect should be given by American courts to French decisions on "the principle of reciprocity". However, in a 1926 decision, the U.S. Court of Appeals of New York refused to apply the above case of Hilton v. Guyot. In this case, an American sued the defendant French citizen for wrongful delivery of goods in an American court. The defendant set up the defense that the same matter was already decided in his favor in an earlier case filed by the American in a French court. The lower court refused to give effect to the earlier French decision on the theory of the old Hilton case. Reversing the lower court, the U.S. Supreme Court ruled that since it was the American who filed the earlier case with a French court wherein he lost, he could not later impeach said judgment against him on the principle of comity, which gives conclusiveness to the French decision and bars his subsequent action filed with an American court. The basis of comity was stated as the persuasiveness of the foreign judgment , not the principle of reciprocity as held in the old Hilton case. ( Johnson v. Companie Generale Transatlantique, 242 N.Y. 381, U.S. Court of Appeals of N.Y., 242 NY 381 ) Thus, two principles have been given upon which the theory of comity rests: the comity based on reciprocity, and the comity based on the persuasiveness of a foreign judgment.

Note: In our 1997 Rules on Civil Procedure, we still follow the principle of reciprocity held in the old Hilton case because in Sec.

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48 of Rule 39 on the effect of foreign judgments or final orders, a foreign final judgment or order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title and may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. (b) The vested-rights theory Under this theory, our courts enforce not the foreign law or foreign judgment but the right or rights that have been vested under such law or judgment. Rights once acquired under a foreign law or judgment should be enforced regardless of where the suit for its enforcement was filed. Thus, the ideal of uniformity and predictability of results would be achieved. If a foreign law gives a person a right, the mere fact that the law of the forum does not give him a similar or the same right is no reason to refuse to help him get what belongs to him. The exception is, if the foreign law is against the public policy of the forum. It is a principle of every civilized law that vested rights should be protected. This principle also discourages forum-shopping. An example of the application of this theory is the American case of Gray v. Gray, 87 N.H. 82 (1934). In this case, Mrs. Gray filed an action in New Hampshire for damages against her husband Mr. Gray for personal injuries alleged to have been caused to her by the latter while driving from their home in New Hampshire to Maine where the accident happened. In Maine, the spouses are barred from maintaining an action against each other. There is no such prohibition in New Hampshire. The American court ruled in the above case that foreign torts should be governed by the lex loci delicti commissi . A right having been created by the appropriate law, the recognition of its existence follows everywhere. (See also MacDonald v. Railway, 71 N.H. 448; King v. Sarria, 69 N.Y. 24; Loucks v. Standard Oil Co. of New York, 225 N.Y. 448 ) (c) The theory of local law The adherents of this theory believe that we apply a foreign law not because it is foreign, but because our own law by applying a similar rule requires us to do so; hence, it is as if the foreign law has become part of our own internal or domestic law. A good example of this theory is Art. 16, par. 2, New Civil Code, which requires us to apply the national law of the deceased in the matter of his testate or intestate succession. If the deceased was a Chinese although the children are already Filipinos, we are required to apply Chinese law, not because it is the appropriate foreign law, but because our own Civil Code tells us to do so. (d) The theory of harmony of laws Under this theory, identical or similar problems should be given identical or similar solutions, thus resulting in harmony of laws. Certainty of solutions to the same or similar problems are of particular importance in areas where the parties are likely to think in advance of the legal consequences of their transactions. For example, transactions involving real property should be governed by the lex situs, in the interest of certainty and uniformity of result. Similarly, a person's civil status must be governed by a single law for the sake of certainty; e.g., whether a person

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is single or married. The application of the same or similar solution also prevents the bad practice of forum-shopping. (e) The theory of justice Since the purpose of all laws, including Conflict of Laws, is the dispensation of justice, the proper foreign law should be applied in order to attain this objective. The defect of this theory, however, is that different persons may have different ideas of what is just. Should we, then, leave the question to the different notions of fairness and justice?

3. There being many theories as to the proper choice of law that should be applied in each particular case, what, then, should be considered the right theory? In the words of the late Justice Edgardo L. Paras: It will be observed that the theories hereinabove adverted to do not mutually exclude one another; perhaps, the truth may be found in their combination. Certainly, if the world is to progress in understanding and judgment, it must recognize this imperative postulate: that sometimes, we have to apply the proper foreign law because courtesy, convenience, and international duty so demand; because there are vested rights we cannot conceivably ignore; because all too often, the foreign law has become part and parcel of our law; because identical situations should be resolved by identical remedies, irrespective of the forum; and finally, because to do otherwise may ultimately result in the negation of justice. (Paras, id., p. 73) Likewise, former Senator Salonga states thus: x x x in the absence of an applicable provision in the code or statute, the various theories should be examined and weighed as they bear on a given conflicts problem. No single theory contains the whole truth, no one approach is completely valid. As one author puts it: The policies behind all of the theories have validity. This suggests that they are not entirely exclusive. Indeed, there may be a gain in using different theories at different places to make more readily apparent the change in policies deemed dominant as the situations vary. (Salonga, Private International Law, 1995 ed., pp. 9495) Chapter IV NATURE AND COMPOSITION OF CONFLICTS RULES 1. Distinguish a purely internal provision of law from a conflicts rule or a provision in conflict of laws. A purely internal provision of law governs a domestic problem; i.e., one without a foreign element. And it authorizes, commands, or prohibits a certain act or mode of conduct. The question raised - whether the particular act or mode of conduct is allowed, commanded, or prohibited - is immediately solved.

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On the other hand, 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. It is usually expressed in the form of an abstract proposition that a given legal question is governed by the law of a particular country (which may be an internal law or the proper foreign law), to be ascertained in the manner indicated by the provision. Example of an internal rule: Art. 796. All persons who are not expressly prohibited by law may make a will. (New Civil Code) Example of a conflicts rule : Art. 16. Real property as well as personal property is subject to the law of the country where it is situated (Art. 16, 1 st par. , id.). 2. What are the two kinds of conflicts rules? They are: (a) The one-sided rule (which indicates when Philippine law will apply).

Examples: Art. 15, New Civil Code: Laws relating to family rights and duties, or to the status, condition, and legal capacity of persons, are binding upon citizens of the Philippines, even though living abroad. Art. 818, id.: Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. Note: The above provisions of law apply only to Filipinos. (b) The all-sided or multilateral rule : (which indicates whether to apply the local law or the proper foreign law). Examples: Art 16, first par., New Civil Code: Real property as well as personal property is subject to the law of the country where it is situated. Art. 17, first par., id.; The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. Note: The above provisions tell us when to apply Philippine law or the proper foreign law. In the first example, Philippine law is applied if the property is found in the Philippines. If it is found in a foreign country, like Japan, Japanese law applies. In the second example, if the contract was executed in the Philippines, its form and solemnities are governed by Philippine law. If it was executed in a foreign country, say in England, English law will apply.

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Observation: While Art. 15 of the New Civil Code literally applies only to Filipinos and is actually a one-sided rule, the Supreme Court has given it a multilateral application in that it has held that foreigners, in their status and legal capacity, are governed by their national law (Gibbs v. Govt., 49 Phil. 293; Recto v. Harden, L-6897. Nov. 29, 1956). In other words, the nationality theory embodied in Art. 15 of the New Civil Code has been applied by the Supreme Court even to persons who are citizens of countries following the domiciliary theory, like Americans. 3. What are the parts of every conflicts rule? Unlike a purely internal rule which governs a purely domestic problem without a foreign element, a conflicts rule which indicates whether to apply the internal law or the foreign law, has two parts which are readily recognizable: (a) the factual situation, or the set of facts or situation presenting a conflicts problem because there is a foreign element involved; and (b) the point of contact or connecting factor, which is the law of the country with which the factual situation is most intimately connected In other words, the first part states certain operative facts, the legal consequences of which are determined in the second part; that is, the first part raises, while the second part answers or solves, a legal question. Example: Art. 1763, New Civil Code, providing that the law of the country to which the goods are to be transported shall govern the liability of the common carrier for their loss, destruction, or deterioration. In this provision, we have the picture of a cargo ship traveling on the high seas but for some reason or another, the cargo or part of it is lost, destroyed, or deteriorates during the voyage. What the country destination, the place of law is to be applied to determine the liability of the ship? The law of to which the lost cargoes are to be transported, or the law of their not the law of the country where the lost cargoes were loaded, or embarkation.

Another example: Art. 1039, New Civil Code, providing that capacity to succeed is governed by the law of the nation of the decedent. Here again, we get the picture of a. person who dies, but whose heirs may be citizens of another country. What law should apply to determine who will succeed the deceased? The law says it is the law of the country of which the deceased was a citizen, and not the law of the citizenship of his heirs. Chapter V CHARACTERIZATION OF CONFLICTS RULES 1. What do you understand by the concept of "characterization" in determining what law to apply in a given conflicts problem? Characterization, otherwise known as classification or qualification, is the process of assigning a certain set of facts or factual situation to its proper or correct legal category. Every rule of law is based on situations of fact, actual or imagined, since the legislator must try to solve factual situations that might arise in the future, based on past observation and experience. These legal categories may be family relations, contracts, torts, succession, property, etc.

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By characterizing the legal problem, the court or the parties involved reach the proper solution whether to apply the local law or the proper foreign law. 2. What makes the problem of "characterization" or classification difficult? The difficulty in characterization arises from the fact that a conflicts situation or problem may be characterized by the lex fori differently from the characterization of the lex causae (the law of the state with which the act or transaction is most closely connected). The lex fori might regard the problem as tort, while the lex causae regards it as contract. Or the lex fori might regard the problem as crime, while the lex causae considers it only as tort. Which characterization should apply? Most writers hold that on the grounds of practical necessity and convenience, it is the forum, or the lex fori, that should determine the problem's characterization, unless the result would be a. clear injustice. The Supreme Court applied the above solution in the following case: Gibbs v. Govt of P. I.. 59 Phil. 293 : A Californian wife dies. Her Californian husband claims the entire properties acquired by the spouses during their marriage as his alone by accretion, following California law on property relations of spouses. Under Philippine law, however, this is a problem in succession, so that inheritance taxes should be paid by the husband as the lands in question were located in the Philippine. The Supreme Court held that the properties inherited by the husband were subject to inheritance taxes, categorizing the problem as one of the succession. 3. Suppose the problem of characterization involves a determination as to whether the matter pertains to "substantive" or to "procedural" law. How is the problem to be solved? There is no question that all procedural matters are governed by the lex fori. Thus, matters of service of summons, joinder or splitting of cause of action, how to appeal, periods of appeal, etc. are governed by the law of the forum. But what about prescription of action and the Statute of Frauds? Are they substantive (our law considers them such, so that they are found in the New Civil Code as well as the Rules of Court) or merely procedural and, therefore, governed by the lex fori? The modern trend is to consider the prescriptive periods or the Statute of Frauds that the parties had in mind at the time the transaction took place . Then, proceed to apply the intended law in its "totality" including its periods of prescription and its Statute of Frauds. An exception is if the subject-matter is property located in the Philippines, in which case Philippine law, being the lex situs, applies. Example: A, an Englishman, borrowed money from B, another Englishman, in England, evidenced by a promissory note. Let us assume that under English law, the period to sue on the promissory note is four (4) years. In the Philippines, the period of prescription is ten (10) years. If action is filed in the Philippines beyond 4 years from the issuance of the note but within 10 years, should we hold the action as prescribed? Yes, because English law was evidently intended by the parties to govern their transaction. Chapter VI

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PERSONAL LAW THEORIES IN DETERMINING ONE'S PERSONAL LAW 1. What is a person's personal law? A person's personal law may be defined as that which attaches to him wherever he may go; the law that generally governs his status, capacity, condition, family relations, and the consequences of his actuations. It may be his national law, the law of his domicile, or the law of the situs of the event or transaction wherein he was involved, depending on the theory applied and enforced in the forum. 2. Distinguish "status" from "capacity". Status is the place of an individual in society, and consists of personal qualities and relationships, more or less permanent, with which the state and the community are concerned (Paras, supra, p. 100). It includes the civil status of a person (whether he is single, married, widowed, or divorced; his paternity and filiation (whether he is legitimate or illegitimate) or adopted; whether he is a minor or has reached the age of majority; whether he has the capacity to enter into various transactions. It also includes his name, sex, and his profession in certain cases (whether he is a lawyer or a doctor, or a judge or an appellate justice, etc.). Capacity, on the other hand, is only part of ones status, and may be defined as the sum total of his rights and obligations (Graveson, Conflict of Laws, p.96). Under our Civil Code, there are two (2) kinds of capacity: (a) juridical capacity (passive capacity) - which is the fitness to be the subject of legal relations; and (b) capacity to act (active capacity) which is the power to do acts with legal effects. (Art. 37, New Civil Code) A baby has juridical capacity, but it has no capacity to act. 3. What are the characteristics of status? (a) It is conferred principally by the state, not by the individual. (b) It is a matter of public or social interest. (c) Being a concept of social order, it cannot easily be terminated at the mere will or desire of the parties concerned. (c) It is generally supposed to have a universal character. When a certain status is created by the law of one country, it is generally recognized all over the world. 4. State the different theories on how the personal law of an individual is determined. (a) The nationality theory (also called the personal theory) - by virtue of which the status and capacity of a person is determined by the law of his nationality or his national law. (b) The domiciliary theory - by virtue of which the status and capacity of a person is determined by the law of his domicile (also called the territorial theory).

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(c) The situs or eclectic theory - which views the particular place or situs of an event or transaction as generally the controlling law. 4. What theory does the Philippines follow? What about the United States? We follow the nationality theory. The United States, like other common law countries, follow the domiciliary theory. 5. Is personal law the same as national law? In countries that follow the nationality theory like the Philippines, yes. In countries that follow the domiciliary or eclectic or situs theory, no. 6. Is national law the same as the law of one's citizenship? In other words, are a person's nationality and citizenship the same? Nationality refers to membership in a political community, one that is personal and more or less permanent, not temporary. A citizen, on the other hand, is one who owes allegiance to, and is entitled to the protection of, the State. In the field of Conflict of Laws, however, nationality and citizenship are the same; or, national and citizen are the same. When our law refers to one's national law, therefore, the law means the person's law of citizenship. Thus, the national law of Filipinos is Philippine law. While the national law of an alien is the law of his citizenship (e.g., Art. 16, sec. par., referring to the "national law" of the deceased). Once a Filipino citizen, however, is naturalized in another country, his national law already becomes the law of his new citizenship; the former Filipino citizen, once naturalized an American, is now an American citizen, and his national law is now American law. 7. What are the reasons why some countries adopt the nationality theory, while others adopt the domiciliary theory? Civil law countries, like the Philippines, follow the nationality theory. In such countries, the nationality theory has been considered justified on practical considerations of convenience and expediency. The people of these countries are considered bound by a spirit of national unity, by a common history and mores, so that the identity and legal position of their citizens are guaranteed by the consistent application of their national laws on status and family relations wherever they may go and even when they migrate to other countries. Note that many Filipinos who have become naturalized in other countries still want to come back to the Philippines and die here because they still consider themselves as Filipinos. The domiciliary theory, on the other hand, assumes that the attributes which make up one's status and personal relations are intimately connected with the country where they have made their hone. It is adopted by the United States and other common law countries, whose populations consist of peoples of different nationalities with varying traditions, culture, and ideals, and whose unity may be considered achieved by adopting the law of their domicile as the law that governs their status and family relations. Countries with mixed population brought about by the migration of foreigners to their shores need the domiciliary principle to attain a certain fusion of their population and to avoid the necessity of applying a different law to practically every case. Chapter VII THE NATIONALITY THEORY

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1. What are the weaknesses of the nationality theory? (a) It offers no solution to the problem of a stateless person or one with dual or multiple citizenship. (b) It is unfair to consider a person still bound by his national law if he has lived in another country for most of his life and practically all his ties are with that country. (c) It is sometimes difficult for persons who want to change their national laws (like refugees from Communist countries) to be naturalized in other countries. (d) It is also sometimes difficult to solve problems relating to individuals in countries where most of the people, having come from other countries, have different national laws or legal systems. 2. Since citizens and nationals are the same in Conflict of Laws, we should know who are Filipino citizens considering that Philippine law follows them wherever they go in matters of status, legal capacity, and family relations. It is, therefore, important for us to review Philippine law on citizenship. First of all, what are the different kinds of citizens in the Philippines? Filipino citizens are either natural-born citizens, or naturalized citizens. (a) Natural-born citizens are those who are citizens from birth without having to perform any act to acquire or perfect their Philippine citizenship (Art. IV, sec. 2, 1987 Constitution). Originally classified as citizens by election were those born before the 1973 Constitution of Filipino mothers but of alien fathers who, upon reaching the age of 21 or within a reasonable time thereafter, elected Philippine citizenship. But with the provision of the 1987 Constitution also considering as natural-born citizens those born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority, those classified before as citizens by election are now considered natural-born citizens. Note: Native-born Filipino citizens are those born in the Philippines. Natural-born citizens may not be native born if they were born abroad. (b) Citizens by naturalization are those who were formerly aliens but by judicial, legislative, or administrative process, have become Filipino citizens. Foreign women who are married to Filipino husbands may also be considered citizens by naturalization through said marriage if they have no disqualifications to become Filipino citizens by naturalization, and the wives and minor children of those who had been naturalized as Filipino citizens are also considered to be naturalized citizens by derivative naturalization. 3. What do you understand by the principles of jus soli and jus sanguinis in the law on citizenship? Jus soli - A person is a citizen of the country where he was born, or of the country of his birth. Thus, the baby of Filipino parents but born in the U,S. is not only a Filipino but also an American citizen under "the principle of jus soli, which the U.S. follows.

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Jus sanguinis - This is the rule that we follow in the Philippines. It is citizenship by blood; i.e., those whose fathers or mothers, or whose both parents are Filipino citizens, is a Filipino citizen. 4. Who determines whether a person is a citizen of a certain state or country? For example, who determines whether a person is a Filipino citizen or not? Each country or state has the sole power and authority to determine under its internal or municipal law who are its citizens or nationals. As provided in Art. 2 of the Hague Convention on Conflict of Nationality Laws (April 12, 1930): Any question as to whether a person possesses the nationality of a particular state should be determined in accordance with the law of that state. Art. IV of the 1987 Constitution of the Philippines determines who are Filipino citizens. No foreign law, or no law of a foreign country, can determine who are Filipinos. Similarly, our Constitution and laws cannot determine who are, for example, Chinese or American citizens. Only the law of China, or the law of the United States, can determine who are its citizens. 5. Considering that only the Philippines can determine who are Filipino citizens, may the problem of the dual or multiple citizenship of a Filipino arise in the Philippines? No, because as already stated, as long as he is a Filipino citizen, our country is not concerned if he has any other citizenship. For example, if he was born of Filipino parents, he is a natural-born citizen under the rule of jus sanguinis. He may also be a U.S. citizen under the principle of jus soli if he was born in U.S. soil. But from the point of view of our Constitution and law, he is only a Filipino citizen, period. 6. What about Sec. 5, Art. IV of the 1987 Constitution providing that "dual allegiance of citizens is inimical to the national interest and shall be dealt with by law"? Does this provision prohibit Filipinos from having dual citizenship? No. Dual citizenship cannot be avoided due to the diverse laws of the different countries of the world as to who are their citizens and who are not. So, a Filipino may have dual citizenship, as shown in Question 5 hereof. But the concern of the aforesaid provision of the Constitution is not with dual citizenship per se but with naturalized citizens of the Philippines who still maintain their allegiance to the countries of their origin. Thus, for candidates for public office with dual citizenship, suffice it that upon the filing of their certificate of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship, considering that their condition is the unavoidable consequence of conflicting laws of different states. ( Mercado v. Manzano, 307 SCRA 630 [1999]). 7. Considering, then, that it is the Philippine law that determines who are Filipino citizens and who are not, so that it does not determine whether a Filipino is also an American citizen or a Chinese citizen, etc., when would the problem of dual citizenship of a Filipino arise? Such question would arise only from the point of view of a third state. For example, if a girl whose parents are Filipinos but who was born and has lived all her life in California, U.S.A., is applying for scholarship in a French university, the French authorities will regard her not as a Filipino but as an American, as her California citizenship is the more effective connecting factor in determining what is her citizenship, Filipino or Californian. This is applying the theory of effective

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nationality embodied in Art. 5 of the Hague Convention on Conflict of Nationality Laws which provides: Within a third state, a, person having more than one nationality shall be treated as if he had only one. Without prejudice to the application of its law in personal matters and of any conventions in force, a third state shall apply the nationalities which any such person possesses, recognize exclusively in its territory either the nationality of the country in which he is habitually and principally a resident, or the nationality of the country with which in the circumstances he appears to be in fact mostly connected. Undoubtedly, in the above problem, California is the more effective connecting factor in determining which of the girl's two nationalities or citizenships, is her personal law. 8. In what case or cases may a Filipino have dual citizenship from the point of view of a third state? (a) In a case where a Filipino (because his parents are Filipinos) was born in American soil, he is a Filipino under the rule of jus sanguinis while he is an American under the rule of jus soli. (b) If a Filipino woman marries a foreigner whose national law allows her to become a citizen of her husband's country like China by such marriage, she still retains her Philippine citizenship under Art. IV, sec. 4 of the 1987 Constitution, unless by her act or omission, she is deemed to have renounced her Philippine citizenship. Therefore, she would be both a Filipino and a Chinese citizen, if she does nothing to renounce her Philippine citizenship. 9. Give an example of a problem involving an alien who, from the point of view of the Philippines, has dual citizenship. Example: A woman who is a Japanese citizen by blood but a Chinese citizen by marriage, dies, leaving some properties in our country where she did some business before her death. Since Art. 16, par. 2, of the New Civil Code, requires us to apply her national law in determining who are her heirs and how much is the share of each, we should know which law a Philippine court should apply to her succession; whether Japanese law or Chinese law. 10. How should the foregoing problem of dual citizenship be resolved? We should apply the effective nationality theory previously explained. If the deceased woman was a domiciliary of Japan at the time of her death, then the Philippine court should apply Japanese law. If, however, she was a domiciliary of China at the time of her death, the court should apply Chinese law. This is because the law of the country of which the deceased was both a citizen and a domiciliary at the time of her death is considered more effectively connected to her than her other national law. Or, stated otherwise, she was more closely connected to the country where, being a citizen thereof, she and her family also made it their home . Needless to say, that country where she and her family had their home was closer to her heart than her other national law. And so, in all personal and family matters, it is that law that the court should apply. 11. Suppose in the above problem, the deceased woman was residing at the time of her death, not in Japan or China, but in another or a third country, like Singapore? Will the solution to the problem be the same?

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The solution would now be different because we can no longer say that she was more closely connected to Japan or China, the countries of which she was a citizen at the time of her death. In this case, then, the domiciliary theory comes to the rescue and will consider the country of her domicile at the time of her death (Singapore). So, we should first apply the nationality theory by taking her two national laws (Japanese and Chinese) and applying them together insofar as they are consistent and harmonious with each other. But if they are inconsistent and in conflict with each other, then we should already apply the law of Singapore, which was her domicile and home at the time of her death. 12. Suppose the person whose succession is in question before a Philippine court is stateless. How should the court decide the case? Since the person in question is stateless and, therefore, has no national law, we cannot apply the nationality theory (Art. 16, sec. par., New Civil Code) to him. In this case, again the domiciliary theory comes to the rescue, and the court shall apply the law of his domicile or if he has none, the law of the country of his temporary domicile. 13. May a declaration of Philippine citizenship be made in a petition for naturalization? In Comm. of Immigration v. Garcia, L-28082, June 28, 1974 , the Supreme Court held that the court, in a petition for naturalization, cannot make a declaration that the applicant is already a Filipino citizen for the reason that in this jurisdiction, there can be do independent action for the judicial declaration of ones citizenship. Courts of justice exist only for the settlement of justiciable controversies, which imply a given right, legally demandable and enforceable, an act or omission violative of said right, and a legal remedy for the breach of said right. 14. May a declaration of Philippine citizenship be made in a special proceeding for correction of entry under Rule 108 of the Rules of Court? In a long line of cases, the Supreme Court formerly held that since a petition under Rule 108 contemplates a summary proceeding, substantial errors like citizenship cannot be corrected therein. However, this ruling has already been superseded by subsequent cases ( Tolentino v. Paras, 122 SCRA 526; Rep. v. Valencia, 141 SCRA 462; Rep. v. Belmonte, 158 SCRA 173 , among others) to the effect that if all procedural requirements of Rule 108 are followed and all persons with interest in the wrong entry had been notified and a full blown trial is held, the proceedings are no longer summary but adversarial, and substantial errors like citizenship can already be corrected under Rule 108. 15. Who are citizens of the Philippines under the 1987 Constitution? Art. IV, Sec. 1 of the 1987 Constitution enumerates the citizens of the Philippines as follows: (l) Those who are citizens of the Philippines at the time of the adoption of this Constitution; (2) Those whose fathers or mothers are citizens of the Philippines; (3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and (4) Those who are naturalized in accordance with law. 16. Who were citizens of the Philippines under the 1973 Constitution? Art. Ill, Section l (l) of the 1973 Constitution provides that the following are citizens of the Philippines:

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(l) Those who are citizens of the Philippines at the time of the adoption of this Constitution; (2) Those whose fathers or mothers are citizens of the Philippines; (3) Those who elect Philippine citizenship pursuant to the provisions of the Constitution of 1935; and (4) Those who are naturalized in accordance with law. 17. Since the 1973 Constitution considers as Filipino citizens those who were such at the time of the adoption of said Constitution on January 17,1973, who are those referred to in said provision? They are those enumerated in Art. IV, 1935 Constitution, to wit: (1) Those who are citizens of the Philippines at the time of the adoption of the Constitution of the Philippines; (2) Those born in the Philippine Islands of foreign parents who, before the adoption of this Constitution, had been elected to public office in the Philippine Islands; (3) Those whose fathers are citizens of the Philippines; (4) Those whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect Philippine citizenship; (5) Those who are naturalized in accordance with law. 18. Differentiate the citizenship of children born of Filipino mothers and alien fathers under the 1935 Constitution, from those born of Filipino mothers and alien fathers under the 1973 and 1987 Constitutions. While the 1935 Constitution considers as Filipino citizens at birth or as natural-born citizens only those whose fathers were Filipinos at the time of their birth, while those born of Filipino mothers and alien fathers still had to elect Philippine citizenship upon reaching majority before they could be Filipino citizens, this injustice to children of Filipino mothers (who are really Filipinos because Filipino blood flows through their veins) was later corrected by the 1973 and 1987 Constitutions, which already consider as natural-born citizens those born of Filipino mothers, even if the fathers were aliens. In other words, those born after the effectivity of the 1973 Constitution on January 17, 1973 of Filipino mothers but of aliens fathers are already Filipinos at birth without need of electing Philippine citizenship. 19. In the case of election of Philippine citizenship under the 1935 Constitution, as of what time should the mother be a Filipino? At the time of her marriage to an alien, at the time of the childs birth, or at the time of the childs election upon reaching the age of majority? At the time of the mothers marriage to an alien. For if we require the mother to be a Filipino at the time of the childs birth, very few children will be benefited by the provision because the mother would have already become an alien at the time of her marriage (following the husbands alien citizenship) and before the childs birth. Likewise, if we require that the mother should be a Filipino citizen at the time of the child's election, again very few children would be able to elect, because their mothers would have already become aliens when they got married to their alien husbands and long before the birth of the children. 20. Where do you find the law providing for election of Philippine citizenship under the 1935 Constitution? The law is Commonwealth Act No. 625. 21. Who were Filipino citizens at the time of the adoption of the 1935 Constitution on May 14, 1935?

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(1) Those born in the Philippines who resided therein on April 11, 1899 (the date of the ratification of the Treaty of Paris between the U.S. and Spain) and were Spanish subjects on that date, unless they had lost their Philippine citizenship on May 14, 1935; (2) Natives of the Spanish Peninsula who resided in the Philippines on April 11, 1899, and who did not declare their intention of preserving their Spanish nationality between that date and October 11, 1900 (the time provided for doing so), unless they had lost their citizenship by May 14, 1935; (3) Naturalized citizens of Spain who resided in the Philippines on April 11, 1899 and who did not declare their intention of preserving their Spanish nationality between that date and October 11, 1900, unless they had lost their citizenship by May 14, 1935; (4) Children born of (l), (2), and (3) subsequent to April 11, 1899, unless they had lost their Philippine citizenship by May 14, 1935; (5) Persons who became naturalized citizens of the Philippines in accordance with the procedure set forth in the Naturalization Law since its enactment on March 22, 1920, unless they had lost their Philippine citizenship on or before May 14, 1935; (6) Children of persons embraced in (5), unless they had lost their Philippine citizenship on or before May 14, 1935; (7) Filipino women who, after having lost Philippine citizenship by marriage to foreigners, had subsequently become widows and regained Philippine citizenship on or before May 14, 1935 (8) Children of (7) who were still under 21 years of age at the time their mothers regained Philippine citizenship (Roa v. Collector, 23 Phil. 321; Talaroc y. Uy, GR L-5397, Sept. 26, 1952); (9) Foreign women who, before May 14, 1935, got married to citizens of the Philippines, who might themselves be lawfully naturalized in the Philippines, unless they had lost their Philippine citizenship on or before May 14, 1935; (10) All other persons born in the Philippines who, on the strength of the erroneous application of the jus soli doctrine in the Roa case, were mistakenly declared by the courts as Filipino citizens, unless they had lost their citizenship by May 14, 1935. These are citizens by res judicata. (See Tan Chong v. Sec. of Labor, GR L-47616, Sept. 16, 1947: Talaroc v. Uy, supra). (Paras, supra, pp. 122-124) 22. Why is the law on election of citizenship under the 1935 Constitution a transitory law? Because it was effective only as long as there were children of Filipino mothers and alien fathers who were allowed to elect Philippine citizenship upon reaching 21 years. However, after 1994 (21 years from the effectivity of the 1935 Constitution), there were no longer those who could elect Philippine citizenship, because all of them would hare already reached 21 and they either had already elected or did not elect at all, in which latter case they continued to be aliens following the citizenship of their fathers.

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23. Suppose the Filipino mother of a child born under the 1935 Constitution was not legally married to her alien husband, what is the citizenship of the child? The child, being illegitimate, followed the citizenship of the mother without need of election. Hence, the child is a Filipino from birth. 24. What is the citizenship of a Filipino woman who marries a foreigner? (1) Prior to the 1973 Constitution: If she acquired the nationality of her alien husband, she lost her Philippine citizenship. Otherwise, she remained a Filipino. Examples are the many Filipinas who married Chinese husbands legally. Since under the law of China, they followed their husbands citizenship, they all became Chinese. That is why many Filipinas later opted not to marry their Chinese husbands legally, so that they would remain Filipinos and their children, being illegitimate, are also Filipinos. (2) Under the 1973 Constitution: A female citizen of the Philippines who marries an alien shall retain her Philippine citizenship, unless by her act or omission, she is deemed, under the law, to have renounced her Philippine citizenship (Art. Ill, Sec., 2, 1973 Constitution) (3) Under the 1987 Constitution: Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission, they are deemed, under the law, to have renounced their Philippine citizenship (Art. IV, Sec. 4, 1987 Constitution). Note: Unlike the similar provision in the 1973 Constitution, the above provision of the 1987 Constitution now applies to both males and females who marry aliens. 25. What is the citizenship of an alien woman who marries a Filipino husband? (1) In the case of Zita Ngo Burca v. Republic, Jan.20, 1967, it was held that the proper proceeding wherein an alien woman married to a Filipino can be herself declared a Filipino citizen is a naturalization proceeding in a court of justice, and that any such declaration by any other office or agency is null and void. Many Filipinos criticized said ruling, because it imposed more stringent requirements on an alien wife of a Filipino husband who ordinarily follows the citizenship of the latter, than an applicant for naturalization. Fortunately, this ruling was later abandoned. (2) In Moya Ya Lim Yao v. Comm. of Immigration , 41 SCRA 292 (1971), the Supreme Court reversed the Burca ruling and held that under Sec. 15 of Commonwealth Act No. 473 [the Revised Naturalization Law], an alien woman marrying a Filipino, native-born or naturalized, becomes ipso facto a Filipino provided she is not disqualified to be a citizen of the Philippines under Sec. 4 of the same law. This decision in effect ruled that it is not necessary for the alien wife of a Filipino husband to prove in a court proceeding that she possesses all the qualifications set forth in Sec. 2 and none of the disqualifications under Sec. 4, both of the Revised Naturalization Law. It is enough that she proves that she is not disqualified to be a Filipino citizen not necessarily in court but even before an agency like the Immigration Commission.

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Note also that an alien woman married to an alien husband who (the husband) is subsequently naturalized also follows the Philippine citizenship of her husband, provided she does not suffer from any of the disqualifications under Sec. 4 of the same Revised Naturalization Law. This is a case of derivative naturalization (similar to the minor children of a naturalized Filipino citizen). (3) However, in the recent case of Djumanton v. Domingo, 240 SCRA 746, the Supreme Court held that there is no law guarantying aliens married to Filipinos the right to be admitted into, much less given permanent residence in, the Philippines. Entry of aliens into the Philippines and their admission as immigrants is not a matter of right, even if they are legally married to Filipinos. Marriage of an alien woman to a husband does not ipso facto make her a Filipino citizen and does not excuse her from her failure to depart from the Philippine upon the expiration of her extended stay here as an alien. Note: Unlike the Moya Lim case where the alien woman married to a Filipino husband did not appear to have any disqualification for naturalization, the alien woman in the above Djumanton case refused to leave this country even after the expiration of her extended stay here and instead got married to a Filipino, apparently to avoid her deportation. 26. What is naturalization, and what are the different modes of naturalization? Naturalization is the process of conferring on an alien the citizenship of another country, by any of the means provided by law. It is considered not a matter of right but one of privilege and may be enjoyed only under the precise conditions prescribed by law. The modes of acquiring Philippine citizenship by naturalization are: (1) By judicial process in accordance with Commonwealth Act No. 475, as amended by Republic Act No. 530; (2) By legislative process; i.e., when Philippine citizenship is conferred by a special act of Congress on deserving aliens; (3) By administrative process, under Rep. Act No. 9139, otherwise known as "The Administrative Naturalization Law of 2000", approved in 2001. Under this law, a Special Committee on Naturalization is created, with the power to approve, deny or reject applications for naturalization filed with said Committee. Members of the Committee are the Solicitor General as chairman, and the Secretary of Foreign Affairs or his representative and the National Security Adviser as members. Derivative naturalization is Philippine citizenship conferred on: (l) the wife of a naturalized husband; (2) the minor children of a naturalized father; and (3) the alien wife of a natural-born or naturalized citizen, in the latter case, the marriage having taken place after husbands naturalization. Be it remembered that during the period of Martial law, Pres. Marcos issued Letter of Instruction (LOl) No. 270 providing for naturalization by Presidential Decree. The applicants were screened by a Special Committee in a summary manner, which then recommended those found eligible for naturalization under said LOI to Pres. Marcos, who would issue a decree declaring as naturalized Filipino citizens those included in the list recommended by the Special Committee. Said Committee is similar to the Committee on Naturalization created by the recently approved Rep. Act No. 9139.

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27. What are the qualifications for judicial naturalization under Sec 2, C.A. No. 473, as amended? (1) The petitioner must not be less than 21 years of age on the date of the hearing of the petition; (2) He must have, as a rule, resided in the Philippines for a continuous period of not less than ten years; (3) He must be of good moral character, and believe in the principles underlying the Philippine Constitution, and must have conducted himself in a proper and irreproachable manner during the entire period of his residence in the Philippines in his relation with the constituted government as well as with the community in which he is living; (4) He must own real estate in the Philippines worth not less than P5,000, Philippine currency, or must have some lucrative trade, profession, or occupation; (5) He must be able to speak and write English or Spanish and any one of the principal Philippine languages; and (6) He must have enrolled his minor children of school age in any of the public or private schools recognized by the Bureau of Private Schools where Philippine history, government, and civics are taught or prescribed as part of the school curriculum during the entire period of the residence required of him, prior to the hearing of his petition for naturalization as citizen. 28. What are the disqualifications for naturalization under C.A. No. 473, as amended? According to Sec. 4 of said Act, the following cannot be naturalized as Philippine citizens: (1) Persons opposed to organized government or affiliated with, any association or group of persons who uphold and teach doctrines opposing all organized governments; (2) Persons defending or teaching the propriety of violence, personal assault or assassination for the success and predominance of their ideas; (3) Polygamists or believers in the practice of polygamy; (4) Persons convicted of a crime involving moral turpitude; (5) Persons suffering from mental alienation or incurable contagious disease; (6) Persons who, during the period of their residence in the Philippines, have not mingled socially with the Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions, and ideals of the Filipinos; (7) Citizens or subjects of nations with whom the Philippines is at war; and (8) Citizens or subjects of a foreign country (other than the United States) whose laws do not grant Filipinos the right to become naturalized citizens or subjects thereof. 28. What are the qualifications for administrative naturalization under Sec. 3 of Rep. Act 9139? (1) The applicant must be born in the Philippines and residing therein since birth;

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(2) The applicant must not be less than eighteen (18) years of age at the time of the filing of his/her petition; (3) The applicant must be of good moral character and believes in the underlying principles of the Constitution, and must have conducted himself/herself in a proper and irreproachable manner during his/her entire period of residence in the Philippines in his relation with the duly constituted government as well as with the community in which he/she is living; (4) The applicant must have received his/her primary and secondary education in any public school or private educational institution duly recognized by the Department of Education, Culture and Sports, where Philippine history, government and civics are taught and prescribed as part of the school curriculum and where enrollment is not limited to any race or nationality; Provided, that should he/she have minor children of school age, he/she must have enrolled them in similar schools; (5) The applicant must have a known trade, business, profession or lawful occupation, from which he/she derives income sufficient for his/her support and if he/she is married and/or has dependents, also that of his/her family; Provided, however, That this shall not apply to applicants who are college degree holders but are unable to practice their profession because they are disqualified to do so by reason of their citizenship; (6) The applicant must be able to read, write and speak Filipino or any of the dialects of the Philippines; and (7) The applicant must have mingled with the Filipinos and evinced a sincere desire to learn and embrace the customs, traditions and ideals of the Filipino people. 30. What are the disqualifications for naturalization under Rep. Act. 9139? Sec. 4 of said Act provides that the following are not qualified to be naturalized under the same: (1) Those opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing all organized governments; (2) Those defending or teaching the necessity of or propriety of violence, personal assault or assassination for the success or predominance of their ideas; (3) Polygamists or believers in the practice of polygamy; (4) Those convicted of crimes involving moral turpitude; (5) Those suffering from mental alienation or incurable contagious diseases; (6) Those who, during the period of their residence in the Philippines, have not mingled socially with Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions and ideals of the Filipinos; (7) Citizens or subjects [of nations] with whom the Philippines is at war during the period of such war; and (8) Citizens or subjects of a foreign country whose laws do not grant Filipinos the right to be naturalized citizens or subjects thereof. 31. How may Philippine citizenship be lost?

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Under Commonwealth Act. 63 as amended by Rep. Act. No. 106, a Filipino citizen may lose his citizenship in any of the following ways: (1) By naturalization in a foreign country; (2) By express renunciation of citizenship; (3) By subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon attaining twenty-one years of age and more (4) By rendering service to, or accepting commission in, the armed forces of a foreign country; (5) By cancellation of the certificate of naturalization; (6) By having been declared by competent authority, a deserter of the Philippine armed forces in time of was, unless subsequently, a plenary pardon or amnesty has been granted; and (7) In the case of a woman, upon her marriage to a foreigner, if by virtue of the laws in force in her husband's country, she acquires his nationality. Note, however, that under the 1973 and 1987 Constitutions, the woman in No. (7) above retains her Philippine citizenship unless by her act or omission, she is deemed under the law to have renounced her Philippine citizenship.

32. How may Philippine citizenship be reacquired? Under Sec 2 of Commonwealth Act No. 63, as amended by Rep. Act No. 106, Philippine citizenship may be reacquired as follows: (1) By naturalization; Provided, that the applicant possesses none of the disqualifications prescribed in Sec. 2 of Act No. 2927; (2) By repatriation of deserters of the Army, Navy, or Air Corps; Provided, That a woman who lost her citizenship by reason of her marriage to an alien may be repatriated in accordance with the provisions of this Act after the termination of the marital status; and (3) By direct act of the National Assembly (now Congress). 33. What is the procedure incident to reacquisition of Philippine citizenship? Sec. 3 of the same C.A. No. 63, as amended, provides as follows: The procedure prescribed for naturalization under Act 2927, as amended, shall apply to the reacquisition of Philippine citizenship by naturalization provided for in the next preceding section; Provided, That the qualifications and special qualifications prescribed in Sections three and four of said Act shall not be required; and provided further, (1) That the applicant be at least twenty-one years of age and shall have resided in the Philippines at least six months before he applies for naturalization; (2) That he shall have conducted himself in a proper and irreproachable manner during the entire period of his residence in the Philippines, in

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his relations with the constituted government as well as with the community in which he is living; and (3) That he subscribes to an oath declaring his intention to renounce absolutely and perpetually all faith and allegiance to the foreign authority, state or sovereignty of which he was a citizen or subject. 34. How about repatriation? How can it be effected? Sec. 4 of the same Commonwealth Act referred to above provides that "Repatriation shall be effected by merely taking the necessary oath of allegiance to the Republic of the Philippines and registration in the proper civil registry." During the regime of Pres. Marcos, however, he promulgated P.D. 725 providing that the petition for repatriation should be filed with the same committee which he created for naturalization, and said committee had the power to approve or disapprove the repatriation. Chapter VIII. THE DOMICILIARY THEORY 1. What is the domiciliary theory in Conflict of Laws? It is the theory whereby the status, condition, rights, obligations, and capacity of a person are governed by the law of his domicile or the lex domicilii. 2. Define domicile. It is the place where a person "has his true, fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning" (Story, Conflict of Laws, sec. 41). It is the place where a person has a settled connection for certain legal purposes, either because his home is there or because that is the place assigned to him by law" (First Restatement, sec. 9). "For the exercise of civil rights and fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence." (Art. 50, New Civil Code). 3. Are "domicile" and "residence" the same? " x x x it is an established principle in Conflict of Laws that 'domicile' refers to the relatively more permanent abode of a person while 'residence' applies to a temporary stay of a person in a given place" ( Koh v. C.A., 70 SCRA 298) Residence is used to indicate a place of abode, whether permanent or temporary; 'domicile' denotes a fixed, permanent residence to which, when absent, one has the intention of returning. A man may have a residence in one place and a domicile in another. Residence is not domicile, but domicile is residence coupled with intention to remain for an unlimited time. A man can have one domicile for one and the same purpose at any time, but he may have numerous places of residence. (Uytengsu v. Rep., 95 Phil. 890) 4. Distinguish "domicile" from "citizenship".

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Domicile in general speaks of one's permanent place of abode, while citizenship or nationality indicates ties of allegiance and loyalty. A person may be a citizen or national of one state and a domiciliary of another. Filipinos who are immigrants abroad, like the holders of green cards in the U.S., are still Filipino citizens, but their domicile is the country to where they have permanently migrated. 5. Considering that our country follows the nationality theory, why is it still important for us to know and study the domiciliary theory? For several reasons, namely: (1) In some cases, our own law makes the law of the domicile of a person the controlling factor in the solution of conflicts cases. Example: The revocation of a will done by a person outside the Philippines by a person who does not have his domicile in the Philippines is valid when done according to the lex loci celebrationis, or according to the law of the place of the testator's domicile at the time. (Art. 829, New Civil Code) (2) Sometimes, our law makes either the law of one's nationality or that of his domicile as the controlling factor. Example: The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes." (Art. 816, id.) (3) In the case of stateless individuals, or those with dual or multiple nationalities, the domiciliary theory runs to the rescue of the nationality theory. (4) During the early years of American colonization of the Philippines, our Supreme Court in some cases applied the domiciliary theory, like the case of the validity of a divorce decree obtained abroad. (5) Citizens of countries like the U.S. or Great Britain, which follow the domiciliary theory, may become involved in litigation in our country, which follows the nationality theory. (6) Again, some great countries like the U.S. and Great Britain follow the domiciliary theory, so that it would do well for us to make a comparative study of the nationality and domiciliary theories. 6. What law determines ones domicile, his national law or the lex fori? The prevailing rule is that the forum applies its own concept of domicile in determining the domicile of a litigant before its courts. 7. What are the different kinds of domicile? (a) Domicile of origin: The domicile assigned by law to a person at the moment of his birth. (b) Constructive domicile or domicile by operation of law : The domicile assigned by law to a person after birth on account of a legal disability, like minority, insanity, imprisonment, etc. (c) Domicile of choice: The domicile of a person sui juris because he has his home there and to which, whenever absent, he intends to return.

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Note: Domicile of origin is acquired at birth; therefore, it never changes. While constructive domicile is given after birth to those who lack capacity to choose their own domicile, like minors, insanes, etc. Also, domicile of origin never changes, for a person is born only once, while constructive domicile may change from time to time, like when the parents of a minor change domicile several times. Both domicile of origin and constructive domicile are, however, assigned by law, while domicile of choice is the result of .the voluntary will and action of the person concerned. 8. State some basic principles regarding one's domicile of choice. (1) No person can ever be without a domicile; or, every natural person must have a domicile. (2) A person cannot have two simultaneous domiciles. (3) A natural person, free (not a prisoner) and sui juris (one of age and under no disability) can change his domicile at pleasure. (4) A domicile once acquired, is retained until a new one is gained. (5) The presumption being in favor of the continuance of an existing domicile, the burden of proof is on the one who alleges that a change of domicile has taken place. (6) To acquire a new domicile of choice, the following must concur: (a) residence or bodily presence in the new locality; (b) an intention to remain there(animus manendi); and (c) an intention not to return to the former abode ( animus non revertendi) (Gallego v Vera, 73 Phil. 453) 9. Give some rules in determining one's domicile of origin. (1) If the child is legitimate, his domicile of origin is that of his parents at the time of his birth; if the parents are separated, the domicile of the custodial parent. If the child is illegitimate, his domicile of origin is that of the mother at the time of his birth. If the child is legitimated, the domicile of his father at the time of his birth controls, since the effects of legitimation retroacts to the time of the childs birth (Art. 180, Family Code). (2) The domicile of origin of an adopted child is the domicile of his real parents at the time of his birth, not the domicile of the adopters (3) The domicile of origin of a foundling is the country where it was found. 10. Give some rules in determining ones constructive domicile. (1) Minors (a) If legitimate, the domicile of both parents. In case of disagreement, that of the father, unless there is a judicial order to the contrary (Art. 211, Family Code). (b) If illegitimate, the domicile of the mother (Art. 176, Family Code).

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(c)In case of absence or death of either parent, the domicile of the present parent. Even in case of the remarriage of the surviving parent, still his/her domicile determines the constructive domicile of the minor child. (d) If the child is adopted, the domicile of choice of the adopter is the child's constructive domicile. (2) Insanes, idiots, imbeciles Since insanes and other mentally incapacitated persons cannot select their own domicile, the law assigns their domicile to them. (a) If they are below the age of majority, the rules on minors apply to them. (b) If they are of age and have guardians, they follow the domicile of choice of their guardians. If they have no guardians, their constructive domicile is their domicile of choice before they became insane. (3) Married women (a) If the marriage is valid; (i) The constructive domicile of the wife is the domicile of both spouses, unless the law allows the wife to have a separate domicile, for valid and compelling reasons (Art. 69, Family Code). (ii) If there is legal separation between the spouses, the wife can have her own domicile of choice. (iii) If there is separation de facto, the wife can also have a separate domicile (De la Vina v. Villareal, 41 Phil.13). (b) If the marriage is voidable: Apply the same rules as when the marriage is valid. However, after annulment, the wife can freely select her own domicile of choice. (c) If the marriage is void: Since there is really no marriage in this case, the wife can have a domicile separate form the husband. (4) Other persons(a) Convict or prisoner - He is not free to have a domicile of choice, so his domicile is the one he had possessed prior to his incarceration. (b) Soldiers - Since they are compelled to follow the dictates of the military, their domicile is their domicile before their enlistment. (c) Public officials or employees abroad like diplomats, consular officials, etc. Since their stay abroad is in their official and not in their personal capacity, their domicile is the one they had before they were assigned elsewhere, unless they voluntarily adopt their place of employment as their permanent residence. Chapter IX. THE SITUS OR ECLECTIC THEORY 1. What is meant by the situs or eclectic theory? Under the situs or eclectic theory, the capacity, condition, status, or capacity of a person is governed not necessarily by the law of his nationality or

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the law of his domicile, but by the law of the place ( situs) where an important element of the problem occurs or is situated. However, this theory distinguishes two kinds of participation of the individual concerned. (a) If his participation is active, i.e., when he does the act voluntarily, the governing law is -the law of the actual situs of the transaction or event. (b) If the participation is passive, as when the effects of the act are set forth or determined by law, the governing law is the law of the legal situs; i.e., the domicile of the individual concerned. Example: The marriage between two Filipinos in Hongkong. (a) Since the act of getting married is voluntary, the validity of the marriage is governed by its actual situs, or the lex loci celebrationis (Art. 26, first par., Family Code) (b) With respect to the rights and obligations, and property relations, of the Filipino couple, however, they are governed by the national law of the spouses, which regulates or fixes such matters between them; in other words, the legal situs is the national law of the spouses. (Art. 80, Family Code) 2. If the act or transaction involves property, real or personal, what theory do we apply, the nationality theory, the domiciliary theory, or the situs theory? Art. 16, first par., of the New Civil Code provides that real property as well as personal property is subject to the law of the country where it is situated. Thus, if the act or transaction involves property, whether real or personal, the law that determines the validity of the transaction is the lex situs or lex rei sitae. Even the capacity of the parties to the transaction is governed by the lex situs or lex rei situs, not by the lex nationalii or the lex domicilii. Chapter X. THE PROBLEM OF THE RENVOI. 1. What is meant by renvoi? Renvoi is a French word which means refer back or return. In AngloAmerican countries, the term used is remission, which means to refer a matter for consideration or judgment. 2. When does the problem of renvoi arise? Every internal or municipal law of a. state has two parts; (1) Its purely internal or domestic law which applies to domestic cases; and (2J Its rules in Conflict of Laws which it applies to cases with some foreign element. Now, the problem of "renvoi" arises when there is doubt as to whether the reference by the lex fori (the law of the country where the problem arises) to the foreign law involves (l) a reference to the internal law of the foreign law or (2) a reference to the entirety of the foreign law, including its conflicts rules.

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In such case, if the first state follows the nationality theory, and the second state follows the domiciliary theory, the problem of renvoi will most probably arise. Take the case of a California citizen who had resided in this country for 50 years and who dies here, leaving a sizable estate. Art. 16, sec. par., of the New Civil Code provides that in testate or intestate succession, we should apply the national law of the deceased which, in this case, is California law. But Californias internal law has one rule for its own citizens who reside there, and another rule for its citizens who have their domiciles abroad. In the latter case, California law provides that the law of the domicile of its deceased citizen should apply. Thus, while our Civil Code refers the matter to California law (the national law of the deceased), California law refers the matter back to us, telling us to apply the law of the deceased's domicile, which is Philippine law. Should the Philippine court tasked to settle the estate of the deceased accept the renvoi and apply Philippine law, or insist that California internal law binding on its own citizensresidents should be applied, the same being the deceased's national law? This is the renvoi problem. 3. Discuss why our Supreme Court accepted the renvoi in the case of The Matter of the Testate Estate of Edward Christensen, Adolfo Aznar and Lucy Christensen v. Helen Christensen Garcia. 7 SCRA 95 (l963). The case referred to above is the first case decided by our Supreme Court which raised the renvoi problem. The facts of the case are: The deceased Edward Christensen was a California citizen who had resided in the Philippines for a long time prior to his death; hence, a domiciliary of the Philippines. In his will, he left almost his entire estate to Lucy, an acknowledged natural child in California, and gave a small legacy to Helen, an acknowledged natural child in the Philippines. Under California internal law, its deceased citizen may dispose of his estate by will in any manner he pleases. However, California law also provides that where its deceased citizen resides in another country, the law of his domicile should determine his succession. Thus, while Lucy contended that the will of the deceased should be given effect, following California internal law, Helen insisted that Philippine the law, of the domicile of the deceased, should be applied, under which she is a forced heir and is entitled to a legitime. The ruling: Recognizing that there were two sets of rules under California internal law, one for its citizens who reside there and another for its citizens who reside in other jurisdictions, the Supreme Court held that if it should refer the matter to California law, said law will toss the problem back to us, which would result in international football. Hence, we should apply Philippine law (the law of the deceased's domicile) as directed by the conflicts rules of California, especially as Philippine law makes acknowledged natural children forced heirs of the parents recognizing them, while California law provides no legitime for such children. As a result, Helen, the Filipino child, was given a legitime. Note: The Supreme Court's ruling was obviously intended to favor the Filipino child. What if no Filipino citizen was involved, like, for instance, if those fighting over the estate of the deceased were all California citizens? Would our Supreme Court have still accepted the renvoi and apply Philippine law? 4. There are actually four (4) solutions that court can adopt whenever it is confronted with a renvoi problem like the Christensen case. What are they? (a) We may reject the renvoi.

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This means that the court does not want the problem to be sent back to us. That is, as in the case of the testate or intestate succession of a foreigner but domiciled in our country, we would simply apply his national law, or the internal law of his country. (b) We may accept the renvoi. As in the Christensen case, our Supreme Court accepted the referral or the transmission of the case back to us, so that instead of applying the foreign internal law, Philippine law was applied, being the law of the deceased's domicile, as directed by our own law (Art. 16, sec. par., New Civil Code). This is a case of single renvoi or single transmission. (c) We may follow the theory of desistment, or the mutual-disclaimer of jurisdiction theory. Here, we refrain from applying the national law of the deceased foreigner, although our law tells us to do so, if said law follows the domiciliary theory and directs that we apply the law of the domicile of the deceased. So, in the end, we still apply Philippine law. (d) We may apply the foreign court theory. Under this theory, we would simply do what the foreign court would do if confronted with the same case. So that if the California court (as in the Christensen case) would apply California internal law, we would do the same. If, however, said court would apply Philippine law, we would follow suit. The advantage of this theory is that regardless of forum, the applicable law will be the same. But it can also result in international pingpong if we do what the California court would do, but the California court would do what we do, etc. 5. What is meant by double renvoi? This occurs when the local court, in adopting the foreign court theory, discovers that the foreign court accepts the renvoi. But since the foreign law remits the case to Philippine law, being the law of the deceased's domicile, the foreign court may discover that Philippine law does not accept the remission (as it applies the national law of the deceased), so the foreign court, sitting as a Philippine court, would still apply its own internal law. This is then what our court will apply. 6. What about the theory of transmission? Is it the same as renvoi? They are not the same because while renvoi involves two laws, transmission actually involves three laws. Transmission" is the process of applying the law of a foreign state thru the law of a second foreign state. Example: A Chinese citizen domiciled in the Philippines, dies in England leaving some properties there. The English court will thus have to settle said estate, and following the domiciliary theory, it refers the matter to the law of the domicile of the deceased, which is Philippine law. But Philippine law, following the nationality theory, transmits the matter to Chinese law, the national law of deceased. Hence, the English court will ultimately follow Chinese law. 7. What is the case of Testate Estate of Amos G. Bellis v. Edward A. Bellis, 20 SCRA 359 (1968)? Did it involve the renvoi problem?

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Although the renvoi doctrine was invoked in this case, our Supreme Court held that there was no renvoi problem here because the deceased Amos G. Bellis was both a. citizen and a domiciliary of Texas, USA. The facts: Bellis, a citizen and resident of Texas at that time of his death, left some properties in the Philippines. Before his death, he executed two wills, one following Texas law disposing of his properties in Texas, and another, following Philippine law, disposing of his properties in the Philippines. Bellis had several illegitimate children in the Philippines but in his two wills, he did not give anything to his illegitimate children. During the settlement of his estate, the illegitimate children opposed both wills because they had been deprived of their legitimes, and insisting that Philippine law should be applied. There are no compulsory heirs under Texas law, and Texas law, furthermore, does not have conflicts rules governing the succession of its citizens. Held: The illegitimate children are not entitled to any legitime because under Texas law, which is the national law of the deceased and which we must apply under Art. 16, par. two of the Civil Code, there are no compulsory heirs and no legitimes. As for the oppositors arguments that since the deceased executed two wills, one to govern his estate in the Philippines and the other to govern his Texas estate, it must have been the intention of the deceased to have Philippine law govern his properties in the Philippines, the Supreme Court held that following Miciano v. Brimo. 50 Phil. 867, a provision in a foreigner's will to the effect that his properties in the Philippines shall be distributed in accordance with Philippine law and not in accordance with his national law is illegal and void. 8. All in all, in the absence of definitive laws on the matter, how should we resolve the renvoi problem in the Philippines? To quote the late Justice Edgardo L. Paras; x x x it is suggested that the theory be adopted which, considering the circumstances of a given situation, will best result in fairness, equity, and justice. For instance, in the case of long time domiciliaries of the Philippines, it may seem desirable to presume that they intended to die with Philippine internal law taking care of the distribution of their estate in the Philippines; hence, it would be better to accept the renvoi (single renvoi or single remission). In all other instances, to reject the renvoi would seem to be the more desirable solution. (Paras, id., p. 217).

Chapter XI. CONFLICTS RULES ON STATUS AND CAPACITY 1. Considering that one's status starts with the beginning of his personality, when does human personality begin under our law? Art. 40, New Civil Code, provides:

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Birth determines personality, but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article. while the succeeding Art. 41 provides: "For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother's womb. However, if the fetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb." In other words, personality really begins at conception, subject to the following conditions: (a) The purpose is favorable to the fetus (like if it is given a simple donation or is considered an heir of the parent); and (b) If it is born alive under Art. 41 of the New Civil Code. In fact, Art. 5 of PD 603 (The Child and Youth Welfare Code) is more precise when it provides that "The civil personality of the child shall commence from the time of his conception, for all purposes favorable to him, subject to the requirements of Article 41 of the Civil Code." Depending on the conditions of its birth, there are, therefore, two kinds of children: (a) Ordinary- with an intra uterine life of at least 7 months, so that as long as the child is alive upon complete separation from the mother's womb, it is already with civil personality. (b) Extraordinary - with an intra-uterine life of less than 7 months, in which case it must live for at least 24 hours after complete delivery from the mother's womb before it is considered born and to have acquired civil personality. Purposes beneficial or favorable to the fetus may be: (a) It may already be given a simple donation; (b) It may already be acknowledged by the father even before birth ( De Jesus v. Syquia, 58 Phil. 866); (c) It is already entitled to be supported even while still in the womb of the mother; (d) It can already be an heir. 2. In Conflict of Laws, what law determines the beginning of ones personality? His personal law. If he is a citizen of a country that follows the nationality theory, his national law (like the Philippines). If he is a citizen of a country that follows the domiciliary theory, the law of his domicile.

3. Considering that civil personality begins at conception, may the parents of the unborn child recover damages from the bus company due to an injury to the fetus if a pregnant woman who is

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a passenger in a bus suffers an abortion as a result of an accident due to the negligence of the bus driver?
For pecuniary damages on account of injury to or the death of the unborn child, no, because the fetus did not yet have civil personality and any cause of action that accrued to the unborn child was extinguished by its pre-natal death. But for moral damages suffered by the parents for the illegal arrest of the normal development of the fetus and on account of the distress and anguish attendant to its loss and the disappointment of their parental expectations, yes. (Geluz v. C.A., 2 SCRA 88 [1961]) 4. When is civil personality extinguished ? According to Art. 42 of the New Civil Code, "civil personality is extinguished by death." Death in this article means "physical death", not civil interdiction which is sometimes regarded as "civil death", and which merely restricts, not extinguishes, capacity to act (Art. 38 New Civil Code). A declaration of death in accordance with ones personal law (whether his national law or the law of his domicile) by a court of competent jurisdiction is considered valid for all purposes. 5. What is meant by "absence", and under what law may one be declared as such? "Absence" is considered a special legal status pertaining in the Philippine law to a person who has disappeared from his domicile, his whereabouts being unknown, without leaving an agent to administer his property, or even if he had left an agent, the power conferred by the absentee on the agent has expired (Art. 381, New Civil Code). Ones status of being absent is determined in accordance with his personal law (which may be his national law or the law of his domicile), and jurisdiction to declare him as such also belongs to the country of which he is a national or a domiciliary, as the case may be. However, our own courts also have jurisdiction to declare an alien domiciliary in the Philippines as absent (like when a Filipino wife asks a local court to declare her alien husband an absentee) under the conditions laid down by our Civil Code (Arts. 384, 385, and 386). (See Abaling v. Fernandez, 25 Phil. 33) 6. Under what conditions may a person be declared an absentee under Philippine law, and what are the legal effects of such declaration? (a) Within two (2) years after a persons disappearance without leaving an agent to administer his property, or having left an agent, the power of the latter had expired, any interested person, relative, or friend may ask the competent court to appoint a person to represent the absentee in all that may be necessary (Art. 381, New Civil Code). The present spouse is, however, preferred in the appointment when there is no legal separation (Art. 383). (b) After the lapse of two (2) years without any news about the absentee or since the receipt of the last news, and five (5) years if the absentee has left an administrator of his property, his absence may be declared (Art. 384, id). 7. Who may ask for the declaration of one's absence? Any of the following: (a) The present spouse; (b) The heirs instituted in the will of the absentee, who may present an authentic copy of said will;

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(c) The intestate heirs, if the absentee left no will; (d) Those who may have over the property of the absentee some right subordinated to the condition of his death. (Art. 385, id.) The procedure for the declaration of one's absence is found in Rule 107 of the Revised Rules of Court. However, the judicial declaration of absence shall not take effect until 6 months after the publication in a newspaper of general circulation (Art. 386, id.). 8. When may the absentee be presumed dead, and for what purposes? (a) For the purpose of remarriage , the absentee may be presumed dead after four (4) years of absence, the present spouse having a well-founded belief that the absentee is already dead (Art. 40 Family Code). However, in case of disappearance where there is danger of death under Art. 391 of the New Civil Code, an absence of two (2) years is enough ( id.). In either case, a summary proceeding for the declaration of the presumptive death of the absent spouse under Art. 42 of the Family Code is necessary. (b) For all other purposes except succession , an absence of seven (7) years, it being unknown whether or not the absentee still lives, is necessary (Art. 390, New Civil Code). The procedure is found in Rule 107 of the Revised Rules of Court. (c) For the purpose of succession , an absence of ten (10) years is required, except if the absentee disappeared after the age of seventy-five (75) years, in which case an absence of five (5) years is enough to open his succession (Art. 390) The procedure is again Rule 107 of the Revised Rules of Court. 9. In what cases would an absence of four (4) years be enough for a declaration of presumption of death because of danger of death (otherwise known as "extraordinary absence)? According to Art. 39, New Civil Code the following shall be presumed dead for all purposes, including the division of the estate among the heirs: (a) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who had not been heard of for four (4) years since the loss of the vessel or aeroplane; (b) A person in the armed forces who has taken part in war, and has been missing for four (4) years; (c) A person who has been in danger of death under other circumstances (like earthquake, volcanic eruption, landslide, fire, dangerous expeditions, etc.). Remember, though, that for the purpose of remarriage, extraordinary absence of two (2) years is enough (Art. 40, Family Code). 10. What determines one's age of majority in Conflict of Laws? Since age is part of one's personal status, it is the personal law (whether the national law or the law of the domicile) of a person that determines whether he has reached the age of majority or not.

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11. What is the age of majority under Philippine law? Republic Act. No. 6809, approved December 13, 1989, amended Art. 234 of the Family Code by reducing the age of majority to 18 years save the exceptions established by existing law in special cases. But the age of contracting marriage without parental consent has, under the same law, remained at the age of twenty-one Note that also under the same Rep. Act No. 6809, the responsibility of parents (if the children live in their company) and guardians, for the torts committed by their children and wards below 21 years of age, has been retained. The result is that such parents and guardians are still responsible for the damages caused by their children (as to parents) and wards (as to guardians) even if the child is above 18 years of age (the age of majority) but below 21 years of age. The defect of the provision is with respect to guardians of minor children, because if the children are already above 18, they do not need guardians anymore, unless they are under some other disability. 12. What is our conflicts rules on capacity to contract? In countries that follow the nationality theory like the Philippines, the capacity to contract of a person is governed by his national law and follows him wherever he goes, while in countries like the U.S. and Great Britain that follow the domiciliary theory, one's capacity to contract is governed by the law of his domicile. In other words, a persons capacity to contract is governed by his personal law, whether it is the lex nationalii of the lex domicilii. The exception in the Philippines are contracts involving real or personal property, in which cases the lex situs or lex rei sitae applies including the capacity of the contracting parties (Art. 15, New Civil Code). For example, a Filipino who owns a. piece of property in Florida, USA, wants to donate said property to another Filipino in the Philippines. For the donation to be valid, the respective capacities of donor and donee shall be governed by Florida law (not by Philippine law, which is their national law), as well as the extrinsic and intrinsic validity of the donation, the subject-matter of the donation being located in Florida. Former Senator Salonga, however, mentions some criticisms leveled by U.S. and former Soviet Union authorities to the use of ones personal law (whether his national law or domiciliary law) to determine his capacity to enter into business transactions with foreign elements, in that it would be nothing less than outright infringement of the reasonable expectations of the contracting parties, and would result in erecting a formidable barrier to international trade and intercourse. For every person who enters into a transaction with a foreign national or domiciliary would then be compelled to gauge the capacity of the latter by referring to the unfamiliar law of some foreign country. (Salonga, Private International Law, 1995 ed., p. 250). How, indeed, can we subject a foreigner who enters into a business contract with a Filipino in the Philippines but who has no capacity to contract under his personal law, to Philippine law and hold him liable under the transaction, unless in determining his capacity to contract we apply the lex loci contractus which is Philippine law? Thus, following the practice in American courts, Senator Salonga suggests that Art. 15 of the Civil Code applying the nationality theory be limited to strictly family and domestic transactions, while the law governing the contract should govern ordinary day-to-day business contracts (id., p. 256). An example is the early decision of the Supreme Court in Insular Govt. v. Frank, 13 Phil. 236 (1909), where said Court applied Philippine law, being the law of the place where the contract was to be performed, and not

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the national law of the defendant, an Illinois citizen, in determining his capacity to enter into a contract with the Philippine Government to work here as a stenographer. 13. What about the use of names and surnames, which is also part of one's status? What is the law on the matter? Traditionally, a. person's name was not regarded as part of his status because be could change his name at will, but our law now provides that "no person can change his name or surname without judicial authority" (Art. 376, New Civil Code), and the procedure for the change of ones name is Rule 103 of the Revised Rules of Court. As held in Republic v. C.A. and Wong , G.R. No. 97906, May 21, 1992, a change of name is a special proceeding to establish the status of a person involving his relation with others, that is, his legal position in, or with regard to, the rest of the community. Even aliens can ask for change of name in the Philippines, provided they are domiciled here. In other words, the status of an alien is governed by the lex domicillii or the law of his domicile ( Ong Huan Tin v. Rep., L-20997, April 27, 1967). But an alien whose citizenship is either controverted or doubtful cannot ask for a change of name under Rule 103 ( Basas v. Rep., L-23595, Feb. 20, 1966). As for Philippine substantive law on the use of names and surnames, Arts. 364 to 375 lay down the rules on the use of surnames by legitimate, legitimated, adopted, and illegitimate children; married women as well as women whose marriages had been annulled or who are legally separated from their husbands; widows; and in case of identity of names and surnames between ascendants and descendants. All children conceived and born outside a valid marriage are considered by the Family Code as illegitimate (Art. 165), whether the child is an acknow ledged natural child or a natural child by legal fiction as defined by the New Civil Code or spurious, and they are all required to use the surname of the mother under the Family Code (Art. 176). However, the new Republic Act No. 9255, amending Art. 176 of the Family Code, now allows illegitimate children to use the surname of the father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private written instrument is made by the father during the latter's lifetime. Regarding Filipino women who have been divorced by their alien husbands under Art. 26 of the Family Code, the rule on women whose marriages had been annulled should logically be applied to them (See Art. 374, New Civil Code). 14. May foreigners with titles of nobility continue using said titles in the Philippines? The right to use a title of nobility depends upon the national law of the person concerned (Rabel, Conflict of Laws, Vol. I, p. 169). Such persons may continue using their titles of nobility in our country, but if they apply for naturalization, they must renounce any hereditary title or order of nobility that they possess (Sec. 17, Revised Naturalization Law). In fact, our Constitution (the 1935, 1973. and 1987) does not allow titles of royalty or nobility. 15. Distinguish legislative from judicial jurisdiction over one's status. Legislative jurisdiction over one's status is the power of his personal law to govern his status wherever he goes, while judicial jurisdiction is the power of the courts to decide questions or controversies concerning one's status.

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Thus, our courts can decide cases involving the status and capacity of foreigners brought before them, but in doing so, our courts will apply the personal law of the foreigner, whether it be his national law or the law of his domicile, depending on what theory the country of his citizenship follows. For example, even if the personal law of the foreigner allows divorce, he cannot apply for divorce from his spouse before a Philippine court because we do not recognize divorce and our courts have no jurisdiction to grant divorces. However, a foreigner who applies for legal separation in our country on a ground available under his national law but not under our law, may obtain a favorable judgment from our courts, because it is his national law on legal separation that our courts will apply, but subject to our procedural law. Chapter XII. CONFLICTS RULES OF MARRIAGE A. MARRIAGE AS A CONTRACT 1. Why do conflicts problems arise in connection with marriage as a contract? Such problems arise because different countries or states, depending on their public policy, culture, or code of morality, have different laws in determining the validity of marriage as a contract. Consequently, while our policy and concept of marriage is embodied in Art. 1 of the Family Code, there are marriages celebrated in other countries that do not conform to our idea and concept of marriage, yet to deny them validity would create very serious problems in the status of children, the personal and property relations of the spouses, the authority and rights of parents towards their children and vice versa, the respective rights of succession of the spouses and the members of their family, etc. Thus, we should know what rules or laws to apply in such conflicts problems. 2. What is Philippine internal law on the formal validity of marriages, or the validity of marriage as a contract? , The Family Code prescribes essential as well as formal requisites for the validity of a marriage. The essential requisites are (l) legal capacity, of the contracting parties who must be male and female; and (2) consent freely given in the presence of the solemnizing officers (Art. 2). While the formal requisites are: (1) Authority of the solemnizing officer; (2) A valid marriage license except in the cases provided for in Chapter 2 of Title I; and (3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age. (Art. 3, id.) Like the absence of any of the essential requisites, the absence of any formal requisite shall also render the marriage void ab initio, except as stated in Article 35 (2), but an irregularity in the formal requisites shall not affect the validity of the marriage; the party or parties responsible for the irregularity will, however, be civilly, criminally, and administratively liable (Art. 4. id.).

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The above formal requisites apply also to foreigners who get married in the Philippines. If one or both of the parties are foreigners, the foreigner must submit a certificate of legal capacity to contract marriage issued by the diplomatic or consular officials of his/her country in the Philippines before he/she can be issued a marriage license; while stateless persons or refugees need only to submit an affidavit stating the circumstances showing such capacity to contract marriage (Art. 21, id.). Considering the above formal requisites of a valid marriage in the Philippines a common law marriage between Filipinos in this country is void (Enriquez v. Enriquez, 8 Phil 565; Eugenio v. Velez, 185 SCRA 425 ). As to common law marriages of foreigners who come to the Philippines as husband and wife, it would seem that we should consider the marriage valid if valid under their national law or the law of the place where the relationship began. This is to avoid injustice to the parties as well as their children, considering the different conceptions of marriage in foreign jurisdictions. But the marriage must not be contra bonos mores or universally considered incestuous. 3. What about foreign marriages of Filipinos? Are they valid? Under Art. 26 of the Family Code, all marriages outside the Philippines in accordance with the laws in force in the country where they were solemnized and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(l), (4), (5) and (6), 36, 37 and 38. In other words, we follow the rule of lex loci celebrationis; if valid in the country of celebration, the marriage is also valid in the Philippines, except those enumerated in said Art. 26. But, a foreign marriage of Filipinos in a foreign country will still be void in the Philippines if: (l) Either or both parties did not have the legal capacity to get married (Art. 35 {l}); 2) The marriage is immoral for being bigamous or polygamous (Art. 35{4}) (3) Consent of one party is lacking because of mistake as to the identity of the other (Art. 35{5}). (4) One of the parties was psychologically incapacitated at the time of the marriage to comply with the essential marital obligations (Art. 36); (5) The marriage is incestuous (Art. 37); or (6) The marriage is void by reason of public policy (Art. 38). Consular marriages of Filipinos abroad are valid. As provided in Art. 10 of the Family Code: Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or vice-consul of the Republic of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official. 4. What are the conflicts rules on marriages between foreigners solemnized abroad? (l) We still apply the rule of lex loci celebrations, but not the exceptions in the first par. of Art. 26 of the Family Code, which apply only to Filipinos. But universally considered incestuous marriages are excepted; i.e., marriages

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between ascendants and descendants, and brothers and sisters; and marriages that are highly immoral (bigamous or polygamous marriages in Christian countries that prohibit such marriages). (2) Re proxy marriages., while they are not allowed under Philippine internal law, the rule in the U.S. is that where permitted by the law of the place where the proxy participates in the marriage ceremony, they are entitled to recognition at least insofar as the formal validity of the marriage is concerned. This rule is intended to protect the wife and children (Salonga, supra, p. 266). (3) As to marriages on board a vessel on the high seas, since the country whose flag the ship is flying has jurisdiction over the ship, the rule is that compliance with the law of the said country is required for the marriage to be valid. In the U.S. where each state has its own law on marriage, the law of the domicile of the ship owner governs (Salonga, supra, p. 267). (4) If the parties or at least the husband is a Muslim (whose religion allows plural marriages), it is believed that we would recognize up to four marriages of the same husband (as recognized by the Philippine Muslim Code on Personal Laws) to protect the rights of the wives and children. 5. What about marriages between a Filipino and a foreigner abroad, i.e, a, mixed marriage? If the marriage is valid under the law of one of the spouses while void under the law of the other, we should uphold the validity of the marriage, unless the marriage is universally incestuous or highly immoral (the same rule as to foreigners who get married abroad). For example, a Filipina marries her American first cousin in California, where the marriage is valid. If the parties are both Filipinos, said marriage would be void for being against public policy (Art. 38 (l), Family Code). But since the marriage is mixed and it is valid under the lex loci celebrationis, we should uphold the marriage, to avoid absurdity and to do justice to the wife and children, if any. After all, the marriage was performed in a foreign shore and is not by itself immoral or universally incestuous. Indeed, Art. 149 of the Family Code provides that the family, being the foundation of the nation, is a basic social institution which public policy cherishes and protects. 6. What about a mixed marriage in the Philippines; i.e., one between a Filipino and a foreigner? It is believed that the national law of the Filipino -that is. Philippine lawshould be followed; otherwise, our public policy would be violated. This is true both as to the extrinsic and intrinsic validity of the marriage. Thus, a Filipino cannot marry his or her American first cousin in the Philippines, such marriage being prohibited by the Family Code. They cannot also marry without a marriage license, unless the marriage is one exempt from such license. B. MARRIAGE AS A STATUS 1. What are the two aspects of marriage as a status? Marriage as a status carries with it implications in two aspects: the aspect of personal rights and obligations of the spouses, and the aspect of their property relations. As to the first aspect, the rights and obligations of the spouses are purely personal to them and are not ordinarily interfered with by the courts. As to the aspect of the property relations of the spouses, the law lays down certain rules and judicial sanctions, as they may affect public interest.

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2. What law governs the personal relations of the spouses in Conflict of Laws? In the Philippines, personal relations of the spouses are governed by Philippine law since we follow the nationality theory (Art. 15, New Civil Code). Other countries that follow the nationality theory also apply the spouses national law in determining their personal relations to each other. On the other hand, in countries that follow the domiciliary theory, the personal relations of the spouses are governed by the law of their domicile. 3.Suppose the spouses are of different nationalities, what law will govern their personal relations, the law of the husband or the law of the wife? As a general rule, the personal relations of the spouses are governed by the national law of the husband. Reason for this is because when a woman marries a foreigner, she usually loses her nationality and instead follows that of the husband. Another reason is that the husband is usually the head of the family, so that the husband's personal law governs the personal relations of the spouse In the Philippines, an alien woman who marries a Filipino husband ipso facto becomes a Filipino citizen if she does not suffer under any disqualification for naturalization as a a Filipino citizen ( Moya Lim Yao v. Comm. of Immigration, 41 SCRA 292). An exception was, however, held in Djumanton v. Domingo, 240 SCRA 746 (1995), wherein the Supreme Court ruled that marriage of an alien woman to a Filipino husband does not ipso facto make her a Filipino citizen and does not excuse her from her failure to depart from the country upon the expiration of her extended stay here as an alien. As for a Filipina who marries an alien husband, our Constitution provides that she shall retain her Philippine citizenship, unless by her act or omission, she is deemed, under the law, to have renounced her citizenship. What law, then, should govern the personal relations of a Filipino wife, who retains her Philippine citizenship, and her alien husband? By parity of reasoning with Art. 80 of the Family Code on the property relations of husband and wife, which provision has abandoned Art. 124 of the New Civil Code providing that the national law of the husband shall apply to the property relations of spouses of different nationalities, it will be the national law of the wife or Philippine law, that would govern the spouses personal relations. This change of rule was intended by the framers of the Family Code to protect the Filipino wife (because in many cases of mixed marriages, it is the wife who is the Filipino) from the harshness or strictness of the personal law of the alien husband, thus depriving her of her basic, fundamental rights. Many aliens husbands have divorced their Filipino wives under their personal laws. This should not, however, preclude the wives from claiming the rights due them under Philippine law as such wives of their alien husbands, like the rights to support, to the custody of their minor children, as heir of the husband, and in the division of the properties acquired during the marriage. (See Minutes of Committee meetings of Nov. 15, 22 and 24, 1986) 4. Suppose husband and wife acquire a new common nationality? Or only the husband changes nationality? Or there never was a common nationality between the spouses? What law will govern the personal relations of the spouses?

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(1) If the spouses have the same nationality but they acquire a new nationality by their common act, their new national law will govern their personal relations. (2) If the husband alone changes his nationality after the marriage, that law of the last common nationality of the spouses would govern, to avoid prejudice to the wife who would suffer a change in her rights without any free exercise of choice on her part (as provided in the Hague Convention of 1905) (3) If the spouses retain their different nationalities after the marriage, it has been suggested that the national law of both spouses should govern (Rabel, id., p. 327). Another writer, however, offers a better solution; i.e., apply the law of the husband at the time of the marriage (Wolf, Private International Law, 360, 361). The result, it is claimed, will not necessarily be unfair to the wife, because the then national law of the husband may even be more favorable to her than her own national law. Besides, she should already know what the husbands national law was when they got married. Some exceptions to the above rule would be, if the 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, intended as it is to protect the wife's rights. 5. Finally, what are the personal rights and duties of husband and wife under Philippine law? (1) The spouses are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support (Art. 68, Family Code). (2) The spouses have the right to fix together the family domicile. However, in case of disagreement between them, the court shall decide. The court may exempt one spouse from living with the other if the latter should live abroad, or for other valid and compelling reasons which should not be incompatible with the solidarity of the family (Art 69, id.). (3) The spouses are jointly responsible for the support of the family (Art. 70, id.) (4) The management of the household shall be the right and duty of both spouses (Art. 71, id.). (5) When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to bring danger, dishonor, or injury to the other or the family, the aggrieved spouse may apply to the court for relief (Art. 72, id.). (6) Either spouse may exercise any legitimate profession, occupation, business, or activity without the consent of the other. The latter may object only on valid, serious, and moral grounds (Art. 73, id.). 6. Going now to the property relations of husband and wife, what are the conflicts rules on the matter? For the same reason that the personal relations of the spouses are governed by the personal law of the husband if they are of different nationalities, the same rule also applies to their property relations, or to the property regime that governs their marriage.

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In the Philippines, since we follow the nationality theory, the property relations of the spouses are, in the absence of a marriage settlement between them, governed by Philippine law, regardless of the place of the celebration of the marriage and their residence (Art. 80, Family Code) If the spouses are of different nationalities, however, meaning that one of the spouses is a Filipino and the other, an alien, still Philippine law will govern their property relations. This was the intention of the Committee that framed the Family Code, considering that in most mixed marriages, it is the wife who is the Filipino, and the Committee wanted to protect the wife in such a marriage by applying Philippine law to the property relations of the spouses, whether it is the husband or the wife who is the Filipino citizen. This rule thus amends Art. 124 of the New Civil Code to the effect that in mixed marriages between a Filipino and a foreigner, it is the law of the husband that governs the property relations of the spouses. (See Minutes of meetings of Civil Code Revision Committee, Nov. 15, 22, and 24, 1986) The exceptions under Art. 80 of the Family Code are: (l) If both spouses are aliens, in which cases the general rule in Conflict of Laws will apply; and (2) With respect to the extrinsic validity of contract affecting real property, whether situated in the Philippines or in a foreign country, in which cases the lex situs will govern the formalities to be observed for the contracts validity (Art. 15, New Civil Code) 7. Suppose the husband or the wife or both change nationalities, will the rules stated in the preceding question be the same? Yes, under the doctrine of immutability of matrimonial regime of the spouses; i.e. regardless of the change of nationality by the husband or the wife or both, the original property regime that prevailed at the start of their marriage prevails. The reasons for this doctrine are: Marital peace in the spouses property relations is more or less guaranteed; the spouses will not be able to prejudice creditors, who in turn cannot jeopardize the interests of the spouses; and even the spouses may protect themselves from each other, (I Rabel, Conflict of Laws, pp. 453, 354) 8. Is immutability of the property regime of the spouses the same as immutablity of the law governing said regime? No, for while a subsequent change of nationality by the husband or the wife or both does not change or affect the original property regime, the law that creates and governs said regime may change. However, marriages solemnized before the new law takes effect are still governed by the old law. A good example is the change that the Family Code introduced in the property relations of the spouses. While the New Civil Code established the system of conjugal partnership of gains between the spouses, the Family Code changed the system or the regime to the absolute community regime. Thus, couples who get married under the Family Code who did not enter into a marriage settlement have a regime of absolute community of property between them. However, marriages solemnized under the New Civil Code without marriage settlements are still governed by said Civil Code; i.e., the spouses still have a conjugal partnership of gains between them, subject, however, to the changes introduced by the Family Code in the administration and disposition of conjugal properties, which have retroactive effect, without prejudice to vested rights acquired before the Family Code took effect (Art. 105, Family Code).

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C. ANNULMENT and DECLARATION OF NULLITY OF MARRIAGE 1. Distinguish annulment from declaration of nullity of marriage. Annulment is the remedy if the marriage is voidable or annullable, i.e., valid until annulled; while declaration of nullity of marriage is the remedy if the marriage is void ab initio. Since a voidable marriage is valid until annulled by a court of competent jurisdiction, it has certain legal effects: namely: (1) It can be convalidated either by free cohabitation or prescription. (2) The same property regime as in a valid marriage is established between the spouses. (3) The children are legitimate if conceived before the decree of annulment. (4) The marriage cannot be attacked collaterally; i.e., there must be a decree of annulment to set aside the marriage. (5) The marriage can no longer be impugned after the death of the spouses. On the other hand, since a void marriage is absolutely inexistent. (l) It cannot be convalidated. (2) The only property relationship between the parties is a co-ownership (see Arts. 147-148, Family Code). (3) The children are illegitimate, except children of void marriages under Arts. 36 and 53 of the Family Code. (4) The marriage may be attacked directly or collaterally. (5) The marriage can still be impugned even after the death of the spouses. Note: In Canon Law, there are only two categories of marriage: void and valid. Void marriages are considered annullable, such that the remedy to declare a marriage null and void under Canon Law is called annulment. Annulment in Canon Law should, not be confused with annulment in the civil law which applies only to voidable marriages. A common mistake of non-lawyers and even some lawyers and judges is to call the remedy to nullify a marriage under Art. 36 of the Family Code (based on the psychological incapacity of one of the spouses) annulment. This is wrong, because the marriage under Art. 36 is null and void (this ground having been taken by the Family Code from Canon Law), and the remedy to declare the marriage as such is declaration of nullity of marriage, not annulment. 2. If the marriage is null and void or an absolute nullity, can the parties remarry without going to court, since after all, the marriage does not exist at all? No. Under Art. 40 of the Family Code which is a new provision, 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. What the frarners of the Family Code wanted was for a person not to assume that his or her marriage is null and void, even if such be the fact, but he or she must first seek a judicial declaration of the nullity of his or her marriage

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before marrying again; otherwise, his or her second marriage will also be void and even bigamous (See Wiegel v. Sempio-Diy, 143 SCRA 499; Vda. de Consuegra v. GSIS, 37 SCRA 315 ). This new provision in the Family Code abandons the old decisions of the Supreme Court to the effect that where a marriage is illegal or void from its performance, no judicial decree is necessary to establish its invalidity (People v. Mendoza, 95 Phil. 843; People v. Aragon, 100 Phil. 1033). The above article also protects the spouse who believes that his or her marriage is null and void from being charged with bigamy if he or she marries again, because there would already be a judicial declaration of the nullity of his or her marriage before the remarriage. And this provision is retroactive. Thus, a marriage void for lack of a marriage license still needs a judicial declaration of nullity before the parties can marry again ( Republic v. C.A. and Castro. 236 SCRA 257; Domingo v. C.A., 226 SCRA 572 ). It has also been held that where a party contracts a second marriage on the mere belief that his or her spouse is already dead without filing a summary proceeding under Art. 41 of the Family Code, the second marriage is bigamous and void ( Navarro v. Domagtoy. 259 SCRA 129). 3. What are the conflicts rules on annulment and declaration of nullity of marriage? In Conflict of Laws, the grounds for annulment of marriage, and those for the declaration of nullity of marriage, are the grounds provided for by the law alleged to have been violated which, in general, is the lex loci celebrationis or the law of the place where the marriage was celebrated, with certain exceptions, The reason is this: Considering that it is the lex loci celebrationis that is usually applied to determine whether a marriage is valid or not, it is the same law that also determines whether a marriage is voidable or not, and whether it is void or not. Thus, if Filipinos get married abroad, the lex loci celebrationis will determine the grounds for annulment (Art 26, Family Code). For example, two Filipinos get married in England. Let us assume that sterility is a ground for annulment of marriage in England. The marriage of the two Filipinos will be annullable on the ground of sterility, even if sterility is not a ground for annulment under the Family Code. This is because English law is the lex loci celebrationis. As for declaration of nullity of a marriage between two Filipinos abroad, the grounds are the exceptions to the lex loci celebrationis in Art. 26 of the Family Code; namely, Articles 35 (l), (4), (5), and (6); 36, 37, and 38. As to foreigners who get married abroad, the exceptions to the lex loci celebrationis would be the same as those in marriages as a contract; namely, marriages that are highly immoral (like bigamous and polygamous marriages between Christians) and universally incestuous marriages. The above rules do not, however, apply to consular marriages, to which either the national law or law of the domicile of the parties, as the case may be, applies. 4. What courts have jurisdiction declaration of nullity of marriage? over cases for annulment or

Since we follow the nationality theory, our courts have jurisdiction to take cognizance of annulment and nullity suits in marriage in cases where the litigants are Filipinos.

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Domiciliaries of the Philippines can also file such suits in the Philippines. In other countries, it is usually the courts of the parties domicile who have jurisdiction over such cases, since that is the place which has the greatest interest in the domestic relations of the spouses. Another reason for this rule is a practical one: in order not to compel the parties, who are domiciled in one country, to travel to their country of nationality just to file such cases. In the Philippines, a Filipino citizen or domiciliary can file a case for annulment or declaration of nullity of marriage even if the defendant is a nonresident of our country. Such cases involve the personal status of the plaintiff and so, jurisdiction can be acquired over the defendant by publication of summons (Rule 14, Sec. 15, 1997 Rules on Civil Procedure, see also Sec. 6, new Rule on Declaration of Nullity and of Annulment Marriage which took effect on May 15, 2003). D. ABSOLUTE DIVORCE 1. What is the history of absolute divorce in the Philippines? (1) The Siete Partidas, the law in force in the Philippines during the Spanish regime and prior to the enactment of the Civil Code of Spain, allowed only legal separation, not absolute divorce. (2) Later, the provisions on divorce of the Civil Code of Spain were suspended in the Philippines by Gov. Weyler, so that they were never enforced in the Philippines (Benedicto v. Dela Rama, 3 Phil. 34, Francisco v. Jason, 60 Phil.442) (3) On March 11, 1917, a Divorce Law (Act 2710) was passed in the Philippines, but it recognized only two grounds for absolute divorce, adultery on the part of the wife and concubinage on the part of the husband; and in either case, there must be a previous conviction. Many couples did not, therefore, apply for divorce under this law because they did not want their children to have convicts for their parents. Re foreign divorces obtained by Filipinos during the effectivity of Act 2710, the Supreme Court held that the foreign divorces were valid only if the ground therefor was any of the two grounds allowed under Act 2710 ( Barretto Gonzales v. Gonzales, 28 Phil. 67). Thus, a foreign divorce obtained by a Filipino couple on the ground of desertion on the part of one of them was held void, being contrary to law or the fundamental policy of the forum ( Sikat v. Canson, 67 Phil. 207; Arca v. Javier, 50 OG 3538 [1954] ) (4) During the Japanese occupation, a law allowing absolute divorce was passed (Executive Order No. 141) allowing divorce on 10 grounds. Many Filipino couples took advantage of this law and sought divorce under its provisions. (5) Executive Order No. 141 was effective in this country until October 23, 1944 when General Douglas MacArthur reestablished the Commonwealth Government, which resulted in the repeal of Exec. Order No. 141 and in effect revived Act No. 2710. (6) Act No. 2710 was later repealed by the New Civil Code, which allows and recognized only legal separation. The draft of the Code had provisions on divorce, but during the discussions over the draft of the Code in Congress and with the strong opposition of the Catholic population of the country, absolute divorce was eliminated and substituted with legal separation.

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(7) The Family Code also does not allow absolute divorce except that which is validly obtained abroad by a foreigner from his or her Filipino spouse capacitating him or her to remarry, in which case the Filipino spouse can also remarry (Sec. par. , Art. 26, Family Code) (a) The above provision avoids the absurd situation of a Filipino as being still married to his or her alien spouse, although the latter is no longer married to the former, and may already have another spouse. (b) The above provision does not apply to a divorce obtained by a Filipino abroad from his or her Filipino spouse, which divorce is void because our law does not allow divorce and Filipinos are governed by Philippine law wherever they go as to their status and capacity (Art. 15, New Civil Code). (c) The above provision likewise does not apply to a divorce obtained by a married Filipino who went to another country, became naturalized therein, and later divorced his Filipino spouse after his naturalization, as it might open the door to rich Filipinos to obtain naturalization in other countries which allow divorce, only to be able to divorce their Filipino spouses. 2. May an alien who had divorced his Filipino spouse in his home country come back to the Philippines and ask for legal separation and separation of property against his Filipino wife on the ground of the latters adultery? No, because a spouse who accuses the other of adultery must be an offended spouse; i.e, he must still be married to the latter. Here, the alien had no legal standing to accuse his former Filipino wife of adultery because their marital bond had already been severed when he filed the adultery case and could no longer be an offended spouse (Pilapil v. Ibay-Somera, 174 SCRA 653 [1989]). 3. Compare the above Pilapil v. Ibay-Somera case with Van Dorn v. Romillo, 139 SCRA 159] [1985). The two cases are similar. In the Van Dorn case, Richard Upton, the American husband of Alice Reyes, and the latter, obtained a divorce in Nevada, U.S.A. Thereafter, Alice Reyes married again in Nevada. Later, Upton came back to the Philippines and claimed that a business in the name of Alice Reyes was their conjugal property and that the latter should render an accounting and let him manage said business. The Supreme Court held that the divorce obtained by Upton from Alice released she latter from their marriage, and Upton had no legal standing to sue Alice as he was no longer her husband when he filed the aforementioned case after their divorce.

NOTE: It is important to remember the two foregoing cases of Pilapil v. Somera and Van Dorn v. Romillo if similar cases arise in the future under the second paragraph of Art. 26 of the Family Code which recognizes a divorce validly obtained by the alien spouse of a Filipino citizen abroad and allows the Filipino to marry again.
4. What are the rules on the validity of foreign divorces obtained by foreigners abroad?

(1) The Hague Convention on the Recognition of Divorce and Legal Separation concluded on June 1, 1970 states that a foreign divorce will be recognized in the contracting states if, at the date of the filing of the proceedings:

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(a) The petitioner or respondent had his or her habitual residence in the state where the divorce was obtained; (b) If both spouses were nationals of said state; or (c) Although the petitioner was a national of another country, he or she had his or her residence in the place where the divorce was obtained. (2) In the United States, a state has the duty to recognize a divorce obtained in a sister state if the spouses were domiciled in the latter state. (3) A divorce obtained in a foreign country would be recognized under the same circumstances that a divorce obtained from a sister state is given recognition. (Rabel, Conflict of Laws,. 1968, pp. 500-527) (4) In the Philippines, if both spouses are aliens, we recognize a decree of divorce obtained by them abroad if valid under their national law. Thus, in Recto v. Harden L--6897, Nov. 29, 1956 our Supreme Court held that Inasmuch as Mr. and Mrs. Harden are admittedly citizens of the United States, their status and dissolution thereof are governed by the laws of the United States which sanction divorce. E. LEGAL SEPARATION OR RELATIVE DIVORCE 1. What is legal separation and how does it differ from/divorce? Absolute divorce (a vinculo matrimonii) dissolves the marriage and the parties can marry again. Legal separation or relative divorce ( a mensa et thoro) is only separation from bed and board but the parties remain married. 2. Distinguish legal separation from annulment of marriage. (a) In legal separation, the marriage is not defective; in annulment, the marriage is defective. (b) In legal separation, the grounds arise after the marriage; in annulment, the grounds must exist at the time of or before the celebration of the marriage. (c) In legal separation, the parties are still married to each other and cannot remarry; in annulment, the marriage is set aside and the parties can marry again. (d) In legal separation, the grounds are those given by the national law or the domiciliary law of the parties concerned, inasmuch as the question is one of status; annulment, on the other hand, questions the very existence of that status; so that as a general rule, the grounds for annulment are those given by the lex loci celebrationis, subject to certain exceptions. 3. What are the conflicts rules on legal separation? (a) If the parties are of the same nationality, the grounds for legal separation are those given by their personal law (whether national law of the domiciliary law, as the case may be). (b) If the parties are of different nationalities, the grounds available under the personal law of the husband as well as those available under the law of the wife are all available grounds for granting the legal separation. (Hague Convention on Legal Separation, Art. 8).

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4. What courts may grant legal separation? Or, in what country should the case be filed? (a) Jurisdiction in the case of aliens is not assumed by the forum unless the national law of the parties is willing to recognize its jurisdiction. (b) In the Philippines, foreigners may ask for legal separation here, even if they did not get married in this country. What is important is that the court has jurisdiction over both parties. (c) Most countries assume jurisdiction over cases for legal separation on the basis of the domicile of one of the parties or the matrimonial domicile. The rationale for this rule is that the law of the domicile of the parties is that with which they are most intimately connected (Goodrich, Conflict of Laws, 3rd ed. , 395-396). 5. Is it necessary that the cause for legal separation take place in this country for our courts to have jurisdiction over the case? No. There is no such requirement in the Family Code. Again, what is important is that the court has jurisdiction over the parties, and that the procedural requirements of the Rules of Court are complied with. It is important to emphasize here that Art. 99 of the New Civil Code requiring that the petitioner must have resided in the Philippines if the cause for legal separation arose in a foreign country, has been expressly repealed by the Family Code (Art. 254) and is no longer applicable. 6. What are the grounds for legal separation under the internal law of the Philippines? (1) Repeated physical violence or grossly abusive conduct against the petitioner, a common child, or a child of the petitioner; (2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; (3) Attempt to corrupt or induce the petitioner, a common child, or a child of the petitioner to engage in prostitution, or connivance in such corruption or inducement; (4) Final judgment sentencing the respondent to imprisonment of more than 6 years, even if pardoned; (5) Drug addiction or habitual alcoholism of the respondent (6) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad; (7) Lesbianism or homosexuality of the respondent; (8) Sexual infidelity or perversion; (9) Attempt by the respondent against the life of the petitioner (10) Abandonment of petitioner by respondent without justifiable cause for more than one year. (Art. 55, Family Code) 7. What are the defenses to legal separation under Philippine internal law? (1) Condonation of the offense or act complained of: (2) Consent of the aggrieved party to the commission of the act or offense complained of; (3) Connivance between the parties in the commission of the offense or act constituting the ground for legal separation;

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(4) Where both parties have given ground for legal separation; (5) Collusion between the parties to obtain legal separation; (6) Prescription. (Art. 56, Family Code) 8. What is the prescriptive period for the filing of the action in the Philippines? Within five (5) years from the time of the occurrence of the cause (Art. 57, Family Code) 9. Can the wife drop the name of the husband after the decree of legal separation? No, because they are still married. And this is true whether she is the guilty party or not. As held in Laperal v. Republic, 6 SCRA 357, the wife who has been granted legal separation cannot petition to be allowed to revert to her maiden name. 10. If one of the parties in a legal separation case dies during the pendency of the case, should the case be dismissed or does it survive? The case should be dismissed because it is purely a personal one. This is true even if properties are involved. For without a decree of legal separation, here can be no effects. 11. Does the offended spouse inherit from the guilty spouse? What about the guilty spouse, does he or she inherit from the innocent spouse? Of course the offended spouse inherits from the guilty spouse because the parties are still married to each other. As for the guilty spouse, he or she is disqualified from inheriting from the innocent spouse by intestate succession, and provisions in the will of the latter favorable to him or her are revoked by operation of law (Art. 63 (4), Family Code). However, to disqualify the guilty spouse from inheriting from the innocent spouse by intestate succession, the latter must file a case of legal separation against the former. This is provided in Art. 1002, New Civil Code, stating that in case of legal separation, if the surviving spouse gave cause for the separation, he or she shall not have any of the rights granted in the preceding articles (meaning the right to inherit by intestate succession). But there must be a decree of legal separation as stated in Question 10 hereof. Chapter XIII. STATUS OF CHILDREN A. LEGITIMACY AND ILLEGITIMACY 1. What are the conflicts rules in determining legitimacy of children? (a) If the parents are of the same nationality, their common personal law, whether their national law or the law of their domicile, will be applied. (I Rabel, supra).

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If the parents are of different nationalities, the personal law of the father governs (Rabel, id.). (b) In the Philippines, since we follow the nationality theory (Art 15, New Civil Code), the common national law of the parents applies, and if they have different nationalities, the national law of the father governs. 2. Who are legitimate and illegitimate children under Philippine internal law? Art. 164 of. the Family Code defines legitimate children as children conceived or born during the marriage of the parents; while illegitimate children are defined by the succeeding Art. 165 as "children conceived and born outside a valid, marriage, xx x unless otherwise provided in this Code. The second paragraph of Art. 164, however, includes a special kind of legitimate children; namely, children conceived as a result of the artificial insemination of the wife with the sperm of the husband or that of a donor or both, provided the children were born under the conditions prescribed in said Article. (Please see comments on children by artificial insemination of this same author in her "Handbook on the Family Code of the Philippines, 1995 ed., pp. 258-269). As for the exceptions to Art. 165 of the Code defining who are illegitimate children, the exceptions referred to are the children born of void marriages under Art. 36 (void because of the psychological incapacity of one of the spouses) and under Art. 53 (those born of the first marriage of parties before said first marriage had been annulled or declared void, and who marry a second time without delivering the presumptive legitime of the children of their first marriage). 5. What are the rights of legitimate (and legitimated children) under Philippine law? The rights of legitimate and legitimated children under Art. 174 of the Family Code are: (1) To bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on surnames; (2) To receive support from their parents, their ascendants, and in proper cases, their brothers and sisters, in conformity with the provisions of this Code on support; and (3) To be entitled to the legitime and other successional rights granted to them by the Civil Code. Note: The legitime of each legitimate child is half of the parent's estate divided by the number of legitimate children (Art. 888, New Civil Code); while in intestate succession, legitimate children inherit equally ( per capita) without distinction as to age or sex, and even if they spring from different marriages (Art. 979. id.) 4. What are the rights of illegitimate children under Philippine law? . Art. 176 of the Family Code provides that illegitimate children have the rights:

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(1) To use the surname of the mother; (2) To be under the parental authority of the mother; (3) To support in conformity with this Code; (4) To the legitime, which is one-half of the legitime of a legitimate child. Remember that under the new Rep. Act No. 9255, illegitimate children may now use the surname of the father "if their affiliation has been expressly recognized by the father through the record of birth appearing in the civil register or when an admission in a public document or private written instrument is made by the father" during the latter's lifetime. 5. What law governs the rights and duties between parent and child? (a) If the child is legitimate as determined by the above rules, either the common personal law of the parents, or the personal law of the father if the parents are of different nationalities, governs. (Rabel, id.). (b) If the child is illegitimate as determined by the above rules, the personal law of the mother is decisive, unless the child is subsequently recognized by the father, in which case the rules on legitimate children will be applied (Rabel, id.). (c) In the Philippines, again since we follow the nationality theory, the law of the mother governs if the child is illegitimate, unless the child is again recognized by the father, in which case the personal law of the father (whether it is the same as the mother) applies. 6. What is meant by the doctrine of immutability of status? This doctrine means that the status of a child (whether legitimate or illegitimate) is not affected by a subsequent change of nationality of the parents. But the rights and duties of parent and child, or child and parent, would, after the parents change of nationality, be governed by the new national law of the parents (I Rabel, id., pp. 606-607). B. LEGITIMATION 1 What are the conflicts rules on legitimation of children? "Legitimation" is a process whereby children who in fact were not born in lawful wedlock and should, therefore, be ordinarily considered illegitimate children are, by fiction of law and upon compliance with certain legal requirements, regarded by law as "legitimate", it being supposed that they were born after their parents had already been validly married (I Manresa 550). In Conflict of Laws, the requisites of legitimation are generally considered those prescribed by the national law of the parents, and if the latter have different national laws, the national law of the father (I Rabel, id., p. 575). In countries following the domiciliary theory, however, the personal law being the law of the domicile, the law of the domicile of the parents or, in proper cases, the law of the domicile of the father, should govern. 2. What is the internal law of the Philippines on legitimation of children? Our internal law on legitimation of children is found in Arts. 177 to 182 of the Family Code.

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Under Art. 177, the following requisites must concur in order that a child may be legitimated: (a) The child was conceived and born outside lawful wedlock. (b) The parents, at the time of the child's conception, were not disqualified by any impediment to marry each other. Note: The additional requirement under Art. 270 of the New Civil Code that the parents must have acknowledged the child first before or after their marriage, is no longer necessary under the Family Code, because this Code has deleted recognition of natural children and already confers on legitimate and illegitimate children their status at the moment of birth. Children that fall under Art. 177 of the Family Code are, therefore, ipso facto legitimated upon the subsequent marriage of the parents no matter how long a period of time has elapsed from the birth of said children to the time of the marriage of their parents. (See also comments by this same author on Arts. 177 to 182 of the Family Code in her Handbook on the Family Code of the Philippines). 3. If the personal law of the parents, or of the father in proper cases, changes, is the legitimation of the child affected? No, because legitimation creates a permanent status of the child, so this status is immutable. However, the rights and duties of parents and legitimated children may be modified by a change of the personal law of the parents or of the father, as the case may be. The immutablity of the status of a legitimated child is very clear under Art 180 of the Family Code which provides that the effects of legitimation shall retroact to the time of the child's birth. Also, Art. 178 provides that the annulment of a voidable marriage shall not affect the legitimation. 4. What are the rights of legitimated children under Philippine law? They have the same rights as legitimate children (Art. 179), namely: (1) To bear the surname of their father and mother; (2) To receive support from their parents, ascendants, and in proper cases, their brothers and sisters; and (3) To the legitime and other successional rights granted by law to a legitimate child. Note: In De los Santo s v. Luciano, 60 Phil. 328 , it was held that the legitimated daughter of a man can inherit from the man's brother as a legitimate niece. C. ADOPTION 1. What are the sources of the Philippine law on adoption? (a) Before the Family Code took effect on August 3, 1988, our law on adoption was PD 603 (the Child and Youth Welfare Code), which expressly repealed all the provisions of the New Civil Code on adoption. (b) PD 603 was later amended by Executive Order No. 91 signed by former Pres. Corazon Aquino on December 17, 1986 regarding non-resident aliens who were allowed to adopt under PD 603.

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(c) Subsequently, all the provisions of PD 603 and Executive Order No. 91 on substantive matters were repealed by Title VII of the Family Code. Certain procedural provisions of PD 603 on adoption (Arts. 32 to 38) were not, however, repealed by the Family Code. Under the Family Code, aliens were not allowed to adopt in the Philippines anymore except those referred to in Art. 184 (3) thereof, and non-resident aliens were allowed to adopt Filipino children only under the law on Inter-Country Adoption (Republic Act No. 8043) which was signed by former Pres. Fidel V. Ramos on June 7 1995 Under this law, the adoption proceedings are to be held in the home country of the adopters. (d) Still later, on February 25, 1988, former Pres. Ramos signed Republic Act No. 8552, otherwise known as the Domestic Adoption Act of 1998, amending many provisions of the Family Code on domestic adoption. 2. State the concept and rationale of adoption. (a) The old definition of adoption in the Partidas is that it is "the act whereby one person is received as the offspring of another although he is not such by nature". This definition was based on the theory that adoption is mainly for the benefit of the adopter, so that those who have no children or have lost them, may have the solace and joys of parenthood, and that the void which exists in childless homes may be filled (Ynigo v. Republic, 95 Phil. 244). (b) The rationale of adoption has, however, changed, and it is now considered more for the benefit of the child than for the adopter, and pursuant to this modern trend, it has been held that adoption does not merely establish a relationship of paternity and filiation but is also an act which endows the child with legitimate status (Prasnick v. Republic, 98 Phil. 665). Adoption is thus given a social and moral purpose; that is, to extend to the orphan or to the child of the indigent, the incapacitated or the sick, the protection of society in the person of the adopter (Tolentino, Civil Code of the Phil., 694). 3. What law determines whether the relationship of adoption has been created or not? (a) The child's personal law, to protect his well-being. (b) If the child does not reside in the country of his citizenship, the personal law of the adopter will govern, or the personal law of the adopter and that of the child will be applied concurrently. 4. What law determines the legal effects of the adoption? The legal effects of the adoption are determined by the same law that created the relationship of adoption. The legal effects that flow from the adoption are: (a) The successional rights of the adopted child; (b) The parental authority of the adopter over the adopted child; (c) The use by the adopted child of the surname of the adopter. 5. An important problem in adoption in the Philippines is whether aliens can adopt in our country. What is Philippine law on the matter?

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(a) As stated in the discussion of Question No. 1 hereof, while the Civil Code of the Philippines did not allow non-resident aliens to adopt, PD 603 liberalized the Civil Code provisions on adoption and allowed even non-resident aliens to come to the Philippines and adopt our children here. (b) The Family Code, however, became strict in adoption of aliens in the Philippines because of reports received by the Committee that drafted the Code (of which this author was a member) that some Filipino children adopted by aliens and brought by the latter to their home countries suffered cultural and psychological shock and could not adjust to their new lives in the foreign countries of their foreign adopters. Also, information was received that old alien pedophiles, after having been allowed to adopt Filipino children in the Philippines, would, after bringing said children to their home countries, simply abandon these children after they had satisfied their sexual desires on them. There were even alleged cases of Filipino children who, after having been adopted by foreigners, were killed for organ transplants in the foreign homes of their adopters. Hence, the Committee believed that by limiting adoption of Filipino children by aliens to former Filipino citizens (and/or their spouses) related by blood to the adopted children, the latter would be given some measure of protection by the adopters who are their relatives by consanguinity. (c) Republic Act No. 8552 or the "Domestic Adoption Act of 1998" again allows aliens (who are not former Filipino citizens) to adopt in our country, provided: (1) They have the same qualifications as those required of Filipino citizens (See Sec. 7(a), Rep. Act 8552); (2) Their countries have diplomatic relations with our country; (3) They have been living in the Philippines for at least three (3) years prior to the filing of the petition for adoption, and maintain such residence until the adoption decree is entered; (4) They have been certified by their diplomatic or consular offices or by any appropriate government agency that they have the legal capacity to adopt in their own countries and (5) Their government allows the adopted child to enter their country as their adopted child (Sec. 7 (b), Rep. Act. 8552). (d) As for the following aliens: (1) A former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity; or (2) One who seeks to adopt the legitimate son or daughter of his or her Filipino spouse; or (3) One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse a relative within the 4th degree of consanguinity or affinity of the Filipino spouse; the same Sec. 7(b) of Rep. Act. 8552 provides that they need not comply with the residency in the Philippines required of real aliens and they also need not submit a certification that they have the capacity to adopt from the diplomatic or consular office of their country in the Philippines or any other government agency. Note, however, that the special kinds of aliens enumerated above by Rep. Act 8552 are required to be related to the child to be adopted within the 4th degree of consanguinity or affinity. Art. 184 of the Family Code which the above provision of Rep. Act 8552 amends did not limit the degree of consanguinity between the adopter and adopted child. On the other hand, Sec. 7(b) of Rep. Act 8552 includes children related within the 4th degree of affinity

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to the adopting parent, which relationship of affinity was not included in Art. 184 of the Family Code. This author cannot understand, though, why Rep. Act 8552 in the above provision limits the degree of relationship by consanguinity of the adopter and the adopted child only to the 4th degree. This means that a former Filipino would not be able to adopt the child of his or her first cousin (5th degree) or his or her second cousin (6th degree). Since the important consideration here is the love and protection that a relative by blood, who is now an alien, can give to the child once the latter is brought to the adopter's foreign home, it is immaterial how close they are related by blood. 6. The cases of Republic v. C.A. and Hughes, 227 SCRA 401 , and Republic v. Judge Toledano, GR. 94147, June 6, 1994 , decided by the Supreme Court, denied the joint petitions for adoption filed under the Family Code by former Filipino wives, now American citizens, and their American husbands, because what the Family Code only allowed was joint adoption by Filipino citizens and their aliens spouses. Are these decisions still good under Rep. Act 8552? No more if the aliens husbands of former Filipino wives can comply with the requirements for alien adopters under Sec. 7 (b) of Rep. Act 8552. But, Rep. Act 8552 still requires that husband and wife must jointly adopt, which joint adoption was also required by the Family Code, except when one spouse seeks to adopt his or her own illegitimate child, or when one spouse seeks to adopt the legitimate child of the other spouse (Art. 185, Family Code). Republic Act 8552 adds that in cases where the spouses are legally separated (Act. 7, sec. par., sub. par. {iii}), the husband or the wife can adopt alone, and the consent of the other spouse to an adoption filed by one spouse is no longer necessary. 7. What are the legal effects of adoption under Philippine law? Rep. Act 8552 enumerates the legal effects of adoption as follows: (1) All legal ties between the biological parent /parents and the adopted child are severed and the same shall be vested in the adopter/adopters, except in cases where the biological parent is the spouse of the adopter. In other words, parental authority over the adopted child is transferred to the adopter. (2) The adopted child shall be considered for all intents and purposes to be the legitimate child of the adopter/adopters, and as such is entitled to all the rights and obligations provided by law to legitimate children. (3) In legal and intestate succession, the adopter/adopters and the adopted child shall have reciprocal rights of succession without distinction from legitimate filiation. Testamentary succession will, however, apply if the adopted child and the adopter or adopters had left a will. (Secs. 16, 17, 18, Rep. Act 8552) 8. There are still other important points to remember regarding the nature of adoption in the Philippines law; namely: (1) Adoption proceedings in our country are always judicial and in rem ; i.e.. publication is required as constructive notice of the petition for adoption to the whole world, since adoption creates status. (2) Since there can be no valid adoption without a court decree granting the same, a mere agreement of adoption between the adopters and the parents of the child is not a valid adoption ( Santos-Ynigo v. Republic, 95 Rep. 244 ), nor

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the fact that the child had been adopted de facto (ampon) by the alleged adopting parents (Lazatin v. Judge Campos, 92 SCRA 250). (3) Neither is the mere registration of the child in the civil registry as the child of the adopter a valid adoption. This even amounts to the crime of simulation of birth punishable by prison mayor in the medium period, and a fine not exceeding P50,000.00 (Sec. 2l (b), Rep. Act 8552). (4) The capacity and right of the adopter to file a petition for adoption, are governed by the law in force at the time the petition is filed, and cannot be impaired by a new law disqualifying him or her for adoption ( Republic v. C.A. and Bobiles, GR 92326, 24 Jan. 1992; Republic v. Miller, GR 125937, April 21, 1999 ). 9. Should we in the Philippines recognize a foreign decree of adoption? While there is no provision of law nor jurisprudence expressly requiring the Philippines to recognize a foreign decree of adoption, it is believed that under Sec. 48 of Rule 39 of the 1997 Rules on Civil Procedure, we can recognize such foreign decree of adoption provided the foreign court had jurisdiction to render said decree; and that there was no want of notice, collusion, extrinsic fraud, or clear mistake of law or fact leading to the foreign decree of adoption. This is particularly true if both the adopter and the adopted child are nationals or domiciliaries of the forum that decreed the adoption (Rabel, id., p. 647). 10. Does adoption confer on the adopted child the citizenship of the adopter? No, adoption does not confer on the adopted child the citizenship of the adopter. Adoption is a matter political, and not civil, in nature, and the ways in which it should be conferred lay outside the ambit of the Civil Code ( Uggi Lindamand Therkelsen v. Republic, 12 SCRA 400; also Ching Leng v. Galang, L11931, 27 Oct. 1958).

Chapter XIV. WILLS, SUCCESSION, and ADMINISTRATION OF THE ESTATE OF DECEASED PERSONS 1. What law applies in the transmission of successional rights upon the death of a person? There are two theories or systems in determining the proper law for the transmission of successional rights; the unitary or single system, and the split or scission system. Under the unitary or single system, only one law determines transmission of real as well as personal properties. In countries following the nationality theory like the Philippines, the national law of the deceased governs the transmission of both real as well as personal properties, while in common law countries or countries that follow the domiciliary theory, it is the law of the domicile of the deceased that governs.

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However, under the split or scission system, which England and the United States adopt, succession to real property is governed by the lex situs, while succession to movable or personal property is governed by the law of the domicile of the deceased at the time of his death. In the Philippines, we follow, as already stated, the unitary or single system, in that Art. 16 of the New Civil Code applies the national law of the deceased, whatever may be the nature of the property and regardless of the country where the property is found. 2. When we talk of validity of wills, we refer to both its extrinsic and intrinsic validity. What does each validity refer to? Extrinsic validity deals with the forms and solemnities in the making of wills, which include the age and testamentary capacity of the testator and the form of the will (whether oral or written, public or private instrument, notarial or holographic, the number of witnesses, etc.). Intrinsic validity concerns itself with the order of succession, the amount of successional rights each heir gets, and such other matters that fall under the term "substance" as distinguished from "forms and solemnities" of wills. 3. What are the conflicts rules in the Philippines on extrinsic validity of wills? (a) If a Filipino makes a will abroad, he may comply with the formalities of Philippine law (lex nationalii) or the lex loci celebrationis (the law of the place where he was at the time of the execution of the will (Art. 815, New Civil Code). Thus, a Filipino doctor working in New York may execute a will in accordance with Philippine law or New York law. (b) If an alien makes a will abroad, he may comply with the formalities of his lex nationalii (the law of the country of which he is a citizen), the lex domicilii (the law of his domicile) (Art. 816, New Civil Code), or the lex loci celebrationis (the law of the country where he was at the time of the execution of the will). (Art. 17, i.d.). (c) If an alien makes a will in the Philippines, he may comply with the formalities of his own country ( lex nationalii) or of Philippine law ( lex loci celebrationis) (d) As for a holographic will, which must be entirely written, dated, and signed by the hand of the testator himself, it is subject to no other form and may be made in or out of the Philippines, and need not be witnessed (Art. 810, New Civil Code). 4. What are our conflicts rules on joint wills? (a) Filipinos cannot make joint wills whether here or abroad. Thus, a joint will made by two Filipinos in a foreign country is void even if valid under the lex loci celebrationis (Art. 819, New Civil Code). (b) Joint wills made by aliens abroad shall be considered as valid in the Philippines if valid according to their lex nationalii or lex domicilii or if valid under the lex loci celebrationis (Arts. 816 and 17, id.) (c) Joint wills made by aliens in the Philippines are void even if valid under their lex nationalii or lex domicilii, in order that our public policy on joint wills may not be militated against.

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(d) A joint will executed by an alien and a Filipino citizen abroad will be valid as to the alien (if his national law, law of the domicile, or the lex loci celebrationis allows it), but void as to the Filipino, the same being against our public policy on joint wills. 5. What are the conflicts rules on the intrinsic validity of wills? As a general proposition, conflicts rules on the intrinsic validity of wills are determined by the lex nationalii of the deceased in countries that follow the nationality theory, and by the lex domicilii at the time of death, in countries that follow the domiciliary theory 6. In the Philippines, what law governs the intrinsic validity of wills? The New Civil Code applies the lex nationalii of the decedent in par. 2 of its Art. 16. This was also followed by the Supreme Court in Miciano v. Brimo, 50 Phil. 867; Bellis v. Bellis, 20 SCRA 558; and Cayetano v. Leonidas, 129 SCRA 522). We must not forget, however, that in case of conflict between the nationality theory and the domiciliary theory, we can treat the case as one of renvoi as in the Christensen case cited earlier in this work, so that we can still apply Philippine law even if the deceased was a. citizen of another country. 7. What are the conflicts rules if a person dies intestate? In civil law countries like the Philippines, the national law of the deceased applies. In common law countries like the U.S. and Great Britain which follow the split or scission system, the lex domicilii of the deceased at the time of death applies with respect to personalty, while the lex situs applies with respect to real property. 8. What about revocation of wills, what are our conflicts rules? (a)Under Art. 829 of the New Civil Code, a revocation done outside the Philippines by a person who does not have his domicile here, is valid if done according to: (l) The law of the place where the will was made ( lex loci celebrationis); or (2) The law of his domicile at the time of revocation ( lex domicilii). A problem here would arise if the testator revokes his will while domiciled in one country and later, changes his domicile, then dies in the latter state. If the laws of his former domicile and his domicile at the time of his death are different, which law applies? Common sense and logic should apply the law of the domicile at the time of the testator's death, but this is not what our law says. Likewise, suppose a non-domiciliary makes the revocation in accordance with the law of the place where he was at the time, are we not going to recognize the revocation? Why indeed does the Civil Code ignore the law of the place of revocation, when we follow the lex loci celebrationis in determining: the validity of wills executed abroad? Is not the desire of the testator to revoke his will as important as his desire to make a will? (b) If the revocation is done in the Philippines, it is valid if made in accordance with the provisions of our Civil Code (Art. 829, id.).

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(c) If the revocation is done outside the Philippines by a person who is domiciled here, it is valid if made in accordance with our law (the lex domicilii) or the lex loci actus of the revocation (the place where the revocation was made) (see Art.. 17, par. 1, New Civil Code). 9. What law should be applied in the interpretation of wills? (a) As in contracts, the provisions of a will shall be interpreted in accordance with the testators intention. If the terms are clear and unambiguous, the literal meaning of the stipulations shall control. Otherwise, the evident intention of the testator must prevail; by not only referring to the context of the will but also taking into account the contemporaneous and subsequent acts of the testator (Arts. 1370 to 1378, New Civil Code). (b) If the testator's intention cannot be ascertained by the preceding rules, the interpretation of ambiguous words must be made in accordance with the law which was most probably in the mind of the testator when he used those words and with which he is presumed to be most familiar. (c) If the will admits of different interpretations, that which will make the dispositions operative shall be preferred. The interpretation that will give the will the most favorable construction to accomplish its purpose shall be made (Arts. 788-792, New Civil Code). (d) Every effort should be made to prevent intestacy in keeping with the policy of respecting the will of the testator, provided that this can be ascertained. 10. What is probate, and what are the conflicts rules on probate of wills? (a) Probate is the process of proving before a competent court the due execution of a will, that the testator was possessed of testamentary capacity, and the approval by said court of the will. (b) The allowance or disallowance of a will is essentially procedural, so that the law of the forum applies to all procedural matters. (c) Under Art. 838 of the first paragraph of the New Civil Code, "no will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court". (d) There is no period of prescription for the probate of a will. For the probate of a will is not exclusively established in the interest of the surviving heirs but primarily for the protection of the testators expressed wishes in the disposition of his properties. Since the probate of validly executed wills is required by public policy, the State could not have intended the Statute of Limitations to defeat said policy. ( Guevata v. Guevara, GR L-5405, Jan. 31, 1956). (e) Wills proved and allowed in a foreign country, according to the laws of each country, may be allowed, filed, and recorded by the proper court in the Philippines (Rule 77, sec. 1, Revised Rules of Court). (f) Although a foreign will had already been probated in a foreign country, it still has to be reprobated in the Philippines in accordance with our procedural law, because a foreign judgment, no matter how intrinsically meritorious, cannot have, as a general rule, automatic extraterritorial effect. But instead of proving all over again the due execution of the will, it is ordinarily sufficient to ask for the enforcement here of the foreign judgment of the probate abroad.

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(g) The evidence necessary for the probate or allowance of wills which have been probated outside the Philippines are: 1) The due execution of the will in accordance with the foreign law because we cannot take judicial notice of foreign laws. 2) The testator had his domicile in the foreign country where the will was probated; 3) The will had been admitted to probate in said country; 4) The foreign tribunal is a probate court; 5 ) The laws of the foreign country on procedure and allowance of wills were followed. (Vda. De Perez v. Tolete, 232 SCRA 722). 11. What are the conflicts rules on administration of estate of deceased persons? (a) By "administration" is meant the process of determining and realizing the assets of a deceased person, the payment of the debts of the estate, and the actual distribution of the residue to the heirs. (b) Like probate, administration is procedural in nature. Therefore, it is the lex fori that governs, not the law that determines how the estate of the deceased is to be distributed. (c) In charge of the administration is an executor (if one is appointed by the testator in his will), an administrator with a will annexed (one who is appointed by the court if there is a will but no executor is designated therein), or an administrator (if there is no will, the court appoints an administrator of the estate of the deceased). (d) The executor is qualified, and the administrator of the estate is appointed, by the court of the country where the deceased was domiciled at the time of his death; or if he was a non-domiciliary, the country where his properties are found. (e) The rights, powers, and duties of the executor or administrator are coextensive with the territorial jurisdiction of the court that qualified or appointed him. Thus, an executor or administrator qualified or appointed by a Philippine court has jurisdiction only over the properties of the deceased located in the Philippines. (f) Administration granted in the country of the deceased's last domicile is called principal domiciliary administration; administration in other countries where the deceased also left properties, is called ancillary administration. (g) As held by the Supreme Court in Tayag v. Benguet Consolidated, Inc., 26 SCRA 242, the domiciliary administrator of the estate of a deceased American citizen has no power over and is not entitled to the possession of the stock certificates of shares of stock owned by the deceased in a Philippine corporation, which certificates must be delivered to the ancillary administrator of the deceaseds estate in the Philippines, to be administered by the latter in the nature of assets of the deceased liable for his debts or to be distributed among his heirs. 12. What is meant by the "caduciary rights" of a State in Conflict of Laws? If the deceased had properties but left no heirs and no will, how can the country where the properties are located claim said properties?

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There are two theories adopted by different states so that they may claim the properties left by a deceased who left no heirs and no will. First, some countries including England and most American states adopt the theory that such properties have become ownerless ( bona vacantia); hence, they should revert to the state where they are situated by escheat. In the Philippines and some civil law countries, the theory adopted is that the State is the last heir of a deceased person. Hence, the State succeeds to the properties left by said deceased as an heir. 13. There is no difficulty if a foreign element is not involved in the case. But suppose the domiciliary of one State leaves properties in other states? How can those other States claim for themselves the properties left by the deceased? Example: A Chinese citizen died with substantial business interests in the Philippines but with no heirs and no will. If we apply Art. 16, par. 2 of the New Civil Code, the national law of the deceased applies to his succession, and if Chinese law- provides that the home state of the deceased (China) inherits as his last heir, China can claim said properties and business interests for itself. The Philippines can, however, claim said properties and business interest, by adopting the theory of caduciary rights of the State. This is in consonance with the proposition that in a situation such as this, "rules of conflict of laws are largely abandoned and each country appears to work on the principle of seizing all property of the deceased lying within its borders; i.e., the Philippines should regard said properties as ownerless or bona vacantia. In short, the properties pass to the Philippines as an incident of sovereignty, not as an heir (Black's Law Dictionary, Abridged, 5th ed., p. 92).

Chapter XV. PROPERTY 1. Are the conflicts rules on real and personal property the same? Almost all legal systems adopt the lex situs or lex rei sitae, i.e., the law of the place where the property is located or situated, with respect to real property. Thus, the law of the place where it is situated governs everything concerning real property. The reason for the rule is clear and logical. "As the place where a thing is situated is the natural center of rights over it, everybody concerned with the thing may be expected to reckon with the law of such place." (Wolff, Private International Law, p. 564). Indeed, a reference to the lex situs of real property satisfies the need for certainty, predictability, anil uniformity, as well as the reasonable expectations of the parties, in dealing with real property. The same cannot be said of the law on personal property or movables. The old rule during the Middle Ages was mobilia sequuntur personam, since personal properties were understood to mean the personal effects or belongings of the owner which he carried with him wherever he went. Therefore, since said

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properties did not have a fixed situs, an artificial situs was given to them; namely, the personal law of the owner. Recently, in many countries, the lex situs or lex rei sitae has also been adopted with respect to personal properties, the chief reason for the change being that the situs is easily ascertainable, making it convenient for the parties and third persons who may be affected by rights in rem created over personal properties to have those rights enforced and made effective (Wolff, id.). As the place where the properties are located has the legal and coercive power to enforce said rights, the lex situs or lex rei sitae applies to said properties (Goodrich, Conflict of Laws, p. 470). 2. How about in the Philippines, have we also adopted the rule of the lex situs or lex rei sitae with respect to personal properties? Yes, for Art. 15 of the New Civil Code provides that "real property as well as personal property is subject to the law of the country where it is situated". 3. What was the reason given for the change of rule in the New Civil Code? The late Senator Lorenzo M. Tanada, Chairman of the Special Committee on the New Civil Code, explained the reason thus: "Now that there has been a great increase in the amount and variety of personal property not immediately connected with the person of the owner, it was deemed advisable by Congress of the Philippines to adopt the doctrine of lex rei sitae also to movables". Indeed, it has been held that personal property may be separated from its owner, who may be taxed on its account at the place where the property is located, although he is not a domiciliary, citizen or resident of the state which imposed the tax (Manila Gas Cor. v. Collector, 62 Phil. 895 ). In fact, the concept of movable property has so grown in the Philippines that even intangible properties like shares of stock in a corporation, franchises, credits and the like are now considered movable property although they have no physical or material situs. 4. What matters connected with real property are governed by the lex situs? Extrinsic and intrinsic validity of transactions over real property such as alienations, transfers, and mortgages; capacity of the contracting parties; interpretation of documents, effects of ownership; co-ownership; accession; usufruct; lease; easement; quieting of title; registration; prescription; police power; eminent domain; and taxation are governed by the lex situs. Example: X, a California citizen domiciled in California, sells to a Filipino domiciled in the Philippines a piece of land located in Florida, USA. (a) The extrinsic validity of the transaction (the formalities) is governed by the lex situs (F1orida law). (a) The capacities of both vendor and vendee are governed by Florida Law. (b) The intrinsic validity of the transaction is governed by Florida law. (See also pars. (2) and (3) of Art. 80 of the Family Code applying the lex situs to the extrinsic validity of contracts involving real properties not situated in the Philippines). 5. What are the exceptions to the rule of the lex situs or lex rei sitae with respect to real properties? The exceptions to the application of the lex situs or lex rei sitae with respect to real properties are the following:

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(1) Succession: In civil law countries like the Philippines, testate and intestate succession, whether the properties are real or personal and wherever they may be located, is governed by the national law of the deceased, not the lex situs, including the order of succession, the amount of successional rights, and the intrinsic validity of testamentary dispositions (Art. 16, par. 2, New Civil Code). Capacity to succeed is also governed by the national law of the deceased (Art. 1039, id.). (2) Contracts involving real property but do not deal with title or real rights over the property, the issue being the contractual rights and liabilities of the parties, are governed by the proper law of the contract; i.e., either the lex loci voluntatis or the lex loci intentionis . Example: A Filipino landowner hires a Japanese gardener for latter to convert into a Japanese garden a parcel of land in Philippines. This contract is not governed by the lex situs although land to be developed is located in the Philippines. What governs is proper law of the contract between the parties. the the the the

(3) In contracts where real property is given as security by way of mortgage to secure a principal contract (such as a loan), the loan is governed by the proper law of the contract between the parties, while the accessory contract of mortgage is governed by the lex situs. (4) While the validity of a transfer of land must, as a rule, be determined by the lex situs, the validity of a contract to transfer is determined by the proper law of the contract (Salonga, Priv. International Law, 1995 ed., p. 473). The obvious explanation for this is that while the transfer of land involves the title thereto, a mere contract to transfer is a personal contract that does not create rights in rem. (id.) 6. What are the difficulties in applying the rule of the lex situs or lex rei sitae to movables or personal properties, and how are they to be resolved? (1) If the personal property is tangible (called chose in possession) and has a fixed situs, there is no problem. But there are many different kinds of personal properties that do not have fixed situs, like those that are usually in motion or have changing situs (e.g., vessels and goods in transit), or intangible personal properties like rights and shares of stock in a corporation which, because they have no material existence, do not also have material or tangible situs. (2) The aforesaid personal properties which are usually in motion or do not have tangible existence are thus given artificial or constructive situs, which will be discussed in the succeeding questions. 7. What constructive situs is given to choses in possession that are usually in motion? (l) Vessels, in view of their inherent mobility, are governed by: (a) The law of the flag, if it is a public vessel; (b) The law of the country or place of registry, if it is a private or commercial vessel. If, however, the vessel is docked at a foreign port, said port is deemed as its temporary situs. (2) Goods in transit are governed as follows:

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(a) As to liability for loss, destruction, or deterioration of goods in transit, the law of destination is applied (Example is Art. 1753 of the New Civil Code). (b) The validity and effect of seizure of goods in transit are governed by law of the place where the goods were seized which is their temporary situs. (c) Disposition or alienation of goods in transit is generally governed by the proper law of the contract between the parties (the lex loci voluntatis or lex loci intentionis). The reason is obvious: such disposition or alienation is effected through a contractual obligation. In some states, however, the transfer of title to chattels is governed by the law of the place where the chattels are located at the time of the transfer, and this title will ordinarily be recognized in any other state where the chattels are brought or transferred. 8. What are the rules in giving constructive situs to intangible personal properties or choses in action? Intangible personal properties or choses in action may be credits (or debts), negotiable instruments, shares of stock in corporations, franchises, goodwill of a business, or intellectual properties like patents, trademarks, tradenames, and copyrights. The situs given to them are as follows: (a) Credits (or debts): (l) Involuntary transfer or assignment of a debt (garnishment) - The situs is the place where the debtor may be served with summons, which is usually his domicile. (2)Voluntary assignment or transfer of credit - The proper law of the contract controls; i,e, the proper law of the original transaction out of which the chose in action or credit arose. There are other theories like: (aa) The law of the place where the assignment is executed - This theory is criticized because the law of the place where the assignment is made may be purely fortuitous or accidental, or there may have been several assignments all valid according to their respective leges actus. (bb) The law of the place where performance or payment is normally expected - This theory may, however, contemplate a multiple situation, since recovery may be made in any jurisdiction where the debtor may be made subject. (cc) The national law of the parties or, in a proper case, their domiciliary law. But the parties may have different personal laws, or a needless investigation of what the personal laws of the parties is inevitable. (3) Situs of a debt for taxation purposes is the domicile of the creditor, where the collectible credit may be taxed. (Minor, id ., pp. 281-282). (4) For the purpose of administering debts, the situs is the place where the assets of the debtor are actually situated (Minor, id., pp. 283-285). (b) Negotiable instruments: (1) The law that determines whether the instrument is negotiable or not is: (aa) The law governing the rights embodied in the instrument (Wolff, id., p. 56l). Thus, if it is a Philippine check, Philippine law will apply; if it is a California check, California law applies.

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(bb) The American Restatement, however, claims that the situs is the place where the instrument was executed (Am. Restatement, p. 348). (2) The law that determines the validity of the transfer, delivery, or negotiation of negotiable instrument is generally the law of the situs of the instrument at the time of transfer, delivery, or negotiation (Cheshire, Priv. Int. Law, p. 622). (c) Shares of stock of corporations; (l) Sales of corporate stocks are governed by the law of the place of incorporation, since it is there that the transfer is recorded in the books of the corporation (Beale, Foreign Corporations, Sec. 376; also, Sec. 650, Corporation Code of the Philippines). Attaching or execution creditors are not bound by the transfer unless entered in the books of the corporation ( Unson v. Diosomito, 61 Phil. 535), unless said creditors actually knew of the unregistered transfer (Fua Cun v. Summers, 44 Phil. 705). (2) Chattel mortgages or pledges of corporate shares of stock, even if registered in the corporate books, do not bind the corporation, but the parties are bound as long as they are validly entered into by them (Monserrat v. Ceron, 58 Phil. 261). (3) Sale of corporate shares as between the parties is governed by the proper law of the contract (the lex_loci voluntatis or lex loci intentionis) because this is really a contract. In many cases, the proper law of the contract is the place where the certificate is delivered to the buyer (Cheshire, id., p. 624). (4) Taxation on dividends received by corporate shares is governed by the law of the place of incorporation. Thus, taxes on dividends from shares of stock in a Philippine corporation may be taxed here, although the owner of the shares does not reside in this country ( Manila Gas Cor. v. Coll.,id.) (d) Franchises: Franchises are special privileges conferred by the government on an individual or a corporation and are subject to the law of the state that granted them. (e) Goodwill of a business, and taxation thereon: Art. 521 of the New Civil Code provides that goodwill of a business is property and may be transferred together with the rigrit to use the name under which the business is conducted. The goodwill of a business, as well as taxation thereon, is governed by the law of the place where the business is carried on. "Goodwill" is the patronage of any established trade or business; the benefit acquired by an establishment beyond the value of its capital stocks, funds, or property, in consequence of the general public patronage and encouragement that it receives from its customers (See Menendez v. Holt, 128 US 514). (f) Patents, servicemarks: copyrights, trademarks, tradenames, and

(1) As a general rule, patents, copyrights, trademarks, and tradenames are, in the absence of a treaty, protected only by the state that granted or recognized them (Wolff, id., p. 558).

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(2) In the Philippines, Art. 520 of the New Civil Code provides that "a trade-mark or trade-name duly registered in the proper government bureau or office is owned by and pertains to the person, corporation, or firm registering the same, subject to the provisions of special laws." (3) Under Sec. 21-A of Rep. Act No. 166, as amended by Sec. 7 of Rep. Act. No. 638), any foreign corporation or juristic person to which a mark or trade name has been registered or assigned under this Act may bring an action for infringement, for unfair competition, or false designation of origin or false description, whether or not it has been licensed to do business in the Philippines under the Corporation Code, at the time it brings the complaint; Provided that the country of which the said foreign corporation or juristic person is a citizen or in which it is domiciled, by treaty, convention, or law, grants a similar privilege to corporations or juristic persons of the Philippines. (4) As to copyrights, the former rule is that a copyright is protected only by the state that granted or recognized it, absent a treaty. Thus, a copyright in State X could not be enforced in our country in the absence of a treaty, unless a similar copyright was also applied for and granted in the Philippines. (5) On September 27, 1965, the Philippines became a party to the Union Convention for the Protection of Industrial Property adopted in Paris on March 20, 1993. Art. 8 of said Convention states that "a trade name [meaning, a corporate name] shall be protected in all the countries of the Union without the obligation of filing of registration whether or not it forms part of the tradename". (6) In Philips Erport B.V. v. CA, 206 SCRA 457 (1992) , the Supreme Court reiterated its earlier decision in Western Equipment and Supply Co. v. Reyes, 51 Phil 115 (1927), that a corporations right to use its corporate and trade name is a property right, a right in rem, which is entitled to protection like any other tangible property, and cannot be impaired or defeated by subsequent appropriation by another corporation in the same field.

(7) Speaking of trademarks, the High Court, in Emerald Garment Mfg. Cor. v. C.A., 251 SCRA 600 (1995) , held that actual use in commerce in the Philippines is an essential prerequisite for the acquisition of ownership over a trademark pursuant to Sec. 2 and 2-A of the Philippine Trademark Law (R.A. 166) (8) In 1998, Congress passed Rep. Act No. 8293 known as The Intellectual Property Code and establishing the Intellectual Property Office. Under Sec. 123 of the Act, certain marks cannot be registered, among which are those x x x identical with, or confusingly similar to, or constituting a translation of a mark which is considered by a competent authority of the Philippines to be well-known internationally and in the Philippines, whether or not it is registered here, as being the mark of a person other than the applicant for registration, and used for identical or similar goods or services. Sec. 3 of the same Act provides that any foreign corporation, being a national or domiciliary of a country which is a party to a convention,

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treaty, or agreement relating to intellectual property rights to which the Philippines is also a party or which extends reciprocal rights to our nationals by law, shall be entitled to benefits to the extent necessary to give effect to any provision of such convention x x x. Such foreign corporation even if it is not engaged in business in the Philippines may nevertheless bring a civil or administrative action for opposition, cancellation, infringement, or unfair competition, as provided for in Sec. 160 of the Act. However, under Sec. 156, same Act, only owners of registered marks may recover damages from any person who infringes his rights. Chapter XVI. CONTRACTS 1. What is a "contract" and why does the law on contracts present many problems in Conflict of Laws? "Contract" is defined by Art. 1305 of the Civil Code of the Philippines as "a meeting of minds between two persons whereby one binds himself, with respect to the other, to give something or to render some service". Although a contract may create a status like marriage, or creates or transfers real rights or title to property (like sale), the specific subject of "contract" in Conflict of Laws is limited to purely civil or commercial transactions. Every state, in the exercise of its sovereignty, has the right to determine its own law on contracts. As long as there is no foreign element in a contract, questions pertaining thereto are governed by the law of the forum state. It is when there is a foreign element in a contract that problems arise, for then, the forum will have to decide what law should be applied in determining the existence or non-existence of a contract, as well as its validity, both extrinsic and intrinsic, and the capacity of the contracting parties. A. EXTRINSIC VALIDITY OF CONTRACTS 1. What conflicts rules determine the extrinsic validity of contracts? As a general rule, the extrinsic validity of contracts is governed by the lex loci celebrationis, otherwise called lex loci contractus. Art. 17 of the Civil Code of the Philippines provides that "the forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed". And Sec. 9 of the American Restatement Second, considers as binding the "formalities which meet the requirements of the place where the parties executed the contract".

2. Are there variations of the rule of lex loci celebrationis in determining the extrinsic validity of contracts? Yes, there are variations. (a) Suppose a contract is entered into by parties in two different countries by cablegram, telex, or fax. What is the place of execution?

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(l) Art. 1319, par. 2 of our Civil Code states that "acceptance made by letter or telegram does not bind the offeror except from the time it came to his knowledge. The contract, in such a case, is presumed to have been entered entered in the place where the offer was made. In the Philippines, the lex loci celebrationis is, therefore, the country of execution. (2) In American law, however, a contract is deemed entered into in the place where the acceptance of the offer is posted or mailed. (b) Suppose the place of execution was merely casual or accidental like a Chinese and a Filipino who, meeting accidentally in Hongkong, entered into a certain contract or agreement there to be performed in the Philippines. In such a case, the law which has the most significant relationship to the transaction should be applied. In other words, the court should apply the law which the parties must have assumed would be applied to give effect to their transaction; namely, Philippine law. (c) By way of other exceptions are, when the lex loci contractus or lex loci celebrationis contravenes an established and important policy of the forum; or to apply it would work gross injustice to the people of the forum; or if the transaction is contra bonos mores. Remember that the enforcement of a foreign law is only a matter of comity, and the foregoing cases are clear exceptions to comity. B. CAPACITY OF PARTIES 1. What are the conflicts rules in determining the capacity of the parties to a contract? (a) Capacity to enter into contracts is generally governed by the personal law of the parties; that is by the national law of the parties in countries following the nationality theory, and by the law of the domicile in countries following the domiciliary theory. Exceptions are contracts involving alienation or encumbrance of properties, both real and personal, in which cases capacity of the contracting parties is governed by the lex situs. (b) In the Philippines, Art. 15 of the New Civil Code provides that capacity of a Filipino is governed by Philippine law, and this is so because we follow the nationality theory. 2. What law governs the capacity of the Filipino in the following specific problem? A 20-yr. old Filipino enters into a contract in Italy where the age of majority is 21. Can the Filipino later plead his incapacity under Italian law (which is the lex loci celebrationis) to avoid liability under the contract? No, because under Phil, law, he has the capacity to contract (Rep. 6809 has reduced the age of majority to 18 years). Art. 15, Civil Code of the Philippines provides that capacity to contract of Filipinos is governed by their national law. 3. What law will govern the incapacity of the alien in the following specific problem?

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An 18-yr. old alien, who has no capacity to contract under his national law wherein the age of majority is 21, enters into a contract in the Philippines. Can he later plead his incapacity under his national law to evade the contract? No, because to apply the national law (or law of the domicile) of the alien in determining his capacity to contract would require Filipinos to first ascertain what the personal law of that alien is, sometimes with great difficulty, such that business transactions with aliens would be greatly impeded. 4. The weakness of applying the national law of the contracting party as to his capacity in the foregoing cases is thus seen. How can such difficulties be avoided under our law? (a) If the contract is entered into in the Philippines, or the performance of the contract would be in the Philippines, we should apply, not the personal law of the parties, but the proper law of the contract or the law intended by the parties, to determine their capacity. (see Paras, supra, citing the Geneva Convention and the German Civil Code) (b) We should limit the application of Art. 15 of the Civil Code (on capacity to contract) to agreements involving family and domestic relations, while we should apply the proper law of the contract in business or commercial transactions (Salonga, supra, citing Rabel). C. INTRINSIC VALIDITY OF CONTRACTS 1. What are the conflicts rules on intrinsic validity of contacts? (a) Broadly speaking, the intrinsic validity of a contract is governed by the proper law of the contract; i.e., the lex loci voluntatis or the lex loci intentionis. (b) In American law (1) The American Restatement of 1934 required the application of the proper law of the contract, or the law of the place of performance. (2) According to the Second Restatement, however, the law to be applied should be the law chosen by the parties; if none, the law of the state which has the most significant relationship to the parties or to the transaction. (3) Prof. Raleigh Minor advocates the application of the following different laws: (i) As to the perfection of the contract - lex loci celebrationis. (ii) As to the validity of the consideration - lex loci considerationis. (iii) As to questions of performance - lex loci solutionis (Minor, Conflict of Laws, p. 420). (c) In the Philippines: (l) We have no specific provision of law applicable to conflicts rules on the intrinsic validity of contracts. However, the policy of our law is to give effect to the intention of the parties. Indeed, the parties may establish in their contracts such terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs or public policy (Art. 1306, New Civil Code). (2) Thus, we should apply the proper law of the contract, i.e., the lex loci voluntatis (the law expressly agreed upon by the parties) or the lex loci intentionis (the law impliedly agreed upon by the parties), as determined by many factors, especially the law that has the most substantial connection with the transaction, or the law that may be presumed to have been intended by the parties to bind their transactions).

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2. But there should be limitations to the courts choice-of-law in determining the intrinsic validity of contracts. Can you state what they are? (a) Generally, the parties cannot select a law that has no connection at all with the transaction. (b) If the law selected should change, it is the new law that should be applied, for it may be presumed that the parties knew that law can always be changed as times and conditions change. The exception is, when the change is so revolutionary that it could never have been contemplated by the parties (Wolff, supra, 430-431). (c) Several laws may be selected, each of which will govern the different elements of the transaction (Cheshire, Private International Law, p. 236) (d) If under the selected law, the contract is legal, but in the place of performance, it is illegal, the selected law should prevail and the contract should be considered legal (II Rabel, supra, p.537). Otherwise, the place of performance, which could be merely accidental, will control. Besides, the place of performance may be different under different laws (Wolff, supra, p. 135) (e) Assuming that the law of the place of performance can be ascertained, (as when it is expressly agreed upon by the parties), still, questions of substantial and essential validity (such as whether the contract is valid, voidable, or void) should be governed by the proper law of the contract. Only minor details (such as the time of payment during business hours) should be governed by the law of performance (Chesire, supra). (f) While the parties may stipulate on the proper law of the contract, they cannot stipulate on the jurisdiction of courts or to oust our courts of their jurisdiction (Molina v. De la Riva, 6 Phil. 12). (g) The parties cannot also contract away applicable provisions of our law that are heavily impressed with public interest or which involve public policy (like our labor laws) (Pakistan International Airlines v. Ople, 190 SCRA 99 ). (h) American law recognizes "cognovit" clauses if the parties were of equal bargaining power and the debtor voluntarily agreed to said clause. Cognovit" clauses specify which courts would have jurisdiction in case of breach or default in payment, or it may be one that waives the debtor's right to notice (otherwise known as confession of judgment). D. SPECIAL KINDS OF CONTRACTS 1. Based on our existing laws, state the conflicts rules in the following special kinds of contracts: 1. Barter, sale, donation: (a) Extrinsic validity - lex situs (b) Capacity of the parties - lex situs (c) Intrinsic validity - lex situs 2. Lease of property: (a) If it creates real rights, such as those for a period of more than one year or is registered, apply lex situs.

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(b) If the lease is from month-to month, week-to-week, or day-to-day, and does not create real rights, apply the law on contracts: (1) Extrinsic validity lex loci celebrationis (2) Capacity of the parties personal law of the parties (3) Intrinsic validity lex loci voluntatis or lex loci intentionis 3. Pledge, chattel mortgage, real estate mortgage, antichresis: (a) Extrinsic validity lex situs (b) Capacity of the parties lex situs (c) Intrinsic validity lex situs These are governed by the lex situs because they are contracts of encumbrances of property, real or personal. But since they are accessory contracts, if the principal contract secured by them is void, they are also void. 4. Contract of loan: If it is mutuum, apply the rules on contracts in general; i.e., (a) Extrinsic validity - lex loci celebrationis (c) Capacity of the parties - personal law of the parties (d) Intrinsic validity - lex loci voluntatis or lex loci intentionis If it is commodatum, apply the lex situs because it is a real contract. 5. Lease of service (or employment) agency, guaranty or suretyship. These are personal contracts; hence the law on contracts will apply. (a) Extrinsic validity - lex loci celebrationis (b) Capacity of the parties - personal law of the parties (c) Intrinsic validity - lex loci voluntatis or lex loci intentionis But an agency to alienate or encumber real is governed by the lex situs. 6. Contract of transportation or carriage: This is a contract to render service; therefore, the law on contracts applies. (a) Extrinsic validity - lex loci celebrationis (b) Capacity of parties - personal law of the parties (c) Intrinsic validity - lex loci voluntatis or lex loci intentionis (d) Liability for loss, destruction, or deterioration of goods in transit - law of destination of the goods (Art. 1753, New Civil Code). (e) If the Carriage of Goods by Sea act governs, the limitation of the liability of the carrier under said Act applies, unless the shipper declares the goods and inserts such declaration in the bill of lading (American President Lines v. Klepper, 110 Phil. 243 (1960 ). If, however, the contract is for international air transportation: (a) The liability of the airline in case of death, injury to passengers, or loss or damage to cargo, is governed by the Warsaw Convention, as amended, to which we became a party in 1951 ( Santos III v. Northwest Orient Airlines, 210 SCRA 256 (1992). (b) But if there was malice, gross negligence, bad faith, or improper discrimination on the part of the carrier or its agents, the carrier is liable for damages beyond those limited by the Warsaw Convention (Lopez v. Pan Am, 16 SCRA 431 (1965); KLM Royal Dutch Airlines v. C.A., 65 SCRA 237 (1975); Sabena Belgian World Airlines v. C.A., 255 SCRA 38 {1996}).

Chapter XVII.
TORTS

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1. What is the meaning of "tort"? (a) "Tort" is a legal wrong committed upon person or property independent of contract. (b) In Spanish law, the concept of "quasi-delict" or culpa aquiliana includes all acts or omissions committed through fault or negligence causing damage to another, independent of contract. It covers all cases where a person causes damage to another through negligence, or with no intention to do so; i.e., unintentional wrongs. (c) In American law, however, "tort" has a broader meaning, for it covers legal wrongs not only committed through negligence but also those committed with malice or willful intent, but of course, independent of contract. Otherwise, it will be breach of contract and covered by another field of law, contract law. 2. What is the concept of "tort" in the Philippines? Our concept of "tort" under the New Civil Code is a blending of the Spanish culpa aquiliana and the American tort, which nay be committed not only through fault or negligence, but also with malice and willful intent. Thus, Art. 20 of the New Civil Code provides: "Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same". This is a new provision under Chapter 2 of the Code on Human Relations, which is an entirely new Chapter in the Code. Art. 2176 of the same Code, on the other hand, retains the Spanish concept of culpa aquiliana or quasi-delict. It provides:

"Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by tae provisions of this Chapter." 3. In Conflict of Laws, what law governs liability for torts, and what are the reasons for the rule? (a) Liability for torts in general is governed by the lex loci delicti commissii; i.e., the law of the place where the delict or wrong was committed. (b) Reasons for the rule: (1) The state where the social disturbance occurred has the primary duty to redress the wrong and determine the effects of the injury; and (2) To compensate the victim for the damage or injury suffered. 4. In applying the rule of lex loci delicti commissii , how is the locus delicti determined, especially if the wrong conduct is committed in one state and the injuries are sustained in another, or the conduct is a continuing act that spans several states (like in the U.S.)? There are at least three (3) theories in determining where the locus delicti is: (a) Civil law theory - the locus delicti is where the act began. This is so since the rules on tort are intended to regulate human conduct, such that a person who willfully and negligently acts contrary to the social

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norms must be held liable for the injury caused (II Rabel, supra, p. 303). Example: While hunting in State X near the boundary of State Y, Jim accidentally shot Ross, who was standing on a street in State Y. The locus delicti is State X, because that was where the negligent act occurred. (b) Common law theory: The locus delicti is the place where the wrongful act became affective. The reason is that without an injury, there is nothing to protect and there is no necessity for judicial relief. Example: In the above example under par. (a), the locus delicti is State Y. (c) Theory of Dr. Rabel - The locus delicti is the place which has the most substantial connection with the wrongful act. Example: The situs of the radio station where a libelous broadcast is made is the locus delicti, even if the broadcast is heard in many places. 5. Because of the difficulty in determining where the locus delicti is, some modern theories have been developed in determining liability for torts. Please state what they are. (a) The rule of the "State of the most significant relationship": This rule is stated in the Second Restatement of 1969, is that the rights and obligations of the parties in a case of tort is determined by "the local law of the state which, with respect to the particular issue, has the most significant relationship to the occurrence and the parties". Examples: (1) Babcock v. Jackson, 12 N.Y.2d 473; 191 N.E. 2d 279 (1963) Babcock and Mr. and Mrs. Jackson left New York, their residence, in the Jackson car driven by Mr. Jackson for a week's trip to Canada. While traveling in Ontario, Canada, Mr. Jackson lost control of the car and Babcock was badly hurt. Upon their return to New York, Babcock sued Jackson for damages under New York law. Ontario's law does not allow any recovery. Can Babcock recover damages from Mr. Jackson under New York Law? Held: Yes, for, except for the minimum contact with Ontario law as the accident happened in that place, all the dominant contacts and factors connected with the accident were in New York; namely, the parties resided in that place; their guest-host relationship started in New York and was to end in New York; and the car where the parties rode was garaged, licensed, and insured in New York. So, the state of New York had the most significant relationship to the case. (2) Saudi Arabian Airlines v. C.A., 297 SCRA 469 (1998) ; .Here, our Supreme Court held that Philippine law should apply, because it was in the Philippines that private respondent deceived plaintiff-stewardess; plaintiff was working for respondent here; plaintiff's nationality and domicile were here; we were intimately concerned with the ultimate outcome of the case not only for the benefit of the litigants but also for the vindication of our country's system of law and justice in a transnational setting. Hence, the locus delicti was the Philippines (b) The interest-analysis approach:

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This approach considers the relevant concerns that two or more states may have in the case and their respective interests in applying their laws to it. If this approach is applied to the Babcock case cited above, it would appear that only New York law had a legitimate interest in advancing its purposes and policies, while Ontario, Canada law had no interest to advance. In other words, it was a case of false conflict. If, however, the case poses a real conflict between the interests of two or more States, if the interested forum finds that the other State has a greater claim in the application of its law to a given case, the forum should yield and apply the law of the other state. Or, if the forum is disinterested in the case, it can dismiss the same on the ground of forum non conveniens. In short, the State which has the more relevant and weighty interests in the case should be considered the locus delicti. (c) Qaver's principle of preference: Under this theory, a higher standard of conduct and financial protection given to the injured party by one State is applied by the State where the injury happened, if the latter State adopts a lower standard of conduct and financial protection to the injured. Example: As a result of an illegal sale of liquor to X in the State of Minnesota, T, a passenger in the car driven by X in an intoxicated state, was hurt in an accident that occurred in the State of Wisconsin. Sued for tort by T in Minnesota, X moved to dismiss the case on the ground that the accident happened in Wisconsin, the law of which required that wrongful act and the injury should happen in the same State before the recovery can be had. Held: To apply Minnesota law to the case would be more in conformity with the principles of equity and justice since Xs wrongful conduct was completed within Minnesota where X became intoxicated before leaving said State and before going to Wisconsin with T. Besides, the parties were both residents of Minnesota whose law demanded a higher standard of conduct than that of Wisconsin where the accident happened. ( Schmidt v. Driscoll Hotel, 249 Minn. 376, N. W. 2nd 365 [1947]) 6. What are the conflicts rules on maritime torts? (a) If the tort is committed aboard a public vessel, whether on the high seas or in foreign territorial waters, the law of the flag is the lex loci delicti commissii. (b) If the tort is committed aboard a private or merchant vessel on the high seas, the law of registry is the lex loci delicti commissii. (c) If two vessels collide and are from the same state, the law of registry is the lex loci delicti commissii. (d) If the vessels come from different states with identical laws, apply said identical laws. (e) If the vessels come from different states with different laws, the lex loci delicti commissii is the general maritime law as understood and applied by the forum where the case is filed (Paras, supra, p. 394, citing American cases). 7. Is a foreign tort actionable, or may be the subject of an action for damages, in the Philippines? (a) Yes, provided we acquire jurisdiction over the defendant (because an action for damages is an action in personam) and certain conditions are present, namely: (1) The foreign tort must not be penal in nature; (2) The enforcement of the tortious liability should not contravene our public policy; and (3) Our judicial machinery must be adequate for such enforcement.

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(b) Remember, however, that while all procedural matters are governed by the lex fori (i.e., Philippine law), since the case is filed here, all substantive matters are governed by the lex loci delicti sommissii. Thus: (1) The period of prescription of the action is governed by the lex loci delicti sommissii because in Philippine law, prescription is substantive, not merely procedural. (2) The proper parties, the measure of damages, and the question whether the act complained of is considered the proximate cause of the injury, are all governed by the lex loci delicti commissii. (3) The burden of proof and the defenses that may be interposed by the defendant are also governed by lex loci delicti commissii. (c) Example of a foreign tort actionable in the Philippines : X and Y, both Filipinos, were vacationing in Hongkong. One day, while driving a rented car, X ran over Y, who was walking, causing the latter to be hospitalized in Hongkong. Upon the return of both to the Philippines, Y sued X for damages arising from the tort committed by the latter while they were in Hongkong. Will the action prosper? Yes, provided it is filed within the period prescribed by Hongkong law, the lex loci delicti commissii, since the period of prescription is substantive and not procedural. The kinds and measures of damages recoverable by Y, and the defenses that X may put up, should also be governed by Hongkong law, which is the lex loci delicti commissii. But all procedural matters like the period for filing the answer, the period for appeal, etc., should be governed by the lex fori, which is Philippine law. 8. What is the Alien Tort Act, and do you know if it has been applied in cases filed by Filipinos in the United States? (a) The Alien Tort Act of. the United States, which was enacted in 1789, grants U.S. district courts original jurisdiction over any civil action filed by an alien for a tort committed in violation of the law of nations or a treaty of the United States. (b) It was under the above law that the United States Court of Appeals upheld the jurisdiction of the district court of Hawaii over a class action for damages filed by almost ten thousand Filipino victims of human rights abuses and torture committed by the late President Ferdinand Marcos and his officials in the Philippines during the Marcos regime, resulting in a nearly US$2 billion judgment in favor of the victims and/or their heirs ( Trajano v. Marcos-Manotoc, 125 L.Ed. 2d 661, 113 S. Ct. 2959).

Chapter XVIII.
CRIMES 1. Distinguish tort from crime. (a) While both tort and crime are wrongs, a tort violates private rights while a crime is committed against the State. (b) Tort actions are instituted by the injured person against the wrongdoer in a civil case the purpose of which is indemnification for damages suffered; while crimes are prosecuted in the name of the State against the offender in criminal actions the purpose of which are the protection and vindication of the interests of the public as a whole, the punishment of the offender, the reformation of the offender, or to deter others from committing the same act. (c) Torts are transitory in character, so that the tortfeasor can be made liable for his wrongful act in any jurisdiction where he may be found. Crimes, on the other hand, are local and can be prosecuted only in the places or states where the crimes are committed.

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2. How does the court determine whether a wrongful act is a tort or a crime? The determination of whether a wrongful act is a tort or a crime depends on the characterization of the act in the state where said act is committed. In the Philippines, certain acts may be both torts and crimes. Under Art. 33 of the Civil Code of the Philippines, "in cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct from the; criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence." Take the offenses classifed as "'criminal negligence" under Art. 365 of the Revised Penal Code. They may be prosecuted as crimes by the State. On the other hand, the victims may file separate actions for damages against the offenders based on torts. 3. What are the different theories that determine whether a state or a legal system has jurisdiction to take cognizance of criminal cases? (a) Territorial theory - Under this theory, the state where the crime was committed has jurisdiction to try the case, and its penal code and the penalties prescribe therein will apply. The reason is that the aggrieved state is duty bound to prosecute and punish the offender as his crime affects directly and particularly the dignity, authority, and sovereignty of the state where said crime is committed. This theory may be of two kinds: (1) The subjective, territorial principle - under which the state where the crime was begun may prosecute the same, even if it was completed in another state. (2) The objective territorial principle - under which the state can prosecute crimes begun abroad but completed within its territory. (Paras and authorities cited, supra, p. 404) (b) Nationality or personal theory - The country of which the criminal is a citizen or subject has jurisdiction to try him for crimes allegedly committed by him, whether inside or outside its territory, provided it is a crime under said country's penal law. (c) Protective theory - Any state whose national interests may be jeopardized has jurisdiction over criminal offenses, even if committed outside its territory, and in some cases, even if committed by an alien. (d) Real or eclectic theory - Any state whose penal code has been transgressed upon has jurisdiction to bring to justice the perpetrators of the crime, whether the crime was committed inside or outside its own territory. Crimes under this theory would include piracy, slavery, drug trafficking, immoral traffic in women and children, etc. (e) Cosmopolitan or universality theory - Any state where the criminal is found or which has obtained custody over him, can try him for the crime he has allegedly committed, unless extradition applies. (f) Passive personality, or passive nationality theory - The State of which the victim is a citizen or subject has jurisdiction to prosecute the offense. (The above enumeration was taken from Paras, id., pp. 403-406) 4. Which among the theories enumerated above, do we follow in the Philippines?

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In the Philippines, we follow as a general rule the territorial theory, and by way of exception, the protective theory. In other words, we cannot prosecute a crime committed abroad (like bigamy, rape, or murder) in the Philippines, because it is committed outside our territorial jurisdiction. We also follow the rule of generality in criminal law; i.e., all persons, whether Filipinos or aliens, are subject to our penal laws and can be prosecuted for their violations (Art. 14, Civil Code of the Philippines). 5. In what cases do we follow the protective theory, such that even if the crime was committed outside our territorial jurisdiction, the crime is triable by our courts? They are the cases mentioned in Art. 2 of the Revised Penal Code, to wit: Except as provided in the treaties and laws of preferential application, the provisions of this code shall be enforced not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone but also outside its jurisdiction, against those who (1) Should commit an offense while on a Philippine ship or airship; (2) Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Island; (3) Should be liable for acts connected with the introduction into these Islands of the obligations mentioned in the preceding numbers; (4) While being officers or employees, should commit an offense in the exercise of their official functions; or (5) Should commit any of the crimes against national security and the law of nations. Examples of crimes against the law of nations are airplane hijacking, piracy or mutiny on the high seas, drug trafficking. 6. Do we have jurisdiction over crimes committed on board a foreign vessel if said vessel is within our territorial waters? There are two theories that have generally been used, and which our Supreme Court has applied in the old opium cases, in determining this question of jurisdiction; the English Rule (which emphasizes the territorial principle) and the French Rule (which stresses the nationality theory). (a) English Rule: The territory where the crime was committed (in our problem , the Philippines) will have jurisdiction except: (a) In matters relating to the internal order and discipline of the vessel; and (b) Those which affect solely the ship and its occupants such as minor or petty criminal offenses committed by members of the crew. (Paras. id., p. 410, citing Hyde, International Law, Vol. I, p. 739) (b) French Rule: The state whose flag is flown by the vessel has jurisdiction, except if the crime affects the peace, order, security, and safety of the territory. (Paras, id., citing Brierly, Law of Nations, p. 180) The above two rules were also cited and compared by the Supreme Court in the case of People v. Wong Cheng, 46 Phil. 279 , although the Court also held that as we were at that time a territory

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of the United States, we follow the English rule which was the one prevailing in the United States. This case, however, involved the crime of smoking opium in a foreign vessel anchored in Manila Bay, which the High Court held was a breach of our public order because of the pernicious effects that it produced in our territory. In short, the Supreme Court actually applied the French rule to the case, not the English Rule. Nonetheless, as observed by the late Justice Paras in his book in Conflict of Laws, the difference between the two rules is largely academic and theoretical, the two rules being essentially the same. Thus, if aboard a German ship anchored in Manila Bay, the crime of murder is committed, under the English rule, the Philippines would have jurisdiction in view of the general rule. Under the French theory, the Philippines would also have jurisdiction under the exception, for the crime indeed affects the peace and security of the territory. Whether we follow, therefore, the English or French rule on the matter is not significant: The effect is the same. (Paras, supra, pp. 410-411) 7. Did the United Nations Convention on the Law of the Sea change the above rules? Art. 27 of said Convention partly provides: Criminal jurisdiction on board a foreign ship 1. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with a crime committed on board the ship during its passage, save only in the following cases: (a) If the consequences of the crime extend to the coastal State; (b) If the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; x x x x. In short, under the rules of said Convention Philippine courts do not acquire jurisdiction over crimes committed on board a foreign vessel even if it is within our territorial waters as long as the effect of such crime does not disturb our peace and order. This is similar to the French rule to the effect that we have no jurisdiction over crimes committed aboard foreign vessels even if they are found within our territorial waters except when the crimes affect the peace, order, security, and safety of our country and territory. Chapter XIX. BUSINESS ASSOCIATIONS A. CORPORATIONS 1. How do you define a corporation? A corporation, according to Sec. 2 of the Corporation Code of the Philippines, is an artificial being created by the operation of law, having the right of succession and the powers, attributes, and properties expressly authorized by law or incident to its existence, while Section 123, of the same Code, defines a foreign corporation as one formed, organized or existing under any laws other than those of the Philippines and whose laws allow Filipino citizens and corporations to do business in its own country or state.

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2. What are the different theories in determining the personal or governing law of a corporation? There are at least three (3) theories, namely: (1)The theory that the personal law is the law of the place of incorporation: Under this theory, however, a corporation can evade many responsibilities by simply organizing in one state and performing its functions in another state. (2)The theory of the place or center of management: One difficulty of this theory is that the board may meet in different states, although this defect may be cured by expressly providing in the articles of incorporation or by-laws where the principal meeting place of the board is. (3)The theory of the place of exploitation. The defect of this theory is that the corporation may have its enterprise scattered all over the world. Besides, the physical acts of the corporation are not as important as the decisions reached by its board of directors. (Paras, supra, and authorities cited, pp. 420-421). 3. Among the foregoing three theories, what theory do we follow in the Philippines? In the Philippines, we follow the theory of the place of incorporation. This is implied from the definition of a foreign corporation by our Corporation Code as one formed, organized or existing under any laws other than those of the Philippines x x x. In other words, if the corporation was organized in the Philippines, it is a Philippine or domestic corporation; if organized elsewhere or abroad, it is a foreign corporation. 4. What about the domicile of a corporation? Where is it? According to Article 51 of the New Civil Code, When the law creating or recognizing them, or any other provision does not fix the domicile of juridical persons, the same shall be understood to be the place where their legal representation is established or where they exercise their principal functions. Even a defectively organized corporation which the law regards as de facto insofar as innocent third persons are concerned can possess a domicile for its de facto existence (MacDonald v. FNCBNY, L-7991, May 21, 1956). For the purpose of determining a corporations domicile, Sec. 14 of the Corporation Code requires that the articles of incorporation of a Philippine corporation must state the place where the original office of the corporation is to be established or located, which place must be within the Philippines. Thus, the place of incorporation of a Philippine corporation is also its domicile. As for a foreign corporation that has been granted a license to operate or to do business in the Philippines, it acquires domicile in this country by virtue of said license. As held by the Supreme Court in Granger Associates v. Microwave Systems, Inc., 189 SCRA 631 (1990), the purpose of the rule requiring foreign

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corporations to secure a license to do business in the Philippines is to enable the courts to exercise jurisdiction over them or the regulation of their activities in our country. 5. What are the exceptions to the theory that the personal law or the nationality of a corporation follows the place of its incorporation? The exceptions are: (a) For constitutional purposes, even if a corporation was incorporated in the Philippines, it cannot exploit or develop our natural resources nor operate public utilities unless 60% of the capital is Filipino owned (Art. XII, secs. 2, 10-11, 1987 Constitution). (b) For wartime purposes, we adopt the control test; i.e., we pierce the veil of corporate identity and go into the nationality of the controlling stockholders to determine whether a corporation is an enemy corporation. Thus, a German-controlled corporation, even if incorporated in the Philippines, was considered an enemy corporation during the last World War for the purpose of freezing its assets ( David Wineshop v. Phil. Trust, L-3869, Jan. 31, 1952). The doctrine of piercing the corporate veil or disregarding the corporate fiction also permits the courts to impose personal liability on the stockholders if the corporation form has been used to defeat the public convenience, justify wrongs, or protect fraud or crime ( Tan Boon Bee and Co. v. J. Jarencio, 163 SCRA 205). 6. What matters are governed by the personal law of the corporation? The personal law of the corporation (which, in the Philippines, is the place of incorporation) governs the requisites for the formation of the corporation, the required number of incorporators and the members of the Board of Directors, the kinds of shares of stock allowed, the transfer of stocks in a way that it would be binding on the corporation, the issuance, amount and legality of the dividends, and the powers and duties of the officers, stockholders, and members. 7. What law determines the validity of corporate acts and contracts? The validity of corporate acts and contracts is determined by the law of the place of incorporation and by the law of the place of performance. To be valid and binding, such acts or contracts must be authorized by both laws. If valid in the place of incorporation but void in the place of performance, or vice versa, the validity of said acts or contracts is doubtful and it may not be given effect at all, without prejudice to the principle of estoppel (Sec. 129, Corporation Code; Paras, supra, and authorities cited, p. 429). 8. May a foreign corporation sue and be sued in the Philippines? Yes, if it has the necessary license to do business here (Sec. 123, Corporation Code). The license is required not to forbid the foreign corporation from performing single acts but to prevent it from acquiring a domicile for purposes of business without taking the steps necessary to render it amenable to suit in the local courts (Marshall Wells & Co. v. Elser Co., 46 Phil. 71 ) Transacting or doing business connotes a continuity of business dealings and arrangements (Mentholatum Co. v. Elser Co., 72 Phil. 524). Even a single act or transaction may, however, be an act of ordinary business of the corporation if it is not merely incidental or casual but of such

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character as to distinctly indicate a purpose to do other business in the state and to make the state a base of operations for the conduct of a part of the foreign corporations ordinary business ( Far East International Import and Export Corporation v. Nankai Kogyo Co., Ltd., L-13525, Nov. 30, 1962 ). 9. How may our courts acquire jurisdiction over a foreign corporation doing business in the Philippines? By service of summons on: (a) Its resident agent designated in accordance with law for that purpose; (b) If no such agent, on the government official designated by law to that effect; or (c) On any of its officers or agents within the Philippines. (Sec. 12, Rule 14, 1997 Rules on Civil Procedure). 10. Suppose a foreign corporation transacts business without first obtaining the necessary license, what is the status of its contract? The contract is unenforeceable; i.e., the corporation cannot sue in our courts until the necessary license is obtained. After the issuance of the license, suits may be instituted even on the pre-license contracts which are considered valid ( Marshell-Wells & Co. v. Elser Co., supra). But the person who contracted with the corporation may be considered in estoppel if he had received benefits from the contract (Fletcher, Vol. I, Cyclopedia of Law of Private Corporations, sec. 8520). 11. May a person sue a foreign corporation that transacted business with him without a license? Yes, because the corporation cannot put up by way of defense its own failure to comply with the law ( Gen. Cor. Of the Phil. V. Union Ins. Society of Canton, 48 OG #1, Jan. 1952, p. 73). But the court must be able to acquire jurisdiction over the corporation. 12. If the corporation sells its products in the Philippines through an agent, is that doing business here? If the foreign corporation sells its products in the Philippines through a resident merchant on commission basis, it is the merchant, not the corporation, that is doing business here. But if the foreign corporation sells its goods in the Philippines through an exclusive distributing agent, it is doing business here, because the agent is acting only in behalf of its principal ( Mentholatum Co. v. Mangalinan, supra). 13. May a foreign corporation not doing business in the Philippines sue? Yes, in (a) isolated transactions; (b) to protect its reputation, corporate name, and goodwill; Thus, a foreign corporation can ask a local court to restrain some Filipinos from organizing a local corporation with the same name and the same business (Western Equipment Supply Co. v. Reyes, 51 Phil. 115), provided a similar privilege is granted to Philippine corporations by the plaintiffs home state (Sec. 3, Rep. Act 8293). (c) for infringement of trademark or trade-name, unfair competition or false description of products, and infringement of patent (Sec. 160, id.).

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14. What about multinational or transnational corporations, what law applies to them? These are actually branches of a big, mother corporation in a highly industrialized, highly developed foreign country but doing business in many countries of the world through branches that have been incorporated under the law of each country or state where it has extended its business, in association with local businessmen. Since they are incorporated under the local law of each state where they are doing business, the branches are separate entities governed by the said local laws, but in reality, the major decisions in their operation and management are controlled by their mother or parent corporation. However, the branches, having incorporated in the state where they are established, are governed by the internal law of the said states, and their personal laws are the local laws of the host states. 15. May a foreign corporation be sued after it had already withdrawn from business in the Philippines? Yes, on contracts previously entered into by it. After all, fairness demands that the citizens and residents of the Philippines be afforded the opportunity to sue these foreign corporations locally, instead of requiring them to sue in the foreign countries where they are domiciled. By the same token, the foreign corporation that has withdrawn should also be allowed to sue on validly existing transactions, entered into previous to the cessation of its business here. And an identical rule should also apply to contracts entered into prior to the revocation of the foreign corporations license. (Paras, supra, and authorities cited, p. 438). B. PARTNERSHIPS 1. When does a partnership exist? A partnership exists when two or more persons bind themselves to contribute money, property or industry to a common fund with the intention of dividing the profits among themselves (Art. 1767, Civil Code of the Philippines). 2. Does a partnership, like a corporation, have juridical personality of its own? In the Philippines, yes, a partnership has a juridical personality separate and distinct from that each of the partners (Art. 1768, id.). However, in the United States and some countries in Europe and Latin America, partnerships are not regarded as independent persons with juridical personalities of their own except for the purpose of insolvency proceedings (See Campos Rueda & Co. v. Pac. Com. Co, 44 Phil. 916 ). However, in the United States today, a new theory has been developed, getting away from the old common law conception that a partnership is simply an aggregate of individuals, and instead treating it as a separate entity distinct from the partners. 3. What is the personal or governing law of a partnership? Like Philippine corporations, the personal or governing law of a partnership is the law of the country where it is created (See Art. 15, Code of Commerce). Thus, matters like organization, capacity to contract and validity of its contracts, the liability of the partnership and the partners to third persons,

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dissolution and winding up, are all governed by the partnerships personal law or the law of the state where it was created. For example, in a New York case where a limited partner under Cuban law was sued in New York for breach of contract entered into by the Cuban partnership in New York , it was held that the limited partner was not liable, and that New York Law could not enlarge the liability of a limited partner under Cuban law simply because the contract was entered into in New York ( King v. Sarria, 69 NY 24 [1877]). 4. Where is the domicile of a partnership? Under Article 51 of the New Civil Code, the domicile of partnerships organized under Philippine law is, like domestic corporations, the place where their legal representation is established or where they exercise their principal functions. Consequently, a partnership created in one state but which conducts its main business in another state may be considered domiciled in the latter state. 5. Are the constitutional limitations on the powers of corporations also applicable to partnerships? Yes, so that unless at least 60% of the capital of a partnership is owned by Filipinos, the partnership cannot engage in the development and exploitation of our natural resources, nor operate public utilities. Neither can a partnership 60% of the capital of which is not owned by Filipinos acquire by purchase or otherwise agricultural lands in the Philippines. Foreign partnerships may be mortgagees of land in the Philippines for 5 years, renewable for another 5 years, but they cannot acquire said land in a foreclosure proceeding (Rep. Act No. 133). 6. If a Philippine court appoints a receiver for a foreign partnership in the Philippines, does the receiver also act as such with respect to assets of said partnership in its home state? No, because the authority of the receiver is only within the territorial boundaries of the Philippines, or co-extensive with the jurisdiction of the court that appointed him. Chapter XX. RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS 1. What are the reasons for the recognition and enforcement of foreign judgments by the forum? The reasons are basically the same as recognition by the forum of the proper foreign law; and the exceptions to the application of the proper foreign law or comity are also applicable to foreign judgments. 2. Distinguish enforcement from recognition of foreign judgments. (a) Enforcement means that the plaintiff or petitioner wants the court to positively carry out and make effective the foreign judgment, while recognition

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means that the defendant or respondent is presenting the foreign judgment merely as a defense, on the basis of res judicata. (b) Enforcement implies an act of sovereignty; recognition involves merely a sense of justice (Perkins v. Benguet Consolidated Mining Co., L-1981-82, May 28, 1954). (c) Enforcement requires a separate action or proceeding brought precisely to make the foreign judgment effective; recognition, being a matter of defense, needs no action or proceeding but implies that an action or proceeding has already been filed against the defendant who is invoking the foreign judgment. (d) Enforcement cannot exist without recognition, while recognition does not need or does not require enforcement. Example of recognition: An American presents a foreign decree of divorce as a defense in a case for bigamy against him in the Philippines. Example of enforcement: A Filipina who had been divorced by her alien husband under Art. 26 of the Family Code and who was denied by the local civil registrar a marriage license for her to be able to marry again, files an action with the proper court to compel said official to issue to her a marriage license on the basis of the divorce decree obtained from her by her alien husband. 3. For what reason or reasons may a local court in the Philippines refuse to recognize or enforce a foreign judgment? (a) The requisite proof of the foreign judgment may not have been presented. The manner of proving a foreign judgment is the same as proving a foreign law (Rule 132, sec. 25, Revised Rules of Court). (b) The foreign judgment may contravene a recognized and established policy in our country. An example is a foreign decree of divorce obtained by a Filipino from his Filipino wife abroad; or a foreign judgment awarding the custody of a baby to the Filipino father, not to the Filipino mother. (c) The administration of justice in the country where the foreign judgment came from may be shockingly corrupt or not beyond reproach. (See Paras, supra, p. 75) 4. What are the conditions or requirements before a local court in the Philippines can enforce or recognize a foreign judgment? (a) There must be adequate proof of the foreign judgment. (b) The judgment must be on a civil or commercial matter, not on a criminal, revenue, or administrative matter. (c) There must be no lack of jurisdiction, no want of notice, no collusion, no clear mistake of law or fact ( Rule 39, sec. 48, 1997 Rules on Civil Procedure). (d) The foreign judgment must not contravene a sound and established public policy of the forum.

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(e) The judgment must be res judicata; i.e., the judgment must be final; the foreign court must have jurisdiction over the subject matter and the parties; the judgment must be on the merits; and there was identity of parties, subject matter, and cause of action. 5. What exactly do the 1997 Rules of Civil Procedure provide on the effects of foreign judgments in the Philippines? Sec. 48, Rule 39, 1997 Rules on Civil Procedure provides: The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order, is as follows: (a) In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title to the thing; and (b) In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. 6. What are the differences between the effects of a final judgment or order under the above rule, and the effects of such judgment or order under the former Sec. 50 of Rule 39 of the Revised Rules of Court, which the foregoing Rule in the 1997 Rules of Civil Procedure amended? (a) Under the former Sec. 50 of Rule 39 of the Revised Rules of Court, a foreign judgment in rem (i.e., a judgment of a foreign court upon a specific thing) was already considered conclusive upon the title to the thing; meaning, it is binding against the whole world, provided the foreign court had jurisdiction to pronounce said judgment. Under sec. 48, Rule 39, of the 1997 Rules on Civil Procedure, however, all judgments or orders of foreign courts, whether in rem or in personam, are considered merely prima facie or presumptive evidence of a right between the parties and their successors in interest by a subsequent title, and both kinds of judgments are subject to the defenses of want of jurisdiction on the part of the foreign court, want of notice to the defendant or respondent, collusion, fraud or clear mistake of law or fact. (b) The former Sec. 50 of Rule 39 of the Revised Rules of Court covered only final judgments. Sec. 48, Rule 39, of the 1997 Rules on Civil Procedure, includes final orders. Both, however, must comply with the rules on finality of judgments or orders; i.e., the rules of res judicata.

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