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CONFLICT OF I-AWS
ARAULLO Uil!\TER SITY LAW L'BRARY
CABAI{AI UAN
C

ITY

ALICIAV. SE
Retired

LLB., LL.M
of Appeals

Jattie-of the Court

Fortter Astistdat

olitvto*Guera/

Ci4' FornerJDKC.ldge ol Calooun Citl' For*rr.Tortgr' F(TC o.f Caloocan

BorE*oiiori in GailLzw'

999 and 2003

in Pmfetsor and Bar Reuieuer


J adiaal

Gai I l-znt

Menbe", Cnp of Ciuil l-av Profesorl

Acatieml

ol' the P hilippixu

PREFACE
CoPvrrght 200'l by Repcatedl'urped and requested
br, her srucienrs

a.ci bar re'lewe c.

ALICIA V. SEMPIO-DIY

to writc a textbooli in confhct oi Larvs rvhrci.r ther. claim is a difhcull subject and that no srmple and handv book rs available to help them study tire same, the undersrgned finallr, buckled dou,n and .wrote this "Handbooli on Conflrct of Laws" rn a sunphFred, quesuon-answer form. gurded bv her long experience for the past nvenn'-five or llore )/ears ln
teaching the slrblect. and emphasizing and explainine with exampies tl-re fundamentals and irnportant aspects of the subiect that students and bar. reviewees seem to Frnd difficult and burdensonre. This irumble rvork rs thus dedrcated to aii the larv srudents takrng the subject this vear and in the vears to come, as well as the author's tl'rousands of former students whc, are either rcvieu'ing for the bar or are now successfu] l2s,' practiuoner-s. It is likewise hoped that larr"'professors teaciring the srrbiect, and larr^u'ers

TRAULTD LIUIVFRSITY LAW I .BRAR T


CAEA}IAIUAN
C

ITY

number and Any copy of this book not bearing a be ,ig"","r. .f.he author on this page shall denounced u. pro.""dt.tg from an illegal source
t"., ' ti

and judges conftontcd with confucts problerns, can find thrs humblc handbook useful and heipful, especraily as rve do not have enougb laws nor jurisprudence to guide them in all }lnds of conflicts problems. indeed,
wrth dre fast advance of modem technology rn dre means

of communication

ALL RIGHTS RESERVED


Bv the Author

N" /43L

between and arnong tire natrons of the '"vorld, the raprd growth and expansion of internattonal trade and commerce, the influx of tourists and foreign traders to out countn as well as the massi\re migration of our countn'rnen to v,'ork and hve rn forergn shotes, and the great increase in busir.ress uansactions of foreign corporauons rn d-re Philippines. nrore and more confhcts problems crytng for solutions will undoubtedll'ause. The i.nr,aluabie help of her fotmer students Atn. Edr.vard Ong and bar reviewees Clarence Evangelista and Russei N'liraflor in encoding her manuscript and preparing it for prtnung ts herebv gratefullr- and sincerclv acknorvledged.

W'i
Pdnted'SY'

MPC Printers
8-F Pahutan St. Veterans Village

ALICIA V. SEMPIO.DIY
Quezor Ciry
lvlav 2t)04

Proiect 7, Quezon Ciw

TABLE OF CONTENTS
i
In

General

Page
1

Junsdrcdon and Choice of La'*' 3 Theories that Justi$' the Applicauon of the Foreign Law 4 Nature and Composition of Conflicts Rules 5 Charactenzaaon of Conflicts Rules 6 Personal Law - Theories in Determining One's Personal Law 7 The Nationaiiq' Theory g The Domrcrliary Theory 9 The Situs or Eclectic Theory 10 The Problem of "Renvoi" 11 Conflicts Ruies on Starus and Capaciry ,).2 Confltcts Rules on Marriage A. Matriage as a Conffact B. Marriage as a Starus C. Annulment and Declaration of Nulliry of Mariage D. Absolute Divorce

4
1,7

22 26 29
33
51

57 59 65

74
78 83 86

h la-

13

E. Legal Separation or Reiative Divorce Status of Cirrldren A. Legumacy and Illegrtimacy


B.

90 94
97

Legrtimauon C. Adoption

98
105

14

15 Property 16 Contracts

Wilis, Succession. and Administration of the Estate of Deceased Persons

i13
122

Contracts B. Capacity of Parties C. Intrinsic Validity of Contracts D. Special l{nds of Contracts 17 Torts 18 Crimes
A. Extrinsic Validiq' of

123 124 725 128


13t) 137

19 20

Busrness Assooation

A.
B.

Corporauons Partnerships
of Foretgn.Judgments

143
149
151

Recognition and Enforcement

CONFLICT OT LAWS

CHAPTER

IN GENERAL
L"Defrne Conflict

of

Laws.

rvhen the issuc before the court affects some fact, event or transaction that is so clearlr' connectedwith a foretgn svstem of Ia$'as to necessttate recou.rse ro that svstem (Clieshire, Private lnternauonal Ll ', 194i ed., p. (r).

It is that part of law rvhich comes inro plav

Conflrct of Lau's embraces those universal pnnciples of ngbt and jusuce whicl'r govern the courts of one state l-raving bcfore tirem cases involvrng the operation arid et-fect of tl-re iarvs of anotirer state or coul-rtrv (lr{rnor. Conflict of Las's. 19t)1. p .{). Conflict of l,aws is that parr r,i the munrcrpal lau, oi zr starc whtch directs its courts and adnlnistrative agencres, rvhetr confrontecl

with

a legal problem rnvolving a foreign element. rvhether or should apply a foreign law or foretgn lnu's. fParas. Phil. Confhct 1996 ed.. p. 2).

not ther of Lalvs.

ZJ\lhat is a Conflict of Laws case? Anl


c^"e which invoh'es facts occuning ur rnore than onc statr'

or nauon, so that in deciding thc case. ir rs neccssan' to make a choicc berween the laws of drtterent srxrcs or coLrnrrles. is l C.onluct of Lau-s

IN GENERAL

CONFLICTOF LAWS

CONFLICTOF LAWS

IN GENERAT

..state" is used in 3. when the rvord


mean?

conflict of Laws, what does it

7. Distinguish Conflict
(a) As

of

Laws from Public International Lap'.

to persons involved: Public Internatronal Law governs

al.so poliUcal subdirrtsrons

ovn

ir inclucies nor oniy ioreign s()\'cretgn cc-runtrics or states but of states oL countrics v'hich l-rave their legal sYStems, sr-rch as thc differcnt states

sovereign states and entities that are intemationally rccognized or possessed of internationai personality, such as the United Nations Organization; while

Conflict of Laws governs private individuats or corporations.


(b) As to nature: Public International Law is intetnationa] rn
character; Confiict

constiruting the United States of America, the lederal st^tes of Austfaha, Canada, lv{ex-tco, llrazil and Germauy, etc 4. $/hy is this subiect more important in recent times than in the past?

of Laws is rnunicipal in character.

(c) As to transactions involved: Public International Law


applies onlv to transactions rn wllich only sovereign states or entitie s with international personality are concerned and which generally affect public interest; while Conflict of Laws deals with transactions stlictly pnvate in nature, in which the countrv as such has genetally no interest.

Witir the fast advance of modern tecirnologv in the means of communicatiou betrveen and among states, the rapid growth and exPansion of internatronal trade and commerce, the influx of tourists arid f,;reign traders to our countlv as well as the massive lnregatlon of our countrvmen to rvorli and live in foreign shores, the great increase of business transactions of foretgn corPoratiotls n the Philippines, all these bring about manv ar-rd varied problems tn Conflict of l,aws. Hence, tlre necessitl nor oulv for iaw]ters and judges but ft-,r: our citizens as a wholc to studv
this subject as an important department

of

lar'r,:,

5. Is Conflict

of

Laws part

of International Law?

No. Althougir it is sometirnes tirought of as part of International Law because of the presence of a foreign elemetrt in a given problem, it is nor rnternational tn character but is part of the municipai law of each state. Br' "municipal larv" rn Conftct of l-aws is meaut the intcrnai or iocai iaw of each state, since everr' state has its orvn iuterual or loczrl svstern of lavi so each state also has its own confltct o[ Iaws.
6. What is the reason for the diversitv of conflicts rules among the

(d) As to remedies applied: In a dispute between sovereign states or tnternational entities or in cise of a violauon of Internauonal Law, the concetned states may fitst resort to peaceful remedies iike diplomatic negotiations, mediation, inquiry and conciliation, arbitratron, or judicial settlemeflt b,v international tribunals [ke the United Nations. If these temedies fail, the states concerned may resort to for:cible remedies like severance of diplomattc relari<-rns, retorsions, reprisais, ernbargo, bovcott, non-intercourse, pacific blockades, collective measures under the UN Charter and finallv. war.

ln Conflict of Laws, recourse is had to ;udicral or admrnistratrve tribunals in accordance with the rules of procedurc .of the country w'bere
rhey sit.

8. What are the sources

of Conflict of

Laws?

diffetent states of the wodd?


Thrs is because each group of peoplc havc a lauguage, cr-rlturc, mores and customs, rehgron, ideals and bc[etl, pecuiiar to sr,rcl.r group. rvhich or" r:eflc:ctcd or exprcssed in tl'retr 12rr5 nn6i legal strsterns. For exalnpie, whilc the great rnajorin' of tlrc countr-ies of tirc rvorlci alkr.'v absolute ciivorce. our coul-Itr\r sttll has not legalized absolute divorce. Anci rvhile some counlries a,:e verv liberal in grnntlns drvorces. others are not so libeml.

Direct soutces: Bilateral and multilateral treaties and internatic-,nai conventions; constitutions; condiltcations and statutes; iudicial decisions;
and internationai customs.

Indirect sources: the samc

as other branches

of jau': among

otirers, the natural moral laui and the rvritrngs and treatrses and famous writers and jurists on the subiect.

of

thinkers

CONFLICT

OIJ

LAWS

CONFLICT OF LAWS

JURISDICTION AND CHOICE OF LAW

clehned as ti,e ll()wcr to irear anci dctcrrnrnc crses oF ti-rc general class tt, whrch d-re proceedrngs in cluesuon bclons.
1a)

lt clnnot

Srnce jr-rrisdicuon over ti're sublect marrer ls conferred bv iau. be conferred b1' consent oi'tire partres or bv tl'reir voluntart'

submission.

a
CHAPTER

(b) In the PhrJrpptnes, prnsdictron o\jer the sr"rbject-marrer is found and the.)udicrary Reorganizauon Act, as arnended the Constitution in fludrcrarv Acr of i94ii; Batas Pambansa BIg. 129, as arnended bv Rep.

Act

7691).

JURISDICTION AND CHOICE OF LAW


1..

(c) Srnce jr-u'rsdtcuon over the subject-matter exists onlr, rn the abstract. rt mlrst bc invoked bl Frlir-rg the proper cornplaint or peduon wlth thc court. And it is dre illegauons of the complaint or peutron read in the hgirt of tl-re proper jurisdrctional laq that confer jr-rrisdtctroll on the

How does one deal with a problem in Conflict of Larvs?

lf the allegations of tl-re complaint show prinu.fttsic a lack of jurisdiction, tirc cor-rrt must disnliss thc case outtigl.rt. Ntr prchrninalr'
colrrt.
irearing on ti.re cvidence is needed. Il, on tl'rc other hand. thc complatnt or pctitioll. on rts f-ace , sirrxvs the l)rcscncc oI jLrrisdicti<;n, tria] must bc held. Should thc cvidcnce shorv that tirc coult rcaiiv has no junsciicti<,rr-r, thc case rnust bc dismrsscr-|.

(a) First. deternine rvhethcl thc courr i-ras jruisdrction ovcr thc clse. lf it has no iulrsdrctron, thc case sl.rould be drsrnisscd on tirat t:round. jLrrisdjction o\rer the case or clismiss it on thc ground of .ionrru nln L'ot'tzj(nian.t. OF course. 1t is thc lat, of thc forunr that cietcrmines rvhctircr thc court
bas juflsdicUon ol'1lot ovcr thc casc.

Ii it l"ras jurisdictron. tllc court rvill cle tcrrninc t.hether it should assume

ln thc reaim o[ Conflrct of ],arvs, horvevcr. there is anothcr eicrnenr whrch the coult mLrst consider in detcrmining the mattcr ()f
(d) lurisdrcuotr;1.e.. the possrble eniorceabilin'of rts clecrsion in loreigr ,ror../ sublect to thc riqhts oi said statcs (sec lticnu'tck, lntcrlratronal J-arv [1948].

(b) Once the coult has dctcrmined rvhethcr it has jurisdrcrion ()vcr tire case. itrvili next determine rvhethcr to a1>plv tl-rc internal lal, <,,f the folurn or the proper forejsn lau', considering thc atrencianr
c1f

cumstances.

t-ri Llrvs. lunsdrction is thc porvcr of t() rcnclcr a dccrsron thar ri'ill cteatc lcual r:ights and intcrests rvi'rrch otircl statcs will rccognrze and cniorccbcc;Lr.rsc

312) 'l-hrs rs

rr (-onfiict

tirc court oi thc

ii-rrr-rm

2.

Ho*'

does the court determine whether

it has jurisdiction over

the

case?

Jurisdiction over the Person;


(a)

T'here are threc liinds of jurisdiction: (11 jud.61.ri<xr over thc sublect-matter:, (b) iurisdrctron over rirc person, and (c) jurisdiction ovel tlrc

t'es

c()rlrl t() rendcr r luclgrnent that rvill brnd thc parues ttrvolvcd: thc piantrff or pctitloncr, ancl thc dcfcndant or respondent.
(b) .lunsclictrr)n ()ver the piaintrii rs acqutrccl thc tr<xnent ht' rnvoiics thc pr-rrvcr of the court bt, ilr.t tuttng tirc acttou il tirc prolrct' picaciing..f unsdicrit,n over thc clcfcndat-rt is acqurlccl rvircti hc eutcrs hts lul)l)ext,r)cc ot'Lrt ti-rc coercivc pos'cr oi lcgal 1>roccss cxcrtccl bv tht

()r powcr of r -lurisdrcuon over thc pers()1r is the competencc

Jurisdiction over the srrbiect-matrer.. ^

f\e-

'^

ccu''r\,n:l*
lrl larl arrd is

lurisdicuon orrcr tirc subjccr-rnattcr is conferrcci

JURISDICTION AND CHOICE OF LAW

CONFLICT OF LAWS

CONFLICTOTLAWS

JURISDICTION AND CHOICE OF LAW

court ol'er hlm.


uncler tire rule oi subtntsston' mat somettmes b\' couft be deemed tu conscrlt t() lts e\e;clse of iunsdrcuon fiirng surt v'ith t-ire over his ortalnal cause oi acgon including counter-clarms irled br- the defendant, and lle wouid tiren be subject r() tilc iudglrlent of the court. As for the defendant, his personal appearar.rcc ()1. appcirrancc bv couusel

A piantrfi.

Jurisdiction over the Res: -lurisdictron over the re.i or thing is jurisdrctron over the particular subject-matter in controversr', regardless of tl-re persons
who mav be rnterested therein. The basrs of the exercisc of this jurisdiction is the presence of the propertv wthrn the territorial iurisdicuon of the forum, even though the court rlav not have personal iurisdicuon over the persons whose interests in the properw are affected. This is because the purpose of the suit is not to impose a personal habiiiw on anvone but it is to affect the interests of ail persons rn a thing. Lxamples are land reglstration cases and adrniralW cases where the purpose is for the judgment to bind the whole wodd insofar as the subject land or vessel is concerned and not just the interests of specific persons. This llnd of jurisdicuon is

is tantamount to his giving consent tt; the c()urt's exetclse of iurisdrctron over his person, except if his appezrance of ri'rat of counsel is for tire solc putpose of cluesuoning tire jurisdrctron o[ the court

over the defendant rrrav be acqurred througlr hrs voiuntarv appearance, as already stated. of bv personal or substlfuted scrvice of summons on him ulldef the Rules of Court. This is referred to
(c) Jurisdrcuon

as tire coefciye pr()cess

in tire rnnnler

pr<.,r'ided bt, Iaui

referred to as jurisdiction in

rezz, as

distinguished from jurrsdrction iz

Personal setvice: "Sec. 6. Servlcc in person oll defendant Whenever pracdcable, tire summons shall bc served bt'handing a coP)' thcreof tc_r tirc defendant in person. or, if l.re refuses to receive and sign for it, bY tendering it to him." (l{uie 14, 1997 Rr"ries on civil Procedute) substituted service; "Scc.
7. Substrtuted servicc.-

If, for justifiable

petonam whtch binds onlv the parues and their succcssc.,rs-in-interest. What about acuons quai in rcrn? In an action qua.ri iu rem, tlte purpose is neither to rlTrpose a persoull habi.hn or obhgation uP()n ^nvot]e, nor to affect the interests ol aii persons in a thrng, but to affcct the interests of particular persons in a thing. In sucl.r case, the court mav render vatd judggnent when it has iurisdiction over tl-re particular persons whose interests are affected. Examples are foreclosltre of a mortgage,

causes, the dcfendant cannot be serve{ rvidtn lr rcasonablc tune as providecl in thc prcce<ling section, servtce mal' be e ifccted (a) bv lcaving copies of

the summons at tire <-leFendant's residence with some pefson of suitable agc and drscreuon then residing therein' or t'b) bv leaving the copies at clefenclant's ofltcc or rcgLtlar placc of busttless wtth some c()l'tlPetent persorl ln ch^rge thereof." (id.)

partition of land, or an acuon to qutet tide to propern'. An actron affecting the personal status ofthe plarnuffrs aiso classiFred as an acdon quati in rem under Ruie 14. sec. 1 5 of the 1 997 lluies on Civil Procedure. ln actions zz tem. act:tons quLtti in rem, or'those involving the personal statr'ls of the plaintifl exlraterritorial service of summous bv pul>llcatron is all<;wecl.

Stflct cornpliance wlrh rllr ab,.)r,c nrles is requirc<j

bef<-rrc thc

3. How may service

of summons

be effected?

c()Llrt can accluire jurisdicUon over thc Pcrsol) of dre dcfendant (Pantuleon servlce u. ,'lrundon, 1 05 Phi/. 76 I : .\'eqnttt a. I-,e/ronclo. I 0 5 Phil' I 1 )9)"lbus'

on a \2-year old daughter of the defendarrt is not vahd substituted (Sequitrt u. se rvice because of tire child\ lack of suitable age and drscretion of summous scrvtce t>f cr(>ncous tite quesuon Itlrondo,,/). Howcver.
tnLlsr l)e raised bcforc judgnent is rcuderccl. or tl-ris woulcl be a clcar casc r>f rvaiver (J,tranilia u. c)Lniule.s. 96 Pt)i/. j) Nioreover, deiccuvc scn'ice rnav bc cured bv actr-ral receipt o[ the strnrtrtons bv thc clcfcudant. or if in anY other lTranner. knowledge of thc exrstcncc of the casc si-tt>uld comt to iris attenuon (Sequito u Lttrondtt, id )

summons mat bc bt llcrsonal service or subsututed service, as pornted out above. Sen'ice bv publication would not be sufficient, whether the defendant is in tl.rc i)hilippincs or not (Pantaleon u. Arundon. 105 Phil 75/).

ln acdons

ifi psfflnam, scrvice

oi

When, then. is setvice by publication allorved? Summons br pubhcation is authorizcd onit'iu thrce cases:

(a) lf the acrt<>n ts in ran; (b) if dre acuon rs quati in rum. or (c) It tl-re action involves thc Pcrsonal

statr-rs of the plarntifi '(Rule 14. sec. 15. 1997 Rules on Civil i)rocedure i

IURISDICTION AND CHOICE OF LAW

CONFLICT OT LAWS

CONFLICTOFLAWS 'URISDICTION

AND CHOICE Or LAW

When rr-ral extraterritorial service oi sumrnous be effecteci-: Sec. 15. i{ule i-t. id.. provicies fcrr four rnstanccs wi-rereln exffaterrttortai
servlce

of sumtlons tnat
(a)

bc mircie: llamci\':
tl're

to the PhiJ-ippines on vacation. while here, he had an affak w,rth and impregnated Rose. Learnrng of Rose's pregnancy, Mar took the firsi availabie piane to the L'.S. rf, after the birth of het child, Rose fiies an
action against Mar, who happens to have some properties
Philippines, for. recogmuon of her child with supporq would the action
prosper, summons having been served on Mar only by publication,

in

the

\\hen the dcttnciant does not reside and is not found in Phihppines. and the action affects the personal status of

tire

plarn u ff: (b) \lhen the defendant does not reside and is not found rn the Phihppines, and the actlon relatcs to or thc sr-rblect of wirich is, propern'wrthrn the l)luhppmes treal or pcrsonal). rn which the defendant has a claim a hen or interest, actual or contingent; (c) When the defendant is a non-resident but the subject of the action rs properry located in the Philippines, in whtch tire reiief demanded consists. whollv or in patt. rn exciudtng tl-re defendant from any interest therein; and

As to the recogninon of ltose,.s bab1,, ves, beca.se that is an acrion that affects the srarus of the child. so tirat sumrions bv publicauon would be sufhcient for the colur to acguire j'risdrcti.n o'et N{ar (scc. 15, llule L1, 1997 Rules on Crvil Procedure).
But the clernand for sr-rpport of thc child agairst l'lar will not prosper, because it would be a judgmcnt tr puronant, ancl surnmons b.' pubhcation wouid not give the court jur-iscliction over Mar.
(b) Joe, a Fil-ipino non-residenr, married Susan in tire pl-rilippines while on a short vacauo'l here, '"itir.nr re'ealing to susan tl-rat he rs alreadv a mar'ied rnar. After Joet deparrure for hrs lorergn residence. Susan filed againsr, ]inr an acuon for thc declaratron of the nulhrv of their rnatriage and damages, as Joe happe's to h^r,e some properties herc. Upon the hli^g of her petitro', S'san also asked the court for a v"'rit of

(d) \X'hcn propertv of a non-resident defer.rdant has been attached n thc Phiiipprnes.
tl're last case, hower.cr, u4riie a l'rit of attachment court upon apphcatron, sard v'rit cannot be lmplemented untll the court iras accluired jurisdictron over thc non-residcr-rt defendant, for urithout such jurisdtctron, the court has no porver ancl allthoriq' to acr 111 any manlrcr against the defendar-rt, and an1' court order to that effect rvill nor bind sard defendant (.Dn,ao l)3ht and PrnuerC,o., lnc. t'. C.-'1..204 5'Cl\'1 i|)

In

rnav be rssr-red by the

prelir-ninarv attacl-rmenr against some of Joe's properties in this countr\..

would susan's acuon lor declaration of nul[tv and damages against.]oe


prosper, sumfi)ons having been served on thc larfer bv puithcation? For the declarauon of nullirv oi marriage, \,cs. because that aslis of the personal statrs of Susan, equrvalent to an action

lteel

Hov, mav extraterritorial service be effected?


Such serrice ma},, by leave of court, bc effecred: (a) By personal selvice as under sec. 6, Rule i.l; (b) Bv publicatron. but copv oi the summons and the order of the court must be senr bv registered rnail to the dcfcndant's last known address: (d) Irt anv other manner that dre court mav deem sufficient. Irbr example. bv rcgistered mail
(,N\idge4'

for

a declaration

cluasi

in

rem.

But as to the demand for damages rvith a rvrit of prcliminan. attacirment, it was held in the recent case of Dauao I ght and power Co., Inc. u C..,1., .rupru. that while the court could issue said writ, it cannot bc
implemented unul the court has accprired jurisdrction ovcr the nonresident defendant, which can be done onlv bv personal or subsuruted
service

of summons on
in pertonam.

the latter, because a judgment for damages is

FernandeT.

61 SCK'1

23).

iudgment

(c) X. credrtor of

(a residenr

4. Illustrative

of Spain), filed an acrion agarnst

cases on the problem of jurisdiction: Fiirpino permanenr residenr of Cahiornia. USA, carne

(a) Mar, a

Y for tire foreclosure of mortgage over a propern- given to hrm br, \' as securin' for tl-re pavmenr of a dcbt conrracred br' \' while he rvas i. tirc Pirrirppines. In iris acuon, X l)so pravcd for dehcrencl, juclgrncnt ln casc

10

IURISDICTION AND CHOICE

OF LAW

CONFLICT OF LAWS

CONFLICT OF LAWS

IURISDICTION AND CHOICE OF

LAW

1I

thc properw tnortgavccl lvor.rld not bc suificicnt to satlsfi'thc debt. ,\gatr-r, sumlnons was servcd on Y b-r'pubiicauon. \\buid the actton ptosperr

plai.tiff

foreciosure of n-rortgagc. \'es. bccatlsc lt is an ncuon quai in rem.Butas to the detnand for deficiencv judgrnent. no. because it

As to for
a

tl-re

rs asking

iudgment in pcnonum agarnst Y

5. Mention othet points to remember on the matter of iurisdiction:


(a) Once the plainuff hies an action before a Pirilippine court, wl.retl'rer he be a Fihpirro ciuzen or a foreigner, a resident or non-resident of the Philrppines, he submits hrmself to the iurisdictlon of the court afld machinerv into actron. Flence, he is now subiect to anv puts the

iras Do lraLuctrlar inrcrcst t. tirc casc, thc paruc:; not beillEr ciuze's .f t'e 10rr-r'r or are resrcle'ts elsewhcre; or the subject-rnr -ter of trrc casc ertolvecl s.mervhere elsel (f) other collrts are ope' and trrc case rra'rre better triecr said ceLtrtsl

.lt'icntirrr:: r'e)'firc forura

r-rrgirt h^'e trled the casc rn thc ir.rlur_' meleh. rc, secllrc l)focccir,rr.el adlantag.cs 01. t() ;lnlr()\, or ltrrrass the

'

counterciaims, cross-clatms, etc' that the defendant nlal' Put up under Philipprne larv. In choosrng n Paructlllir forum, tl-re plandf[ has acceptcd the entire judiciai machiuery of ti.re forurn completeil', so that he must accept not onlv tts benefits but its burdens as well.
(b) As for the defendant, he becomes subiect to the court''s

iudrcial

15 l;ct/. (2(/)#q

'I'he rnadcc|.ra., of trre local j*drcial maci''c^. for effccrr_rafi'., ft) o thc nght sorrgl-rt tc.r l>e enforced by thc plarntrfL ot (h) 1'he difficuln. of asccrraining the ibrcign larv apphcablc. (See Strmson, Co'fhct of Larvs, pp 3ag-352; (.anacla A,laltitt3 Co. t. Paftenon .Stcanthil>, 28i Lr..f . 1l ). 12 j: Hdre t,. Neu )b* 1n.,,. (0..

Example: Several Gcrm^n crtize's brought rnsurarcc


against the Nerv Germanv and

\brii Life lrs. cr. .'

craims

Gerrnanr. -\lthougb the plarntifir- were citizcns and


to all subsecluent matters in the same suit, like appeals. And even if he leaves the state o[ dre forum prior to tl-re final clcterminatiotr c.'f tire actron agarnst hrrn, jlrrisdiction of the court over him contintles.
as

insnralrcc policies issrecl in

resrdc'rs.f

iunsdicuon

wrs a Ne*'\brk CorPoration, suit was brought in oregon, u.S.A. rvhcle defendant hacl an agent on .rrl',orn sunrr.,rc-,rr.
de fendar.rr

v"'as se-rved.

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 tf the court has jr"rnsdictioll over a confltcts case, it ma1,, bv rnvoking the princrple of forun nzn tluuunreni. rcfuse to exercise cr assttlne that ltrrisdiction, in vies'of an'{ oi the

Issue: Nfat' thc Oregon court. in the exercise t-rf rts discretion. refusc to taiic cognizance of tlic casc?

Held:

Yes, on the groun

c1

of .1orum noft LankntcttL.e becar-rse:

(a) Bodr parrics werc non-rcsidcrrts

of the forum; (b) 'fhe courts of Germanv and Net, yor:li arc opcn ancl iu'crl()lrrng, and sc^'icc ca' bc rlirde .' thc dcfe'dant
crrirer jru'isdrcuon;

following practical reasons:


(a) The evidence and the witncsses

'r

(.) 'lb requirc dcfencia'r ro clcfe'cl the acti.n in

tl.rc

forun rv.ulcl
compcl

m2l'not

be

readtil avarlabie in

in'rpo"^e upon it great and unnecessar-t.lnconvcrlencc ancl

the forum;
(b) The court dockets

of

it to produce records and papers whicir rverc of daill usc in


tl.rc forum ma1' alreaclt be clogged s<r iran-rper the speedr' cases

that to pennit additional administrauon of iustice;


(c)

"vouid

its current business; (d) 'fhe case could consume months

The belief that the matter can bc better uied and decided rn another iurisdiction, either bccause the main aspccts of the case transpircd there or the rnaterial wrtnesses have their
residence therel

of ti.re rirne of rhc cr>urr. resultiug rri dclay, inconvcnience, ancl expense t() ()the r Lrrgants rvho are entitlecl to involie thc coult's jurisdiction.
(.Hcint r.

\n,)brk

)t,;. Co.. supr.ti)

(d) To curb the evils

o[ "forum

si-ropping";1.e., the non-resident

Warning: Itemernbcr, however, that the doctrinc shoulci generalh' appll onlv if the defendant is a corporation. lior if ti.rc

72

IUIIT'DICTION AND CHOICE OF

L,AW

CONFLICI OF LAWS

CONFLICT OF LA}^'s

JURISDICTJON AND CHOICE OF

LA}\'

I.1

clefcriclant ts an inciivrdual. thc propcr: forum tnm' not be ablc to '.'tctlultc ir-rnschctron over

-This

rs the

sec'nd

case rvhercrn the

httl ifor

examplc. )'rc rlugirt not bc'resicirue t)-rerc'). thus

leavrng tlrc piarnufi *'itirciut anl

rencdt

iJttnt.trtti, .w.bn':.

has not bee' properlv pleaded and proved. 'rirc reason

tire forum (itx tori) rvill be appiiecl: th:rt is. when tire proper

rntel'ai .r

clor",-,e

sdc iau,

.i

foreig. iau

7. After the court has acquired jurisdiction over n conflicts case and has decided to assume that jurisdiction, u'hen is it bound to aPPlv the internal or domestic la'w (lex fotr)?
Tl-rere are at lexst three (3) instance tl'rc inter nal
t,i:,,
s rvl.rerr tire forr'un has to appil (lex fo..ilrn clcciding a casc in conflicts of lau',

or dorncsltc

lnxv

courts cannot take ludicial noucc oi forergn iarvs, So that if thc Droper forcign lau'is pleaded (rn tirc cornpiarnt c,r peuu.,n. or in rhe irnsr,,,ct 'ot or an\r othcr rcsllonsrve pleadint) ancl is not pl'()vcn :Ls a fact, the cor.Lrr bas the right to presnlDe that tire aPpliclbie forergn iarv is tire sa'rc as thc internal or dolncstlc law of the t<>rurn a'd should, theref'r-c. app)v tht latter law (4don.qu. Cheon1ScngCrc, 4J Pl)il. 1);5.1 loc I-.ton3u. ,\'),quza, /6 Phi/. 1)7; Itn y. Collector, 36 Pltti. 172; I'luenr u. I li.c. 5l Pltil. 6/0; ln ra
'l-ettate I'-stutt

i,

thnt ,r,r.

ol Suntql, 95 P/ti/. 500).


a

(a)

\\hen the larv of the f<-lrtul exptcssh'so provides tn

rts

conflicts rulcs; (b) \!hen tl.rc proper forcign lru' has not been ptoperll' pleaded
ancl proved:
(c)

(a) In connection with the foregoing quesrion, lror:r.. is foteign law proved under our Rules of Court?

If
invoh'es anl of the exccptions to tire application
1211';

rhc larv is written ir r-nat' be proved

b1':

\\,hen thc

casc

of the ploper torctgn

ii.c.. e\ccptions

t,-r courttt-).

(1)

8. Give examples of cases rx'hich require the application of Philippine internal or domestic law' (lex for\.
(a)

(2) A copv

,\n official pubhcation rher'cof. or ofthe larv attestcd bl thc otttcer har-ing iegrl custodri of rlrc- rccolcl or b',' his clcPr,rt1,, irccr>nrpaniccl lrl a certiIcatc ol rrrl l)hihppinc cmbassl. c()r)suilr.

\lhencver eivrl

lencl involved itr+ire suit rs locatecl rn thc I)hilrpptnes,


lc.>:

Philrp1;rne iarr'ol thc


(-,rdc.,

silu.t rs

apphcd

(.\rt

i 6.

titst par., New

or forcigr-r sclvicc oft]ccr rrr thc tbrcign c()Llrrrr\'\\ [re'jc the recc-ird is kcpt, and auther.rticatecl bl rhc scal oi his offlcc. (lturlc 132, scc. 25. Rer'. Rr.rlcs of (.<;urt)

(b) l{cg;rrtling thc pt'opcrrv rtlaltt>t.ts of thc sPr.,uscs. ;\rt 8() of tirc lranrh-(,odc provicics tbat tlt-the allsctlcc of .a corltrarl stipr,riati<-rn ur a tnarriagc scttlcment. the propertt'relatiotrs of
the spotrses sl-rrll bc g<.,r'cmccl bv PLrilipprnc laws, rcsardlcss oi thc placc of thc cclcll-ation of thc tnirrriagc anci their
(c) \X/ircn

li

tl-re

las' is rrnu'ritten. it nlav bc 1>rovccl

l-ly:

(1) 'I'hc oflrl tcstrttrol'tr- of c.rpe rt wirncsscs. ,ir' (2) B,v printccl atrcl publishcd boolis of rcpor,:s rif dccisions of the c<-lur-rnf inr,oived, if provcrl to bc
commt.rnll aclmittcd
ir.r

rcsicleucc.'fhc onlt,exccPtttlrt ts rvhcu both sllouscls arc alictls. r Filqlrr<, tathcr t'itlr ,\tncricatr cirrlclrcn (rvho bccrtnc utrdcl thc rulc of ./t1., .rr,1, dics, itis sttcccssiou shtll be such

irs ccurrs. (RLrle 1 3(), scc. -15,

rd) (b) What is meant bv the "proccssual" presumption of lar.v?

soverncd bv Philpprnc lar'" (scc. par:.,


Cr>de).

-\rt.

1(r,

Ne*' (,ivil

(d)

if a rviil cxeclrted bv au alicn abt'oacl is revolictl in otrr couuft\', the revocntiott urttst crxrplv ri'ith thc fomulitic.- of J)irilippine iarv (-\rt. El9. Nc*' Civil (-,rcic). if it has not

noI bccn proprerh ltr<tved. thc c<>Ltrt o1- tirc ft;mnt rnirr' Plcslurrc that satcl forcipr-r iau i:r tht.salrtc as rrs l,rcai oi clomcstic lat', rl'iricir it cen norv apnlr',
10. How is a foreign larv that has been duly pleaded and pnn'ed to

This rule mcans that rvircn the l)rc)per f<rrcrgn l:rs. hes

9. Explain rvhv the foreign lau' cannot be applied


becrr pleaded and proved.

.11

IURISDICTION AND CIIOICE OF LAI\

CONFI,ICT OF LAWS

CONFLICT OF I,AIVS

JURISDICTTON AND CHOICE O}.

LAW

15

be interpreted bv our courts?


,'\s a gencral ruie. a folergn lx\\,tirnr hls bccn duiv plcadecl lnci

xgreemcnts'ndcr fo'cign iar's ti-rat cor.rupt tire propc' ldrnttrtstrrttorr rri itisLlcc .)r'tr'wilrcl cl.lrnci: a.rrr,raa,- t.,n'da, torelgn ial's to cernrl)t publrc offrcrajs: ancr rn gerrcral.
^rl ntoralrn' .,r.r,j"rat',rod br. th. ^r forum anci thosc rncor-rsisrcnt u'itir tj-rc bcsr rlrtcrcsts oi its peoplr.

plor.ed should irc ql'en bv

tire sarnc intcrprctatlon as thai qtven bt the toreign tribr.tnals of thc countn'rvhcrc ti'rc iat,cor-nes frorn.
or-rr cr)ur:ts

trallsacttons thitt tnirtngc

goi-rcl

A possibie excep[on is a casc t4rcte


cannot bc blamecl
coufts.

sotnes.hcre

in our lav"'s,

(c) When the

foreign law involves procedural matters


ar-e

thcrc ts ir statute s'orded idenxcallv as thc iorcign iarv. s<; thirt our courts if thev disregarci thc forcign inter:pretation oi sard tbrergn lav' and grve it tirc same interprt)tadon prcvlousl,v gl.en bv our

'fhere
paf

n'to

au action n-rrrst submrt

no.r'cstccl nqircs ur n_rlcs of procedurc; hcncc. a himsclf to drc proceciural fcrrnra.htres

of the fon-rm. e\cept rvhc:n

the lau' is both procedural

ancl

lL. When a case involves any of the exceptions to the application law-, the rulc is that the foreign law cannot be applied and the courts should instead applv the domestic or local lau'. Wltat are these exceptions?

of a foreign

substantn'c, hlic the rules on prescliptlon. and thc Statutc of l;rar.rds rvhich undcr Phiiipprne larv are substantivc. l-Iencc. an American cannot insist on a jr.rrt, trial in the 1)hilippines: neitl-rcr can he insist in the applicatron oi Amcrican procedural lau,s in a
case

in the Phihpprncs rvlrcrc' irc is a parq'.

(a) When the application of the foreign law would run counter to a sound and established public policy of the forurn.

(d) When the foreign law is penal in characrer:

Examples:

Crimes committed in foreign countries are violations ofpenal laws ofthose counfties and cannot be prosecuted here. especially as we follow the pdnciple of territoriality in crirninal
law:

(l)

\\,e cilnnot enforcc in this coutrtrv a. dn'orce lau, of a foreign corlntr\r if the prrttcs arc- Fiiipir"rc,s. If. however. tire prrtics are a ljiiiprr.r<; and a forcigr-rcl and the latter vaiidir. obtans a divolce abroad capacitating him or her to femattl'. the Filipino spouse can also marrtr again (-1f t.
26. scc. par.. Famtlt Coclc).

,\ "pcn:rl clause" Ln a contfact cntc-rccl lnto abroad lrra\., horvever, bc enforccd lrcre bccansc such clausc is not crirrinai in natute bur onh,' provicies for hcpridrtccl dan'rages.
(e) When thc law is purelv fiscal (i.e., revenue-producing) or administrative in llature:

(2)

-\ ioint t'ili

exccutcd br. Fiirprnr,s iocaih' ol lr a forcign countrl is not vaLid (Arts. [118, ti19. Nerv Civil (,ode).

(3) Incestuous marnagcs r.urcicr fhc Ijanrih'Codc and those


are

considered vord bv tl-rc Codc br reas<>n oIpublic policl. nuil and r-oid. even if thel lre val-id ir-r other counuies (Arrc. 3?. 3ti. I;amrlv Codc). Horvevet, thcse provisions

\\c are not bour)J t,r cnforcr.tirreign re\'('nu(.,)radministrative lau's. \\'e are llot conccrne cl rvith thc collccrion oI taxes b1' foreign coulrtries or.r'tth forcign laws rclating tcr governmt'ntal functrons or m;lttcrs.
(f) When the foreign law might work undeniable injustice to the citizens or residents nf the forum: I rrrt'tgn i;rrvs that s'ould result or cau.ie ru;usrict. r,,

applv onlv to Filipinos.


(b) When the foreign law is contrary to the almost universallr. conceded principles of moralitv (contra bonos mores):

Examples: Forergn iarvs recognizing prostitutron;

16

]uRrsDICTrON AND CHOTCE OF LAW

CONFLICT OF LAWS

CONFLICT OF LAWS

cltizens or rcsidents of our countrv sirouid not be eniorced or Even effect irere. An exalrlple rs a foreign iaw purung tire age of n-rajorin'at 21 ancl refusrng ro recr)gnlze conuacrs of fji]rprros abroad u4ro are abor.e 18 bur beiou'21. consicicnng tirat rhc age of majonn- in our cour-rtn is 18.
(g) When the application of the fbreign law would endanger the vital interests of the State:

The natronal interests and secur.itv of our countfi' should

not be jeopardized by forergn larvs, nor sirould rve

enfl.rrce

ioretgn laws that undermrne oLlr govcrnmental Drocesscs.

(h) When the case involves real

or personal propertv

located in our countrv.


Remember that we apply tlie hx ita.r or lex rei ilac to all properties, witether real o-r personal, iound or locateci in the Philippines (first par.. Art. 16. Nerv Civil Code).

THEORIES THAT JUSTIFY THE APPLICATION OF THE FOREIGN I.AW


What are the theories that iustift rhe court, in a conflicts case, to apply the foreign law instead o[ its own domestic or internal
1.

law?
Sonre o[ the traditional thcorics in cleciding rvhethcr to apply the local or domestic larv or the foreign iarv ur a conflicts casc are thc follorvurg:

(a) Thc theorv oi comin'

(c) The theorv of local larr' (d) The theon'of harmonl of


(e) The theon' of
justice.

S)

The vestcd-right theorl,


larvs

2. Please explain each theorv.

(a) The tlreorv of comin'


t\ccording to thls tlrcor\'. no iorcign iau' rvor-rld be allot'ed to opcratc rn anolhcr st:lte e\cept br "the comih' r-,f nntrons"; r-e- thc leci;lrocal crlLlrtcsf s,irrcir thc rucmbcrs ol thc farnih' of nau()ns o\\re tr) one anothcl. Irr thc old casc oi I li/tun t'. Guyol. t\e Li.S. Suprcme Cr-rur:t deil.rcd "comtn'" as iollon's:

THEOI{IES THAT JUSTIFYTHE APPLICATION OF TI{[ FORETGN LAI'\

CONFLICT OF LAWS

CONFLICT OF LAIVS

THEORIESTHATJUSTIFYTHE
APPLICATION OF THE FOREIGN LAN'

19

"Cornirr. in thc lcgal sense. is neither: a fitatter obligatron. on the r>nc irancl. nor of mere absohrtc oi courtcst anci goocirvili. r-rpor-r tire othcr. But it is thc l'ecognlrlon rvhich one statc allos's .r.'ithrn rrs tcr-rrtor\. ro the legisiarrve, execuuve. or judrcrai acts of anothcr narlon, having due regard both to international dr-rfi'and convcnience, and to the rights of its orvr-r citizens, or of otirer persons rvho are undcl the protecdon of its larvs." (1se u.s. 113 [18es]) firench citrzen sued an American in a French court..luclgmcn! was rcnder:ecl in favor of thc plarnuff Frcnch. rvho latcr Frled an i1r an ,\r-nerican c()Lut to cnforcc ^ction thc judgment. 'I'he An.rcrican colrrr found that the rnal tr.r the Frcnch court \\?s latr and rmpartial br-rt even in such a casc, I irench rribunals do not regard .\mcrican decisions r.r,rtir tlnaiin, but thcl still revict'tirc latter's clccrsions on the merits; i.e., thcv arc regarde d mcrclv as pirna.lat)e evtd,encc of plaintifl .s claim. Fience, the satne etfcct should bc givctl bv ^\n-rertcan c()llrts t() Irrench decisior-rs or-r "the pnncrplc c,,f reciprocitr''.
case, a

comitv based on the persuasiveness of a foreign judgment. Note: In our 1997 Rules or-r Cir.il llroceclr.ue. u'c still follou' tire plurcinle of recipr6crrr. hclj rn tire oici i:iiiton case because ln Sec. 4.9 of ltule 39 on tire "ctfcct oF foreign 1r_rclgnnenrs or frnal orders',. a forcrgm final jLrdgmcnt or <-,rder "rs presumpuve cvidcncc of a
right
as

benvecn the parues and dreir successors in rntercst

bl a subseqtrer.rr title" aud "mav be lcpeiled lrv evidence of a rvant of jurisdicuon! want of nouce to the par:q',
collusion, fraud, or clear mrstake oF law or Fact".

In the above

(b) The vested-rights theorl


Llncler tl'ris theorl', our courts enforce not tite forcign larv ot foreign judgn-rent but thc right or rights ti-rat have bccn vested uncler such 1a\\ or iudgmenr. Rigirts once accluired undcr

a foteign larv or juclgment slror.rld l>e enfolccd rcgardicss of


rvhere tire suit for its enlorccrlcnt rvas filcd, 'l'l-rus. tl-re ideal of uniformin'and predictabiln,of results rvould be achreved. II a foreign lau'givcs a person a rrght, the mert: fact that thc larv ol the forr-un does r-rot gn'e hinr l similar or the same right is n<r reason to refuse to help hir-n get what bclonEs ro hrr"n. J'l'rc cxcepilon is, iI the forcrgn larv is against thc pubhc pol-icv of tl.re fonrm. It is a pnncrple oi cvcn' civihzcd larv that vestec{ nghts should bc plore ctcd. 'fhis prir-rcrplc dso discor-u:ases frrrum-shoppino An exarnple of dre applicauor.r of dr-rs drcon'rs tl, c Amcncarr Cra1.8z-Ar.1-l. 82 (1 9)-+).In this case, N,Irs. Gral
actior-r

Ilorvever, rn a 1926 dccisi<lr. thc U.S. (_oru:t c_,f .\ppeals Ycrrli rcfuscd to npplr thc abolc casc of l'li/ton y. Gurot. ln this casc. an -\rlcncan sr-rccl thc clcfendant lrrcnch citizen for rvrt.,t-rgful cicln'en- of goocls ur an ;\mcrican court. 'fhe defendant sct r\r tire clcttr-rsc that tl-re same lnfltter rvas alrcarl\'decrded ur his lavor l-r an carhcr casc Frled 1l' the -\merican in a ]irench coLut. The lorver court rcfusccl to givc e tfect to thc cadrel lrrcncl-r dccision or.r the theon o[ rhc o]cl Fliltor case. ltcvcrsing thc lower
crf

lierv

case

of Grai't

court. the L].S. Suprcme (,otrrr rulccl that surce it rvas the --\mcrican rviro hled the carlicr casc wrth a .lircnch cr-rurt s,hclcin hc lost, hc could not laterimpeach smcl juclgmcnt agair.rst irim on thc punciplc of comrq', t'hich grves conclusiveness to the Frcnch decisrcxr and bars his subseqr-rent acuou frlcd rvith an ;\merican coutt. 'I'hc basis o[ corlitv rvas srared as the persuasiveness of the foteign

damaqes against l.rcr hnsband Nlr, Crav f<rr pctsor.ral injur:ies alleged to have been caused to her bv the Iattcl rvhile drivrng fron.r their home in Nes' Harnpshire to N{arne u'hcre tl.re accident irappened. In N{ainc, the spouses are barrcLl florr rnrirrrrining an ;rcuon against cach -fhere other. is no sr-rch prohibitron in Ncu' I lampshire.

filed an

in Nerv lJarnpshire fol

judgment. not the princrple of reciprocin- as held rn the old I Iilton case. (lohn.ran u. (ompanit: Generale -[iunta/i,tnliqur,. j42 -\. ). ]8/ , U..l. Ct'urr o/' .'lppcai: o/' N.).. 2+: N)- JSl)
J'irus, nvo pflnclples havc bcen given upon rvhiclr the thcon'of courin: rests: the comitv bxsed on reciprociq, and the

f'he ,\mericarr court mled tn the al>ovc cxsc that forcisn torts should be govcrned bv the /rr" loi tlelitri tommi.r.ri.,{ nght I-ravinS becn creatccl bl thc appropr:iatc iarl thc r.cosnrtion,'i
its existcncc foiiorvs cr.crr-lvhcrc. (Sce also ,\'['tJ)onuia
t'. ]Ltintttt^,.

lht3u. Jarria,6, ol lt,cw \-ork. 225 N.1. 148)


71 X.11. 118:

\.\.

21;L"ouik.i

r'. .\'ranciard

Oi,' (a.

l0

THEORIES THAT JUSTIFYTHE APPLICATION OF THE FOREIGN LAW

CONFLICT OF LAWS

CONFLICT OF LAWS

THEORIESTHAT'USTIFYTHE
APPLICATTON OF THE FOREIGN LAW

21

(c) The theorl-

of local lau'

3. There being manv theories as to the proper choice of law that

should be applied in each particular case, what, then, should be


considered the right theorv?

forergn bv appiving a srmilar rule requires us to do so; hcnce. it is as if tirc foreign }aw has become par:t oi our o\\n internal or domesuc

of tiris thcon' beijeve tilnt ve rppil a lau.'not because it rs iorergn, but because our ou.'n iau'
Tl're adirerents

In the v'ords oi tire late Jusuce Edgardo L. Paras:

law

A good example of this theorv is Art. 16. par. 2, Neu' Crvil Code. rvhich requires us to appl-v the nattoual larv o[ tl"re deceased in the mattet of his testate or llttcstate succession lf the deceased rvas a Chinese aithough thc children are alreacll' Filipinos, we arc requlred to applt' Chirrese iarr,', not becausc it is
the appropnate foreign lav; but because our
tells us to do so.
o\\'11

"It rvill be observed that thc theories hereinabove adverted ro do not rnutuall1' exclude onc another; perhaps, the uuth rnav be found in their ccmbinltron. Certain\., it tire wolld ls to progress in uoderstanding and judgment, it must
recognrze this rmperative postulate: tirat sorneumes, we have ro apply the proper forergn law because courtesv. conveniencc, and internationai dury so demandl because there are vested rights rve cannot conceivably ignorel because a1i too often, tl.re foreign law has become part and parcel of our law; because idenucal sinrations
should be resolved bv ider.rtical rerncdres, ilrespecdve of dre forr-rm;

Crvil Code

(d) The theory

of harmony of

laws

and fir-rall1, because to do otherr.vise mav ultimatelv result rn thc


negatlon

o[

justrce." (Paras, id.,

p 73)

Undcr this theorl', tdentical or stmilar problems should be given identical or smilxr solutious, thr.rs resulting in harmonv of laws. Certaintr,- of soiutions to titc same or srmtlar problems are of particular rmportance in areas where tl-re Pirrties are hkeh'
to think ur advance

Liliclvisc, fonncr Scnator Salonga states thus:

"r

x x in the absencr t l an apphcable prt;visron in the

of

the leeal coltsequences

of

therr transactiolls.

code or statute, the various theorics shouid be examined and


weighed as thev bear on a given conflicts problerrr. No single theon' contains the whole truth, no one approach is completelv vahd. .\s one author puts it:

For example, transactions invoiving tcal properti' should be


governed bv thc /ex iht.s,in the intercst of certaintv and uniformin' of result. Srn-riiarlr., a pers<.,n'.s civil stltus must bc governed bl a singie lau, for thc sake oi ccrt^inn'; e.g.. u'hcthcr a pcrson is sinqle or marricd. The apphcauon oi tl-re samc t)r sl-nilat solttuon also ptevents the bad pracdce oF forurn-sho1'rpirlg
(e)

' The policies behind all o[ the theones

have

The theorv of justice


Sincc thc puryose

vahdin. This suggests that thcy are not entirelv exclusive. lndeed, there mav be a gain in using different theories at different places to make morc rcadilv apparent the change in pohcres deemed dominant as the situations
vAf \.."'

oiall

law's.

includlng (,onfhct oil-arvs.

is the dispensation of justrcc. the propcr forcigt-r larv shou]d bc 'I'hc de fect of this theolv, applied in c>rder t() attain this objcctive. hovever, rs that different pcrsons tnat'' havc c{ifierent idcas of wirat is jusc Should we, then. lc;we tirc questlorl to t}.re diFfercnt notions oI iairness and iustrce?

(Salonga, Ptivate International l-au',


1995 ed., pp. 9a-95)

CONFLICT OF LAWS

r22

CONFLICT OF LAWS

NATURE AND COMPOSITION 23 OF CONFLICTS OF RULES

2. What are the two kinds Thev are:

of conflicts

rules?

G)

Tire one-sided rule (wirrcir indrcates when philipprne Iaw will appl1').

Examples:

An. i5, New Crvil Code: Laws relaung to famrll, nghts and duties, or to the status, condition, and
legal capaciry ofpersons, are binding upon citrzens of the Philippines, even though livrng abroad. Art. 818, id.: Two ot more persons cannot make a will jorntly, or in dre same instrument, erther for their reciprocal benefit or for the beneht of a thrrd pefson.

,
1.

NATURE AND COMPOSITION OF CONFLICTS RULES

Distinguish a purelv internal provision of law from a conflicts rule or a provision in conflict of laws.
A purelv internal pror,'ision of lau' governs a dourestic problem; i.e., one without a foreign elerncnt. And it authorizes, commands, or ptohibits a certain act or modc of conduct. Ihe qucstron taised - whether the partrcuiar act or mode of couduct is allowed. cornmanded, or prol-ibited - is imrnediatelv solved.

Note: The above provisions of lav' appll only


to Fihprnos.

(b) The all-sided or multilateral rule; (which indrcates whether to applv the local law or tire proper
foreign law). Examples:
as

On the other hand, a conflicts rule or pr<>r-ision of lav' is a provision found in olrr own law rvhtch lt()verns a tactual situation possesscd of a forcign element. It is usuallv expressed in the form of an
abstract proposition that
a

given legal cluestron is "governed" bv the "lau'

o[ a pardcular country" (rvhich rnal be an internal

1aw- or the proper foreign law). to be ascertained in the manner rndicated bv the provision.

par, Neu'Civd Code: Reai properry personal propern is.subiect to the lau' of the countrv where it is siruated. Art. 17, Ftst par.. rd.;'fhe foms and solemnitres of contracts, wills, and other pr-rbhc instruments shall be gc.rverned bv tl-re iaws of the counuy m which thev are executed.
16, fu'st

Art

well

as

an internal rule: Art. 796. All persons v,{ro not expresshr prohibited bv law mal tnake a will. QNew Civil Code)

Example

of

are

Note: The above provrsions tell us when to appll Philippine larv or the proper foretgn la.ri
In
tl.re

Example of a conflicts rule: Art. 16, Reai proPernr as wcll as personai propert| is subject to thc larv of thc countrv u,hcre it is situated (Art. 16, 1" par. . rd.).

the properq'is found rn the Philippines. a lorergn countrt:,

first exampic. Phrhppine lau,is applied rf Ii it is found in

likc

apan, japanese iaw apphes.

in

tire second exan-rple,

ii

the contract was

NATURE AND COMPOSII'ION


OF CONFLICTS OF RULES

CONFLICT OF LAWS

NATURE AND COMPOSITION OF CONFLICTS OF RULES

25

c-\ccr-lred in the Phihpprtlcs, rts form ancl soiernnlucs aLc

gor.crned bt Phihpprnc latr Jf rt \r'rs e\ecurc.l rn r forersn countrt sav rn l'-ngland. E,ngLslr iau' u'ili appir'.

\\'hlt

lau' rs

'fl'rc Ia*, oi tire

t. irt' apphccl r. clete.rnurc rirc irabrhn oi the slrrPi co"tn t' rvirrch thc l.st cargocs lr.c t. be rransp()rted.

Observation: \\,'hiic,\rt. 15 of thc Neu'Civil Codc irtcrally apphes onll to lrihprnos and is actuallv a one-sidcd rule. tirc Suprcmc (-,ourt iras gir.cn it a rnultiiateral apphcation rn that it has l-reld that t<-rrcigncrs, in tireir status and lcga) capacrt\', are gor-crned irt thetr national law (Gibb.r x,. Gzul..:19 Phil. 29J.l\a;to r. I larden, L-6897. Nou. 29, 195Q. In other words. the na[onahtl' theon' embodied in Art. 15 of tl-re Ncrv Cir'il Code has been applied bv the Suprctne Court even to pcrsons who are citizens oIcountrics follr)wins the domici]ran' theorl. like Americans.

or tire larv of tlrerr destrnatron. not thc iarv oF tbe c()unrnr wirere the lost cargoes were ioaded, or the placc r.lf er-nbarliauon.

Another example: .\Lt. 'l 039. Ner,v (-ivil (.ocle. provrding tl.rat "capactn to succeeci rs govcmcd bl thc iarv o[ thc natron o[ thc <]ccr.dertt". .l Ierc aqain, wc get the picttrrc ql: a. persc.rn rvlro dics, bur rvh.sc heirs rnav bc cttizens of another coulrtr\,'. \\'irat Iarv should applv to dctcrmrne wl-ro

will succeed the deceased? The la*' savs it is tl-ie larv of the countrv of rvhich thc deceased rvas a citizcn. and not the lav,, of the
ciuzenship of his heirs.

3, What

are the parts

of every conflicts rule?

Unhke a pureh' internal rulc whicll governs a purelv don'rcstic problem without a foreign element. a conflicts rulc u'hrch indicatbs rvhethcr to apph' the internal iarv or the foreiqn iaw. hes tu'o parts s'hich
are readiiy recognlzablc:

(a) the factual situation, or thc set of facts or situation


involved: and

pre-

senting a conflicts problern because drere is a ioreign element

(b) the point of contact or connecting factor, u'irich is the law oI tl-rc c()untr1: with rvhtch thc iactual situatit-rn is most
intin-ratcil conuected
tl-re first part states ccrtain operatrve facts, the wirich are determined in the second part; that is, tl.re first part raises, rvhile the second part answers or solves, a legal
<-,f

In other words,

legai consequences
questlon.

Example: Art. 1763, Neu.Cir.il Code, pror.'idrng d.rat "the law of the country to which the goods are to be uansported shall govern the habilirv of the common carrier for ther lo-ss, destrucuon, or deterioratron".
thrs provision, we have tirc pictute of a cargo shrp traveling on thc higl-r seas bnt for some reasoll ()r anorhel, the cargo clr part of it is lost, destroved. or deteriorates durns the vovagc.

ln

w
CONFLICT OF LAWS CONFLICT OF LAWS CHARACTERIZATION OF CONFLICTS

RULES 2i

Niost wrrters hoid rhat ()n the grounds oI practicai necessrtr. a'd con\ren1el]ce. rt is the torum. or rire ,e.r 7un. that should cietermrne tire probiem'.s char;rcrerization. uniess tl-re result would be a. clear rnjusuce.

Tire Suprernc Court appl-rcd thc abovc soludon


case:

the followrng

Cibb.r u. Goul

rll

P. 1.. 59

Pltil.

29): A

Califor.nran wife

dies. I.Ier Cahfornian husband clarms the entire properues ac<1urcd bl the spor-rses during tl-reir marriage as his alone bv accrerion,

follorvirrg California iaw on propertv relations of spouses. Undel Phihpprne lar.r'. irou'ever, tiris is a problem rn succession,

CHARACTERIZATION OF CONFLICTS RULES


by the concept of "characterization" in a given conflicts problem? law to apply in determining what
1. What do you understand
"Cirarzcterizauon", odrerwise hrorvn
as

so tl.rat ir.rheritance taxcs shoulcl be pard bl the husband as thc lands in qucstion rvere located in the Phriippine, fhe Supreme

Court ireld that tire propertres l.rhenred bv the irusband rverc


subject to inhcritance ta\cs, catcgoriztng the problerrr as <lne
the successior-r.

of

3. Suppose the problem


as to

of characterization involves a determination

"classification" or "quah6caflon",

whether the matter pertains to ttsubstantivet' or to tlroceduraPt la*-. How is the problem to be solved?
are g<x'erned bv the /c:t fon. 'fhus. matters of sen'rcc oi summons, ioindcr or splittinq ()f cause of acuon, hox- to appeal. peuocls of appeal. crc. are governed b,r'

is tl-re ptocess c-rf assigniuq a certait't set of facts or facttral situatron to its proper or correct iegal categort'. Evcr-r' rule rli lau'is bascd on situations of fact. tcrual or ttlagrnccl. sincc tl-re lclislatol: tnust trl tct solve iactual situatrons that migl-rt arise in tirc futurc, bascd crn past obscn'irtic-,n and experience. These legal categoties nrar-bc farnilt, relations. colltracts, torls. succession, propert\:, etc. Bv charactcrtzing the legal prt.,blem. the court

'fherc is no question that all procedural matters

the law- of tl.re forum.

or the parties invoh'ed reach thc proper solutton whether to applv the local law or the proper fotergn laur

Vhat makes the problem of "ch,aracterization" or classification difficult?


2.

llut what abollt prescrtptton of acrit-'n and dre Statute of Frauds? Are thev substantive (or.rr law considers them such, so tl-lat therr are found in the Neu'Cn'il Code as rvell as tl.rc llules of Court) or merelv procedural and, tlretef<-rre, governeci bt the lax.lor?
T'he modcnr trend is to considcr tire prescriptivc periods or thc

The difficultv in chatacteization artses from the fact tirat

Statute o[Frauds tirat ti.rc partres had in rmnd at the time the &ansaction

conflicts situatron or problem may be charactelized bv thc lr.r'fari differendr ti'om tlre characterization of the ltx nu.tat (the Iaw of thc state \r'1th whlch 'I'bc ic.:, irnt :mrgilt regard the act crr transacticur is most closch'cortnccted). the problem as torl. whrle thc iex r',ttt.,,.tt rcgards tt as coutract. ()t thc /c:' lon rntght regard the problem as cr11re, rvhiie the llcx tttu:* considers it

took place. Thcn, proceed to applv the intended iaw in its "totalitv"
rncludrng its penc,ds of prescnpticin and its Statute ol ljrauds. ,\n cxcepnon rs if the subject-rnatter is propertv locatcd rn tire Philipptnes, in u'hich
case Plrilrpprne

iaul being
rr-r

tb,c /ax .ritu.r. apphes.

Example: .\. an ljnghshman. borrowcd mone\- firrm


another i:ngltshnlan.

B,

onlv as tort. \X'hich charactenzauon should applvi'

Engiancl. evicicnced bv a pr<>n-issotv t-rote. 1,ct

28

CHARACTENIZATION OF CONFLICTS RULES

CONFLICT OF LAWS

CONFLICTOF LAWS

that under l-nglish lar'"', the perrod to sue ()n tire promissorrfour i4) r,ears. In thc Phihpoines. thc period .i prescriptrt)n rs ten nore (1()t vears. If acuon rs idcd rn rhe i)hihpnrnes bo'ond 4l,.or. irom rhc issuance ol tl-re note but r'"rthrn 1{) vears, sirould rve hoid the action as
Lrs assurne
1-c

prescribed? \'es, because English t() govern their transaction.

iarr,.

was evidentl_r' intended b1, the partres

lil
1.

CHAPTER

PERSONAL LAW THEORIES IN DETERMINING ONE'S PERSONAL LAW


Vhat is a person's personal
law?

hj6 whcreyet

A person's personai larv ntav bc de Frned as tirat whtch attacires to l-rc rnal gol the Ia1't[at gcneralll sovcrns his status. clp^cln, conditron, fhmih'rclations, and thc c()nsc(lucnccs ol- his actuatt<;ns.

It

mar, be his national lav'. tirc iarv

of

hrs domrcile, or ti.re iarv

of

the situs of thc event or cransaction rvhcrcin he was involvcd, dcpendurg on the theorl' applicd aud enforccd 1n thc forum.

2. Distinguish ttstatustt from ttcapacit\''tt.

in society, and consists of permanent, with which more or less personal qualities and reiationships, the state and the commurury are concerned" (?aras, supfa, p. 100). It
"Status" "is the place

of

an indrvidual

includes the civil status of a Person (wh.ether he is single, married, widowed, or dlorced); his patemity and Frliauon (whether he is legtimate or iliegitimate or adopted); whether he is a minor or has reached the age of majonty; whether he has the capacity to enter into vatious transacLions. It also includes his name, sex, and his profession in certain cases (whether he is a lawyer or a doctor, or, a iudge or an appellate iustice, etc')'

. r$'

>..r.lr*Av

30

PERSONAL LA1A

CONFLICT OF LAVVS

CONFLICTOFLAWS

PERSONALIAW 3I

"Capacrn'". on the other hanci. is onlv part of one's status, and mal be delned as tire sum total oiirrs rtsitts and obirgations {Graveson.

The united States, like other common raw countries, follows the

domiciliarv theorv. 6. Is petsonal law the 6ame as national law?

Confuct of i,au's. p.96,.


Under out Ctr,rl Cr,dc. therc .trc n\'()

\:l

h:rnds

of clPacln:
tc)

(a) juridical capacitl


(b) capaciw to act
acrs

qrassivc capacin-) - rviricl.r ls thc litncss

In countries that follow the nationaliry theory like the philippines,


yes. In countries that follow the domiciliary or eclectic or situs theoty, no.

bc tl-rc subject of iegai rclartorts: lnd lactr\-e cxp^crtf, - rvhtcir is thc powcr to do

rvith legal eff-ects.

iArt. 37, Neu' Civil


.l. babl has jr,rndical capaciq', but it

Code)

7. Is national law the same as the law of one's citizenship? In other words , ate a person's nationality and citizenship the same? "Nationality" refers to membership in a political communiq',
one that is personal and more or less permanent, not temporary. A ciuzen,

l-ras

no crlli1c1.\' t('

1lct.

3. What a(e the characteristics of status?

itrs cc>nferred prtncipailv bv tl.rc statc. not bl thc ndrvidual. it rs a ffrattcr of pubhc or sc-,cirl iutercst. (c) Ileurg a concept of sociai ordcr^ rt cann()t casilt bc tcrr-r-ri natcci rt thc nrcre u'il] or .lcstrc oI tl'rc partics couccttrecl.
(a)

(b)

on the other hand, is one who owes allegiance to, and is entitled to the ptotection of, the State. In the held of Confhct of Laws, however, nationality and citizenship are the same; o!, "national" and "citizen" are the same. When our law refers to one's national law, therefore, the law is Philippine law. While the national law

(.j

a umr-crsal character. \\then a bv tl-re inq'oi ()nc c()urrtr\'. tt rs ctcated certain status get"reraih' rccognized iril ovel tlre rvotld.

It

ts

qcnerallv sr,rpposcd t() havc


r.s

of Filiprnos an alien is the lav' of his citizenship (e.g., Art. 16, sec. par., referring to the "national law" of the
means the person's law

of citizenship. Thus,

the national law

of

deceased). Once a Filipino citizen, however, is naturalized in another counrry,

his national law already becomes the law of his new citizenship; the former

Filipino'citizen. once naturalized

an

American, is now an Amedcan citizen,

4. State the different theories on horl' the personal laq' of individual is deternrined.
(a)

an

and his national la'v is now Amedcan lavr

8. What are the reasons why some countries adopt the nationality

The nationalifi'theor\, tlist, c:irllccl tirc pclsotr:rl tltc()r\:) - b\' virtue oi rl.hich the status and cePaciti o[ a persotr ts clctcrntnecl

theory, while others adopt the domiciliary theory? Civil law countries, like the Philippines, follow the nationality
theory. In such countdeq the nationaliry theory has been consideted justified

bl

tl-rc

iau'oi

irts natior-ralttr',.,r hts trattonrl laui


rvl.rrch thc status itnd

(b) The

domiciliarv theon-- bt'r,irtr.rc of

capacin-

a 1:crson ts clctct:rntncd bv the larv (also caliccl ti-re tcrr:ttorial theort).

oi

of

hts dornicile

on practical considetations of convenience and expediency. The people of these countries are considered bound by a spint of national unity, by a coffunon history and mores, so that the identity and legal position of their otizens are guaflnteed by the consistent application of theu national
laws on status and familv relations wherever they may go and even when they migrate to other counfties. Note that manv Filipinos \r'ho have

(ci The situs or eclectic theort' - r','hich vicrvs thc particular


place or sitr-rs oi an e\:ent L)r ua1)s:rctlol) as getrcralh thc corrtrolhng

Iat'.
5. What theorv does the I'}hilippines

become naturalized in other countries still want to come back

to

the

follos'? What about the United

Phihppines and die here because they sull consider themselves as FiJ-ipinos.

States?

\\c ftrlioN

rhc rr:irronaiitr

thr.<,fl.fiftfiUl

tn

!rr

fy

The domrcihary theory, on the other hand, assumes that the attributes which make up one's status and petsonal relations are intimately

r32

CONFLICT OT LAWS

CONFLICTOF LAWS

connected viith the country where they have made their home. It is adopted bv the United States and other cornrnon law countries, whose populations consist of peoples of different nationahucs with vannng tradidons, cuinrre, and ideals, and whose uniw mav be consideted achieved bv adopting the law of their domrole as the law that govems their status and family relations. Countries with mixed populauon brought about by the migation of foreigners to their shores need the dor'niciliary principle to certain fusion of their populatron and to avoid the necessity of ^ttdn ^ appli4ng a different law to ptactically every case.

THE NATIONAIITY THEORY


1.

What are the weaknesses of the nationalitl theory?


(")

It offers no solution to

the problem

ofa

stateless person or

one rvitl.r dual or rnr-rltrple citizenshrp. (b) It is unfair to consider a person still bound bv his national lar.r' i[ he has ]ived in another countrv Fot most of his hfe and ptacticallv all his t-1es ate with that c()untry. G) It rs sometimes difficult fcrr persons who rvant to change

(d)

fugees from Cornmunist countrtes) to be natr.rralized in other countrics. It is also somettmes difficult to solve problems reiating to individuals in countries rvhe;:e most of the peopie, having
re

their national larvs (lihc

come from other countries. have different nattonal laws or


legal svstems.

2. Since citizens and nationals are the same in Conflict of Laws, we should knowwho ate Filipino citizens considering that Philippine

law follows them wherever they go in matters of status, legal capaciry and family reiations. [t is, therefore, important for us to teview Philippine law on citizenship.
First of all, what are the different kinds of citizens in the
Philippines?

NATIONALITY THEORY

CONFLICT OF LAWS

CONFLICT OF LAWS

NATIONALITY THEORY

Filiprno citizens are either natural-born citizens. or naturalized citizens


(a) Natural-born cidzens are tilose u'i-io are ciuzens tiom btth \,.rthout iravrng ro perfonn anY act to acquire oi: perttct therr PhiJrpprne cruzensl-rtp (Art. I\i sec 2' 1987 Constirution)

who determines whether a person is a citizen of a certain state or countrv? For example, who detetmines whether a person is a Filipino citizen or not?
4.
Each countr'or state has the sole porver and authonh ro determrne under its internal or rnunrcipal ]av' ud-ro are its citrzens or nauonals. r\s provided in Art. 2 of tire Haguc Conven[on on conflict of Nationa[n. Laws (April 12,19301:

Ongrnallv classificd as citizens by election verc tllose born before rbe 1973 Constrtuuon of Fihptno motl-Iefs blrt of ahen fathers wlro, upon reaching the age of 27 ot wrthin a reasonable drne thereafter,
electetJ Pl-iihppine citizenship. But rvith the provision

',{nv question
the nationai:rv

as to .rvhetirer a

person possesses

of the 1987

of a particular

state should be detenruned tl-:at state.',

Constitutron aiso considering as natural-born citrzens "those born before u'ho elect Phrirpprne citrzenshrp .Januarr' 17, 19i3 o[ Fihprno rnothers. upon reirchrng the agc t.,f niajorifi'". th<;sc cl'.rsstfied beforc as ctrizens b| election are now considered narural-born ciuzens. Note: Nauve-born Fiiipino crozens are drose born in dre Philipprnes. Natr.rral-born citizens mav not be nattve born if they rvere born abroad.

in accordance wrth thc larv of

,\rt. JV .i the i987 C.nsuturo' ,f the pbilippines clctcrmincs who are Fihpino ciuzens. No foreign lari; <_,r.no ];rw oi a torergn countr.\, can determinc who are F-ilipinos. Smilarir,, our constirutron and laws cannot deterrunc rvhc.r are, for cxar-nple, chinese ()r.r\rnerican citizens. onlv the larv of cl,rna, or the larv oi the United States. can determir-re rvho are its citizens.
5. Considering that onlv the Philippines can determine who are Filipino citizens, mav the problem of the dual or multipre citizenship of a Filipino arise in the Philippincs? No, because as alreadl srared, as long as hc is a Filipino citizer.r, our country is nor concerned if ire iras anl, other citrzenshrp. For example. if he was born olti'riiprno parenrs. he rs a natural-b.rn citize' under the rule of .ju.r vn.guini.r. He mav aiso bc a u.S. ciuzen under the prlrcipie of rzr.r .roh ii hc rvas born rn U.S. soil. But from the pc,rnr of ,,,ieu, of our Consritutror-r and lav", he is onlr, a Filipnio ciuzen, penod. 6. What about Sec. 5, Art. IV of the 1987 Constitution providing that "dual allegiance of citizens is inimical to the national interest

(b) Citizens bv naturalization ale those rvho were fbrmerlt


alcns br-rt bv iudicial. lcgislarn'c. or adnrlnrstlatl\'e Process' have become
Irilrprno citrzcns. Foreign women u,iro are tnauied to itiihpino husbands mav also bc consiclered ciuzens b)' naturaiization throush said r-narriage if thel I'ravc no disqualifications ro become Filipino citizens b),natr-rrahzation, and the rvives and minor cirildren
lr

ol those rvl'ro had been naturairzcd as Ftliprno crtlzens arc also considered to be naturalized citizens bl denr''ative
aturlltzatiorr.

3. What do you understand by the principles of ius soli and fus sanguinis in the law on citizenship?
person is a ciuzen of the cout-ltl' $'here he was 'l'hus. the babt'of lirliprno born, or of thc countrt of his birtir. Parents br,rt born rn tire LiS. is not onlv a Filiprno but also an ,\rnerican citizen undcr "thc princrple oi 1tt.r .roii. s'hich thc U.S. follows.
is tire rule that u'e lollow n.r the Pi-rriippines. Jus sanguinr's It is citizenship bv blood: i.c.. those rvirose lathers or lnotltets' or whose botl.r parents atc Fiiipino ciuzens. rs a Fihprno cttizen

tus soli - ,\

and shall be dealt with by law"? Does this provision prohibit Filipinos from having dual citizenship?
cruzenshrp cannot be avorded due to the dr,",erse larvs as to who are their citizens ancl who are not. So, a Filipino mav have dual citizenship. as shown in euesuon 5 hereof. But the concero oi the aforesard provision of the constrrution

No. Dual

of the difierent countries of tire wotid

'l'hrs

rs not wrth dual cirizenshtp per te but u'ith naturalized cruzens

oi

the

36

NATIONALITYTHEORY

CONFLICT OF LAWS

CONFLICT OF LAWS

NATIONALITYTHEORY

37

Philppines u'ho sull rriaintain therr allegrance to the counrries of their


ongrn. Thus. tor candidates for pubhc oihcc rvrtl-r dual citrzensirrp. suffice 1r tirar upon tire irhnp oi tireu-cerdircate of candiciacr. tirer, elect Phiirpprne crtrzensl-rip to terminate their status as pcrsons rvtth ciual crrrzenshrp. considering that tirerr condrnon is thc unavordable consccluence of

(a) In a case where a Frlipino (because his parents are F-ihpin.s) was born in Arnerican soil, he rs a Fihpr'o urder the rule of .jut ,iogoion wlrile lre is an ;\mericao under the ruie oi.iut toli.

conflictrng larvs of different


1999
t

srares. (Mertutio u. LlanTano.

)07 .taR.1 530

(b) If a Fdrpino \r/oman marries a foreigner wirose natronai iau, aliows her to becorne a citjzen of her husband's country like China br,
such marriage. she still retains her Phrltpprne citizenship under Art IV ,.i. 4 of the 1987 Consutution, unless bv l-rer act or omission, she is deemed to have renounced her PhiJrppine ciuzenship. Therefore, she would be
a FiLpino and a Cirrnese citizen, if she does nothing to renounce her Philippine citizenship.

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 questron would arise onlv from the point of view of a a gtl rvirose parents ltre Fihprnos but who rvls bo.rn and has lived all her life in Cahfornia. U.S.,\.. is appiyrng for scholarship in a French universiq', the French authoriues will regard her not as a Fihpino but as an American. as hcr (lalift>rnia citizensirip rs the

both

9. Give an example of a problem involving an alien who, ftom the point of view of the Philippines, has dual citizenship.

third state. For example, if

Example: A woman who is a Japanese citizen bv blood but

n:x>re effective

connecting factor in determurtng what is her citizenship, Filiprno or Californian. Tlls is appllnng the theorv of effective nationality embodied in Art. 5 of tire Hague Convcnuon on Confhct of Natronahq' Larvs rvirici-r ptx.icles
:

Chinese citizen by marriage, dies, leaving some properties in our count]vzhere she did some business before her death. Since Art. 16, pat. 2, of the Nerv Crvil Code, requires us to appiy her national law in determining who are her hehs and how much is the share of each, we should know which iaw a Philipprne court should applv to her succession; whether Japanese law or Chinese law.
10.

"Witirin a third statc,


nadonaliw shall be treated

How should the foregoing problem

a, person having rn()re thalr one

of dual citizenship be resolved?

as i[ ire had onlv one. \\ithout preludtce of its iaw tn personal matters and of anv conventions in force, a third state shail appir, the nationalities which anr, such person possesses, recognize exclusivelv in rts territorv either ti.re natiooality of the countrv m rvhich he is habiruallv and prurcipallv a resident, or the nationahn' of the

to

tl-re application

couritrv wrth whrch in the circumstances he appears to be in fact

W-'e should applv the "effective nationalirv" theory prevrouslv espiained. lf the deceased woman was a domiciiiary of Japan at tire time of her death, then the Philipprne court should applv Japanese iavl li howevet, she was a domiciliarv 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

mosdy connected." Undoubtedlv', in the above problem, Californra is the more effective connecdng factor in determining whicl-r of tl-re girl's rwo nationalities ot citizenships, is irer personal Ia-*.
8. In what case or cases may a Filipino have dual citizenship from the point of view of a third state?

time of her death is considered more effectively connected to her than het 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 s.ay, rhat
countrv where she and her famtlv had their home was closer to her heart than her other natronai lavz And so, in ali personal and family matters. it is tl-rat law that the court should applli
11. Suppose

in the above problem, the deceased woman was residing

at the time

of her death, not in Japan ot China, but in another or a

II

NATIONALITYTHEORY

CONFLICT OF LAWS

coNFLlcroFLAws

NATIoNALITyTHEoRy

3e

lhird countrv, like Singapore? Will the solution to the problem be tltr riame?
The soluuon rvould nout be drfferent because u/e can no ionger

rrv that she was.more closeiv connected to J apan or Chrr-ra, the countries rrl wlrich she was a cirizen at the ume of her deatl-r. In this case. then, the tlomicilian theorl' comes to the rescue and will consider tl-re countr-u- o[ lrcl domicile at tire time o[ her death (Singapore). So, rve sirould Ftrst
applv the nauonaliry theory by taking her rwo natronal laws (]apanese and ()hinese) and applyrng them together insofar as thev are consistent and harmomous with each other. BLrt if thev are inconsistent and in conflict witi-r each otirer. then we should alreadv apply the law of Singapore, which was her domrcile and home at the time of her deadr. 12. Suppose the person whose succession is in question before a Philippine court is stateless. How should the court decide the case?
Srnce the person tn questron is stateless and, therefore, has no national law, we cannot apply the nationalitv theory (Art. 16, sec. par., New Civil Code) to hrm. ln this case, ,rEain the domrcrhaq' theorv comes to the rescue, and the court shall appll' the larv of hts domicile or if he has none, tire law of the country of his temp<,rrar_v domicile.

had been notified and a full biown

all pr";;;;;ffi;;r, 'Ck4 of Rure i 0g are foto*'ed and ali persons with rntercst

Hower-er. tlrs rulrnglras aireadr been supersecieci b'subsecluenr cases (.Toientin, t. Para.,. I I'J CR I 16..Rm. z: Lt,en,..t /.i tJ aR J ;:..R il,.*,,ir,l)rr,','.' , ,O / ii, among odrers)

substantiar errors like citizenship cannot be corrected tirerein.

to the effect tirat rf

ii
ifi
iifl
iitr

t'al

longer summary but adversarial, and substantia, I errors Lke crtizenship can arreadv be corrected under Ruje i0g.
15'

is held. ,h.

p;;.:J;;il,;: --*^rbJ (rL r

rn the wrong entrv

fis
$tr

Hf,f

who are citizens of the philippines under the

19g7

constitution?

the 19g7 constitution enumerares the ciuzens of the Phrlippines as follows: "o rhose wrro a'e ciuze's of rhe phiLppines at the time of tire adopuon of rhis ConsuruLion:
(2) Those rvhose fathers ormodrers are ciuzens of trre prrihpprnes; (3) Those born beforeJanuarv Ii,1g73, olFilipino nr;;;;r. who elect phrhppine crdzenshrp upon reachrng rt," ng. .f ;;;;;,y,

Art I\" Sec. 1 of

{s
,Jtr

$#
:3t

iff

and

(4) Those who are naruralized in accordance with law.,,

13. May a declaration of Philippine citizenship be made

in

Yn. uoni
19'

were citizens of the philippines under the 1923 Consdtu_

petition for naturalization? In Comn. o/' lmmtgralion u. Carctu, L-28082..|une 28. 1974, the Supreme Court held that the court. in a petiuon for narureirzation, cannot make a deciaration that the apphcant is alreadv a Fitliprno ctttzen for the reason that rn this jurisdiction, there can be do independent actron for the judrcial declaration of onet ciuzensirip. Courts of jusuce exist onlv for the settlement of jusuciabie controversres, which rmpi,v a given nght, legally demandable and enforceabie, an act or omrssion violative of said nght, and a legal remed)' for the breach of sard right.
Philippine citizenship be made in a special proceeding for correction of entrv under Rule 108 of the Rules of
14. May a declaration of

Art. IIL Sectron I (l) "f the 1973 Constrtuuon provides that the follow:ng are cirizens of the philippines: "0) Those who ate ciuzens of the philippines ar the ume of the adoption of this Constitution;
(2)

T'ose w'ose fathers or motrrcrs

(3) Those who

,.:,.It{OO-e

are ciuzens

of the Constirution of 1935; and (4) Those who are naturalized in accordance wrth law.,,

cruzenshrp pursuant to the

of thc pl'lippines: prousions

r:li:

i!:
,;Lr

rili

i;: iri
ii4

Itl,

Court?

17' Since the 1973 constitution considers as F'ipino citizens those who were such at the time of the adoption of said constitution on Januarv 1711973, who are those refetred to in said provision?

In a long line of

cases, the Supreme Court fotmerlv heid that

since a petiuon under Ruie 108 contemplates a summa4 ptoceedrng.

They are those enumerated in Art. I! 1935 Consutu tron, t0 at: "(1) Those who are citizens of tire philippines ar the ume of the adopuon of the Consnrutron of rhe phihpprn.s;

IO

NATTONALITYTHEOR}

CONTLICT OT LAWS

CONFLICT OF LAWS

NATIONALITYTHEORY 4I

Those born in the Phihpprne Isiar.rds of ioreign parents who. befcire ti-rc adootron ol tiris Constitutt<-,n. ir:rd been elected to pubirc office in the Piri)rpprnc Isiands: (3J Tirosc u'hosc iatl.rers arc cltrzcns of rhe Phrhpptne"^: (.t) Those v,'hose mothers are citizens oi the i)hthppurcs and. upon reaching the age of majortq', clect Phiirppine cicizenship; (5) Those who are naturaLzed rn accordance rvtth lav":"
12)

20. where do vou find the lau'providing for election of philippine citizenship under the 1.935 Constitution?

'fhe lau'is Commonwealth ,\ct No.

625.

2l"v/ho were Filipino citizens at the time of the adoption of the


L935 Constitution on May 14, 1935? (1) Those born in the phil_ippines wjro resrded therein on April 1899 (the date of the ratification of the Treaw of paris b.r-".n

of children born of Filipino mothers under the 1.935 Constitution, from those born of and alien fathers Filipino mothers and alien fathers under the 19'73 and 1987 Constitutions.
18. Differentiate the citizenship

i1,

the U.S. and Sparn) and were Spanish subjects on rhar date, unless thev l.rad lost therr Phihppinc citizcnshrp on Nfar. 14,1935; of the Spanish i)eninsula u4ro resrded ln the Philippines declare tirerr intentron of preserving their Spanisl-r nauonalN between tl-rat date and Octobcr 11, 1900 (tl're tirnc provided for doing so), unless ther.had losr rherr
(2) Nauvcs

V4rile the 1935 C<-,nstitutron consrders as irihprno ciuzcns at brrth

or as natural-born citizer.rs only those whose fathers were Filipinos at the time of therr brrth. rvhle those born of Filipino mothers and ahen fathers still had to elect Philippine citizenship upon reaching maloriq' before they could be Fihpino citrzens, tiris injusuce tc-, children of Filiprno mothers (wiro are really Fihprnos because Frliprno blood flows through their veins) was iater corrected b,v the 1973 and 1987 Constitutions, rvl-ricl.r alreadl' consider as natural-tlorn citizens those born of Fiirpino mothers, even if the fathers were ahens. ln other words, those born after tire effectivtq' of the 1973 Constitution on Januan 17,1913 of Fdrpino mothers but of
ahens fathers are alread-r' IrrJrpuros at blrth rvidrout need of elecung Phdtpprne citizenslup.

on,'\prrl 11, i899. and rvho did not


citizcnshrp by lltai' 14, 1935;

(3) Narurahzed citizens of Spain who resided in the phrhppines

on April 11 ,1899 and who did rrot declare thcir intentron of preser'ing their Spanish nationahn'between that date and ()ctober
11, 1900, unless they had lost therr cirizenship

bl

Mar, 14. 1935;


11,

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 childts birth, or at the time of the child's election upon reaching the age of rnaiority?
19.

(4) Chiidren born o[ 0). (2).and (3) subse<;uent to April

1899, unless tl'rer,had lost their i)hrhppine ciuzenship bv N,Iav I1.1935; (5) Persons rvho becamc narurahzed citizens of the phrhpprnes in accordance rvrtir the procedurc sef forrh in the Naruralization Law since rts enactment on March 22, '1920. unless tlrey had lost therr Philippine ciuzenship on or before May 14. 1935;

At tl're tirne of the mother's marnage to an aiien. F-or if we require the mother to be a Filiprno at the time of the childt birth, verv few childlen wtll be benetrted by ths provision because the mother would have alreadi' become an alien at the time of her marriage (followrng the irusband's alien citizenship) and before the child's brrth. Likewise, if we requite that tire mother should be a Irilipino citrzen at the ume of the child's election, again ven' few children would be able to eiect, because their mothets would have alreadv become a[ens when tirey got married to thet ahen husbands and iong before tire birth of the children.

(6) Childlen of persons embtaccd rn (5), uniess thev had lost theu'Phrhppine citrzenship on or betbre \.{av 14. 1935;
(7) Fihpino women who. after havrng iost Phijrpprne cruzenship

by matriage to forergners, irad subsequenth' become wrdou,s and regained Philrpprne cruzensirrp on or before lvlar'14. 1935

of (7) who were stiil under 2i vears of age ar the ume tlreirmothers regained Phrirppine ciuzcnshtp (Roa t: Collector,2)
(8) Children

CONFLICT OF LAWS

CONFLICT OFLAWS

NATIONALITYTHEORY {3

NATIONALITYTHEORY
25' 195)' L9i GR L'5t97' Sept' Phil. i2l;Talarocl'
I

got marned to who' before Mav 14' 1935' (9) Forergn women *i; *nt themseives be lawfuiiv naturalzed on citizens of the Phrirpp-t" n^i fott their Philippine citizenship

Filiprnas 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 Chrnese husbands legally, so that

they would remain Filipinos and theit children, being


illegitimate, are also Filipinos.
(2)

n the Phiiippi"tt, "t'r"l' 'nty 1935;


or before MaY 14'
(10)

Philippures who' on All other persons born in the the Roa case' n of thejut nli docmne in of the erroneou' "ppht"oo unless they cidzens' tt"tts.";ltrtgino were mistakenly dtd;;;'tr" by tvr citizens 1'g3' These are

the strength

had lost

iadicata. (See Tan Ch;;;"1'i' 'J' Talaroc u. L5l, suPra)

thti' titizt"li*it *t

14'

tuit''

GR L47616' Sept' 16' 1947:


(3)

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 tenounced her Philippine citizenship (Art. Ill, Sec.,2, 1973 Constiuion)
Under the 1987 Constitution: Citizens of the Philippines who marry aliens shall tetain theu citizenship, unless by their act or omission, they are deemed, under the laq to have renounced their Philippine citizenship (Att. ry Sec. 4, 1987 Constitution).

122-na) Paras' suPra' PP'

22.

law? Constitution a transitorY


Because

citizenship under the \(hy is the law on election of


it was effective only
as

1935

FrLpino mothers ""d.'il;;;*'*i'o from 2l years'.H:*:u"t after 1994 (21 years otizenshrp ,rpot' "^tn-g who those longer no there vrere the effectivity of th" tS;iot'sutt'tion)' already have itt^ttt ^[ of them would could elect Philipo-t ';;;;;' or did not elect at all' in

of long as there were children wetJdlo*ed to elect Phihppine

Note: Unlike the similar ptovision in the 1973 Constitution, the above provision of the 1987 Constinrtion now applies to both males and females who marry aliens.

elected of teached 2l andtl"y ti;;;;iaheady followrng the citizenship aliens be which latter case they t;;il; their fathers'

25. What is the citizenship of an alien woman who marties a Filipino husband?
(1) In the case of Zita Ngo Burca u. Repablir, Jan.20, 1967, ir was held that the ptopet proceeding vuherein an alien'woman married to a Filipino can herself be declared a Filipino citizen is a naturalization ptoceeding in a court of justice, and that any such declaration by any other office or agency is null and void.

mother 23. Suppose the Filipino

of a child born under the

1935

Constitution-"" "J;;^ti;"'ata the citizenshiP of the child?

is to her alien husband' what

the rnother followed the ciuzenship of The child, berng ille gttrmate' from birth' the chrld is a Filipino without need of tttJ;""' fit"te'

marries of a Filipino woman who 24. Vhat is the citizenship


foreigner?

Many Filipinos criticized said ruling because it imposed more stringent requirements on an aLien wife of a Fiiipino husband vrho ordinadly follows the citzenship of the latte4 than an applicant for naturalization. Fortunately, this ruling was later abandoned. of Innigration,4l SCk4 292 (1971), the Supreme Court reversed the Burca ruling and held that "under

If (1) Prior to the 19?3 Constitution: her Philippine citizenship' lost of her aiien husband' she the many

she acquired the nauonality

Q)

MEa

Ya

Lin

Yao a. Comm.

O'htt;;' tttt tt*"-ta

Filipino' Examples are

Sec. 15

of Commonwedth Act No. 475 [the Revised Naruralization Law]*

44

NATIONALITYTHEOR\

CONFLICT OF LAWS

CONFLICT OF LAWS

NATIONALITYTHEORY

45

an aiion wolrran rrnlr\,l11e a I;ihtrino. uailr'c-born oi naturirlized. bccon-tcs tp.tl.iltiio a irilipino pu'idccl sl-rc is ur-rt ciiscluahired to be a cruzcn oi tirr 'l'his cleciston PhrJrppu"res undcr Scc..l r;f'thc sarnc iat:" rn cifecr ruic.i that rt is not neccssarl ror tirc ai-rclr rvilte oi a .l-ihpr1cl hssband 16 p16;1rg 1n a courr plocecding that sirc possesses ail thc guahficadons ser tortir rn Scc.

The modes of acq''rngPhilippine citizenship bv naturarizadon are:

(1) By iudicial process in accordance with Commonweaith Act No. 475, as amended bv Repubiic Act No. 530; (2) By legislative process; i.e., when Philippine citi.zenship is

2 and nonc of thc discluaiihcauons unclcl Scc. -1. both of thc Rcvrsccl \vatulahzation l,at; ]t rs cnougir ther sl'rc 1-rlolcs rhat sl'rc is nor drscluahiiecl to l:c a Filipin o crilzen not necessarih- in court but even bcf<_,rc an agencr Llic rlrr' Lnrnirlratron (.orlnrissiorr.

confeted by a special act of Congress on deserving aliensi


(3) By

'l'lirs is a casc of derivative naturalization (slr-rilar ro rhc ninor clrildren

Note also lhat an ahcn woman rnarrrcr-l t() ;tn aiien liusband rviro (tl-re husbancl) is subsccprentlr.naturalizcd als<.r follt.,l,s the l)hrJ_rppinc citrzenship c;f her husband, pro'idecl shc d.cs 'ot suiicr f'.m a'r .f rltt tlrstltrahficluutts tlrtd('r )cc. -l , tlrc s;rrrrt l(t.r rscd \rrLrrairznti.,l l-,ru,

administrative process, under Rep. Act No. 9139, otherwise known as "The Adminis&ative Naturalization Law of 2000", approved in 2001. Under this laq a Special Committee on Naturaiization is created, with the power to approve, deny or
reject applications for naturalization irled with said Committee.

'f

ol

:r uarurali;zcd

ljilipint

citizcn;.

Members of the Committee are the Solicitor Geneml as chairman, and the Secretary of Forergn Affairs or his representative and the National Securiw Adviser as members.

(3) i.{orvevcr:, rn the rccent case ot: l.)lumanton u. I)omtn.qa. 24(t

is no lau,g,r^rinn,i,lg alicns n-rarr:icd t. Fil4rrnrs thc riEht t. bc acimrttccl lnr.. nruch lcss givcn l)crlnallcllt rcsiclcrlcc irl. thc l)hLiipltitrcs. l'ltlr oi aircns rtt() rl-lc l)l-rilpprlcs rflti t]rctr ldrrrtssr,,t) 1ls lltlnllgr;lltts ts j)(,1 :l llt;tttct.,rl r.rqlit. cr.en il tht,r
tircr-e arc icgallr,marrieci tc, .Fihprnos. i\iarrrrrgc
d<.rcs

S(.]t,\ 7+6. ti.rc Sup.rcnrc C,rurt hcicl thar

Derivative rr"*r.ti""tion is Philippine ciuzenship conferred on: (l) the rvife of ftar'xaLzed husband; (2) the mrnor children of a
naturalized father; and (3) the a[en wife of a narural-born or nafuralzed citizen, in the latter case, the mariage having taken place after the husband's
naturalization.

oi

an alcn w()n-]an to a i-rusbancl

r-rrr tp.ro .fat/a *rakc her a fiiliprn' citrzcn l'd docs crcuse he:: '.t fror.n her failure to dcpart lrorn thc PhrLppure Lrpon rhe expiration .f her cxteuded sta\- hcrc as an ahcn.

Note: Unliiic t|'t': i\10):tt Drt rt.;t rvhelc the aLcn lrornan marliccl to a liiliplro hr.rsba'd drd not appear r. ha'c anl drscluaLtrcation for traturalization, the ahcn \\'onlan in thc abo'c Df umanton case re fused tc.r It'ar c tlris coulltf\ r'r't'n aflcl tlrc cxl'rrrari,,n ,,t'ir.ir.cxterrr-lt.ri stei. ltere and itsteail g()t ll?rrrlccl to a l''ihpino. apparcnth't, avoid ircr d(,portat1on.
26. What is naturalization, and rvhat are the clifferent modes of

Be it remembered that during the penod of Martral laq 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 natutalization under said LOI to Pres. Marcos, who would issue a decree declanng as naturalized Filipino citizens those included in the list recommended by the Special Committee. Said Committee is similar to the Committee on Naturafization created by the recently approved Rep. Act No. 9139.

27. What are the qualifications fot iudicial naturalization under Sec 2, C.A. No. 475, as amended?
(1) The petitioner must not be less than 21 yeats date of the hearing of the petition;

naturalization?

of

age on the

Naturalization is tl-rc pr()ccss of conienrng on :rn airen the citizenship of another coLultr\-, bl anr'of rhc lncans pr-or.idecl bu iar,": It is cousidered not a rlatrcr oi rigirt bur orrc of pnvilcgc arrcl mar bc
cr.rjoved onh' r-rndcr thc precise conditions prcscriirccl br. l;ru:

(2) He must have, as a rule, resided in the Phiiippines for continuous period of not less than ten years;

16

NATIONALITYTHEORY

CONFLICT OF LAWS

CONFLICT OF LATVS

NATIONALITY THEOR\

(3) He must be of good moral charactet, and believes in the


principies undetlving the Philippine Consdrution' and must have conducted himself in a proper and irteproachable manner during the entrre perlod of his residence in the Philippines in his relarion rlrth the constituted government as well as with the cornmuniry in which he is living;
(4) He must orvn real estate in the Pliihppines worth not less than P5,000, Plllippine currenc\'! or tnust ltave some iucrauve trade, prr-,fession. or occupauorl:

rvho )rave not cvtnced a snccre destrc t<., learn aud etlbract. the custorrrs, tradrtrons. and ideals of the liilipinos:l 17) Crtrzens or sub jects of naurns rvith rviro' tl-re Phiirppir-rcs rs at war: and (8) Ciuzcns or subjecrs of a iorergrr countn,k;ther than the United

States) wlrose lat,s do not grant Frlprnos the nght bccomc naruralizcd crtizcns or subjccts thercof.

tr.r

29. What are the qualifications for administrative naturalization under Sec. 3 of Rep. Act 9139?
(1) The applicant must bc boln in the Phdrppines and resrding therein srnce birth;

(5) Fle rnr-rst be able to speali itnd u'r'irc l:nglish or Sparrish and anv one of the pnncipal Philipprne languages; and

(6) He must have enrolled ]ris minor children of school age in

ant'ol the pubhc or pnvate schools recognizcd bv the Buteau of Prtvatc Schools where Phllippine historr'. government, and civics are taugirt or plescnbcd as part of the school cutrtculutn ciuriug the elltire pcliod of tire testdence lequu'ed of hrm. prior to the hearing of his petiuon ti;r naturalization
as

(2)'fhe appltcant must not bc lcss than eigl.rtecn (1ii) vear. of .gc at the ume of the Frhng of hrs/hcr petluon;
(3) The applicant must be o[good moral character and beiievcs in the underl,ving principles of thc Constitution, ancl must har,c conducted ilmself/hcrseliin a proper ancl u'rcproachablc rnanner

cigzcn.

during his/hcr enrire pcriod

28. What are the disqualifications for natutalization under C'A'

r>i residence in the Phihppines in his relatron with the duiv constitutecl government as rvell as rvith the communirv in u'hrch hc/sirc rs hvrng;

No. 473, as amended?


r\ccording t() Sec. 'l of said Act, tl.re foliowrng callnot
na

be

turalizcd

as

Plrilipprne ciuzens:

(a) fhe applicant lnust have recetved hislher pnrnarv ancl secondari' educatron in anv pubirc school or private educational insurutior.r dulv recognized bl thc Department of F.ducation. Culture and Sports. where Phihppine irist<-rr1'. governmt:nt anri
civics are taught and prescribed as part of tl'rc school curnculun-r and where enrollment is not limited to anv race or nationaLn; Pmuid.ed, that sirould he,/she havc rninor children oi school agc. he/she must have enrolled tirem in simiiar schooisl
(5) The applicant must have a known trade. business, profession or larvful occupation, from which hc/she denves incornc sufficier.rt for ins/her suppon and if helshe ts rnamed zndf or has dependents. also drat of his/her familr': Prouiticd. howeuer. Tirat thrs shall not applv to app[cants whc.r are coliege degree hoiders but are unable to pracltce their profession becausc the'r'are drsqualitlcd to do s,:, bv reason of their ciuzensirrp;

(1)

Persons opposed to organized goverflment or afFrliated wrth, any association or grouP o[ persons rvho uphold and teach

doctrines opposine all organizcd governments; (2) Petsons defending or tcaching the proprietl of vtoleuce, personnl assauit or assassination for the success and pre-

(3) (4) (5) Persons suffering frou mental alienation or incurable


contagrous disease:

rdeas; Pol,vgamists or believcrs in tire practicc of pol,vgam,v; Persons ccrnvicted of a crirne involving m<-rral turpirude;

dotntnance

of their

(6) Persons

of therr residence in the wrth the Filiprnos' ot sociall,v not rnrngled Phihppines, have
.r'l.ro, during the period

4H

NATIONALITYTHEOR\

CONFI,ICT OF LAWS

CONFLICT OF LAWS

NATIONALITYTHEORY

49

(6r 'i-irc irpplrcent mLlst i)c:ible r<, rcrcl.

t'rrtc and spcak Friinin<,


enc]

or anr of tirc tiiaiects ol- ti-rtr l)htiipt-rtncs:

(3) B.v subscribing to an oath of aliegiance ro supporr rhe constitution or laws of a foreign countrv upon attainrng
fwentv-one vears

oi

age and more

'I'irc applicant must hn\-e nrnqlr.i u'ltir ti)c f"ti-tllnos and eviuced a sinccre desrle to learn anci clnbrxcc thc customs, traditrons and rdeals oi thc Fihpirro people.

irl

(4) Bv rendering service tq or accepdng commission in, the armeci

30. What are the disqualifications for naturalization under Rep.

Act.

9139?

Sec. -{

of said .\ct provrdes


same
:

tl-rat tirc iollorving arc

not clualified

to bc traturaiized undcr tire

forces of a foreign country; (5) By cancellation of the certificate of naturaiization; (6) By having been declated by competent authoriry a deserrer of the Philippine armed forces in time of wat, unless subsequentlri 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 countrl', she acquires his national-ity.

.rl!

f{

,cq

ifl
:1',ri

nt

iIi
;t

.,d

,ii

l$

'ti :ll

i1) 'I'hose opDosed to orsanlzt:d government or aiftirated rvrth anl associatron or grollp of pcrsons u'lro uphoid and tcach
cloctrines opposmg all organtzeci govemlnen ts ; (2) 'i hosc cleiendrng or teaching thc ncccssitr of or propricn' of ltoience. personal assault ol rss;rssinrtlon for the success or

,,.t

Note, however, that under the 7973 and 1987 Consututions, the
woman in No. (7) above retains her Philippine citizenship unless bv her act or omission, she is deemed under the law to have renounced her
Philippine citizenship.

plcdormnance oi their ideas; (3) Polvgamrsts <x beher.ers ln the practlcc i-l)

32. How may Philippine citizenship be reacquired?

'fhose c()nvlctecl oi crimcs rrrr-r,lr-ing,


irron-r
r-ne

of

pr.,lvgarny;

r-r'rolal

turpitudcl

Under Sec 2

of

Commonwealth Act No, 63, as amended bv

(5) I hose strffcring


(6)
'I'hc.,sc

rrtl1 lh.'rration or incura[rle

Rep. Act No. 106, Philippine citizenship may be reacquired as follo'*'s:

con tagl(r Lls tltseas cs ;


u,irrr. dLrmg thc 1-rcnoti

oi thcil rcstdcr:cc jlr thc J)lilrpprlcs.

havc n<,t rmngled socialh'l.".ith i,hprnos- or rvhc.' havc not cr.iucecl ?r slncerc clcsirc to lcar:n ancl ertrbrace tirc custotrts. traditir.,ns ancl iclcals of thc iirhpinos: (7) (-iuzcns or sr.rbjccts l<-,inationslrvith u'horn tire Phrirppines is at t,at' cilrt'nrg thc pcriocl of sLrcir r."'rr: and (.9;Cruzens ol srrblccts ol u forcrgrr countn l.i]ose lzrs.'s clr not grnlrt I;iill)ur()s thc flshr f() l)c nlrtluxi-rzecl ci[zens or sublccts

(1) By naturalization; Pnuided, that the applicant possesses none of the drsquahfications prescribed in Sec. 2 of Act No. 2927:
(2) Bv repatriation

of

deserters

of

the

Armli Nary, or Air Cotps

Proaidcd,That a woman who iost her citizenship bv reasor of her mariage to an alien may be tepatriated in accordancr wrth the provisions of this Act after the termination of th( mafital starus; and (3) By direct act of the Nauonal Assembly (now Congress).

thercoi
31.

Hou'mav Philippine citizenship be lost?


33. What is the procedure incident to reacquisition
L,'r-rdcr

of Philippin,

(lon-rruout'<'altit .\cr.

6i

:r: tlttcndccl

Iti(r.

"

1' Ltn

no crcizcrr rlr,.' iosr.

l-ris ciuzcnsiriP

l;r llcp. ,\cr, \-o. in arl oi the foli<;s'ing

citizenship?
Sec. 4

of the same C.A. No.

63, as amended, provides as followr

Iil naturaiizatron in n tirrcrgn coulrtr\'; I\' cxprcss r('1)LLllciiltri )n oI crttzc nshilr

"The procedure prescribed fot nztvrabzation undet Act292i . a amended, shall apply to the reacquisition of Philippine citizenship b

'O

NATIONALITYTHEORY

CONFLICT OF LAWS

CONFLICT OF LAWS

naruralization provided for in the next preceding secrron; Prouided,That the qualihcations and special qual-ificauons presctibed in Secrions three and four of sard Act shali nor be requred; and pror,-rded ftrrther. (1) That the applicant be at least rwenw-one vears of age and shall have resided in the Philippines at least six monrhs before he appiies for naturalization; (2) That he shall have conducted himself in a proper and i::reproachable manner during the entire period of his residence

in the Phiiippines, in his relations with the consriruted


government
livrng; and
as

well as 'with the community in whrch he

rs

(3) That he subscribes ro an oath declating his intention to renounce absolutely and perperually all faith and alleg'iance to the foreign authorir)', state .or sovereignw of which he was a citizen or subject. 34. How about repatriation? How can it be effected? Rep. Act 8171 on repatiarion of Frhpino women who married alens and natural-born Filiprno who have lost their Philippine ciuzenship, provides:
"Sec. 1. FiJipino women who have lost their Philippine ciuzenship

E
CHAPTER

THE DOMICILIARY THEORY


1.

What is the domiciliarv theory in Conflict of Laws?

It is the theorv wherebl tl-re starus, condition, rights, obligati<;ns, and capactrt' of a pclson are gor.-crncd l>i thc larv <-,f his domicilc or the

by mariage to al-iens and natural-born Fil-ipinos who have lost their Philippine citzenslup, rncluding thet minor children, on account of pohtical or economic necessity, may re-acquire Philippine citizenship through repaftiation in the manner provided in Section 4 of Commonwealth Act No. 63, as amended: Provided, That the applicant is nor a: (1) Person opposed to organized governmenr or affiliated with an association or group of persons who uphold and teach
doctrines opposing organized goverflmenr. (2) Person defending or teaching the necessity or propriery of violence, personal assauit, or association for the predorninance

l*

cloniilii.

2. Define domicile.

It ts thc 1>lace rvherc a pcrsol'l "l-ras l'ris trlrc.

Ftxed. permanent

home and pnncipal cstabhshmer-rr, and to rvhich. whencver he is absent. Iie has the intcntron oF returning" (Storr; (,onflict of l,aws, sec. 41).

It

is

"thc placc rvhere a pcrs()n

has a settled

connection for cerrain

of their ideas;
(3) Person convi,cted of crimes involving moral turpitude; or (4) Penon suffering from mentai alienation or incurable contagious
diseases.

legal purposes, either because hts hon-rc is tl.rere or bccause that is the placer assigned to hirn bJ-lotu"' (lrrrst llcstatelnent, scc. 9).

"For ti-re exercise of crvtl rights and fulfrllmcnt o[ crvil obligatrons, thc domicile oi natr.rral persons is the place of their habttual residence."

2. Repauiation shall be effected by taking the necessary oath of allegiance to the Republic of the Ph-rhppines and regrstarion in the propff civil registry and in the Bureau of lmmigration. The Bureau of Immigration shall thereupon cancel the pertinent alien certifrcate of reg'istration and issue the certificate of identification as Fil_ipino citizen to the repatriated citizen."
Sec.

[\rt.

50, Nes' Civil (]ode).

3. Are ttdomicile" and ttresidence" the same?

" s r x rt is an established principle in Confuct of Laws that 'dornicile' refels to thc reiattvelr' rrlorc perrnanent abode of a person

.1

THEDOMICILIARYTHEOIIY

CONFLICT OF LAWS

CONFLICT OF LAWS

THE DOMICILIAITY THEORY

glr-ctl Diacc" rvltrlc.'resider-rcc'apphcs t() a tctr)P()fx1-\rstlt\'()i1Persoll tu a ll',rtl, t'. C.. 1.. =0 .\CR. 1 :t8,

tire place in *'irich rre resicie-.. or according to thc 'f formairtres obsen'ed rn his counrrt'. or rn conformin, wrth tirose u4.uch ti-ris Codc prescrtbes," (-\rr. 81(r. znl

bv tlrc lau'

"Rcsidence' is used to tncLcate a pl^cc

of abode'

w'hethcr

pcrmanent or temPorar\'; 'domicile' denotes a fixcd' Petmanent residence tnal' t,,.rrl-uch..r,,hen absetlt. one has thc intention of rettlrning. A man is not i{esidence another. in dornicilc a lrave a residence in one place and tol fel1]aln tr) lntentrou rvitlr rlorntcile. but domicilc is residence coupled same the and onct for nrr unl-ilruted trme. ,\ lll^n can have one dornrcilc
l-Ia\re nufiler()us places of residence"' l)rlrpose at an\' tlme, but he mav (litt/enq.rtr t'. Rcp.,95 Plttl. 890)

(3) In the case i,i srarelcss indn-rdu.,rls. or those r.vith dual or multiple nationa[ties. the domtcihan' tlteor-r, runs ro tl-re rescue of the
nationaliw theorr'.

(4) Dunng tl-ie earlv vears of American colonization of thc Philippines, our Supreme Court ur solrrc cases apphed the domrciliantl-reor1'.

like the case

of

the vahdiri'

of

a drvorce decree

obtained abroad.

4. Distinguish "domicile" from "citizenship"' Dorniciie in gencral speaks of one's perrnanent Place of abode' lovalti A rvhile citizer-rship or nauonality indicates ties of allegiance and of domiciharl' and n pcrson ma\. be a crtrzen or national of one state of grcc[ .;rll()rhcf. irilrpiflos rvhcr are imrnigrants abroad' hkc thc holders stjll Frhpino citizens. but therr dcxnicile 1s thc. coutltfv cards in the Lj.S.. ^rc to rvhere thev havc per-rnanentll migratcd'

15) Crtrzens of countries [ke the U.S. or Great Britain, wl.ricl.r follorv the dornicihaly dreor1,, rnav bccome rnvolved in iiiigatron in our'

countr)., rvhich follorvs the nationahfi- theor\'. (6) ,\garn, srxne great ccruntrics hkc the Ll.S. ancl Grcat Britarn follow the domiciiiari- theor)', so that it rvould do rvell For us tr-r rnake a comparatle studv oi thc nationalitv and dorniciharr tirconcs.
6.

What law determines one's domicile, his national lau'or the lex

fori

theorl', whv 5. considering that our countrv follows the nationality theorv? is it still important for us to know and studv the domiciliarv

The prcvarirng rule is that thc iorurn applics its orvn concept ()i domicile in deterrruning the dornicrle of a htrsant bctbrc its courts. 7.

For several reasons! tratr-relt:


some cases' our own larv nakes the hrv of the domrcile ()i c()nfllcts cases' a persor-r the controllir-rq tactor in thc soluttt,lr

Wrat are the different kinds of domicile?


(a)

(1)

ln

Domicile of origin: "I'hc domtcile

assisnccl

b)'in*'t,,

a pcrs()1r

. oi

at the rnoment oi his bu-th.

Example: "'l-i'rc rev'lc'ltl()rl of a r'vill clouc bt' a Persoll


clutstcicthcl)hilrppincsbr.aPels()llrr,lrrldoest.t(}tllavelrisdo' tire /rr micile in the Phiiippines is vahcl rvhcu donc according to testatelr,.s t;f tlre tl-re piacc oi ialv thc to /ocz celebralionil. o1. n...,.d'.'g domicile at the time " (Art 829. Neu' Civil Codc)

(b) Constructive domicile ot domicile by operation of la\\': assigncd bv lau' to a person after birth on account ()f r] legal drsabihn'. lilie nrinorth'. insanin. inrprrsonmeut. ctc-

firc domicile

(c) Domicile of choice: fhe dc-,nrrcrle of a person tui.luri.r bccause he has his l-rorne tl-rerc and to u'htch. lvltelter.er abscnt. l-re intcnds to retLll1t.

(]) Sornetimes. our

larv makes either the larv

of

one's natlonalitv

or that of hrs domicile rs the contrt.rlhrlg thctor'

Note: I)onricile oi ongur


cirangcs.

is acquired at birtl.r: tireleforc. it ncver

Example: " flre will of


effect in the Philtppures

ln

if

macle s'iti.r

alien wlro is abroad produces tirc fornralltles prcscribcd

\\'lrilc consrructtrrc domiciic ts gl'cn aftcl btrtir tci those u'ltt, 1:r,-ir. clplcrtt to chr.rosc thelr c-ru,n clou"rtctlc. Iikt'tttttr,'rs. ittsattcs, etc.

rr
54
THEDOMICILIARYTHEORY
CONFLICT OF LAWS

CONFLICT OF LAWS

THEDOMICILIARYTHEORY

55

AIso. domicile of origrn never changes, fot a person ts born onlv once. while constructive domtcile mar change from ttme to nme. like wiren the parents of a minor change dotmcile serreral nrnes. Botb domrcile of origrn and constructive dornicile are, horvever, assrgned by laq while domicile of choice is the result of .tl-re voiuntan' 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! eveq/ natural Person must have a domicile. (2) A person cannot l-rave fwo simultaneous domiciles. (3) A natutal person, lree (not a prisoner) and vi jui.r (one of
age and under no drsabiliw) can change his

$
t[

(3) The domiciie of origin rt was found.


10. Give some rules (1) N,hnors

o[a foundling

{r
1s

rhe countfii where

,
F

in determining one's cons*uctive domicile.

t,i[
.,$

ill
i,ifl

;l*

domicile at pleasure.

'

legrtimate. the domicilc of both pareots. In case of disagreement, rhar of the father, unless there is a judicial.order ro the contra$,. (Art. 21 1, Familv Code). (b) If illegrtimare, the domicile of the mother (Arr. 176, Famrly Code).
(a)

if

l
.r

ili

irlii
,i

'ill

il

1:il

A domicile once acguired, is retarned until a new one is gained. (5) The presumption being in favor of the continuance o[ an exisdng dornrcile, the burden of proof is on the one who alleges that a change oF dornicile has taken place.
(4) (6) 1b acquire a new domicile

of

choice, the follorving must concur':

(c)In case of absence or death of either parent, rhe domiciie of the presenr parenr. Even in case of the remarriage of tire surviung parent. stili hrs/her domrcile determines the construcrive domicile of tl-re minor child. (d) If the cirild is adopted, the domicile of choice of

(a) residence or bodilv presence in the new- localiry;

the adopter is the child\ construcdve dornicile.


(2) Insanes, idiots, imbeciles

(b) an intenuon to remain there(.animu.s manendl; ar.d (c) an rntentron not to return to the former abode (animu.r not reuerl enci)
(Calie,go

t' I ara, 7J Phi/. 45))

9. Give some rules in determining one's domicile


(1)

of origin.

Since insanes and other mentallv rncapacitated persons cannot select their own domicile, the larv assigns their domicrle to them.

if the child is legitimate, irrs domicile of origrn rs that of hrs parents at the tlme of irrs birthl if thc parents are separated, the domicile of tl-re custodial parent.
the child is illegitimate. hrs dor-mcile of origin is that of the mother at the time of his birth.

(a) If fiey arc below the age of majontli rhe rules <;n minors applr, to thern. p) If they are of age and have guardians, thev follou, the dorrucile of ch'ice of their- guardrans. If thev ha'e no guardrans, tireir consrructive do'ucile is their domicile of cr-roice before thev becamc insane.

If

(3) Married women (a)

If the child is legitimated, the dormcile of his fatirer at the time of ils binh controls, since tire eflects of legrtlnauon rctroacts to the time o[ the child's brrth (Art. 1tJ(]. l;amrh'Code).
(2) 1'he domtcilc of c-'ngrn o[ an adopted child is tire domrcile of his real p^rents at tirc tune of his brrth, not the domicilc of the adopters

If fie

marriage is valid; (i) The consrrucrn'e domicile of the wife is tl-re domrcilc of borl.r spouses, ur.rless the larv alk;u,s thc wifc to have a separate domicile, tor valid and compelling reasons (Art. 69, Jiarnilv Code).
(ii)

If

there

rs

legai separauc_,n bcrween the spouses.

56

THE DOMICILIARY THEOR}

CONFLICT Of LAWS

CONFLICT OF LAWS

the wife can have her os'n domrcile of choice. ril) If there ls separaucrn de talo, the wife can aisc, have a separatc domicile (Dc ra I tna r.'. l tliurtu,.
'1:/

Phi;./

i't'

(b) If the martiage r.s voidable: Appll tirc same ruies as when the maffiage is va[d. However, after annulment, the rvife can freely select her own domicile of choice.

(c) If dre marriage is void: Since tirere is realv no marriage in dris case. dre.lrfe can have a domlcile separate iorm the husband.
(4) Other persons(a) Convict or prisoner - He is not free to have a domicile of chotce, so iris dornicile rs the one he had possessed pnor to his incarcerauon.

CHAPTER

THE SITUS OR ECLECTIC THEORY


1.

Vhat is meant bv the situs or eclectic theorv?


Under the sirus or eclectic thcorl', the capaciq; condrtron, sratus.

(b) Soldrcrs - Since thev are compelled to follov"' thc dictates of the rnilitart', their domicile rs theu domicile before
their enlistment.
(c) Pubhc olficials or empiovees abroad hke diplomats, consular ofFrcials, etc. Since their stal' abroad is rn their official and not in their personai capaciry', their domrcile is the one thev had before thev r.vere assigned elseu'here, unlcss they voluntarilv

or capacin of a person is gor.erncd not necessarill bv the lau, of hrs natronalihj or tl're lau' of his domicrlc. b't br- tl.re law of thc place (.rlzr.r) where an llnporranr clement of the probleffl occurs or rs situated.
Ilowever. thrs theo.r drsu'guishes tu'o l'ncls oipartrcrpation the individual concerncd. (a)

of

adopt tireu place

of emplovment

as

their permanent residence.

If

voluntarilt',

tl-re

hrs parricipatlon is actir.c, i.e., rvhcn he does thc acr go'erning law is -the lav' of tl.rc actual situs of thc

ffansactron or e\.ent,

(b) If the partrciparion is passi'e, as wi-re' the effccts of rlre act are set forth or determined by law, the go'e'ring law is the lav- of thc legal situs; i.e., the domicile of the inciividual concernecl.

Example: The marnagc benveen rwo Frhpinos rn Flongkong.


(a) Sincc the acr

of tlrc nrarriage
ulebraliani.r

1s

oi getrurq mirrried rs voiuntan. the vaLdirr. goveutcd l>r rts acrual situs,.or the /e:r. /u,.t

i.\rt. 26. firsr par.. Fan-uir. (-ode)

CONFLICTOF LAWS

rI

THESITUSORECLECTICTHEORY

CONFLICT OF LAWS

\Eth respect to tire rights and obhgauons, and proPern' relauons. oi tire Filipino couple. ltowever' tl,ev are governed br' the nauonal lau' of the spouses. w-hicir regulates or fixes sucl't matters benveen thern; in other words' the iegal situs is the national law of the sPouses. (Art. 8(). Familv Code)
(b)

2.

the act or transaction involves propertyr real or personal, what theory do we apply, the nationality theory, the domiciliary theory,

If

or the situs theory?


16, tlrst par.. of the Nerv Civil Code provldes that "real properw as well as personal ProPert) is subiect to the law of the countrv where it rs siruated". Thus, if tl-re act or uansaction involves properq-'

CHAPTER

Art.

BII
THE PROBLEM OF THE *RENVOI''
1.

whetl-rer real or personal, the law that deterrnincs the validiry

of dle tfansacdon of the /sI

ts thc /ex rttar or /ex rei ilae. Flven the capacifi


ts governed

of tire pardes t() the uansactron

by the /er

titu.t

or

/ex rvi .silu.r, r-rot bv tl-le lex nalionaki

rhnuiti.

What is meant by "renvoi"?


"Renvoi" is
a French

rvord which means "refer back" or "renrm".

ln Anglo-American countries, the tenn used is "rernrssron", which means to refer a matter for consideration or judgment.
2. rWhen does the problem

of "renvoi" arise?

Everv internai or municipal hu'oix. state has two pnrts; (1) its purelv internal or don'reshc iav rvhicl.r appLies to dornestic cases; and (2J Its rules in Conflict of Laws rvirich tt appires to cases wlth some forergr.r
elernent.

Now, the problera

of "renr-oi"

ariscs rvhen there is doubt as

tr-,

r-vhetlrer the reference bv the iex/an (the lau' of the countr-v where the problem arises) to the foreign larv irrvolves (l) a refercnce to the internai larv of tl.re forergn larv or (2) a reference to the entlrer\ <.rf thc foreign iau,'.

inciudrng its confucts rules.

In such casc, if thc hrst statc firllorvs the nationahn, thcorr', and the second statc fbllorvs the domtciiral\' tbcort, tiic problcrn of "rcnvoi"

wiil

rn<-rst

probabli

artsc.

Take the case

of

a (lalifrrrnia cttizen who hacl rcsidecl in

60

THEPROBLEMOTTHE"RENVOI"

CONFLICT OF LAWS

CONFLICT OF LAWS

THEPROBLEMOFTHE-RENVOI"

6-!

counrry for 50 years andwho dies here, leaving a sizable estate. Art. 16, sec. par., of the New Civil Code provides that in testate or intestate succession, we should appi,v the national law of the deceased which. in this case..is Califotnia iavr But Cal-iforniat tnternal lav'has one ruie for its own citizens who reside there, and another rule fot its ciuzens who have their domiciles abroad. In the latter case, California law provides that the Iaw of the domicile of its deceased citizen should apply. Thus, while our Civil Code refers the matter to California law (the national law of the deceased), California lavr refers the matter back to us, telling us to apply the law of the deceased's domicile, which is Philippine lavz Should the Philippine court tasked to setde the estate of the deceased accept the "renvoi" and apply Philippine law, or insist that California intetnal law binding on its own citizens-residents should be applied, the same being the deceased's national law? This is the "tenvoi" problem.

ptobiem back to us, which would result in internauonal football. Hence. we should applv Phiirpprne lau, (the law of tl: d'e c ted bl, th. .or' flrcts rure s o f c arifornia,
them, while Carifornia ia.r'pro'ides no legitrme for such result, Helen. the Fihpino child, rvas gir.en a legrume .
makes acknowledged narurar children forcecr rre*s of ,rr"

*,iffi:tt;rfffi11i:
.hrr;r;;.;.

p*."i. ,J.t"gr*ug
^

instance, if those Frghtrng over the estate of trre deceased wire alr Californra citizens? \ibuld our Supreme coutt have still accepted the .,renvoi,, and applv Phihppine lau'?

Note: The Supleme Cor-rrt,-s ruirng was obviously rntended to favor the Filipino child. \x&at if no Filrpino .iur.n was involved, tike, fo,

3. Discuss why out Supreme Court accepted the ttrenvoitt in the case of The Mattet of the Testate Estate of Edward Christensen, Adotfo Aznat and Lucy Christensen v. Helen Christensen Garcia.
7 SCRA es 0e63).

Therl arc actually four (4) solutions that the court can adopt when_ it is confronted with a "renvoi" probrem like the chistensen case. What are they?
4.

ever

(a) Wb may reiect the .,renvoi".

The case teferred to above is the first case decided by our Supreme Court which raised the "renvoi" problem.

a foreigner but domrciied in our countr.l; we w<;uld simplv


nadonal law, or the internal law

This means that tl-re court d.es not want the probrem r<,, be sent back to us. That is, as in the case of the testate or intesrate succession

<-rf

The facts of the

case are: The deceased Edward Christensen

of

appl1. iris

his countr\,,.

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 vdll, he left almost his entire estate to Lucy, an acknowledged natural child in
Califomra, and ga'l'e a small legacy to Helen, an acknorvledged narutal child in the Phrlippines. Under California internal law, its deceased citizen may dispose of his estate by -ill in any manner he pleases, However, Califotnia law also provides that where its deceased citizen tesides 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 effecg follou'ing California internal law, Helen insisted that Philippine law, the law of the domicile of the deceased. should be applied, under which she is a forced heir and is entided to a legrtime.

(b) W'e may accept thc ..renvoi,,.

par., Neu,. Civil Code). Thrs rs a case

applying tire foreign rnrernal la*i prrirrpprne rarv rvas apphed. berng thc lau'of the deceased'.s domicrle, as direcred bv our .wn law (Art. 16, ,"..

As in the Christensen casc, our Snpreme Court accepted thc. referral or the transrnissio' of the casc back to us. so tirat instead

of

transmission.

of single ..r.,rol or single

(c) We mal follow the theory of desistment, or tire murual_ disclaimer of jurisdiction theory. Here, u'e refrain from applt,rng thc national Larr, of the dcccasecl foretgner, althougl.r our larv telrs us to d. s<>, if said rau, foil<;u,s tr.rc dorrucihan theo.' and drrects that wc appr' tire lau, of thc domicile of the deceased. So, in the end, w.e still anoh, philinnne law:

The ruling: Recognizing that there

\r/ere two sets of ruies under

California internal iaw, one for its citizens who teside there and another for its citizens 'q/ho reside in other jurisdictions, the Supreme Court held that if it should refer the matter to California lau'. said law will toss the

62

THEPROBLEMOFTHE"RENVOI"

CONFLICT OF LAWS

CONILICT OF LAI\|

I'HE PROBLEM OFTHE

"RENVOI"

rl
63

fi

(d) \Ve ma1: applv the foreign court theorv.

Under this tireor\i v'e would simpll do u.hat the tbreien courr rvould do if confronted wrth the same case. So ti.rat ri the Ca[fornia court (as in the Christensen case) would applv Ca[fornra internal larq we would do the same. If, however, said court would applv Phriiporne 1aw, u'e would follou,' suit. The advantage of this theorv is that regardless of forum, the appiicable lav'will be the same. But rt can also result in internauonal
ptngpong if we do what the Califomra court would do, court would do what we do, erc.
5; What is meant by t'double renvoit'?
br.rt

Suprcme (-oult hcld tirat therc \\'as rt() "rcnv6i'' irere bccausc rncl a tlorniciirar.r,.i tl'rc clcccasc,ci .\r-rr's (i. Rcllis r,:rs botir a. citizer 'r.blcm 'tcras. LlS,\.

l:i
I

ilq

iri

lrlv

ri:i

:ii,i

:,i;r:

the California

ciuzcn unci rcsrcicnt r>i'lexas at that trn-rc oi' i-1s clcath. lcit sonrc propertlcs in tirc l)hihpuincs. lJciolc his dcath, irc e\ecutecl rrvr, u'ills. onc iirllorviug'lcxas las'disPosinu oi hrs propcrtres 'l'exas, and anoti1cr. follorving l)hilippinc iaui clisposins of his properties in chilcr,rcu illcgitimatc in Bellis hacl sevcral thc l)hrJ.ippincs l)hihppincs. in thc bgt in l-rrs trvg rvrlls. hc dici nor sivc anvrhins to his iliegitrmare childrep
lJelLs.

Tire facts:

iJ:

--i&

,*r

:6'

'l{

ft
-lt ,il

This occurs when the local court, rn adopung the foreign court theorl', dtscovers tirat the foreign court acceprs the "renvoi." But since the foretgn law remits the case to Philippine law, being the iaw' oi tire deceasedt domicile, thc f<-'reign courr lrral discover thar Philipprne larv does not accept tire remission (as it applies the national larv o[ the deceased), so the foreign court, sitting as a Philipprnc courr, would stdl appl,v rts own rnternal lav": This is then rvirat our court will applr'.

l)unng thc scttlcmcur oliris cstate. lhc ilicgtmrrate chilclrcn t-,pposcci ir<-rtir r.vills bccausc thel had irecn cleprivcd ,.'f therr: lcgrtin-rcs. and rnsisting tirat Phil-rpprnc larv sl-roulcl l:e altplied.'l'hcrc arc uo cc>urpttls<.rn' heirs r-rtrdcr 'I'exas laq'. ancl -I'cxas lar',i iurtltcrrrtorc, docs tt()1 itavc conflicfs rulcs
governing thc strcccssron rtf tts citizcns.

Helcl;'lirc illcgitlr-ratc

cl.rilc'lrcn

bccausc unclcr'fcx',ts lnv'. rvhicl-r is thc ttattot-titl larr' r.,f tl-rc deccascd and t'hrcl-r rvc urust apph'r-rucier,\lt. 16, par. lrvo of thc Civil Coclc. thcrtc arc no compulson- ircirs and no lcgttimcs.

^rc

not cntiitrccl to atl' lcgittmc

6.

Vhat about the theory of "transmission"? Is it the same as ttrenvoitt?

r\s ior thc oppositors'aLgttttrcnts that

sit-rcc

thc deccascd

Thev are not the same becausc u'hile "renvoi" invoh'es two laws, transmrssion actually involves three larvs.

"'lransmission" is the proccss oi applvrng thc larr,' state thru the law of a second foreign state.

of

a forergn

cxecnted tn'o rr'ills. ou.c t() go\-crn his cstate lr tl-rc l)irihppincs and tl-rc ()thcr to g()\'crn his 'l'cxas cstatc. lt tlust havc bccn thc itrtention ol tl-rc deceascd to i1?rvc l)irihpprne 1211' garlct-t1 his propcrtics in the Pl-rilippurcs, thc Suprcrrc (,our:t hcld tirat i'trllorvlrg '\Iitiano r' lJt'ittto. i0 Pltil. 867. tr provision rn a torcrg'ncr'.s u,ill to tl-rc cftcct lhrt lis pr<4rclrrcs ur thc i)hilipplnes
shall be drstnbutecl in lccordancc u'rth l)l-rilqtprnc iat' :tt'tti t'tot tn '.rccordanct' u'rtl-r hrs nlttional larv rs illcgal atrd votd.

Example: A Chinese citizen domiciled in the Philippines, dies in Engiand leaving some properties there. The English court u/ill thus have to setde said estate, and folloudng the domiciliar'' theory, it refers the' matter to the law of the domicile of the deceased, which is Philippine lavz But Philippine law, following the nationaiity theory transmis the mattet to Chinese law, the national law of the deceased. Hence, the English court will ultimately follow Chinese lauz
7. What is the case of Testate Estate of Amos G. Bellis o. Edward A. Bellis,20 SCRA 3r9 (1968)? Did it involve the "renvoi" problem?

All in all, in the absence of definitivc laws on the matter, how should we resolvc the "renvoi" problem in the Plrilippines?
8.

'lb quote thc late.|usttcc Irtlsardo 1,. Parasl " x -s -r it is suggestccl tiraf tl-rc thcon llc aci<>ptcd rvhich' c<,,trsiclcr:l'rg tirc ctrclttnst.lltc(s ('i a gtvcl] sltuztti()n, rvill bcst rcsuit in ihtlncss, ccluitr'. anci lusticc. ir<.lr'instauce. itl thc casc of long tin-re d<-,rnici[alres oi- tire l)irihplttucs. il urat' sccm desil'ab1c to presulne that thcv trttcndcd to dic rvrth l)hilpprne tutcrtral lat' tallng carc of tire distribntiou of their estatc in tlrc Philipprncs;

Although the "renvoi" doctrine was invoked in this case, our

CONFLICT OF LAWS

64

THEPROBLEMOFTHE"RENVOI"

CONFLICT OF LAWS

"renvoi" (sirrgle rcnvoi or hence. it wouid be better to accePt the ..renvoi', to rejcct tire srngie remission). ln ali otl-rer instances. to be ti're tnore iestrabie soluuon (Paras' id'' p'
...,,irld u..rrr
217'i.

"

CHAPTER

CONFLICTS RULES ON
STATUS

AND CAPACITY

1. Considering that one's status starts with the beginning of his personalitl', when does human personalitv begin under our law?

Art.

.10,

Net'Ciril

C-oclc. proricles

"B.i.r'tlr cletemuncs persc,naltttr but the conccivcd

chilcl shall be considcrcd bom lor all purposes that ar(' iavorable to rt, prouf,ed it be bor n later u,rd.r drc cr;ndrnons specified tn ti.re follow'rng arttcle." rvhrlc tire succeeding .\r:t. :t1 provides:
"Fc-rr

cn'il purposes. tire fetus is considered born

i[ it is alive at the tlme rt is completelv delivered from the' rnother's v'otnb. I-los'ever, ii thc Fetus had 'an intra-uterinc lttc of less than scvcn months. it is n<-,t decrncd born i[ it drcs *'ithin nvrinn'-four hr>urs aftcr'
its corrrplete cle[r'crt' frorn thc ntaternal rvomb."

in rrthcr words. personaltnto


tl-re

reallt' begurs at c()nceplion, subject

follorving conditions:

66

ON STATUS AND CAPACIT\ CONTLTCTS RULES

CONFLICl OF LAWS

CONFLICT OF LAWS

CONFLICTS RULES ON STATUS AND

CAPACITY

67

(a)ThcPlrrPoseisfavorabletotilefenrst'Llielirtistrvc:na
an srmpie donauon or is considercd

6) Il '
(-t>dc.

ireu'of the larent): rnci lr ts boru aiive uncict. .\rt' 'll of the Neu Crtrl

the bus company due to an injury to the fetus if a pregnant woman who is a passenger in a bus suffers an abortion as a result of an accident due to the negligence of the bus driver?
For pecunian'damages on account of injurr. to or the deatl.r of the unborn cl-rild, no. bccause the feus did not ver havc civil personalin. and an1' cause of action that accrued to tire unborn chiid was exringuished bv its pre-natal death. But For moral damirges suffered bv tire parents for the illegal arrest of the normal developmcnt of the fetus and on account of the drstress and anguisl.r attendant to its loss and the disappointment of theu parental expectations, ves. (Ceiuit. C.-4., 2 SCk,1

Youth\\'eliate Code) In fact. Art. 5 oi PD 603 (The Child and


provides that ls lrlore precise u'heu it
-

..Tl-rectr.r]personalinoitheclrildslrll]crlmmerrcefrotn

t]rennreofl-risconception,forallpr-rtptlsesfar'orablet<llrim.

subiectt()thefcquirementstlf,\rtrclc.lloftlre(]ivilCode.''
Depenclingontl-reconditionsrlfitsbirtlr.thcrcale.tlrereforc'
rwo ktnds oi children:
(a)

88'te6/)
4. S7hen is civil personality extinguished?
scr

ordinarv- rvithan intra utcrinc l-rtt oI at least 7 monti'rs,


aiteadv u'rtl-r crvil personahn-'

According to Art. 42 of the New Civil Code, "civil personaliqv


ts exti.nguished by death."

drataslongastlrcclrildrsaliveupor-rconrpietcscparattorrfrt;mtlrcmodrer,.s
rvotnb, rt
i.s

(b)Extraordirrary_rr,ltlranintra-ttterinclrfeoflesstiranT f<rr: at least t-l hours aiter completc months, in u'hich case lt must livc j.U.'"r, from ti-tc trother's r'vomb bctore it is consrtlcled born and to
havc acclutrccl civil perst-'nahti''

Death in ti.ris article means "plrvsical death". not civil rnterdicuon which rs sometimes regarded as "crvil death", and rvhich merelv restricts, not extinguishes, capacity to act (Art. 38 Neu'Civil Code). A declaration of death in accordance with one's personal law (whether his national iaw

or the lav' of his domicile) bv a court of compctent ;unsdrction


consrdered valid for all purposes.

rs

fettls nuv be: l)urpeses bcneficial or lavorablc to tl'rc ti()n^Bor1: a stmlrlc be givcn (a) It r-r-ral ahcadrt

5. What is meant bv t'absence", and under what law may one be

p';r,,1ln\'alreadr.beacktrtlrvlcdgedl>r.tlreihtjlcrevenbeft>rc i8 Phtl 866: (Da birtl-r [cru.t t. St'attitr' to bc sr-rPpor:ted c\rcr'l $-htle still rn thc alreadr'r:ntrticd is it (c)

declared as such?
"Absence" is considered a special legal status pertaining in the Philippine iaw to a person rvho has disappeared from his domicile, his whereabouts being unknown, witl.rout leaving an agent to administer his properrv-, or even if he had left an agent, the power conferred b)' tlt" absentee on the agent Lras expired (r\rt. 381, New Civil Code).
One's status of being absent is determined in accordance u'ith his personal larv (u'htch mav be his national iau' or the law of his domrcile), and jurisdiction to declare him as such also belongs to the countr\, of .x'hich he is a national or a dornici[art', as the case tnlrr' be. Hou'evcr, our own courts also har.e iurisdrction to declare an alien domicilian'in the Phdrppines as absent (ike when a Fihpino wife asks a local court to declare her al-ien husband an absentee) under the conditions laid dou,n

u'cxlb of the tnother; (d) lt can alreaclv be an hcrr'

2'InConflictofLa\t,s,whatla.lr'determinesthebeginningof
one's personalilv?
His personal laur if ]re rs a citizcl-r oi a coutrtrt (like thc 1)hil-rppincs) nadonahn t[.,,rt. iris natjonal las'
tl-rat follor"'s tlrc

lf

hc ts a citlzer.r

.,i o .nur]tr.-thlt

Follorvs tl-re

domicihar|

the<-,r\. tl-re

la\l of hrs domicile'

3. Considering that civil personality begins at conception' from may the pare;rc of the unborn child recover damages

.iA

CONFLICTS RULES ON STATUS AND CAPACTT\

CONFLICT OF LAWS

CONFLICTOFLAWS

CONFLICTS RULES ON STATUS AND

CAPACITY

69

lrv otrr Civil Codc (-\rts. 38,t,385. and 386). (See 'laalingu. I'ernandc\. l)lti/. 3 1'1

lf

death under

Art. 391 of the Nev- Civil Code. an


case. a summarv ptoceeding

absence

of rwo

(2)

vears is enough (e/.).

6. [Jnder what conditions mav a person be declared an absentee


under Philippine lawrand what are the legal effects of such declaration?
(a)

In either
Code is necessary.

presumptive death of the absent spouse under

fot the deciaration of the Arl 42 of the Fam_il1

\\'ithrn

rwo (2; veats aftcl a person\ drsappearance without


seven

leaving an agent to administer his propertv, or having left an agent. the power of the latter had expired, any intcrested person. relativc. or lriend may ask tire competent court to appoint a person to represent the absentee in all that mav be necessary'(Art.381, Nerv Civtl Code).'fhe Present spouse is, however, preferred in the apporntment when there is no legal separatron (Art. 383). (b) After the lapse oirwo (2) vears wlthout anl: news about the absentee or since the receipt ol the last nelvs, and frve (5) years if the absentee iras left an administrator of his properry'his absence mav be declared (Art. 38-1, id).

(b) For all other purposes except succession, an absence of fl) 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) vears is required, except if the absentee disappeared after the age of seventy-five P5) yeats, in which case an absence of five (5) years is enough to open his succession (fut. 390).
The procedute 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)?

\Who may ask for the declatation of onets absence?

.\nv of the Follorvns:


(a) The present spolrse;

(b) The heirs insututed in tl.re will of the abscntee. rviro mat
(c) 'fhe intestatc heirs,

present an authentjc copv of said will; if the absentec le ft no rvill; (d) Those w-ho rnay have over the propert-r' of tl.re absentee some right subordinated to the condrtion oFhis death. (Art.
385. rd.)

presumed dead

According to Art. 391, New Civil Code, the following shall be fot all purposes, rrcluding the division of the dstate

among the heirs:


(a) A persoa on board a vessel lost during a sea voyage, or an aeroplane which is rnissing, who had flot been heard of for four (4) years silce the loss of the vessel ot aeroplane; (b) A person in the armed fotces who has taken part in war, and has been missing for four (4) veats;

The procedure for dre declaratron of one's absence is found in tl-re Revised Rules of Court. Horvever, "thc iudrcial declaration of absence shall not take e ffect until 6 n.ronths after the publication in a
Rule 107 of newspaper of general circulation" (ALt. 386. td.).
8.

When may the absentee be presumed dead, and forwhat puqposes? (c)
(a)

person who has been

in danget of death under other


fte, dangerous

For the purpose of remarriage. tire absentee mav 16 presumed dead after four (4) J'ears of absence. the present spouse having a wellfounded belief that the absentee is alreadv dead (Art. {0 Familv Code).

circumstances Qike earthquake, volcanic eruption, landslide,

expediuons, etc.).
Rernernbeq thougta that for the pqpose of rernardage, extaordinary

However, in case of disappearancc whcrc

t[Tere is danger

of

absence

of two (2)

.vears

is enough (Art. 40, Family Code).

N
10.

STATUS AND CAPACITY CONFLICTS RULES ON

CONFLICT OF LAWS

CONFLICT OF LAWS

CONFLICTS RULES ON STATUS AND

CAPACITY 7',

in Conflict of Laws? Vhat determines one's age of maiority it is the personal law status' personal Since age is part of one's

their national law), as well as the extrinsic and intrinsic vaiidiw of the donation. the subject-matter of the donation being located in Fiori<ia. Former Senator Salonga, however, mendons some criticisms leveled by U.S. and former Soviet Union authorities to the use of one,s 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 contacting parties, and would result in erecting a formidable barder to intemational trade and intercourse". For every person "who entets into a transacnon with a foreign nadonal or domrcijiarlwould
then be compelled to gauge the capacity of the lattet by refetdng to the unfamfiar law of some foreign country". (Salonga, Private Internationai Law, 1995 ed., p. 250).
How' indee4 can we subject a foreigner who enters into a business

(whether

tt.

i.,.r-t.,
11.

a person that .r""uo"^t law or the law of the domicile) of not' or of maioritv vrhether he has reached the age

law? What is the age of maiority undet Philippine

13' 1989' amended Republic Act. No' 6809, approved December to 18 years maiority of age the htt.234 of ,n. f"-ity Code by reducing the age But cases' special in law r"* ,ft. excepdons esiablished by existing

under the of contacting marriage without parental consent has'


law, remained at the age

same

of

twenry-one

Note that also under the same Rep' Act No' 6809' thc responsiand guardians' for bility of parents (if the children live in theit company)

tt.

of tort, committed by their chiidren and 'watds below 21 years

age'

hasbeenfetained.TheresultisthatsuchParentsandguardiansarestill (as to patents) and responsible for the damages caused by thel childten even ifthe chdd is above 18 years ofage (the aqe *.rd, 1", to guardians) -but is below 21 yeats of age' The defect of the provision of maiority) the chil&en are respect to guardians of minor chil&en, because if

with

contact with a Ffipino in the Phrlippines but who has no capacity to contract under his personal la$/, to Philippine lavr and hold him liable under the transaction, unless in determining his capacity to contract we apply the lex loci contractt$ which is Philippine lawl Thus, foliowing the practice in American courts, Senator Salonga suggests that Art. 15 of the
Civil Code applyrng the nationality theory be hmited to strictly familv and domestic transactions, wh-ile the law goveming the contract should govem ordinary day-to-day business contracts (id., p. 256). An example is the early decision of the Supreme Coutt in Iuular Coat- a. Frank, I t Phil. 236 (909), where said Court applied Phitippine law, being the law of the place where the contract was to be perforrned, and not the national law of the defend^nt, ai Illinois citizen, in determining his capacity to enter
into
a

are 18, they do not need guardians anymore' unless they already "Uor.. under some other drsabiJrtY'

12. $7hat

is our conflicts rules on capacity to contract?

In counuies that follow the nationality theory like the Plulippines' national law and the capacity to contract of a person is governed by his U'S' and Great like the countries irr follovrs him vrherever he goes, while to conttact ls capacity one's Britain that follow the domrcil-iary theor,v, capacity petson's a governed by the iaw of his domicile' In other words, nationalii lex it is the ."o .o.,o,.. is governed by his petsonal law, whether

contractwith the Philipptre Government to work here as a stenographer.

ti.

What about the use of names and surnames, which is also part of onets status? What is the law on the matter?
Traditionally, a. person's name was not regarded as part of his status because he could change his name at wiil, but our law nov' provides that "no person can change his name ot sumame u,ithout judicial authority" (Art.376, New Civil Code), and the procedute for the change of one's name is Rule 103 of the Revised Rules of Court. As held in REublic u. CA. and lVong, G.R No. 97906, May 21, 1992, "a change of name is a special proceeding to establish the stalus of a person involvrng his relation with others, that is, his legal position in, ot with regard to, the

of

the lex danicitii.

The exception in the Philippines ate contracts involving real sitae applies includrng personal properry;in which cases the lex titu or hx rei Civil Code)' New 15, (Art' ifr. .up".i.y of the contractrrg panles

ot

For example, a Filipino who owns a' piece of property rn Fiorida' in the Phillppines' USA, wants to donate sard property to another Filipino

Forthedonationtob.,r"lid,therespectivecapacitiesofdonorand

law' which is donee shalt be govetned by Florida law (not by PhiJippine

N
rest

CONFLICTS RULES ON STATUS AND CAPACITY

CONFLICT OF LAWS

CONTLICTOF LAWS

CONFLI

TS RULES ON STATUS AND

CAPACITY

79

of

the cornmunih'."

Even ahens can ask for change oi name rn the Phiiipprnes, provided they are domrciled here. In other u'ords, the starus. of an ahen is governed bv the lex rionirillii ot the law of lus domicil e (Ong Haan Tin u. fup., L-20997, Apil 27, 196\. But an alen whose citizenship is either conroverted or doubtfr:i cannot ask for a change of name under Rule
1,03 (Baws u. Rep.,

order of nobility that they possess (Sec. 17, Revised Naturalization Lau) In fact, our Constiturion (the 1935,1973. and i9g7) d;.;;;,;;;;;. of rovalry or nobilin: 15.

status.

Distinguish legislative from iudiciar iurisdiction over one,s

L-23595,

Feb.

20, 196q.

As for Philippine substantive law on tJre use of names and sutnames, Atts. 364 to 375, New Civil Code, iay down the ruies on the use of sutnames by legrtimate, Iegitimated, adopted, and illegitimate
chjldren; married women as well as women whose marriages had been annulled or who are legally sepatated from their husbands; widows; and in case of identity of names and surnames between ascendants and
descendants.

jurisdiction is the power of the courts to decide questions or controversies


concerning one's stanrs.

Legislauve jurisdicdon over one's status is ihe power personal law to govern his status wherever he goes, iHt.

of his

,rral.i"t

of

Thus, our coutts can decide cases invorving the status and capacity foreigners brought before them, but in doing so, our courts

law of his domicile, depending on whar theory the country of his


citizenship follows. For example, even if the personal law of the foreigner aliows divorce, he cannot apply for divorce from his spouse before a Pt itipp;n. court because we do not recognize divorce and our ao,rrt, hurra ,ro jutisdiction to grant divorces. However, a foreigner who applies for legal

the personal law of the foreigner, whether it be his national

will

appl1,

I"- oi th.

a valid marc:nge arc the illeg:timate considered by Family Code as (Art. 165), whether the child is an acknowiedged natural child or a natural child by iegal fiction as defined by the New Cir'il Code or spurious, and they are all required to

All children conceived and bom outside

use the surname of the mother under the Family Code (Art. 176). Howevet, the new Republic Act No. 9255, amendrng Art. 176 of the Family Code, now allows iliegitimate children to use the surname of the
father "iftheir fiIiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission rn a public document or pdvate handwritten instrument is made by the father" during the latter's iifetime.

separation in our country on a gtound available under his nauonal ilu, but not under our law, may obtain a favorable judgment from our courts, because it is his national law on legal separatio., th"t o*.o,rrts will appll:

but subject to our procedural

lavr.

Regarding Filipino women who have been divorced by their alien husbands under fut. 26 of the Family Code, the rule on v/omen whose marriages had been annulled should iogrcally be applied to them
(See

Art. 371, New Civil Code).

May foteigners with titles of nobility continue using said titles in the Philippines?
14.

The right to use a title of nobiliw depends upon the national lav' the person concerned (X.abel, Conflict of Laws, Vol. I, p. 169). Such persons may condnue using thet titles of nobility in our country, but if they apply for nattrafization, they must renounce any hereditary tide or

of

r"
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CONFI"ICT OF LAWS

CONFLICTOFLAWS

CONFLICTSRULESOFMARRIAGE

75

of the contracting parties who must be maie and female; and (2) consent freely given in the ptesence of the soiemmzing officer (Art. 2). While the
formal requisites are:
(1) Authority

of the solemnizing officer;

(2) A valid marriage [cense except in the cases ptovided for in Chaptet 2 of Tide I; and (3) A marriage ceremony which takes place with the appearance

M
as

of the contracting parties before the solemnizing officer and their


personal deciaration that they take each othet as husband and wife in the presence of not less than two witnesses of legal age. (Art. 3, id.)

Like the absence of any of the essential requisites, the absence

of

any formai requisite shall also rendet the mardage void ab initio, except as stated in Article 35 Q), but an irtegul^rity i" the formal requisites shall not affect the validity of the mariage; the party or parties tesponsible for the irregularity will however, be civilly, criminally, and administratively liable (Art.4. id.).

CONFLICTS RULES ON MARRIAGE


A. MARRIAGE AS A CONTRACT
with marriage t. \Vhy do conflicts problems arise in connection
a contract?

coulltrles Such problems arise because different


depending

or

states'

moralifi" on ,h.t'pubhc pohct', culture' or code of

have different

la.r,s in determining Ot.

*Uatf

whiie our pollcv aird concept of 't'^'riage


Famil1' Code, therc

oF marriage as a conuact' Consequendy' is errrbodied in Art' 1 oF the

The above formal requisites apply also to foteigners 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 hrs/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 contact marriage (Art. 21, id.).
Considering the above formal requisites

n"

,rot .o.rforln to our idea nndlo"ttpt

'''n':'iug"t

ceiebiated in otl.rer countries that do of marriage' vet to den-1' them

of a valid mardage in the


is

rhe status of children' the validin'vzould create ver-v serious p'otl"'rrt in spotlsts' the authoriry and rights pcrsonal and propert\' t"louottt o[ tht rigirts of if por.rr,, towards their cirildren aod uirv uenia, trle respecrive o[ their familr" etc' succession of the spouses and the members

Philipprres, a conunon iaw marriage between Ffipinos in this country void (Enriqueqa. Ennque4 8 Phil565; Eugenio u. Wb4 185 SCLA 42r.

applv rn such Thus, rve should know what rules or laws to conflicts problems.

2. \flhat is Philippine intetnal law on the contract? marriages, or the validity of marriage as a '
The Familv Code presctibes essential
as rvell as

formal validity of
i:.tT^l
requlsltes

As to common Iaw marriages of foreigners who come to the Philippines as husband and wife, it would seem tlrat we should consider the marriage valid if valid under their national law or the law of the place vfrere the relationship began. This is to avoid injustice to the parties as well as thek chil&en, considering the different conceptions of marriage in foteign jurisdictions. But the mardage must not be contra bonot mores or
.universally considered incestuous.

3. What about foreign marriages of Fitipinos? Are they valid?

fotthevalidiwofarnatriage.Theessentialrequisitesare(l)legalcapaclt},

Under Art. 26 of the Family Code, "all martiages outside the

76

CONFLTCTS RULES OF MARRIAGE

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IUARRIAGE 7'

phihpprnes in accordance w-1th the larvs in force in the countn'- rvhere thev u,ere solemnizecl and yaiid there as -sucl'l. sirall also be valici in thts countrv. except those prol-ribiteci undcr Arucies 35ii). ('l). (5; and (6). 36' 37 and

i.e., marriages between ascendants and descendants. and broti-rers and sisters: and marriages that are hrghlv irnmoral (bigamous or poir,,gamous rnarriages rn Chrisuan countries thar prohibrt such marnagesT.
(2) \\e proxj tnaruages., w-hile thev are nor allowed under philipprne internal law, tlre rule in dre U.S. is tl-rat where perrnitted bv the law of tire pla.ce where the proxy particrpates in the marriage ceremoo)., thev are entitled to recognition at least insofar as the fonnal valditv of the marriage is concemed. This rule is intended to protect the wife and chii&en (Salonga. supra, p. 266). (3) As to rnarriages on board a vessel on the high seas, since tl:e country whose flag the ship is flving has juusdrctron over the ship, the rule is that compliance with the iaw of tire said countrf is recluired for tiie marrlage to be valid. In the LI.S. where each state has irs own law- on marriage, the lav' of tire domicrle of the ship owner governs (Salonga. supra, p. 267).

38"

In other words. we follo"v tire rule of ux in the countn' of celebrauon. tl-re n-rarriage except tir<-rse enumeratecl in sard Art. 26.
But,
be
a for:eign marriage

iot'i rciebrationt.r: rf vaLd

rs also valid tn the Pl-rihpprnes.

of Filipinos in a foreign countrv rvill stiil

toid in tire Philippincs if:


(l) Either or botir parties did not havc the legal capacirv to gct

rrrarried 1Art. :5 {l}); 2) The marriage rs irnmoral for being bigamous or poiygamou

(Art.

35

{a})

(3) Consent of one partl is lackrng because of mistake as to the

identttv of tl-re other (Art. 35{5}). (-l) Onc of tire parties was psvchologrcall,v incapacitated at thc tirne oi the rnarriage to cornpll rvith the essenual marital obligations (Art. 36); (5) Tlie marnage is incestuous (Art. 37); ot (6) The marriagc is vord bl reason of pubhc pohcy (Art. 38). Consular rnrrriagcs of Fiirpinos abroad are rahd. As provided in -'\rt. 1i) of thc Famih'Codc:
"Marriages between Frhprno crtjzens abroad may be solcmrizcd bv a consul-general, consul or r,ice-consul <-rf the Republic of tire Phiirppines. Thc issuance of the marriage [ccnse and tl-re dr.rues of the iocal crvil reglstrar

(4) IF the parties or at ieast the husband is a lvluslim (s'hose religton allows piural malriages), it is beheved that we would recognize up to four marriages of dre same irusband (as recognizcd by the PhrJrppine Muslim Code on Personal Laws) to protect the rights of the wives and
children.

What about marriages between i.e, a, mixed martiage?


5.

Filipino and a foreigner abroad,

If the rnarriage rs valid under the law of one of the spouses rvhiie void under the law of the other. r'c should uphold the validrn' of
the marriage, uniess thc martiage is universallv tncestuous or liighh immoral (the same rule as to foreigners rvho get rnarried abroad).
For exampie, a Filipina rnalnes hcr,\merican first cousu.r ui Califorrua. where the marriage is valid, If the parties are both FrJrpinos, said martiage wouid be void fot berng against public pohcv (Art. 38 (l), Farnilv Code) But since the martiage is mixed and it is valid under rhc iex loti ce/ebrationil. we should uphold the rnarriage. tc-r avoicl absurdrfi, and to do justrcc t<, the wife and children, if anv. After all. tl.re rnarriaqe rvas perlormed in a

and

of thc solemnizing oftlcer rvith regard to the

celebrirtior-r of m:rrnage shall be perfonnccl bi' said consr.rlar otfrcial."

4. Vhat are the conflicts rules on marriages between foreigners solenrnized abroad?
nlehaliolr, but not the excepdons rvhich appll onlv to FiLprnos. But universallv consiciered rncestr.xrus rnarriages are exceptedl
0)
sn}1

\\c

applv dre r:ule

of

lex lo,t

forergn shore and is not bv itsclf immoral or univers2ill: 1n6srgu6ss.


Indeed, Art. 149 of the Famrh-Code provides that "ti-re familr,. berns thc foundation oI the nation, is a basic social institutjon rvhich pubhc policv

rn the flrst par. r.,f Art. 2(r

oi

tire

Fami11' Code.

CONFLICT OF LAWS

CONFLICTSRULESOFMARRIAGE

79

i
I il
r

7E

CONFLICTSRULESOFMARRIACE

CONFLICT OF LAWS

cherishes

and Protects "

As a general rule, the personal reiations of the spouses are go'erned bv the national law of the husband. Reason for this is because
'urhen a woman marries a foreigner, she usuallv loses het nationaliry and instead foilows that of the husband. Another reason is that the husband is

one be6. What about a mixed marriage in the Philippines; i'e', tween a FiliPino and a foreigner?
the FrLpmo -that is. PhiLppine law- should be followed; otherwise, our public policy would be violated. This is true both as to the extrinsic and lntrinsic validiW of the marriage.

usuaily the head of the famrly, so that the husband's personal iaw governs the personal relations of the spouses.

It

is believed that the national law

of

ipso

Thus. a Frhpioo cannot marfi' his or her American

frst

cousin in the

PhrJrppines, sucl, marriage being prohibrted by the Familv Code' Thev cznnot also marrv without a marriage license, unless the mardage is one exempt from such [cense.

In the Philippines, an alien woman who manies a FiJiprno husband farto becomes a Filipino citizen if she does not suffer under any disqualification for naturalization as a a FiJipino citizen (Ahojta l-in Yao a. Conn. of lnnigration,4l SCRA 29Q. At exception was, howevet, held in Djananton a. Domingo,240 SCLA746 (l gg5),wherein the Supreme Court ruled that "rnauiage of an alien woman to a Filipino husband does not tpto faao make her a Filipino citizen and does not excuse her from her failure to depart from the country upon the expiration of her extended stay hete as an alien". As for a Filipina who maffies an alien husband, our Constitution provides that she "shall retain her Philippine citizenship, unless by het act
or omission, she is deemed, undet the larg to have renounced her citizenship".

B. MARRIAGE AS A STATUS
1.

What are the two aspects of marriage as a status?

Marnage as a stalus carries with 1t mplications in rwo aspects: the aspect of personal rights and obiigations of the spouses, and the aspect of their properry relations. As to the first asPect! the rights and

obligations of the spouses are purelv personal to them and are not ordinarily interlered with bv the courts. As to the aspect of the properq'' relations of the spouses, the law lavs down certain ruies and ludicial
sanctions, as thef mav afFect public interest'

What law, then, should govern the personal telations of a Filipino wife, who retains her Philippine citizenship, and her alien husband? By p*ity of reasoning with Art. 80 of the Family Code on the property relations of husband and wife, which provision has abandoned fut. 124 of the New Civil Code providrng that the national law of the husband shall applv to the property telations of spouses of different nationaiities, it will be the national iavr of the wife or Philippine law, that would govern the spouses'personal reiations. This change of rdle was intended by the framers of the Family Code to protect the Filipino wrfe (because in many cases of mixed mariages, it is the rrtrfe who is the Filipino) ftom the harshness or sttictness of the personal law of the al-ien husband, thus depriving her of her basic, fundamental rights. Many alien husbands have divotced their Filipino u'ives under their petsonal 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 thet minor children, as heir of the husband, and in the division of the properties acquired dwing the marriage. (See Minutes of Committee meetings of Nov. 75,22 and 24,
1e86)

2. What law governs the personal relations

of the spouses in

Conflict of Laws?
personal ;:elations of the sPouses are governed by Philippine law since we follow the nationahtv theon (Art' 15, New Civil Code). Other countries that foliow the natlonali* theo{'

In the Philippines,

aiso apply tl-re spouses'nadonal iar.v in determining their personal reiations

to each other. On tl,e other hand, in countries tl-rat follou'the domicrliarl, theorl', the personal reiations of the spouses are governed bv the iaw of theit domicile. 3.Suppose the spouses are of different nationalities, what law

will

govern theit personal relations, the law of the husband or the law of the wife?

80

CONFLICTS RULES OF MARRIACE

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4. Supposc husband and u'ife acquire a nc\r'comrnon nationalin'?

'I'hc- cotrrt nle\: cxclrrpt one sp()r,rse Living u'rth the other

fro111

Or onlv the husband changes nationalin'? Or there never was a cornmon nationalit\. betwecn the spouses? What lar,r'will govern the personal relations of the spouses?
(1) if rhe spouscs irrvc thc sarre niluonaLitl but thev acquite a ncrv nationalifi' bl their cornlrtoll act. thcir nerv national lau's'ill goverlt
their pcrsonal relattons.

ti ti-rc iattcl sirould hyc rbroad. or for otirer vald and compelling
re^s()ns which sl-rould not be ittcornpatrble rvith the sohclarin of thc' fimih' (Art 69' rd)'

(3)Thcspollsesar:ciointlr'resllor-rsibleforti-reSuPP()ftofth('
famrlr- (Art. 70' id
)

(2)

lf thc husband alonc ciraugcs iris

naticirraLty n[1st ,i.t.

(a) The 1nnnagc1l1ent

rnarringe, tl-re larv oF thc last com!n()n natlonaiit\- of the s1;ouses rvould govern. to avoid preiuclice tc., the rvifc rvho r.r'or:id suf[er a cirangc in her rights .,r'rthout rnr free erercise of chciice on her part (as provided in dre )-Iague Convention oi 1905) (3) ii the spolrscs retain thel' diifcrcnt nauonalities after the rlarriage, it l'ras beet.r suggested that the national larv of both slrouses slrotrld govern (l{abcl, rd.. p. 327). Anothcr rvriter. lrorvever. offers a bettcr sohrtion; i.c., applr' the lav' of the l.rusband rt the time of thc' nrirrriage (\\blf, Prn atc lntemational J--a*',361), 361). 1'he result, rt is clauncd, rvill rrot necessarih'bc unfair to ti-rc wife, bccause the tiren national lal' of the husbtnd r-nay c\relr bc urorc far-cilablc to her than hcr o*'n nxt1ol1al lav: llcsiclcs. sirc shotrld aL'eaci1. knorv t'hl[ thc husbanci's nxtionxl lfl\\i
rvas rvhen thev got tr-rarricd.

of the ht>usehold shnll bc the ttght rnd dun of both sPouses ('\rt' ?f id')'
of the spouscs neglccts his or i-rcr cllrtles tti thc ulltoll or .a"rt'"'t"' acts u'hich tend tc' brrng dal'rt{er'
c-rr:

(5) \\'hen one


cr-,niugal

dishonor.

to tilc otilcr {)r: tlle fatl'Iih" t}re aggr:tevecl 72' id )' spouse n'rav appll' to the colut for reLef (Art
ir-riui'r'

((r) Erther sPouse mav excrosc anr lcgrtin.rate

otiler' lhc busrness, or actrvitt'' wlthout the consent of the qrouncls latter nlav ob;ect only orl valicl' serit>tls' atlcl moral

profcssion' occuPxuoo'

('\rt.

73. id';

rvife' rvhat 6. Going now to the propertv relations of husband and


are the conflicts rules on the matter?

Some excepuons to the lbove rulc rvould bc, if tl're national lar.v of tl're irusband violatcs the pubhc polio' of the [otr-un, or the national larv of tl're t'rfc happens to be the larv of the forum. rntended as it is to pr()tcct the wife's rigi-rts. 5. Finally, what are the personal dghts and duties wife under Philippine law?

tire sPouscs For the saffIe feaso,l th;rt tlle persoual relatrons of if tirev are of differcnt are governccl br. the personal laN of the hnsband relations' ot 1<' natilnalties. the same rule also applies ro their ProPert\ tlrc prt,pern l'('gllll(' that guverrrs lhctr tllrttagc'
are, in the absence oF a marrrage settlcmcllt of the place of- thc bets,eeu them, governed br- Phihppine lar'"" rcgardiess (A't. 80, Fan-rllt' Codc) celebrarion of the rnar.r.iage and ihei-esid"nce

of husband and

in tlre ?}rilrpprnes,

tl-re proper.q. stnce we foilorv tlre natronalin. dleorr;,

reladons

of thc spouses

(1) The spoLlses are obiiged to iivc togethet. observe rnutual

iove, respect and fidclitr, and render urutual help and support (Art. 68, Fanill'Code).
(r) The spouses have the right to fix togcthcr tire far-mh' dor.mcile. Ilorvever, in case of disasreemcnr berlvecn them, thc court
shall decide.

If

tlri' spr,uses lre

r-'f

differcnt trrttonlhuts' h"rvcvct-'.rD,urnint'

thatoncoithespousesrsaliiliprno;rr-rdt1-reot,hef.andjen,sdl]1)1ri|lp-ptnc -fl'ris.rvas the rntcutton ot,ttl' ialv rvill govcrn tl-rerr pr,opctn relauons (,ode. consrderir-rg tl-rat ln mtlst mtxed

Commrttee that frarned tlre Familv the Committee r'vanted tc' marriages. tt is tl.re rlrire who is the Frhpino' and

S2

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CONFLICTSRULESOFMARRIAGE

83

Philippine iaw to the prorect the v'rfe in such a mauiage bv appiying husband or the wfe it is the whether spouses, the of prop"rqu relations Art. 124 of the New thus amends ruie This ciizen. who $ the Filipino a Filipino and a between mauiages in mrxed that Civil Code to the effect relations the property husband that governs the foreigner, it is the law of Civil Code Revision of of the spouses. (See Minutes of meetings Committee, Nov. 15, 22, and 24, 1986) The exceptions under Art. 80 of the Familv Code
(l)
are:

the srrsre'r

of conjugal partnership of gai.s

benveen the spouscs. the

changed the svstern or tire regrme to the absolure colnmurufi: regin-re. Thr.rs. coupies wiro get married under thc Far'ih. (,ode rvho ciicl

Fa'rlh'code

not enter into

a marnage

settiement irave

regrme of absolute commumn-

of properq' benveen them. Horvc'er, rnartiages soiemruzed u'dcr thc


Nerv Civi] Code r.vithout marriage settlements are still governed bt, said Civil Code; 1.e., rirc spouses still have a conjugal partnership of galns between thern, subject, howeveL, to the changes introduced bv the Famril, Code in the adminisrration and disposiuon of conjugal properties. whicl.r have retroactive effect, without prejudice ro vested rights acquired before the Farnily Code took etfect (Art. 105, Familv Code).

If both sPouses

are aliens, in which cases the general rule in

Confiict of Laws will apPly; and


(2)

!7ith tespect to the extrinsic validrty of contracts affecting

real properry whether situated in the Phijippines or in a foreign counttl-, in rvhiih cases the lex situt wlll govern the formal-ities to be observed for the contract's validrty (Art. 15, New Civil Code)

C.

ANNULMENT and DECLARATION OF NULLITY OF MARRIAGE

1.

Distinguish annulment from declaration of nulliw of marriage.


Annulment
is thc renredv

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

if thc

mar:riage is r'oidable or annullable,

i.e., r'alid until annullcd; rvl-ulc declaration of

nullitv of marriage is thc

doctrine of immutability of matrimonial

remedy

if

the rnarriagc is void ab initio.

regime of the

spouses; i.e. regardless of the change of nationahry by the

husband or the wife ot both, the originai Property regime that Prevailed at the startof their marriage prevails. The reasons for this doctrine are: mantal peace in the spouses' ptoperty telations is more or less guaran-

c<xnpe tent jurisdrctron. (1)

Sincc a voidable rratriaqe rs r.ahd until annr.rllecl brt a coun it has ccrtain legai effects: narnelr':

r,i

teed; the sPouses will not be able to preiudice creditots, who in nrm cannot leopardlz.e the interests of the spouses; and even the spouses may protect themselves from each oth.4 0 Rabef Conflict of l,aws, pP. 453, 354) 8. Is immutability of the property regime of the spouses the same
as

lt

can be crxrvalidated eithcr

ll'

frec cohabitation or prescription.

(2) Thc s^1nc propcltr rcglrn(':rs in a valid marriagc is


estabiished betrveen thc spouses.
(3)

'fhc chilcllcn

are legidnratc

if conceivcd bcfor:c thc i.c,:..

,f

annulnrcnt.

immutablity of the law governing said regime?

(a) fhe marriagc car-urot be attackcd collatcralit,: i.c.. there mnst


be a dccree of annultlent to sct aside the nrarriage. (5) The rnarriaEe can n() longer be impugncd after the death
the spouses.

No, forwhile a subsequent change of nationality by the husband or the wife or both does not change or affect the otiginal ProPerty regime, the law that creates and governs said regime may change' However, maffiages solemnized before the neur law takes effect are still governed by the old laur A good example is the change that the Famil;' Code introduced in the prcperw relations of the spouses. Whiie the New Gvil Code established

of

On the othcr

l-rar-rd.

sincc a void r-narnagc is absoiirtch incristcnt.

(l) It cannor bc contalld;rtctl. (2) The onlv propcrtl' rclationshrp bctwccn thc parties is

co-ownership

(see

Arts. 147-1.lti, Fanril' (,ode).

l'i

64

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CONFLICTS RULES OF MARRIAGE

'fhc chiidrcn are illesitilrratc' c\cePr chjidrcn of (-oclc mrrriagcs tttlclcr' t\rts' 3(r and 53 of thc i'ar-l'rii''
(3) {'1)'l'hc matriaqc mav be artackcd ciirccth'or cciliaterallr'

votcl

Tl-re above article also protects tl-re spouse who behe'cs that his marriage rs null and void fr'm being crrarged rvitir brgamv or her if he or she marries agar'. because tirerc would alread. be a iudicral declarauon

(5)'l.hcnauiagccal]suiibctt-t.rprtgtrcdevcnal.tcrtlrcdcatlrclt
the spouses.

of the nullirr- oi

l-us

or her marriagc before the remarriage. And

thrs

provision is retroactir.c. Tirus. a marr{age void for lack of a marriage iicense still neecls a judicial deciaradon of nulltrl before the patries can mary again (Repubtit t. C.,4. and Cairo. 2j6 SCLL4 257: Doningo u. C.,,1., 226 SCk4 57e. khas also been held that .uvhere a party contracts a second marriage on the

Note: In Catlou l-nrr'. tl-rcrc ate oni\' nvo cxtegotles of tnrrrlagc: loid anci valid. Void mrrriages are considercd anrlullabic' such that tl-re is callecl rctnech' to cleciare n ,r:r^.rinf. nuli and voicl r'rnder Canon Larv rvith confr'rsed bc not annulment. Alnttlurel-lt ilr'(lanot-r l,arv shoulci'
ar)trttlurent

the civil larv whrch applies

(tlll

t() void:rblc tnarriages'

A conttnon mistalie of nou-larwers and even some lau'r'ers and a uratriage undcr Art' 36 of the iudges is to call thc rernccly to nuilifi'

mere l>elief that his or her spouse is alreadv dead u'ithout fiiing n sulnllary procceding under Art. 41 of the Farnilt' Code, the second marriage is bigarnous and void (lr)auarro u. Domagtoy. 259 SCk'1 124. 3. Vhat are the conflicts rules on annulment and declaration of

Farnili 6esll (based on the psvchok>grcal incapacitt' of onc of the s1>orrses) -lhis rs r-rr-rll and annui'rcnt. is rvrong, L".nrr*., t5e *rartiaqc ''der ;\rt. 36 (-ailou [r<>n-r void (ti-ris ground having l;cetl talien bv thc l-alrrilr'('t>tlc c'tf cleclar';rur-rn 1.at9, anti thc rctnccll to dcclare thc rtlal-r:tagt 'ts such is nr"rlliw of rnarriagc, not attntllntcnt. 2.

nullity of marriage? In Conflrct of Larvs. the grounds lor annulment of marriage, and tl.rose for the declaration of nulliry oi rnarriage, are the grounds
provided for by the lau' alleged to have been violated which,
irr

parties temarrv u'ithout going to court' since after all' the marriage does not exist at all?
No. Undcr r\rt. -{0 oi t}rc Farnth'Cr>de s'hich ls I ne\\'pro\tlslol)' "the absolute nullin, oi a prcvious mar:rirgc nril be inr'oked for purloses o[ rcmarringe n,-t ,i't. basis soleit of a finai judgmcrlt declartng sucli previous rrrarriagc void."

If

the the marriage is null and void or au absolute nullity, can

general, ts the 1r.v /aci ce/ebralionz.r' or the law of the place where tl're rnarriage rvas celebrated, rvith certain exceptions. Tire reason is this:
Considenng drat it is thc iex iorz tv/ebratiarzi that is usually applied to determine whether a rnarriage is valid or not, it is the same law that also determines rvhetl.rer a marriage is voidable or not, and r.vhether it is vord or not. T'lius, if Filrpinos get married abroad, the /rx loci ce lebrationi.r rvlll determine the Erounds for annulment (Art 2(r. Farnily Code). For
example, two Filipinos get married in England. Let us assurne that sterihw

the l1ot to assulne tirnt hts or her tnurilge is null antl void' ct'cn if such bc oii-rrs cleclaratiou oi the nulht| fact, but he or she musr Frrst seek a

MrattlrefrarnersoftlieFanrilr'Criclervat.rte.]rr.astbrilPe|Soll
ludrcial

is a gr:ound for annuLnent of rnarriage in England. The marriage of thc rwo Filipinos will be annullable on the ground of steriliw. even if sterilh, is not a grour.rd fot annuLnent undcr the Farnilv Code. This is because Englrsh lawis the icx loti celebrationil.

or her marriage before l1latr\/ing again; otherrvise' ltis or her second bigarnous (See LV'te.gal u' Senpio-Diy' rnartiage will als,, be void ^.rd "'"" u' 11) Sall'|+99; I'cta.ch Consuesru GSIS' )7 SCk'1 J/'i) This neu' provisionirrtheFarnilr,Codeabandc>rrsti-reolddecisionsoftlre
perform:irtcc. Supreme Court to the effr:ct that rvhere a marriage is illegal or void from its n() itrdicral declee ts n('ccssllt'\ to estrblislr rts inval-rdin'
Q)e,oph u. lv4endoia.

As for declaration of nuliity of

marnage betwcen rwo Fihpinos

abroad. tlre grounds are the exceptions to tlte lax loti teiebralionit rn Art. 26

o[
38.

t]re Familv Code; namelyi Articies 35 (l), (1), (5), and (6);36, 31,and

rt

Pl'il. E1j;

PrcDlc

r" '\rt'ian'

100

Phit' l03i)'

as to foleigners rvi.lo get married abroad, tire exceptrons to thc ioti n/ebutiorzi would be the same as those in marrtages as a contract. r.rarnell', rnarriages th.at are highly i66o.ai (lilie bigamous and polygamous
iex

CONFLICTOFLAWS

86 CONFLICTSRULESOFMARRIAGE
t-rtn s) rnarriages benveen Chris
an d

CONFLICT OF LAWS

CONFLICTSRULESOFMARRIAGE

87

univelslllt

tnces tuor-ts

fiIarrlages' nrarrlage^s:
as

werc suspended in the Phiiippines


ti.sto t'.

bl Gov Wevler. so that thev werc


u.

oPpl)' tt'consulal Tire above rules do not' howe\'er' o[ tire parues' ot iaw oi the domicile to rvhich eithet the n^u"lli'i"*

rrever eniorced rn ti.re Phil-ipoines (Benedtcto

Dela R"tma. J Pht/.

J4.l:ruti-

Jann.60 Phil.a{1
(3) On N{arch 11, 1911 , a Divorce Law (Act 271Q was passed

dre

cir"se

mart be. aPPhes'

in

or over cases for annulment 4. What courts have iurisdiction declaration of nullity of mariage?

the Phiiippines, but it recognized onlv two grounds for absolute divorce. adulten on the part of dre wife and concubinage on the part
of the husband; and in either case, there tnust be a previous conviction. Many couples did not, therefore, apph, for dlorce under this law because thev did not want their children to have convicts For thetr parents.
Re for:eign divorces obtained bv Filipinos duting the effectivrq' of Act 2710. the Supreme Court held thtt the foreign divorces were vaiid only if the ground tirerefor was anv of the rwo grounds allorved under Act 2110 (Baretto Goniak.r a. Gon3tlet, 28 Phtl' 6,]. Thus, a foretgn divorce obtarned bv a Filipino couple on the ground of desertion on thc part o[ one of thern was l-reld void, being contrall' to larv or the fundamental pohc,v of the forum (Stkat t. Canton' 67 Phi/. 207;"4rca u. .fauier.50 OG

ij
t,

Since we

to take cognizance

our courts have turisdrcl3n follow the nauonairq' theory" rn c^ses and nulliw suits in marriage

$ i

rvhere the Liugants zre Filipi'nos'

";;;t;*t

ln the can also hle sr-rcir suits Domrciharics of tlie Pirihppines

Phfippirres.
ln other countries' it is usuallv which has the t;; t"ttt' srncetl",tt 1s the place reason who have it"isdttt'o,' t';;; Another of tl-re soouses
greatest

dotntc :ile the courts of tire parues'

inter"" i"'ilJat-t'Jt "iooo"t *ll:'ot' not to to"tptl tl.re perues' it u pr^<:tical one: in or<ler to for t}-ris 'oit to their country of nari.nalitr iust domiciied i'-' o"" tntiio'' "*"

)5)8

,t19t4'l)

'"

ftle such cases'

hle a case Iriliplno ciflzcn or domiciliar'r'can if the defendant o[ nulliry of marrtage even status of for annulrnen' o' attttJ'*on petsonal i'-"'olit the

In the Philrppines'

(4) During tire Japanese occupation, a law allowing absolute divorce was passed (Executive Otder No 141) allowing divorce on 10 grounds. Manv Fihprno coupies took advantage of this lau' and sought drvorce under its provisions.
(5) Executive Order No. 141 u'as eftecuve in thrs country until October 23, 1944 rvhen General Douglas N{acArthur reestablished the Cornmonwealth Govetnment, rvhich resulted in the repeal of Exec.

rs a

non-residt"'of tt"o.'ntrv' can be-acqtrired over the plalnuff n'-'a to' 1o'i'Acflon tlill,,lrl
Such

tn'"'

tl-re

defcndant by

pubrictuon o f ^""''*Jl' ?"' l:- c *.. oi.o Sec 6' nerv Rule on Declarauon on Ma'v 15' 2t)03)' Matriage which took effect

CIil

;:f#i;X*;

Order No.

1.11

and in effect revived Act No. 2710.

D. ABSOLUTE DIVORCE
1'

(6) Act No. 2710 was later repealed by the Neu' Civil Code, wirich allows and recognized onlv legal separation. The draft of the Code had provisi<-rns on divorce, but during the discussiohs over the draft of the Code in Congress and with the strong opposrtion of the Catholic populauon

divorce in the Philippines? Vhat is the history of absolute


to the enacment of the Spanish repme and prior neg 2[5olute divorce' alloved only iegal seParauon'
during the iarv in force tn the Philrpprnes (1) The Siele Partidts't\e o[ Spain' Code Cilrl

of

the countr\'. absoiute divorce was eliminated

and substituted with legal separation.


(7) The Famtli'Code also does not allow absolute divorce excePt that u'hrch rs validlv obtained abroad bv a foreigner from hrs or her Filipino spolrse capacitating hirn or her to remarry, in which case the

on divotce (2) Later' the provisions

of the Civil Code of

Sparn

Filipino spouse can also remarr) (Sec par. , Art. 26, Famih Code)

88

CONFLICTSRULESOFMARRIAGE

CONFLICT OF LAWS

CONFLICT OF LAWS

CONFLICTSRULESOFMARRIAGE

#,
89

I
E

(a) The above provisron avoids the absurd situauon

of
t

a
as he was

no longer her husband when he filed the aforementioned case

a Fiiipino as being still marned to his or her aiien spouse, aithough tire iatter is no longer marrted to the tormer. and mal
alreadv have another spouse.

after theit divorce.

(b) The above provision does not applv to a divorce obtained bi' a Filipino abroad from his or her Fihpino spouse, which divorce is void because our law does not allow drvorce
as

NOTE: It is rmponant to remember the rwo foregorng cases of Pilapil u. Somera and Van Dorn a. Ronillo if similar cases anse rn the funrre under the second para$aph of Art. 26 of the
Family Code wluch recogruzes a divorce vahdly obtarned bv the alien spouse of a FiLprno citizen abroad and allows the Fdiprno to maffy

and Filiprnos are governed bv Plr.ilippine law wherever they go to their starus and capacity (Art. 15, New Civii Code).

^g:n

(.) The above provision likewise does not applv to a drvorce obtained by a married Frirprno urho v'ent to another
country', became naturalized therein. and iater drvorced his

4. What are the rules on the validity of foreign divorces obtained by foreignets abroad?
(1) The Hague Conventron on the Recogniuon of Divorce and Legal Separation concluded on June 1, 1970 states that a foreign divorce u'ill be recognized in the contracung states if, at the date of the hling of the proceedings:
(a) The petitioner or respondent had his or her habitual residence in the state v'here the divorce was obtained; (b) If both spouses were nationals of said state; or (c) Although the petrtroner was a national of another country, he or she had his or her residence in the place where the divorce was obtained.

Filipino

spouse after his nafuralizatron, as rt

mght open the door to rich

Filipinos to obtain naturalizaflon in other countries wirich allow divorce, only to be able to divorce dreir Filipino spouses. 2, May an alien who had divorced his Filipino spouse in his home counry come back to the Philippines and ask for legal separation

and separation of property against his Filipino wife on the ground of the latterts adultery?
No, because a spor-rse who accuses dre other of adultery must be an offer-rded spouse: i.e, he must sull be married ro tite latter. Hcre, the alien had no legai standing to accuse his forrner FiLpino wife of adultery because their malital bond had alreadv been severed r.vhen he filed the adulterv- case and could no longer be an offended spouse (Pilapil u. Ibay
Somera,

(2)
latter st2te.

In the United

divorce obtained in a sister state

States, a state has the du.ry to recognize a if the spouses were domiciled in the

/74 SCk4 6tJ

":/98E).

(3) A divorce obtained in a foreign countty would be

3. Compare the above Pilapil v, Ibay-Somera case u. Romillo, 139 SCRA 159 (1985).
T'ire rwo cases are similan

with

Van

Dotn

recognized under the same circumstances that a divorce obtained from a sister state is grven recognitron. (Rabel. Conflict of Laws,. 1968, po.
s00-s27)

In

the Van Dorn case, fuchard Upton, (4)

the American husband of Alice Reves, and thc latter, obtained a divorce in Nevada, U.S.A. Thereaftcr, Alice Reyes marrie d agarn in Nevada. Later, Upton came back to tire Phihppines and claimed that a business in the name of ALce Reves was their conjugal properfir and that the latter should render an accounung and let hirn managc sard business. The Suprerne Court held that the drvorce obtuned b1, Upron frorn ,\hce rcleased rhe latter from their marriage, and Upton had no legal standrng to sue Alice

In

dre Phfippines,

if both

spouses are aliens. we recognize

of divorce obtained by them abroad if valid under tbeir national law. Thus. in Recto u. Harden L - 6897, l'lou. 29, 1956, <>ur
decree
Supreme Court held that -

"In

as much as

Mt. and Mrs. Harden are


States, their status

admittedlv citizens of the United

LUNI.LII
CONFLICT OF LAWS

(JI LAW5

CONFLIC TS RULES OF

MAI{RIAGE

91

90

CONFLTCTSRULESOFMARRIAGE

bv the laws of the and dissolution thereof are governed United States which sanction divorce'"

under the personal law of the husband as welr as those avaiiable u'dcr tire larv of tl-re wrtt are ali availabie grounds for granung the leeal
separation. (Hague Conr.'enuon on l-esal Separation.

.\rt.

8).

DTVORCE E. LEGAL SEPARATION OR RELATIVE


1.

it diffet from divorce? What is legal sepatation and how does

4. What coufts ma)' grant legal separation? Or, in what counrrv should the case be filed?
Jurisdicuon rn tl.re case of ahens is not assurned by the forum unless the nauonal larv of the parties is rviliing to recogmze its jurisdictron.
(a)

the mardage and Absolute divorce (a vinato natinoni) dissolves the pames can marry again'
Legal sepamtion or relative divorce (a nerca
et

tlnm) is only separation

(b) In the Philipprnes, foreigners rnal ask for legal separatron

from bed

"--"a

U"ta

but the Parties remain married'

if thev drd not get married in tiris countnr \X,'hat is importanr is that the court has iudsdiction over both parues.
here. even

annulment of marriage' 2. Distinguish legal sePatation from in annullegal separation, the marriage is not defective; ment, the marriage is defective'
(a)

In

(c) Most countries assume jurisdiction over cases for legal separation on the basis of ti"re domicile oi one of the parties or thc
matrimonial domrcile. The rationale for tiris nrle is tl-rat the larv of tl.rc domicile of the parues is that u'ith v4ricir fhev are most intirnateh' connected (Goodnch, Conflict of Laws, 3rd ed. .395-396). 5. Is

@)

in In legal separation' the gtounds arise after the martiage;

annulmengthegtoundsmustexistatthetimeoforbeforethecelebration

of the

marri4ge.

it necessarv that the cause for legal separation take place in this country for our courts to have jurisdiction over the case?

to each other (c) In legal separation' the parties are still marded and the aside is set and cannot remarry; in annulment, the matriage parties can marry again'

No. There is no such requirement in the liamily Code. Again. what is important is that the court has iurisdicuon over the partics, and that the procedural requirements of the Rules of Court are complied with.

the legal sepatation' the grounds ate those given by inasmuch concerned, parties nationailaw ot the aomiclliarv law of the

(d)

In

on the other hand' questions as the question is one of satus; annuiment, genelal rule' the gtounds the very existence of that starus; so that as a

forannulmentarethosegivenbythelexlocicelebrationli,subiectto
certain excePtions. 3. What ate the
(a)

It is important to empl.rasize here that Arl 99 of tl-re New Civil Code requiring that tlre peutioner must have resided in the Philipprnes if ti-re cause for legal separatlon arose in a foteign countr)', has been expressll'repealed by the Familv Code (,'\rt. 254) and is no longer applicable.
6. What are the grounds for legal separation under the

internal larr

conflcts tules on legal separation?


of
the same nationality' the grounds for legal

of the Philippines?
(1) Repeated phvsical r'iolence or grosslv abusive conduct against

Gor. given by their personal law (whether national law oi,h. do-t"iliary law, as the case may be)'
,"p"r"aior,

If

the parties are

*.

@)

If

grounds available the parties arc of different nationalities, the

the petitioner, a comlnon child. or a chrld of the peutioner: (2) Phvsical violence or moral pressure to compel the petitioner to change religrous or politrcal afhliatron; (3) Anempt to corrupt ot induce the petitioner. a common child,

92

CONFLICTSRULESOFMARIUAGE

CONFLICT OF LAWS

CONFLICTOFLAWS

CONFLICTSRULESOFMARRIAGE

93

or a chiid of the peuuoner to

elrgage rn prostrtuuon, or connrvance rn such corruptron or inducement: i-1) i'-inal iucigmer.rt sentencing the respondent to lflrpnsonmenr
(r vears, even if pardoned; (5) Drug addiction or habituai alcoholism of the respondent (6) Contracung bv the respondent of a subsequent bigamous marriagc. wirether tn the Phiiipprnes or abroad; (7) Lesbianrsm or hornosexualigv o[ the respondent;

of tnore tiran

survive?

10. [f one of the parties in a legal separation case dies during the pendency of the case, should rhe case be dismissed

or

dis it

The case should be dismissed because it is purely This is true even if properties are involved. po.*itiro,rt
separation, there can be no effects,
11.

"

d:.;;;;;;;

personal one.

(8) Sexual infidehty or petversionl (9) Attempt bv tl-re respondent agaurst the life
cause

of the petitioner

(10) Abandonment of peutioner bv respondent without justifiabie for more than one vear. (Art. 55, Familv Code)

spouse?

Does the offended spouse inhsril from the guilty spouse? Vhat about the guilty spouse, does he or she inherii nom ihe irrrro"".r,

7. What are the defenses to legal separation under Philippine internal law?
(1) Condonauon oF the offense or act complarned ofi (2) Consent of the aggrieved parry to the commlssion of the act ot offense cornplarned of; (3) Connivance berween the parties in the coramlssion of the offense or act constiruting the grourld for legal separatron; (4) \lhere both parues harre grven ground for legal separauon; (5) Collusion berween dre parties to obtain legal separation; (6) Prcscripuon. L\rt. 56, Famill Code)

Of course the offended spouse inherits from the gr:ilty spouse because the parties are still martied to each other.
from

innocent spouse bv intestate succession, aod provisions in the will of the latter favorable to hrm or het are revoked by operauon of law (Art. 63 (4), Family Code).
tJ-'e

As for the guilty spouse, he or

she is drsqualified

ftom inheriting

8.

Vhat is the prescriptive period for the filing of the action in the

Philippines?

granted rn the preceding articres" (meaning the right to inherit by inteJtate succession). But there must be a decree of legal separation as stated in Question L0 hereof.

civil code, stating that "in case of legal separation, if the surviving spouse gave cause for the separation, he or she shalr not have any of the nghts

Hovrever, to disquali$, the guilty spouse from inheriting from the innocent spouse by intestate succession, the latter must Flre Ias" of " legal sepatation against the former. This is provided in Art. 1002,

New

\\tthrn tive (5)

r'ears

from the un.re of the occurrence of the

cause (Art. 57, Familv Code)

9. Can the wife drop the name of the husband after the decree of legal separation? No. because therr are still married. And this is truc wl-rether she is
t}-re

guiln parn or not.

As heid tn Ltperal u. Repuhitc,6 SCl..1 J57. tl'te wrfe who has been gtanted legai separation cannot petiuon to be allowed to revert to her marden name.

CONFLICT OF LAWS

CONFLICT OF LAWS

STATUSOFCHILDREN

95

The second paragraph of r\rt. 164. hower.er, inciudcs a special kind of leEtimate childrenl nameh'. children conceived as a result of the artiirciai inserunatron of the wife with tire sDerm of the husband ()r rh^1
donor or both, provrded the children were born under the conciitrons prescribed rn said Arucle of
a (Please see cofiunenrs on chjldren bv arnficial

insemrnation

CHAPTER

of this same author in her "Handbook on the Famrir. Code of the Philrpprnes". 1995 ed., pp 258-269).
As for the exceptions to Art. 165 of the Code definingrvho arc: iliegJrtimate childr-en, tire excepticins refetred to are tlte chiidren born oi void marriages under Art. 36 (r'oid because of tlie psvchologrcal rncapacit,v of one of the spouses) and under Art. 53 (those born of tire fust martiage of parues before sard ltrst marriage irad been ar.rnulled cx" declared void, and who marfl' a second time without deliverrng the presumptive legitirne of the chridren of their ltrst rnauiage). 5.

STATUS OF CHILDREN
A. LEGITIMACY AND ILLEGITIMACY
1.

of children? What are the conflicts rules in determining legitimac;(a)

Vhat are the rights of legitimate and legitimated children


The rights of legttimate and legrtrmated children under Art. i 7'l

under Philippine law?


the Parents are o[ the same nationaliq" their common larv of therr dornrcile' will personal Ia*, whether their national 1au'or the

If

be applied. (I Rabei, suPra)'

of the Iramrly Code

are:

lf

lau of rhe percnts are of different nattotraiiues' tl-Ie Pcrsonal

the fatl-rer gol'erns (Rabel. id')' theory (Art (b) In the Phrlippines. since lve foiiow tl.re nationaLrrl

(1) To bear the surnames of the father and the mother, in conformity wrth the provisions of tire Civil Code on surnames; (2) To receive support fron.r their Parents! their ascendants. and in proper cases, their brothers and sisters, in conforrniw rvitl.r thc provisions of this Code on support; and
(3) To be entrtled to the legiume and otl-rer successionai rights

lau' of the Pa(ents applies' 15. Nerl Civrl Code)' th" common national narional law of the father and tf thev have diffetent naoonalioes' the
goverfls.

under Philippine 2. Who are legitimate and illegitimate children

gtanted to them by the Civil Code.

internal

law?

..clrildrenconcetvedorborlrdurrngt}remarriaqeoftl.reparents',;u'lrile

Art l(r4 of. the Familv Code defines legitimate children

Note: The legiume of


as

eacl-r

legitimate child rs half

of

the parent's

estate divided bv dre number of legltimate cirildren (Art. 888, Nev' Cn'il Code); while in intestate succession. iegrumate children inherit equallv (pcr

rilegiumatechildrenaredefinedbvtl-,..,'....drngArt.165as..children x unless otherwise conceived and born outside a valid, marrlage' xx


provrded in this Code"

upita) v;rthout distinction as to age or sex, and even if they spnng from different marriages (Art 979. id.)

96

STATUSOFCHILDREN

CONFLICT OF LAWS

CONFLICT OF LAWS

STATUSOFCHILDREN

97

children undet Philippine 4. \what are rhe dghts of illegitimate


laq'?

B. LEGITIMATION
1.

An.

176

of

che

Famiil Code provides that illegrumate chiidren

What are the conflicts rules on legitimation of children?


"Legrumation" is

have the rights: (1) To use the surname

of

the mother;

(2) To be under the parental authorifY of

the mother; (3) To suppott in conformir,v \\'lth this Code; (4) To the legrtime, which is one-half of the iegtime

of

legitimate child.

a process wherebv children vu'ho in fact were not born rn lau'ful wedlock and should, therelore, be ordinarily considered illegitimate children are, b,v fiction of lav' and upon compliance vrith certain iegal requirements, regarded b)' law as "legitimate", it being supposed that thev were born after their parents had alreadv been validlrmarried (I Manresa 550).

Remembet that under the new Rep. Act No. 9255' illegitlmate chi-ldren may now use the sufname of the father "if ther affiliation has been expressly recognized by the father through the recotd of birth appearing in the civil regrster orvrhen an admission in a public document or private handwritten instfument is made by the father" dudng the iatter's lifetime.
5. What lawgovetns the rights and duties between parent and child?

In Cont-lict of Lalvs, the requisites of legrtimatron are generallv considered those prescribed by the national lau'ofthe parents, and it the latter have different nat-ional lav's, the national larv oF the father (I Rabel, id., p. 575). In countnes following the doraiciliarv theory, however, the
personal law being the lau' of the domicile, the law of thc domrcile of the parents or. in proper cases. the law of the domrcile of the father, should govern. 2. \7hat is the internal law

the child is legrtimate as determined bv the above rules, either the common personal law of the parents, or the Personai law o[ the father if the parents are of different nationalities, governs. (R-abel, id.).
(a)

If

of the Philippines on legitimation of


found in Arts. 177

children?
Our internal law on legfurnadon of children to 182 of the Familv Code.
rs

the child is illegtdmate as determined by the above rules, the personal law of the mother is clecisive, unless the chiid is subsequently tecognized by the fathet, in which case the rules on legitimate childten (b)

if

will be apphed

(R.abel, id.).

(c) In the Philippines, agarn since we follow the nationaiity theorl', the mother governs if the child rs illegtimate. unless the child law of the is again tecogruzed by the father, in which case the personal law of the fathet (whether it is the same as the mother) appiies.

Under Art. 177, the foliowing requisites lrrust colrcur in order that a child rnav be legitinrated: (r) The chiid was cotrceived and bom outside lawful rvedlocli. (b) The parents. at the time of the child'-s conception. rvcrc not dtsqualified by anf impediment to lnarrv each other.

Note: 'fhe addrtional requirement under Art. 270 of the Ncrv


Civil Code tlrat the parents must have acknowledged dre child first before or after theil rnarriage, is no ionger necessary under the Familv Codc, because this Code has deletcd recogrrition ofnatural children and alreadv conFers on legrtimate and illegitimatc children their status at the moment

6. What is meant by the doctrine of immutability of status? This doctrine means that the status oFa child (whether legitimate

or illegttimate) is not affected by a subsequent change of nationaliw of the parents. But the nghts and duties of patent and child, or child and
parent, would, after the parents' change of nationaliry be governed bv the new national law of the Parents (I Rabei, id., pp. 606-607)

of btth. Chtldren that fali under Art. 177 of the Family Code are, therefore, ip.ro -farto legitimated upon the subsequent marriage of the parents no matter how lonE a period of ume has elapsed from tl-re birtl'r of said children to the time oF the matnage of tI-reir parents. (See also comments by this samc author on Arts. 177 tr,r

98

STATUS OF CHILDI(Li\

CONFLICT OF LAWS

CONFLICT OF LAWS

STATUSOFCHILDREN

99

I82 of the Farnih' Code in her "Handbook on Code of thc Phiirppmes";

tl.re Famtlr,

bv former Pres. Corazon Aqurno on December 11 ,1986 regardrng nonresident aliens u'ho were aiiou'ed to adopt under pD 6L)3.

3. If the personal la'.r' of the parents, or of the father in proper cases, changes, is the legitimation of the child affected?
No, because legirlnauon crextes a permanent starus of tire child, so this starus is irnn.rutable. However. the rights and duties of parents and legitrmated children tlav be modified b,v a change of the personal law of thc parents or of the f:rthcr. as the case rnal be. The immutabhw of the status o[ a legrumated child is verv clear under Art 180 of the Family Codc which provides tirat "the effects of legitimatron shall retroact to the tjme of tire cirild's blrth". Aiso, Art. 178 provides tirat "the annulment of a vordable marriage shall not affect the
legrumauon".

(c) Subsequenth: ali the provisions of PD 603 and E.recurive Order No. 91 on substanttve marters were repealed bv'fitle \rII of the Familv Code. Certain procedutal provisions of IrD 603 on adoption (Arts. 32 to 38) were not, hov'ever. repealed bv the Familv Code. Under the Famil,v Code. aliens v!'ere not allowed to adopt in tirc Art. 18.+ (3) thereof. and non-resident a[ens were allowed to adopt FiLpino children oniv under the iau' on Inter-Countr,v Adoption (Republic Act No. 8043) which wa. signed by former Pres. Fidel V Ramos on.]une 7 7995 Under this law, tl.re adoptlon proceedings are to be heid in tire home countrv of the adopters.
PhrJrpprnes anvmore except those reterred to rn

(d) StlX later. on Februarv 25, 1988, former Pres. Ramos signed Republic Act No. 8552, other-wise known as the "Domestic Adoptron

4. What are the rights of legitimated children under Philippine


lau'?
T'hev have dre same rights as legltrmate chrldren

Act of 1998", amending manr provisions of the Famill'Code


domestic adoption.

on

(Art. 179), namelv:

2. State the concept and tationale of adoption.


(a)

(1) (2)

'Io

Ib

bear the surname


receive support

o[ theu tather and mother;


ascendants, and in

'fhe old definiuon oi adoptron in

rhe Particlar is that

it is "thc

ftom their parents,

proper cases, their brothers and sisters; and (3) To the legidme and other successional nghts granted las' ro

act rvherebv one person is received as the offspring of another although he is not sucir bv natuLe".

bl
This dehnitron was based on the theorv that adoption is mainlr, for the benefit of the adopter, so that those who have no children or
have lost them. may have tire solace and joJ's of parenthood. and ti-rat thc

r legiumate
Note: In

child.
De lot Santo s u. I-ztiano, 60 Phil. J28, ttwas held that the

legitimated daughter
legitrmate niece.

of

a man can inherit from the man's brorher as

void whicli exists in childless homes


Phi/. 241).

ma1,

$6 frlled (\'nigo a. IkPablic, 95

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

of adoptron has, howevet, changed, and it rs now considered more for the beneltt of the child than for the adopter, and pursuant to this modern trend, it has been held that adoption does
@) The ratronale

not merely establish

relationshlp of paternity and hliauon but is also an

act wirrch endows the chrld with legrtimate status (Pranick

Ref>ublir'

98

las'on adopuon vas PD 603 (the Child and )buth \ielfare Code), which erpresslv repealed all the provisions oi tl-re Nerr,' Civil Code on adoption.
(b) PD 603 was later amended br,Execudve Order No. 91 signed

Phit.66r.
'Adopuon is thus given a sociai and morai purposel that is. to e stend to the orphan or to the child of the indigent, the incapacitated ol

lOO STATUSOFCHILDREN

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STATUSOFCHILDREN

101

of socrew in tlre person of PhrI.. 69'1;. the of Civil Code


the sick. the protectton

the adopter" flolentino.

3. What law determines whether the relationship been created or not?

of adoption

has

alleged cases of Filipino childten who, after ha'ing been adopted br, foreigners, were killed for organ transplants in the fore4gr homes of theu adopters. Hence, the Commrttee believed that bv limrung adopuon of Frirprno children by al.iens to former FrJrpino ciuzens (and/or the6 spouses)

(a) The child's personal law, to protect his well-being.

reiated by blood to the adopted chiidren, the latter would be given some measure of protection bv the adopters who are their relauves by
consangurnirv.

(b) If dre child does not reside in the countrv of his citizenship, the personal iaw of the adopter u'tll govern, or the personai lau' of the adopter and that of the cirild wrll be applied concurrentl\,.

(c) Republic Act No. 8552 or the "Domestic Adoprion Act of 1998" again allows aliens (who are not former Filipino citizens) to adopt

in our countr;,, provided:


4. What law determines the legal effects

of the adoption?
(1) They have the same qualifications
as tirose required

the adopuon are determined by rl-re same law that created the reiationship of adopuon. The iegal effects tirat flow from the adopuon are: (a) Tire successional nghts of the adopted child; (b) The parental authorin' of the adopter over rhe adopted child; (c) The use bl the adopted child of the surnarne oF tl-re adopter.

The iegai effects

oi

of

Filipino citizens (See Sec. 7(a), Rep. Act 8552); (2) Thet countnes have drplomanc relations wrth our countrf, (3) The,v have been livingin the Phihppines for at least three (3) years prior to ti-re fihng of the peution for adoption, and maintain such residence until the adopuon decree rs
entered;

(a) They

An important problem in adoption in the Philippines is whether aliens can adopt in our countrv. What is Philippine law on the
5.

(5)

have been certified bv their diplomatlc or consular offices or b1' any aPProPrlate govemment agenc' that thev have the legal capaoty to adopt in their own countries and Theil government allows the adopted child to entet their

matter?
(a) As stated ir.r tl're discussion

countn, as their adopted chiid


(Sec. 7 (b), Rep.

Acl

8552).

of Quesuon No.

1 hereof, rvhiie

the Civil Code of the Phrhppines did not allon' non-resident aliens to adopt, PD 603 liberalized rhe Civil Code provisions on adoption and allorved even non-resident aliens ro come to the Phdtppines and adopt our childrer-r here. (b) The Farnilr Code, howei'er, became strict in adoption of
aliens rn the Phiirppines because

of reports received bi. the Comrnittee

(d) As for the foliowing a)rens: (1) A former Fihpino citizen wl,o seeks to adopt a relatjve within the 4th degree of consanguiniw or affiniw; or (2) One who seeks to adopt the legrtlnate son or daughter of his or her Filipino spouse; or (3) One',vho is married to a FiLipino citizen and seeks to adopt jointly rvith his or her spouse a relative within the .1th degree of consanguiiltv or affnrq, of the Frlipino spouse; the same Sec. 7(b) of Rep. Act. 8552 provides that d.rev need not compiv wrth dre residencv in the Philippines required of real aliens and they also need not submit a ccrtificatron that the'r' have the capacitr

tirat drafted the Code (of rvhich this author was a member) that some Filipino children adopted bv aliens and brought bv the latter to their home countries suffered culrural and psr,chologrcal shocli ar.rd could not adiust to theil neu'hves in the foreign countries of their ioreign adopters. AIso. rnformauon was received that old alien pedophiles. after iravrng been allou'ed to adopt Fihprno children in thc Phrlppines, rvould. aitet
bringing said children to tireir home conntries. simply abandon these children after tl'rev had satisfred their sexual destes on them. There rvere even

to adopt from the diplornatic or

consulat office of their countrv in the Philippines or an1' other government agency. Note. however, that the special kinds of aliens enumerated above

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TO3

bv Rep. Act 8552 are requtred to be related to the ciriid to be adopted N.rthln the .ltfi degree of consangutnrfi'or affrnrn. Art. 184 of tirc Famiir Code wirrch the above pror.isiou of Rep. Act 8553 arnends drd

7. What are the legal effects of adoption under Philippine lau'?


Rep. Act 8552 enurnerates the legal effects (1)

of adopuon

as folior,r's:

not Lmit the degree of consanguinin' betu'een tl.re adopter and adopted child. On the otirer irand. Sec. 7(b) of Rep. Act 8552 includcs children related within the 4tir degree of afhnin' to rhe adoprlng parenr. which relationslrip of afhnin was nor included in Art. 184 of the Famiiv Code. This author cannor understand, though, whv Rep. Act 8552 rn the above prol-ision hmits the degree o[relauonshrp bv consanguinlfl, 6f rhe adopter and tire adopted child onlv ro rhe 4rh degree, This means that
a former Filipino would not be able to adopt the child of his or her hrst coustn (5th degree) or his or her second cousrn (6th degree). Since the

berw'een the biologrcal parent /parenrs and the adopted child are severed and the same shall be vested in rhe adopter/ adopters, except in cases where the broiogrcal parent is the spouse of the

All legal ues

adopter. In other words, parental authorltv over tile adopted child is uansferred to the adopter. (2) The adopted child shall be considered for ail intents and purposes to be the iegrtimate chrrld of the adopter/adopters, and as such rs entltled to all the rights and obligations provided bv law to legrtimate
children.

important consideration here is the iove and protection that

relative bl'

blood, who is now an alien, can glve to the child once the latter is brought

to the adoptert foreign home, it is irnmarerial how close thev are related

(3) in legal and intestate succession' the adoptet/adopters and the adopted child shall have reciprocal tghts of succession witirout dlstlnctlon from legrtirnate hliatton. 'Iestamentary succession will, however,

by blood.

appll if the adopted child and the adoptet or adopters had left
(Secs. 16, 17, 18, ReP.

a will.

Act 8552)

of Republic u C,A. and lfughes, 227 SCRA 401, and Republic u 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, nou'funerican citizens, and their American husbands, because what the Famill' Code only allorved was ioint adoption b,v Filipino cirizens and their aliens spouses. Are these decisions still good under Rep. Act 8552?
6. The cases

8. There are

still other important points to remember regarding the nature of adoption in the Phitippines law; namely:
(1) Adoption proceedings in our count4'are always iudlcial and

in rem ; i.e.. publication is tequired as constructive notice of tl-re petition for adopuon to the whole rvorld, since adoption creates statlls.
(2) Since there can be no valid adoption without a court decree granting the same, a ntere agreement of adoption berweerl the adopters and tbe parents of the child is not a valid adopuon (Santot-\'nigo u' kepublic, 95 Rep. 244:), nor the fact that the child had been adopted dt .facto (ampon) by the alleged adopting patents (Ltiatin u.ludge Canpol 92 SCK4
2

No more Act
8552

if

the aiiens husbands

of former Filipino tnves


Sec.

can

cornpll'with the requiremenrs for a[en adopters under

7 (b) of Rep.

But, Rep. Act 8552 still requires that husband and wife must

jointly adopt, rvhich joint adoption was also required br. the Famih.
Code, except when one spouse seeks to adopt his or her own illegrttmate child, or when one spouse seeks ro adopt tl.re iegiumate child of the other spouse (Art. 185, Famii,v Code). Republ-ic Act 8552 adds tl.rat in cases where the spouses are legally separated (Act. 7, sec. par., sub. par. {iii}). the husband or tl-re wlfe can adopt alone, and the consenr of the othel spouse to an adopuon Frled by one spouse is no longer necessarv.

t0)
(3) Nerther is the mere registration

of the child in the civil regrstry as the child of the adopter a valid adopuon, This even amounts to the crime of simulauon of btth punishable bv pison mayor in the medrum period, and a fine not exceeding P50,000.00 (Sec. 2l (b)' Rep' Act 8552)'
(a) The capaciry and tght of the adopter to file a petition for adoption, are governed bv the law in force at the time the petitron is filed, and cannot be impaired bv a new iaw disquahfuing lrrm or her for adoption

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(Repabtu t'. C-4. andBobilu. GR92326.24 Jan' /992;Republ;cu. Mi//er, GR t 2 i9j7,,4Pri/ 2/. / 999;. 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 Procedwe, \r/e can recognize such foreign decree of adoption provided the foreign court had junsdrctron to render said decree; and that there was no want of notice. collusion. extrinsrc fraud, or clear mrstake of law or fact leading to the foreign decree of adopt-ion.
This is particulady tme if both the adopter and the adopted child of the Forum that decreed the adopflon (R-abel,

CHAPTER

are nationals or domiciliaries

id., p. 6a7). 10. Does adoption confer on the adopted

WILIS, SUCCESSION, and ADMINISTRATION OF THE ESTATE OF DECEASED PERSONS


What law applies in the transmission of successional rights upon the death of a person?
1.

child the citizenship of

the adopter?
No, adoption does not confer on the adopted child the citizenship

of the adopter. Adopuon is a matter politicai. and not civil, in nature, and the ways in which tt should be conferred lav outside the ambit of the Civil Code (LIgt l)ndanand Tberkehen u Republir. I 2 SCk4 400; aho Ching L-eng u. Galang, L-/ 1931, 2i OcL 195E.

There are two theories or svstems in determirung the proper law

for the transmission of successional nghts; the unitary or single system, and the split or scission svstem.
Under the unitary or single system, onll' one iaw determtnes transmission of real as well as personal properties. In countries following the nationality theory like the Phfippines, the national iaw of the deceased governs the transmission of both real as well as personal propertles, while in common iaw countries or countries that follow the domicihan' theorl', it is the law of the domicile of the deceased that governs. However, under the split or scission system, which England the and Uruted States adopt, succession to real property is governed bv the /ex itat, sAt:ie succession to movable or personal proPerw is governed bv the law of the domicile of the deceased at the time of hls death.

In the Pluhppines, we follow as already stated, tire unitary or single system, in that Art. 16 of the Neu' Crvrl Code applies the natronal law of the deceased, whatever may be the narure of the property and
regardless

of the country where the properF is found.

I06

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wtLLs,

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ADMINISTRATION

107

OT THE ESTATE OF DECEASED PERSONS

2. When we talk of validin' of u'ills, u'e refer to both its extrinsic and intrinsic validiw. Vhat does each validin refer to?

-fhus,

Extnnsic validrn' deals n,rth the forms and solemnrties mahrng of wrlls, rvhich rnclude the age and resramentan, capacitl'

in the of tl-re

(a) Frirprnos canriot make yoint u'ills u']rether bere or abroad. jotnt wili rnade bt' tu'o Fiiiprnos in a foreign counrrv is void even if valrd under tire iex ioci ceiebralioni.r ({fi.819. Neu'Cir.il Code).
a

testator and the forrn o[ the will (whether orai or wrltren, pubhc or pnvate instrumen!. notarial or hoiographrc. the nulxber o[ wrtnesses.
etc.),

Intrinsic validitv concerns itself wrth the otder of succession, the amount of successional flghts each heir gets, and such other matters that fall under the term "substance" as distingurshed frorn ..form.s
and solemnities "
3.

ft) Joint wiiis made bv aliens abroad sirall be consrdered as valid tire rn Philrppines if valid according to thelr iex nationttlii <;r lex domitilii or il valid under tile lex loci cehbratioarl(Arts. 816 and 17, id.) (c) Joint wiils made bv aliens rn the Philippines are void even if valrd under thek /ex nationalii or lex dani,;liii, tn otder tlrat or-rr public pohcv
on joint wills ma1' not be militated agatnst.
(d) A iornt u,i.ll executed bv an aiien and a Filrpino ciuzen abroacl will be vahd as to the ahen (if his national la-'r,, iaw of the domicile, or the /ex /ori tvlebratiorzi allows it), but void as to the Filipino, tlre same being

oI

rvills.

$/hat are the conflicts rules in the Philippines on extrinsic validity

of wills?
(a) if a Filipino makes a will abroad, ire mav cornply with the formalities of Philippine law (lex nationalit) ot the lex loci nlebrationi.r (the larv of the place rvhere ire was at the time of the execuuon of tire wili l.\rt. 815, Neu' Cir.il Code). T'hus, a FiJrprno docror u'orking in Neu']brli rnav execute a will rn accordance with Philippine iaw 01 New lbrk lauz

against our pubhc policy on jornt rvdls. 5. rJflhat are the conflicts tules on the intrinsic

validity of willsl

general ptoposinon. conflcts rules on tl,e inuinsic vahdrry oF wrlls are determined by the /ex nationalii of the deceased in countries that foiiow the nationalin' theory. and bv the lex donui/it at tl'Ie ume of death, in countlies that follow the dorriciliary theorv

As

(b) If an ahen makes a will abroad. he rnav complv witl-r the forma]rties of his /ar nationa/ii (the law of the countrr, of which he is a citrzen). t.he lex donidlii (the law- of his domicile) (Art. 816, Neu, Cir.,il
Code), or tlre
/e.:y /oct ce/ebrationit (the law of the country rvhere he,was at the tirre of the execuuon of the will). (Art. 17. i.d.).

6. In the Philippines, what law govelns the intrinsic validiw of wills?


The New Civil Code applies tlte lex nationalii of the decedent irr par. 2 of its Art. 16. This was also followed b)' the SuPreme Court in
u. Bnmo, 50 Phil. 867; Leonidal 129 SCK4 524.

Midano

Be//u'

u. Be//it, 20 SCk4 558; antl Ca.vtlano

r.

an al-ien makes a wil] in the Philippines, he may comply rvitlr tlre forma-lities of his own country (/ex nationalil or of philippine last (/ex lod celcbrationi.) (c) (d) As for a holographic will. u'hrch musr be entuelv writren, dared, and signed bv the hand of tl.re resraror hlnself, it rs subject to no other form and mav be made in or our of the Philippines. and need nor
be witnessed (Art. 810. New Civii Code).

If

We must not forget, however, that in case <-rf confhct berrveen the nationalry theorv and the domiciltarv theory, w can treat the case as one of "renvoi" as in the Christensen case cited ear[et in this rvork, so that we can still appl,v Philippine law even if the deceased was a. cittzen

of

another countrv.

4. rWhat are our conflicts rules on ioint wills?

?. What are the conflicts rules

if

a Person dies intestate?

In civil law countries hke tire Phihppines. the nauonal larv of the

108

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WILLS, SUCCESSION, and ADMINISTRATION 109 OFTHE ESTATE OF DECEASED PERSONS

the t,I.S. and Great Bntain which follov, the spltt or scission svstem. rb,e iex riomialit of the deceased deceased apphes.

ln common law countnes like

at the rime

of

death appLies rvith respect to personai6" while the rcx situ.t

(a) As in contracts. the provisions of a wili shalr be intelpreted in accordance wrth tire testator's intenuon. If the terms ar. .le^r and

apphes with respect to real properfi.

8. What about revocation

of wills, what are our conflicts rules?

unambrguous, the hteral meaning of dre supulauons shall control. otherwise. the evident intention of the testator must prevail by not only refernng to the context of the will but also taking into account the contempor".r"Lr,r,

and subsequent acrs

oI the restaror (Arts. 1370 to

1378, Nerv Civi] Code).

(a)Undet Att. 829 of the New Civil Code, a revocation done outside the Philippines bv a person who does not have his domrcile here, rs valid if done accordtng ro: (i) The law o[ the place where the will vras rrrade (/ex lotz
celebrationis);

or

the testator's intention cannot be ascertained by the preceding rules, the interpreration of ambiguous words must be made in accordance wrth the law which was mosr probably rn the mind of the testator when he used those words and with which he is presumed to be
most fami[ar.
(c) If dre will admrts of different interpreta[ons, that which will make the dispositrons operative shall be preferred. The interpretation that will grve the will rhe mosr favorable construction to accomplish rts purpose shall be made (Arts. 788-792, Nerv Civil Code).

(b)

If

(2) The law of his domicile at the time donicili).

of revocation

(/ax

A problem here wouid arise if the testator revokes his vdll while domlciied in one country and later, changes hrs domicile, then dies in the latter state. If the laws of hrs former
domicile and irrs domrcile at rhe time of l-ris death are different, which law applies? Common sense and logrc should applv the law of the domrcile at the time of the testatork death'

(d) Every effort shouid be made ro prevent intestacy in keeping

with the policv of respecung the will of the testator, provided that this
can be ascertained.

but this is not what our law

savs

I-lkewrse, suPPose a non-domrciiiarv makes the revocation in accordance with the law- of the place where he *'as at the

What is probate, and what are the conflicts rules on probate of wills?
10. (a) Probate is the process of proving before a comperenr court the due executron of a will, that the testator u/as possessed of tesramentary capacity, and the approvai by said court of the will.

trme, are we not going to recognize the revocation? Why indeed does the Civil Code ignore the law o[ the place of revocation, when we follou' rhe lex /oct ceiebrationts tn determining: the validity of rvills executed abroad? Is not the desite of the testator to revoke his wili as imPortant as his
desLe to make a will? (b) If the revocation is done in the Phihppines, tt is valid if made in accordance with the provisions of our Civil Code (Att 829' id')' the revocation is done outside the Philippines bv a Person who is domiciled here, it rs yalid if made in accordance with our law (the tex d.onirzli) or the /cx ioti actu of the revocauon (the place u'here the revocaoon was made) (see Art . 17 , pzr- 1. New Civil Code)' (c)

(b) The allowance or disallowance of a will is essentiallv


procedural, so that the lav"'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 properry unless it is proved and allowed in accordance wrth the Rules of Court".

if

9. What law should be applied

in the interpretation of wills?

(d) Tirere is no period of prescupuon for tiie probatc oia will. For the probate of a wiii is not exclusivelv established ur thc interest of the survrtng heirs but primarilv for the protection of the tcstator's expressed wishes in the disposrtron of his properties. Since the probate of

110

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111

validlr. executed u'ills is requted bv pub[c poiiq,. tl-re State could not havc intended the Starure of Limrtauons to defeat said pohct (,Gueuata t. Gaeuara. 'CR L-5105, .lan. )/. / 956;.
(e) Wills proved and aliowed in a forergn countr\! according to the laws of each counnv. may be allowed, frled. and recorded by the proper court in the Philippines (Rule 77, sec. 1, Revised Rules of Court).

appointed by the testator rn his will). an administrator vzith a will annexed (one who is appointed bv the court if there is a will but no execuror 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 counw where the deceased was domiciled

in a forergn countr\, it still has to be reprobated in the phiiippines in accordance with


our procedural lau; because a foreign judgment, no matter how intnnsicallv

(f Although

a forergn u.dl had alreadv been probated

at the time of his death; or if he was a non-domiciiiary the countrv where his properties are found.
(e) The rights, powers, and duties of the executor or administrator are coextensive with the terdtorial jurisdiction of the court that qualihed

meritorious. cannot ha'e. as a general rule, automatic extraterritorial effect. But instead of provrng all over agarn the due executjon of the urdl. it rs ordina'ilv sufficient to ask for the enforcement here of the foreign
judgmenr

or appointed him. Thus, an executor or administratot qualified or


appointed by
a

Philippine court has jurisdictron only over the properues

of the probate

abroad.

of

the deceased located in the Philtppines.

(f
(g) The evidence necessary for the probate or allowance of wills

Administration gtanted in the country of the deceased's last

domrcde is called

principal domiciliary administration; administration

which have been probated outside the piril_ippines are: 1) The due execurion of the wi_1l in accordance u,,ith the foreign law because we cannot take judicial notice of foreign laws. 2) The testator had hrs domicile tn the foreign counrrv urhere the will was probated; 3) The will had been adrrutted to probate rn said counrry; 4) The foreigntribunal is a probate courr;
5)

in othet counfties whete the deceased also left properties, is called ancillary

administration.
(g) As held by the Supreme Court inTajtagu. Bengaet Consolidated,

Tire laws oi the foretgn country on procedure and allowance


(|,'cia. De Pereia. Tolere. 2J2

of rvrlis were follorved. SCk4 724.

Inc., 26 SCRA 242, the domiciliary administrator of the estate of a deceased American citizen in the U.S. has no Powet over and is not entitled to the possession of the stock certificates of shares of stock owned by the deceased in a Philippine colporation, which certihcates must be delivered to the ancillary administator of the deceased's 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 heits.
12.

11.

What are the conflicts rules on administration of estate of

deceased persons?
(a) Bv "adminisrration" is meanr the process of determiniog and realizing the assets of a deceased person, the pavment of tl-re debts of the estate. and the actual drstr-rbution of the residue ro the heirs.

What is meant by the "caduciary rights" of a State in Conflict

of Laws?
the deceased had properties but left no heirs and no will, how can the country where the ptoperties are located claim said ProPertles?

If

(b) Lik" probate, administration is procedural in narure. Therefore, it is tlre lex.fori that go'erns, not the larv tirat determines how the estate of

There are rwo theories adopted bv different states so that they may claim the properties ieft bv a deceased who left no heirs and no will.
First, some countries includrng England and most American states adopt the theory that such propenies have become ownedess (bona uatantici);

the deceased is ro be drstributed.

(c) In charge of the admrnistration is an esecuror (rf one

is

112 WLLS,

SUCCESSION, and ADMINISTRATION

CONFLICT OF LAWS

OF TI{E ESTATE OF DECEASED PERSONS

CONFLICT OT LAWS

hence, thev should revert to the state uzhere thev are situated bv escheat.

in

the Philipprnes and some civil iaw counuies, the theory adopted

is that the State is the last het of a deceased person. Hence, the State succeeds to the propercies left bv sard deceased as an heL.

difficulty if a foreign element is not involved in the case. But suppose the domiciliary of one State leaves propenies in other states? How can those othet States claim for themselves
1ji. There is no

the ptoperties left by the deceased?


Example: A Chinese citizen died with subsantial business intetests

in the Philippines but with no heirs and no vdll. If we apply Art. 16, par. 2 of the New Civil Code, the national law of the deceased appl-ies 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 Phitippines can, howevet, claim said properties and business interests, by adopting the.theory of "caduciaq' dghts" of the State. This is in consonance with the proposition thar in a situation such as this, "rules of conflict of lav;s are largelv abandoned and each country eppears to work on the principle of seizing all property of tle deceased lying within its borders"; i.e., the Philippines should regard said prcperties as ownerless or bona uacaxtia.In short, the properties pass to the Phiiippines as an incident of soverergnty, not as afl heir @lackt Law Dictionary, Abridged, 5th ed., p. 92).
L.

E
CHAPTER

PROPERTY
Are the conflicts rules on real and personal properry the same?
Almosr
alJ ieea] systems

ir.f...r"i ..al prop"i.n rrrus, tire 1u* ;i-;;;;..ff"::'::',1.1.*tm respe*


e

iaw of the p)oce wh.re the propcrry


very thin

adopt the /ex tttai ot /ex rei

sitae. r.e.,

the
ro

on

c e

rn

logrcal' 'As

t'e pr'ce'whe'e

re a r p

nghts ovsr rt. evervbody reckon wrth the law of iuch 564). Indeed, u ."r.r.n."
ro

il ;. ;, :";1i: .. ::l :,:rr. fl":::Tj *:,;;a is rhe natural cenrer of ^ .o"..;;;;,ir'rlr. ,n.* mav be expected
rop er n.. +
.1:

,r.in!

pir.",;6ri"iii*'
the /ex i/u.,.of real

to
p.

er tai n

qi

predic

expectations

to ta bil*i;

of

the parues,

,, d.oL;;;i'rr.i

;;,il;;;'

J-1'l5"io-.nal iJTff T J ^,X."t::,:l'jffi


proo.rq,.
,

Laq

p en

u'herever he wenr. Therefir.l "*'* i"t ra. he carried with hrm sir.; ;;;lro., aa not have , n*"j sltus, an artificial situs rv glven to them; namely, the personal l^* "s ov/ner.

0 n a m, s in c e p er s o n d p personal effects or b.longings

Tl-re same cannot be said of the law movables. The old rule during the Middle

r; ; ;-" ;
of the

^H

"on rff :.:,:

Personal properq,' or o: r rr:;::

": : ;;r^:

"a;lr;

b.."

Recendy, in ma

countnes' tbe lex

for the patties and thrd persons *ho -uy be affected by ights in ren

:il;;;;:;;il^i;1Tl:1i.#::":#lT:*11ili.ff::,i:l

^d;;;;;ft;'r#:t

itat or lex rei tilaa

has at.so

114

PROPERTY

CONFLICT OF LAWS

CONFLICTOFLAWS

PROPERTY II5

created over personal properues to have those nghts enforced and made effecuve 0il,blff. rd.). As the place wi'rere tl.re ProPerties are located has the iegal and coetctve power to enforce sald rlghts, the lex .rltu.t or tlex rei sitae zpphes to said properues (Goodricir, Confuct of Laws, p 470;.

Example: X, a California ciuzen domiciled in Caiifomia, sells to Filipino domrciled rn the Philippines a piece of land located in Florida,
(a) The exrnnsic validrn'

USA.

of tire rransacuon governed bv tire iex itus (Floidalawi.


Fiorida Law (b) Tire rntinsic validiry of the transaction
law
(See also pars. (2) and (3)

(the formalitres) is
are govetned by

2. How about in the Philippines, have we also adopted the rule of the lex situs or lex rei sitaewith resPect to personal properties? Yes, for Art. 15 of the Neu'Civil Code provides that "real as well as personal properly is subiect to the iav/ of the country

(a) The capacities of both vendor and vendee

is govemed bv

Flonda

properw

of Art.

80

of

the Famrly Code

where ir rs situated''.

ila.r to the exftinsic validity of contracts applying involvingteal properties not siruated in the PhrJrppines).
the lex

3. Vhat 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 Neri" Civrl Code, explained thc reason thus: "Now that there has been a great increase in the amount and variew ofpersonal properfi, not immediateli' connected with the person of the owner, it was deemed advisable bv Congtess of the Philppmes to adoPt the doctrine <:f iex rci ilae also to movables"
lndeed, it
l-ras

5. What are the exceptions to the rule of the /ex situs sitaewith respect to teal properties?

ot lex tei

The exceptions to the application of the lex itus ot lex rei silae with respect to real properties are the foliowing:
(1) Succession: In civil law countries iike the Phrjlppines' testate and intestate succession, vrhether the properties are real or personal and wherever thev tnav be located' is governed by the natlonal iaw of the deceased, not the lex sitas. including the order of succession, the amount o[ successional nghts' and dre intrrnsic vahdrr,v of testamentarv disposiuons (Art' 16, par. 2, New Civil

been held that personal Properrv mav be separated

from its owner, wiro mav be taxed on its account at the piace where the
property is located. althougl'r ire is not a domrciiiarn citrzen or resident of tlre state which imposed the tax (L4anila Ga.t Cor. u. Colleclor, 62 Phi/' 89r. In fact, the concept of movabie proPern, has so grown in tl-re Philrpprnes that even lntangible properties like sltares of stock in a corporation' franchises, credits and tl-re like are nou' considered movable propern' although thev have no phvstcal or materiai srtus.
4. What matters connected

Code). Capacrw to succeed is also governed the deceased (Arr 1039. id.).

bl

the nauonal iaw

of

(2) Contracts involving real properw but do not deal with


trtle or reai rigirts over the ProPert)', the issue being the contractual rights and liabiliues of the parties, are governed by the ProPer Iarv of the contractl i.e., either the lex /oci t'o/unlalzs or the /ex ha
intenlionA
.

with real property are governed by the

Iex situs?
Extrinsic and intrinsic validitv of transactions over real proPerh such as alienauons, translcrs. and mottgaees: capacitl'' of the contracting parties; interprctation of documents, eFfects of ownersl-rip; co-orvnership; lccession: usuFt'uct: lease: easement: quieung of utle: registration: prescrrpuon; pohce power: cminent domainl and taxation are govemed bv the
iex.ri/u.;.

Example: A Filipino landowner hires a J'apanese gardener for the latter to convert into a Japanese garden a parcei of land in the Philippines' This contract is not
governed bv tl, e lex ita.r akbotgh the land to bc developed is located in the Phrlrppines' \'Vhat governs is the proper larv

of

the contract benveen tl-re parties'

115

PROPERTY

CONFLTCT9FLAp5

CONFLICTOFLAWS

PROPERTY I77

(3) in conttacts where reai ptoperhr is grven as secunw b,v wav of mortgage to secure a principal contract (such as a ioan), the loan rs governed bv the proper laq,' of the contract berween the partres, while the accessory contrzct of mortgage is governed bv rJ;'e hx itat.
(a) While the valtdrq,'of a transfer of land must, as a rule, be determined bv the lex iltus, the validiry of a contract to transfer is determrned 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 t-itle theretq a mere contract to transfer is a personal contfact that dogs not create dghts in reru. (id.)

(2) Goods in ftansit are governed as follows: (a) As to liabfity for loss, destrucuon, or deteriorauon of goods in transit, the law of destination is applied (Example is Art. 1753 of the New Civil Code). @) Th. varidity and effect of seizure of goods in ttansit are governed by law of the place where the goods were seized w*rich is their temporary situs. (c) Disposition or alienation of goods in transit is genenlly

governed by the propff law of the contact between the parties (the kx loci wlantath or hx loci iilentiorn).Th. reason is obvious: such disposition or alienarjon is effected through a contractual obligation. In some states, however, the transfer of tide to chattels is govemed by the law of the place where the chattels are

in applying the rule of the lex situs or lex rci sitae to movables or personal properties, and how ate they to be resolved?
6. What are the difficulties in possession) and has a fixed sirus, there rs no problem. But there are many different kinds of personal properties that do not have hxed situs, like those that are usually in mouon or have changrng sirus (e.g., vessels and goods in transit). or intangrble personal properties like rights and shates of stock in a corporation which, because they have no material existence, do not also have material or tangible sirus.
(1)
the personai property is tangrble (called chose

located at the time of the transfer, and this title will


ordinarily be recognized in aoy other state where the chattels are brought or transferred.

If

8. What are the rules in grving constructive situs to intangible petsonal ptoperties or choses in action?
lntangible personal properties or choses in action may be credits

(or debts), negotiable instruments, shates of stock in corporations,


franchises, goodwill of a business, or intellectual propetties like patents, tradematks, tradenames, and copynghts. The situs 5{ven to them are as

follows: (2) The aforesaid personal properties which are usually in mouon or do not have tangrble existence are thus given artificial or
constructive situs, which will be discussed in the succeeding questions.
(l) Involunary ftansfer or assignment of a debt (gamishment) 7. What constructive situs is given to choses

(a) Credits (or debts):

in possession that are

- The situs is the place where the debtor may be served.with


surrunons, which is usually his domicile.

usually in motion?
(l) Vessels, in view
(a)

of their inherent mobihry are governed by: The law of the flag, if it is a public vessel; ft) The law of the country or place of regrstry. if it is a private or commercral vessel, If, however, the vessel is docked at a foreign port, said port is deemed as its
temporary situs.

(2)Voluntary assignrnent or transfer of credit - The proper Iaw 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

118

PROPERTY

CONFLICTOFLAWS

CONFLICTOFLAWS

PROPERTY

119

accidental. oI there mat'' ha\re been several assrgnmenrs all vaLid accordrng to their respective /e;yet actu:.

(bb) The iau'


pavmeflt
a

of the piace rvhere performance or ts normall-r' expected - firis theorv ma\'-. however.

Cotpotations, Sec. 376; alsq Sec. 650, Corporarion Cocie of


the Philippines)

' therr domiciliary lar'": But

contemplate muinple situation, since recovcn'mav be made in any iurisdrction wirere tl-re debtor mair be made subiect. (cc) The nat-lonal iau' of the parues or, in a proper case.

unregistered transfer (Fua Cn

Attaching or execudon credirors are not bound bv the ransfer unless entered in the books of the corpor a6c>n (LJnson t: Dionmito, 6r Phil' 53-i), unless said creditors actuallv knew of the
a.

Summerr,44 pbit.

i0,

parties mav have dtfferent personai laws, or a needless invesugation of what the personal
tl-re

laws of tire Parties is inevitable. (3) Situs of a debt for taxatron purposes rs the domicile of the creditor, where the collecrible cred.tt may be taxed. (Minor,

(2) Chattel mortgages or pledges of corporate shares of stock, even if registered in the colporate books, do not bind the corporation, but the parties are bound as long as they are validly entered into by them (Monserat u. Cewn, 5S Phit. 26/).

id .PP l8l-282)'
(4) For the purpose of administenng debts. the sirus is tl.re olace where the assets of the debtor are actualiv situated (Minor, ta, OP 283-285)'

(3) Sale of corpotate shares as between the patties is


governed by the proper law of the contract (the lex
or
/ex bci

loci uolantatis

intentionit)bectusethis 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.62!.

ft) Negotiable instuments:


(1)

'I'he iarv drat determ-tnes whedrer dre urstnulent rs negotiable


is:

or not

(aa) The iaw governing tire nghts embodred in the instruffrent CX'blff, rd.. p. 561). Thus. rf it is a Phihppine check, Philippine law will applv; rf it is a California check,

(4) Taxation on dividends received by corporate shates is governed by the law of the place of incorpotation. 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 (Matila Gar Con a. Co//.,id) (d) Franchises:
Franchises are special pdvileges confened by the govemment on an individual or a corporation and are subject to the Iaw of

Calitbrr-ria lau' applies. (bb) The Arrerican Restarernent, hou.ever. ciarrns that the sirus is the place where the instrument $'as executed

(Am. Restatement, p. 348).


(3) The law drat determines the validrw

the state that gmnted them.

of

the transfer, deliverr,:

(e) Goodwill of a business, and ta:ration thereon: Art. 521 of the New Civil Code provides that goodwill of
a

rs gencrallv the la*' of the sirus o[ tl-re instrument at tl"re tinre of transfer. deliver)'. or negotiation (Cheshu'e, Prir'. Int. Law, p. 622).

or negotiation o[ negotiable instrurrrent

(c) Shares of stock of corporations;


(l) Sales of ct>rporate stocks are Poverned bv tl-re law of the placc o[ lncorPor:rtion, since rt is there that the transfer is rec.r.d.d rn thc books o[ the corporation (Reale, Foreign

business is property and may be transfered together wrth the right 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 genenl public patronage and encouragement that it receives

r2O

PROPERTY

CONFLICT OF LAWS

CONFLICT OF LAWS

PROPERTY I21

from its customers

(See Menenrieiu

Ho/t, 128 ti.t 514).

(.6\

ln

Philtps Erporr

B.It.

u,

C4, 206 SCk4 457 (1992), the

(f) Patents, copvrights, trademarks,


servicemarks:

tradenames, and

tigirt ro

Supreme Court reiterated its earlier ciecision in Wesnrn E quipment and Suppn Co. u. fu1et 57 phil /t j (7927), that a corporariont

/1) As a general ruie, patents, copvrights, trademarks, and tradenames are, in the absence of a ueary protected onl,ir by the state that granted or recognized them (lVolff, td., p. 558). (2) In the Philippines. Art. 520 of the New Civil Code provides that "a trade-mark ot trade-name duiv regrstered in the proper government bureau or office is owned bv and
pertains to the person, corporatlon. or hrm registenng 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 corporatlon or;urisuc person to whicir a mark or trade name has been registered or assigned under this Act mav bring an action for inftingement, fot unfair competition, or false destgnatron of origrn or faise description, whether or not it has been licensed to do business in the PhiJrppines under the Corporation Code, at the time it brings

properry and cannot be rmpared or defeated by subseq"uent appropriauon bv another co{porarion in the same field.
(7) Speaking

use its corporate and trade name is a proper$ nght, a ngbr in rem,wlich is enutled to protec[on like any otl.,., tungibi.

of

trademarks, the High Court,

Cament MJg. Cor. u CA' 25/ SCk4 600 (/ ggj),ireld that.,actual use in commerce in the Philipprnes is an essenrial prerequisite for the acqursiuon of ownership over a trademark pursuant to Sec. 2 and 2-A ol dre Phihppine Trademark Law" E.A. 166)

jn Enera/d

(8) in 1998, Congress passed Rep. Act No. 8293 known as "The Inteliectual Properq'Code" and establishing the Intellectual Property OfFrce. Under Sec. '123 of the Acq certain marks cannor
be registered, among whicir are those "x x x identical wrth, or confusingly srmilar to, or constituting a translatron of a mark which is

considered by a cornperenr aurirority

of

the

the complaint; Provided that the country of u'hich the said


foreigo corporation or jurisuc person ts :r ciflzen or in whrch it is domiciled, by tteaty, convendon, or larv, grants a similar pnvilege to corporations or jurisuc persons of the Phihppines.
(a) As to copynghts, the formel ruie is that a copyright is protected only bv the state that granted or recognized it, absent a ueag. Thus, a copvright in State X could not be enforced in our country in the absence of a treary unless a similar copvright was also applied for and granted in the PhiJ-ippines. (5) On September 27, 7965, the Phiiippines became p^rw ^ to dre Union Convention for the Protection of lndustrial Property adopted in Paris on March 20,'i993. Art. 8 oi said Convention states that "a trade name lmeaning, a corporate name] shall be protected in all fie counftles of the Union ulthout the obligauon of hhng of registration wirether or not it forms part of the ftadename".

PhrJrppines to be rvell-known internationally and rn the Philippines, whether or nor ir is registered here, as being the matk of a person other than

the applicant for registration, and used for


idenucal or similar goods or services". Sec. 3

of the same Act provides that


a

corporation, being a national or domiciliaq' of

country which

^ny

forcrgn

is a partv to a convention, ueat\! or agreement relating to intellectual

properfv ngirts to which the Phihppines is also a partv or which extends reciprocal rights to our nationals by law, "shall be entitied to benefits to the extent necessarv to give effect to any provision of such convention x x x". Such foreign corporauon even if it is not engaged in business in the Philippines may nevertheless bring a civil or admtnistrative action for opposition, cancellation. infringement, or unfat compefltion, as provided for in Sec. 160 of the Act. However, under Sec. 156, same Acr, onlv ownerc of registered marks may recover darnages from anv person who infringes his rights.

CONFLICT OF LAWS

CONFLICTOFLAWS

CONTRACTS

123

A. EXTRINSIC VAIIDITY OF CONTRACTS


1.

\$/hat conflicts rules determine the extrinsic validitv

of contracts?

As a general rule, the exrrnsic validrty of contracts is governed by rhe kx loci cehbration*, otherwise calfed lex loci contractut.

M
CONTRACTS
1.

CHAPTER

Att. 77 of the Civil Code of the Philippines ptovides that ..the forms and solemnities of conftacts, wills, and other public instuments shall be governed by the laws of the country in which thev are executed". And
Sec. 9

of the American Resratement Second, considers as binding

the "formalities which meet the requirements


parties executed the conttact".

of the place

where the

2. Are there variations of the rule of lex loci celebrationis in determining the extrinsic validity of contracts?
Yes, there are variations.

What is a "contracttt and why does the law on contracts present

many problems in Conflict

of

Laws?

"Contract" is dehned bv Art. 1305 of the Civrl Code of the Phihppines as "a rneeting of minds betrveen lwo Persons whereby one binds hlnseif, with respect to the other, to give somedting or to render
some service".

(a) Suppose a contract is entered into by parries in rwo different countries bv cablegram, telex, or fax. \fi/hat is the place

of

execution?

conftact may create a status like rnarriage, or creates or uansfers real rights or title to properry (like sale), the specific subject of "contract" in Confuct of Laws is limited to purely civil or commercial

Although

transactions.

Every state, in the exercise of its sovereigntl', has the nght to determine its own law on conuacts. As long as there is no foreign element in a contract, questions pertaining thereto are governed by the Iarv of the forum state. It is when there is a foretgn eiement in a contract that problems arise, for then, the forum v'ill have to decide what ]aw shouid be applied in deterrnining the existence or non-existence of a
contract, as well as its validrq', bodr extrinsic and intrinsic, and the capacity of the conftacting parties.

Arl 1,319, par.2 of our Civil Code states rhat "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 in the place where the offer was made. In the PhJrppines, the bx loci alebratioaziis, therefore, the country of execuuon.
(l)
(2) In American laq however, a contract is deemed entered into in the place where the acceptance of the offer is posted or mailed.
@) Suppose the place of execution was meteiy casual or
accidental like a Chinese and a Filipino who, meeting accidentalll'

in Hoogkong, entered into a certain contract or agreement there to be performed in the Philippines.

CONFLICI OFLAWS

CONFLIC-T OF LAI,VS

124

CONTRACIS
has the most significant Itt stttlt :r clls(" lh( l;r*'rvirich shortlcl bc applied ln .tircrrvords' reiel.t.tlsltlptt' ti"l ''^"t"t tt.tt rvhich the partres must hav-c tht'c.rtrl tttt"'ttl 'q-t1''t' 'i'tt iarl. transactl()n' tc; qt'-c eifect t() tilclI assrttrctl ri'ottitl lrc aPPitecl 3.

CONTRACTS

725

what law will govern the incapacitv of the alien in the following specific problem? An 18-yr. old alien, who has no capacitv ro contracr under iris

namelt' I thriqlPrllc larri


(c)
13v

x1s' wav oi other excePtlons established and rmportant an contravenes ctr lu loti ielebrationi't to it wouid work gross injusuce to pohcv of tt-" toru-; or mores' ^PPI\; bonot i*"*; orli tire ftan'saction is contra the people tr

wiren the

lex loci clnfracla!

nadonal iaw wherein the age of maioriry rs 21, enters mro a contract in the Phihppines. can he later plead his incapacrtv under his national raw to er.ade the contract?

Remembettit"'ft"t""tcementolaforeignlavrsonlvamatt:r to comlq'' cases arc clear excepuons of conuq" and tire foregorng B. CAPACITY OF PARTIES
1.

'i"

No, because to apply the narional }aw (or iaw of dre domicile) of the alien in determining his capacity ro conftac would require Fil_ipinos to fust ascertain what the personal law of thar alien is. sometimes with
great difficulry such drat busjaess uansactions.xrith aliens would be greatly

impeded.

of the in determining the capacitv What are the conflicts rules


contracts is generalll' (a) Capacrn' to enter lnto

4. The weakness of applying the national law of the conracting party as to his capaciry in the foregoing cases is thus seen. How can such difficulties be avoided under our law? the conrract is entered into in the Phiiippines, or rhe ti're contract would be in the Philippines, vre should apply, not the personal law of the parties, but the proper law of the contract or the law mtended bv the parues, to determine tl.reir capacity. (see Paras, supra, ciring dre Geneva Conventibn and the German Civil
(a)

contract? Parties to a

tiril is personal la'r' oi tire O^'Jt" ff the domrcile theorl" and bv tl-re law of countries followrng the nadona[w conff2cts tl-'et'rv' Excepuons are in countries r"["*"g t;Jt"ttiiiti"u botl.r reai and
personal,

-:'i^'n' ln the natlonti larv of the parues

gc,l':t"td

If

performance

of

of p'op"'ties' involving aliet'otioriot encumbranct to'lt'"cttng parties is governed tl-tt in which *'"t t^p*'* t'f bl
the /ex rilzt'

Code) (b) We should limit the application of Art. 15 of the Civii Code (on capaciry to conftact) to agreemenrs involving familv and domestic
telati.ons, while we should apply the proper law of the contract in business or commercial transactions (Salonga, supra, citing Rabel).

in the llilpp,n.,t1,::.^':?:'[,il;r:T".,, governed Dr I thrt cepaciw of I Frirprno ls theort'' b".nrr.. ve folion' the nadonaliry
(b)

* iJ:i::

2'

of the Filipino in the follorving What law governs the capacitv


1.

C. INTRINSIC VALIDITY OF CONTRACTS


What are the conflicts rules on intrinsic validity of contacts?

sPecific Problem?
the age into a contract in ltaiv where A 20-vr' old Filiprno enters ltalian under plead irrs incapacin cii maiorrtv i' 21 ;' ;:;ililer contract? under tht ceiebralionu) to avoid [abiiiw Iau' (tr"lrich is the /rr ioct c()nffact (RcP' hct has dre capacin'to No. llc<:ause r'rnclcr l)hil' latrr tt'tt;^1-L:.]'ot t. 18 vears)' 11 6809 has rcclucecl tot"'^t' of Filipinos is govetned ";';:';;;;;"q capacifi' Phrhpprncs pror'ides that
the

(a) Broadly speaking, the intrinsic validiry of a conuact is governed b1' the proper 1aw of the contract; i.e., the /ex loti uo/antatit

or the

lex lod inlenlionis.

ft) In Amencan lau'(1)The Amencan Restatement of 1934 required the application of the proper law of dre contract, or the law of the place of performance.

bv therr nattonlrl

hw

'o

126

CONTRACTS

CONFLICTOFLAWS

CONFLICTOFLAWS

CONTRACTS I27

(2) According to ti-re Second Restatement' howcver' the la.r, to be applied should bc the larv clrosen br. the parues: tt none' the lav'of the state u'hrcir has the most slgnlllcxni relationship to the parties or to the transacilon (3) Prof. Raleigh \4rnor advocates the application of the followtng different laws:
nkbrationit' (i) As to the perfectlofl of the contrac t - lex loci loci hx consideration the of validrry (ii) As to the
considzrationis.

wiren the change is so revoluuonarl' that it could never have been contempiated bv tl-re parues Oiblff. supra. zl30--131).

(c) Several laws mav be selected. each o[ which u'ill govern ti-r different elements of the transacuon (Chesirue, Private International Lau, p.236)
(d) If under the selected law, the contract is legal. but in the place of performance, it rs illegal, the selected law should prevail and the contract should be considered legal (II Rabel, supta, p.537). Orherwise, the place of performance, which couid be merely accidental, wili control. Besides, the place of performance mav be different under different larvs fWolfi, supra. p. 135)
(e) Assuming that the law ol the place of performance can be ascertained, (as when it is expressly agreed upon b1' tlie parties), still, quesuons of substantral and essentral vahdtry (such as whether the contract is valid' t'oi.dable, or void) should be governed by the proper ia.r" o[ the contract. Onlv minor details (such as the time of ptvment during busrness houts) should be governed by the law of performance (Chesite, supra)'

(')
(c)

A.,.Gff;::T#::f;ilffi

/;;i;ci

ntu'ln ni:

In the Phil-rPPines:
(l) l&'e have no specific provision

of lav'applicable to

conflicts rules on tl-re intrinsic validiw of contracts' Horvever, the poiicy oi our law is to give effect to the in rnteorion of the parties' Indeed, the parties may establish

their.contractssuchtermsandconditionsaStheymaydeem

convenient, ptovided they are not contraly to law' morals' good customs or public policy (Art' 1306, New Civil Code)'
(2) Thus' rve should appl,v the ProPer law o[ the contract' by the i.e.. the lex lotz aohtnlalei (the law expresslv agreed upon upon parti.es) or the /ex loci inlentionis (the law lmpliedl-v agteed ty tl,. po.u.r), as determined by manv factors' especially the iaw that has the most substantial connection widr the transaction, by the or the law that may be presumed to have been intended

may stipulate on the proper law of the contract, thev cannot stipulate on the jurisdiction of courts or to oust our courts of therr: judsdicuon (Molina r. De la Naa 6 Ph;/. 12). (f)

\\hile

ti.re parttes

(g) The parties cannot also contract away aPpLcable provisrons of our law that are heavily impressed wrth publ-ic interest or which involve public policy (like our iabor laws) (Pakzstan Internationa/ 'Airlinu u Opk'
1e0

parties to bind their uansactions

scK+e2.

in 2. But there should be limitations to the court's choice-of-law what determining the intrinsic validity of contracts' Can you state thev
are?

of

(h) American law recognizes "cognovit" clauses if the parties werc equal bargaining power and the debtor voluntarily agreed to sald

clause.

no connection (a) Generally, the parties cannot select a law that has
at all

"Cognovit" clauses specify rvhich courts would have iurisdiction in case of breach or default in payrnent' or it mav
be one that waives the debtor'.s right to notice (otl.rerwise knorvn as confession

with the transaction

of iudgment).

p) If the law selected should change' rt ls the new law that should law can be applied, for it may be presumed that the Parties knew that
^l.,uou.

b.

is' chanped as times and condiuons change' The exception

12S CONTRACTS

CONFLICT OF LAWS

coNFLIcroFLAws
coNTRAcrs
t2g

D. SPECIAI KINDS OF CONTRACTS


1..

5. Lease

of

service (or empiovment) agency, guarantv or surewship.


are personal conrracrs; hence the law on contracts
_

Based on our existing lau's, state the conflicts rules in the foliowing special kinds of contracts:
1. Barter. salc. donauon:

wili apply

.Jn..:

(^) Extrinsic validtry

lex /oci celebrationit

(a) Extrlnslc validiw - lex tilu.r

(b) Capaci6' of the parues - /ex situ.r (c) Intrinsrc vahdrq' - kx vlut

2. Lease of properry:
real rights, such as those for a period of more tl-ran one vear br is regrstered, apply lex sirus. (b) if the lease is from montl-r-to month, week-to-week, or da,vto-day. and does not cteatc teal nghts, apply the law on contJacts: (a)
(1) Extnnsic validitrl

! c

If it creates

b L]

(b) Capaciry of.f.. . n"rues _ personal law of the parties Intrinsic validrty G) - /ex bi aoluntatit or lex loci i inteilioni.r j nut an agency to alienate or encumbet real property is governed by the /ex itat. :

6.Contract of ransportation or carriage:

$*

contracts applies.
(b.)

This is a contract to render service; therefore, the law on


_

lex lori celebrationit

(a) Extrinsic validity

lex loci celebrationit

(2) Capaciw of the parties -personal ]aw of the parties (3) Intrinsic vahdity - lex loti uoluntath or lex loti intentionit
3. Pledge, chattel mortgage, real estatc mortgage, antichresis: (a) Extrinsic validiry

of pardes _ personai Iaw of the parties -Capacity (c) Intrinsic

(b) Capacity of the parties * lex ntul (c) Intdnsic validrq' - lex iltas These are governed bl'the lex situs because they are contracts of encumbrances of property, real or personal. But since they are accessorv contracts, if the principal contract secured bv them is void, thev are also void.
4. Conuact of loan:

kx .rilat

such declaration
Unes
a.

1753, New Civil Code). (e) If the Carriage of Goods by Sea Act governs, the limitation of the liabiliry of the carier underiaid Act applies, unless the shipper declares the goods and inserts

validiry - lex hci uolnntatit or /ex /oci intentionis (d) Uabilitv for loss, destruction, or deterioration of goods in transit _ law of destination of the goods (Art.

in the bill of lading Q4meican pretidrnr KWrr, fiO phil.24j (tg6q.

I{

however, the contract is for intemational aL transporation:


(a) The [abfity of the airline in case of death, injury to passengers, o^r loss or damage to cargq i. go\r..rr.j bu

I[ it is mutuum, apply the rules on contracts


in gencral:
i.e ..

the Warsaw Convention, ,m.nd.4 ,o oihi.h ^, came a party in 1951 (santos III a.
tine4 210

*.

b",_

SCk4

(a)

Extrinsic validrq' - lex loci

j6 (t 994.

Nortbwett oient,4ir_

rclebrationi.r

(c) Capaciry of the parties - personal law of the parties (d) Intnnsic validiq - lex lorz uoluntatis or
/ex

(b) But

if

If
conuact.

/ut inlenlnni.t it rs commodatum, appiy the lex situt because it is a real

255 SCRA 3S

KLA4 RUal Dach Airitu ,. C)1..', os SCRA 237-(1965); (t 975); Sabena Eelgian lyorld Airlinu t. C_4".
(7

tT**a SCLA

Its agents, the carier is liable for damages beyond those by the Warsaw Convenf_ion

improper discrimination Jn the p".t of 9r

there was malice, gtoss negligence, bad faith,

*" .roi..

ol

ajt

ltiprqr.'p"r2;,-;;

e96).

CONFLICTOF LAWS

CONFLICT OF LAWS

TORTS

131

F"

who, contrary to law. wilfully or negligently causes damage ro anothei. shall indemni$ the latter for the same". This is a new provision under chapter 2 of the code on Human Relabons, which is an enrirely neu,
Chapter in the Code.

(' A ,
J

= L'
.'t
.l

4rt.2176 of the same Code, on the other hand, tetains the Spanish
concept of cupa aqailiana ot quasi-dtlict. It provides:
"\X{hoever by act or omission causes damage to anothet, there being fault or negligence, is obliged to pay for the damage
done. Such fauit or negJigence, if there is no pre-existing contractual

CHAPTER

M
TORTS
or
a

c <. E

tn

t .t
s

relation between the parties, is called by the provisions of this Chaptet."

quati-dtlict and is governed

1. What is the meaning of "tort"?

3. In Conflict of Laws, what law governs liability for torts, and what ate the reasons for the tule?
(a) Liabfity for torts in general is govemed by the /ex loci delicti commbii; i.e., the lav of the place where the delict or wrong was

person or proPerry "Tort" is a legal wrong cornmitted uPon independent of contract^


(a)

-.t

of contract' damage to anothet. independent

(b) In Spanish lavr, the concePt of "quasi-dehct" lalpa fault or negligence caus$g ra.. all acts or omissions committed through
damage to another Person causes

aqailiano

committed.
@) Reasons

for the rule:

(1) The state where the social disturbance occutted has the

through It covers aII cases where do so; i'e'' unintentional wrongs' negligence, or with no tntentiorto

primaty duty to redress the wrong and determine the effects

of the rnjury;

and

"tort"-has a broader'meaning' (c) In American lavi however' through negligence' but also covers legal wrongs toi o"fy commrtted willfi:l tntent' but of course' independent those committed with *^Utt t' covered by

for it

(2) To compensate suffered.

tle victim for the damage or injury

of conftact and of conffact' Otherwise, it *tt U" breach another field of law, conuact law

4. In applying the rule of lex loci delicti conmissii , how is the locus delicti determined, especially if the wrongful conduct is committed in one state and the iniuries 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 tn determrningwhere the bcat

2.Vhatistheconcept'of'(tott''inthePhitippines?
Civil Code is a blending Our concept of "tort" under the New American tort' which mav be of the Spani sh cr'tlpa-aquiliana and the but also with malice not onlY ifttotgft fauit or negligence'
committed andwillful intent'
ddictik:

(a) Civil law theoty - the loat

provides: "Every Person Thus, Art' 20 of the New Civil Code

the act began. This is so since the rules on tort are intended to regulate human conduct, such that a person who willfully and negligendy acts contrary to the social norms must be held liable for the
dekcti is v.rhere

132

TORTS

CONTLICT OF LAWS

CONFLICTOF LAWS

TOf,TS ur3

inlurv causcd (il Rabel, suPra, p' 303)'


Example: \X4rile huntrng m State X near the bouncian' shot Ross' who was standiog of Statc i', Jrm

Upon their return to New York. Babcock sued -Jackson for damages under Nev'York lavi Ontario,s law does not al.lov,
an1 reco\/en'. Can Babcock recover damages from Mr. Jackson under Ner*'' York La'u'?

onasueet-instate\lThelocusdclictirsStateX'because
that rr/as where the negligent act occurred'

"ccidentallt'

(b) Common law theory:The locus deluti

is the place where the

that wrthout an wrongfui act became effecgve The reason is necessit\ fot no is injurf the,. is nothlflg to ptotect and there
;udicral telief'

the Example: In the above examPle under par' (a)'


locus dzlicti is State

Yes, for, except for the minimum conract \rrlth Ontario law as the accident happened in that place, ali the dominant contacts and factors connected with the accidentwere in New York; namely, the parues resided in that place; their guest-host relationship started in New York and was to end rn Nerv York; and the car where the parries rode was garaged, hcensed, and insured in New York. So, the state of Nerv York had the most significanr relationship to the case. ,Q) Saadi,4rabian -4irhnu r C-4, 297 .tck4 a69 ( 998); Here, our Supreme Court held that Philippine law should applyi because it was in the Philippines that private tespondent
.

Held:

Y'
locat delictiis the place

(c) Theory of Dr. Rabel - The

which has

wtongful act' the most substanrial connecdon wlth the Example: The situs of the radio station whete
a

]ibelousbroud.".tismadeisr\elonsdzlicti,evenifthe
broadcast is heard in manv Places'

working for respondent here; plaintiff's natrona]itv and domicile rvere here; we were intrmatelv concerned with the ultrmate outcome of the case not onlv for the benefit of tl-re litgants but also for the vindication of
deceived pla:nnff-stewardess; plainbff was

5.

in determining is, some modern theories have been developed liabitity for totts. Please state what thev are'
(a) The

the locus delicti Because of the diffrculty in determiningwhere

our country's svstem of lau'and justice in a ttansnadonal setung. Hence. the lorus drlittiwas the Philippines

(b) The interest-analysis apptoach:


This approach considers the relevant concerns that nvo or more states may have in the case and dreir respecuve interests in apph'ing their lav's to it. I[ this approach is applied to the Rabcock case cited abor,e, it would appear that only New \brk lav' had a legrtrmate interest in advancing its purposes and pol-icres, while Ontario, Canada iaw had no intcrest to advance. ln othcr words,

de

of the "State of the most signifi-cant telationship":

This de as stated in the Second Restatement a case of tort is that the rights and obligations of the parties in with respect which' state the determinei by "the local law of to relationshLrp significant to th" p^rdiar issue, has the most
the occunence and the Patties"'

of 1969' is

ExamPles;
N'Y'2d 47); 191 It'E' 2d 279 lr'{rs' Jackson left New \brk' and (96)'' Babcock and Mr' Mt'Jackson for a their residence, in the Jackson car driven by

it was a case of false c.rnflict. If, horvever, the case poses a real conflict berween the interests of two or more States. if the interested forum finds that
the other State has a greater claim rn the :rpplicauon of its law to a glven case, the forum should vield and applt' the larv of the other state. Or, if the forum is disinterested in the case, it can
dismrss the same on the groun d o( lbran rcfl Lvnuettien,r. In short, the State which has the rnore relevant and rveiglrw interests in the

(l)

Babcock u. Jackton,

l2

Canada' Mr' weekt trip to Canada. \X4rile uaveiing in Ontario' badly hurt' was of the car and Babcock Jackson lost conttol

134

TORTS

CONFLICTOF LAWS

CONFLICT OF LAWS

TORTS

135

case

should be constdered tbe ioul

deJicil.

applied bv the forum wirere tl're case is rrled @aras, supra. p. 39.r. citing Amencan cases).

(c) Qaver's principle of preference:


Under this theory, a irigher standard

of

conduct and

7. Is a foreign tort actionable, or may be the subject of an action for damages, in the Philippines?
(a) Yes, provided we acquire lurisdictron over the defendant (because an action for damages is an actron in penonam)and certain conditions are present, namely: (1) The foreign tort musr nor be penal ln nafure;

Frnancial protectron given to the iniured party by one State is

applied by the State where the iniury happened,

State adopts a lower standard protectlon to tl-re iniured.

if the latter oI conduct and financial

Example: As a resuit of an illegal sale of iiquor to X in the State of Minnesota, T, a passenger in the car driven bv X in an intoxicated state, was hutt in an accident that occurred in the State of\nisconsin. Sued for tort by f in Minnesota, X moved to dismrss the case on the gtound that the accident happened in Wisconsin, the law of whiclr required that rvrongful act and the injuty should happen

(2) The enforcement of the torrious habi[n, shouid nor con_ travene our public policy: and

(3) Our judicial machinerv must be adequare for such


enforcement. (b) Remembet, however, that while all procedurai matrers are
governed bv the lex.fbi (.i.e., PhrJrppine law), since the case is hled here, ali substantive matters are governed bv the lex lon dc/itli .rommzL.Lz7. Thus:
(1) The period of prescriprion the kx loLi
de

in the

same State before the recoverv can be irad.

Held: To appiy Minnesota law to the case would be more in conformiry wlth the princrples of equiry and justrce since X'.s wrongful conduct was completed s'ithin N.&nnesota where X became intoxicated befote leaving said State and before going to Wisconsin rvrth T. Besides, the parties both lesidents of \4tnnesota whose law
dernanded a higher standard
"vere

licti nmmis.riibecause in

rs governed by Philippine larg prescripuon is

of the action

substantive, not merely procedural.

(2) The proper parties, the measure

of

damages, and the

of conduct than that oF

questron whedrer d1e act complained of rs considered the proxrmate cause of the injury, are ali governed bv the lex loci delicti tommixij.
(3) The burden of proof and the defenses drat may be rnterposed by the defendant are aiso governed bv hx loti de/icti commnit.

Wisconsin rvl.rere the accident happened. (SclLnidt u Dnlcoll Hotel. 249 Minn. 375, N. LV'. 2'/ 365 119a7iS

6. What are the conflicts rules on maritime torts?


(a) If thc tort is committed aboard a pubhc vessel, whether on the high scas or rn foreign tcrritorial waters. tire law of tl-re flag rs the /rx io ti de li cf i cont n i.r.r i t. (b) If thc tort ts committed aboard a private or merchant vessei on the lrigh seas, thc larv of regisuv is the lex loti delicti commissii. (c) lf trvo vcsscls c<-rl[de and are from the same state, the ]2w of

(c) Example of a foreign tort actionable in the Philippines: X and I both Ftlipinos, were vacationing in Hongkong. One day, while

driving a rented car, X ran over \'. rvho was walkrng. causing tl.re latter to be hospitalized in Hongkong. Upon rhe rerurn of both to the Phiirppines,
sued X for damages adsing from the rott commirted bv the latter while thev were in l{ongkong. Will tlie action prosper? Yes, provided rt is hled within dre period prescribed by Flongkong

registq is rhc l'.r

/a,r

r/c

hilt ,rtmmit.rii.

(d) ll-tlrt' r't'ssc'ls come trom different states rvith identical lau's, appll s;ritl rtlctrttcrl linvs. (c) ll- tlrc vcsst'ls cot::t' frotn different states urith di[ferent laws, tlre /r-v /oti rbhrtt tontntt.t.tu ls llt(: llcnerlrl maritimc law as understood and

of prescriptron is subsrantive and not procedural. The kinds and measures of darrrages recoverable b1Y, and the defenses that X mat' put up, should also be governed bv Hongkong law, which is rhe lex lott delicti commilsii. But all procedural marrers hke the period for filtng the answer, the period for appeal. etc., sl-rould be governed 6v rhe lex./ori. whrch is Phihppine law.
Iaw, dre lzx bci rhlicti tvmmhlii, since the penod

136

CONFLICT OF LAWS

CONFLICT OF LAWS

8. What is thc Alit'rr 'lirrt Act, and do vou know if it has been applied in cast's lilctl lrr trilipinos in the United States?
the United States. which was enacted civil acuon hled by ,rn alrcn lor a rorl commrtted in violation of the law of nations or a lreah' r>f tlrc Unrted States.
17U9, grants t I.S. tlsrrrcr courts original jurisdrctron over any

(l) 'l'lrt' ,\lrcrr'lirlr Act

ol

in

(b) It was under the above law that the United States Court of Appeals upheld the jurisdrction of the distnct court of Hawaii over a class actron for damages filed by almost ten thousand Filipino victims of
human nghts abuses and tortw'e comrnitted bv dre iate President Ferdinand Marcos and his ofhcials rn the Philippines during the Marcos reglme, resulung in a nearll US$2 briiion judgrnent in favor of the victims andf or

CRIMES
1.

their lrerrs (Tralano

a.

Marcot-Manotoc, / 25

LEd.

2d 661 ,

17

3 S. Ct. 2958.

Distinguish tort from crime.

(a) Whiie both tort and crime are wrongs, a tort violates pnvare rights u'hile a crime is committed against the State.
(b) Tort acuons are instituted by the mlured person against dre

ttongdoer

in a civii case the purpose of which is indemnifrcatron fcrr damages


suffeted; wirile crimes are prosecuted in the name of the State agarnst the offender in crimirrai actions the purpose of which are the protection and vindication of the interests of the public as a whole, the punishment of the offender, the reformation of the offender, or to deter others tiom

committing the same

act.

in character, so that the tortfeasor can be made liable for his wrongful act in any furisdicuon where i-re mav be
(c) Torts are transitorv

found. Crimes, on the other hand, are iocai and can be prosecute d onlv in the places or states rvhere the crimes are committed. 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 cnme depends on the charactenzation of the act in the state where said act is committed.

138

CRIMES

CONFLICT OF LAWS

CONFLICT OF LAWS

CRIMES

139

In thr'ltlrrlrpl)lll('s. ('('rtitlrl:lcts mal be both torts and crlmes.


Under Art. 33 o{ tlrc ( tvrl ( .otlc ol'thc Philrppines. "rn cases of defamation. fraud. and phi'stc;rl lrrprrr('s. a ctli] actton for damages. enurelv separate and disdnct i'r'orrr tircl cltnrinal acrron, mal be brought bl t]re rniured

parw. Such civtl actron shall proceed independentlv of the crir'i'rai prosecutlon, ar-rcl shall recluire onlv a preponderance of evidence."
Take the ofienses classifed as "'criminal negligence" r.rnder Art. 365 of the Revised Penal Code. They mav be ptosecuted as crimes bv the State. On the odrer hand, the vrctims ma,v file separate actions for damages against the offenders based on torts.

(d) Real or eclectic theorv _ Anv srare whose penai cocie has been transgtressed upon has jurisdrcuon to bring to iusuce tire perpetrators of the crime, whether the crime was commrtted rnside or outside rts own terrttory. crimes under thrs theon'would rnciude pitacy, slavery', drug tratficking, imrnorai tmffic in women and
children, etc.

G) Cosmopolitan or universality theory - Any state where the criminal is found or whicir has obtained custody over him, can trv him for the crime he has allegedly committed, unless exrradidon
apphes.

Vhat are the different theories that determine whether a state or a legal system has jurisdiction to take cognizance of criminal
3.
cases?
(a) Territotial theory - Under this theorli the state whete the crime was committed has juusdiction to tr\: the case, and its penal code and the penalties prescribe therein rvili apply The teason is that the aggrreved state is dutl'bound to prosecute and punish the offender as his

(0

Passive personality, or passive nationality theory

The State of which the victim is a citzen or subject has jurisdiction to Prosecute the offense.

(The above enumeration was taken from Paras, id., pp.


403-406)

crime affects direcdt'and particularlv dre drgruq,, authoriq', and soverergnh' of the state w'here saici crime is committed.

4. Which among the theories enumerated above, do we follow in the Philippines? In the PhiJrppines, we foliow as a genetal rule the territorial theorl', of exceptron, the protectrve theorl'.

'lhis theort mav be of two kinds: (1) The subjective, territorial principle - under which the
state wllere the crime was begun may prosecute the same, even

and by wav

if it was complcted in another

state.

(2) The objective territorial principle - under which the state can prosecute crimes begun abroad but completed rvithin its territory. fParas and authorities cited, supra, p. a0a)

.In other words. we cannot prosecute a cdme committed abroad or murder) in the Philippines, because it is committed outside our territorial jurisdicuon.
(Like bigamy, rape,

We also follow the rule o[ generaltrv in criminal lau'; i.e., al] persons, whether Fihpinos or aliens, are subject to our penal laws and can
be prosecuted ior theirviolauons (Art. 14. Civrl Code of thc Phihppines).

(b) Nationalitv or personal theory - The countrv of which


the criminal is a citizen or sub;ect has jurisdrcnon to tn'hrm for crimes allegedly cornmrtted b,v him, whetirer inside or outsi.de its tetritory, provided it is a crime under said countr,vh penal lau,.

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 bv our courts?
Thev are the cascs tncntloned in Art. 2 c,rf thc l{evised l)cnal Code, lo wil: "Except as provrded n thc treaties and laws of prei-crenna)

(c) Protective theorv - Anv state whose nacionnl interests mav be jeopardtzed has lurtsdictron over cnmrnal offenses. even if comrnitted outside its territorii and in some cases. even if committed
bv an alien.

140 cRlMlrs
;rl)l )lt(

CONFLICTOFLAWS

CONruCTOFLAWS

CRIMES

141

,rtr.tr. llr(' l)r()\'lsl()11s of this code sirall be enforced 1.r .rl\' \r'lllrlr) lll(' l)hihpprne Archrpelago. including its :lilltr,s!)ll('t('. lts ll)tc:fl()r waters and maritrme zone but also otllsltlt'tts lttrts<1tcuon, agzlnst those rvho -

(b) French Rule: The stare

(l)

Should commlt an offense \'"'hile on

Philippine

whose flag is flown bv rhe vessei has jurisdrction. excepr if the crtme affects rhe oeace. order, securiry', and safew of the territory. paras. rd., ctting Bnedy, Law of Nauons. p. 180)

slltp ' rr arrshiPl

Sirould forge or counterieit anl'corn or currency note of the Philipprne Islands or obiigations and secudties issued bv the Government of the Philippine Island; (3) Should be liable for acts connected with the

(2)

introduction into these Islands of the obiigations


mendoned in the preceding numbers;

\Xhile betrg offrcers or emplovees, shouid commit an offense in the exercise of their official functions; or

(4)

(5)

Should commit any

of the crimes against

nationai security and the law of nations"'

Examples of crrmes against tire iau' of nations are airPlane


hijaclung, piracl or mutlnv on the high seas, dtug trafFrcking'

6. Do we have jurisdiction over crimes committed on board foreign vessel if said vessel is within our tefritorial waters?

Tl'terc aretwo ti-reones that have generally been used, and which determining our Supreme Court has appl-ted ln the old opium cases, in the emphasizes Rule (which Enghsh the this quesuon of iurisdtcuon; nationality the (wi-rrch stresses Rule French territorial principle) and the theory).

The above two rules were also cited and compared by the Supreme Court rn the case of people t. lWongCheng,46 Phi/. 279, although rhe Court also held that as we were at that time a tertitory of the United States, we follow the English rule which was the one prevaihng in the United States. This case, however,'involved the crime oi smoking opium in a forergn vessel anchored rn Manila Bay, which the High Court held was a breach of our public order because ofthe pernicrous effects that ir produced in our terdtory. In shott, dre Suprerne Court actualiv applied the French rule to the case, not the English Rule. Nonetheless, as observed by the lateJustice Paras in his book rn Confhct of Laws, "the difference between the two rules is largely academrc and theoretical, the two rules being essentially the same. Thus, if aboard a German ship anchored in Maniia Bay, the crime of murder is committed, under the English rule, the Philtppines would have junsdiction in view of the general rule. Under the French theory, the Phiiippines would also have iurisdicuon under the exception, for the crime indeed affects the peace
and secudty

of

the territory, \X4rether we follow, therefore,

(a) English Rule: The territory where the ctrme was committed (in our problem . the Phiiippines) will have
iurisdiction
excePt:

the English or French rule on the matter is not signihcant: The effect is the same". (?aras, supra, pp. a10-a11)

7. Did the United Nations Convention on the Law of the change the above rules?
Art.27 ofsaid Convention pardy provides: "Criminal jurisdiction on board a foreign ship

Sea

(a) In matters reiating to the internal order and drscipline of the vessel; and (b) Those which affect soleiy the ship and its
occupants such as minor or petfv criminal offenses committed bl' members of the
crerJ/.

(?aras. id., p. 410, citing Hyde,

International

Laq Vol. I, p. 739)

The criminal junschcuon of thc coastal State should not be exercised on board a forergn ship passrng through the territorial sea to arrest any person or to conduct any rrvesugation in connection with a crime committed on board the shrrp during
1.

CONFLICT OF LAWS

142

CRIMES

CONFLICTOFLAWS

its passage, save onlv in the following

cases:

(a) If the consequences


coastal State;

of the crime extend to the

(b) If the cnme is of a krnd to disturb the peace of the country or the good order of the territoriai sea;

In short, under the rules of said Convention Philippine courts do not acquire jurisdiction over cdmes commrtted on board a foreign vessel even if it is within our territorial waters as long as the effect

Iu
BUSINESS ASSOCIATIONS
A. CORPORATIONS
1.

CHAPTER

of Ftench rule to the effect that we have no iurisdiction over ctimes committed aboard foreign vessels even if they are found within our
territorial waters except when the crimes affect the peace, order, securiry and safety of our countty and territory.

such cdme does not disturb our Peace and order. Th,rs is similar to the

How do you define a "corporation"?

A corporation, accotding to Sec. , of the Corporation Code of Phihppines, "is an artihcial belrg created bl the operation of las', having the right of succession and the powers, attributes, and properues cxpressly authorized bv law or incident to its existence", rvl-riie Section 123, ol the same Code, defines a foreign corporation as "one formed. c+'ganrzed or existing under any lar:,'s other than those of the Phtlipprnes and whose laws ailou,'Fil-ipino citizens and corporations to do busi.ness in its own countrv or state".

fie

2. What are the different theories in determining the personal or

governing law

of

a corporation?

There are at ic^st three (3) theories, namely

(1) The theory that the personal law is the law of the place of itlcorporation:
Under this theory, horvcver. l corporati<rn carr cvaclc rnaul responsibilitres bv simply orgrnizing irr onc st;rlc and perfbnnrng its ftrnctions in anotlrer staf e.

144 BUSINI Ss A\\( )t

l/\ ll( )N5

CONFLICT OF LAWS

coNFLIcr oF LAWS

BustNESs

ASsoctATIoNS

l4.s

(2)

'l'lr

tlrt.orv

of the place or center of management:


14

( )rrc tlrllrtrrltv of thrs theoq'rs tl-rat tire board mav meet in tlrllclt'rrl st;rtt.s, ulthough ti-us defect mal be cured bl expresslv pt,,r'ttltttl' rrr tlrc articles of ilcorporaUon ot bv-iaws w]rere tire prtrrctp;rl n)('cur)g place of the board is.

.f

lc,cated. piace must be withrn the Phiirppines". Thus, the place of incr )rPoralon of a PhrJrppine corporatlon rs also its domicile.

of the corporation is to be estabrrsireci or

For the purpose of determrnrng a corporanon,.s domrcile. Sec. corporauon Code requrre. ,rrn, ,i," arilcles of rncorp.ration n phrirppinc corp( )rauo, ,)Lrsr srare ,n. rrio.. ,"lr"r; ,;. ;;;;",:;;.

of

tl-re

..whicrr

(3) 'l'he theory of the place of exploitation


de fect of this theory is that the corporation may have its enterprise scattered all over the rvorld. Besides, the physical acts of thc corporation are not as unportant as the decisions reachcd bv rts board oF directors.

-l'l.re

As for a foreign corporation that has been granted a jtcense t<; operare or r() do busrness rn the phi,rppines, it o.quo., ao*r.rr. i., ,rri, countrv by vrrrue ol said license. As heid bi, the Suprem
lr.;s6i4 1 s, a.

Mirt

aa t,,. S

t.r

enr. l n t.. l g 9

Cll I

fre,rule.requiri"g foreig.r corporatlons ro secure a rrcense to do business in the PhrJrppines is to enabrc the courts ro exercise jurisdiction or the regulatron of
tl-reir activitres rn

t'(t ;;rl" ;"';'JJJ::1.


,";;;;

Coun in

C*)i*

our counff\,.

(Paras, supra, and authorities cited, pp.420-421).

3. Among the foregoing three theories, what theor-v do we

follow in the Philippines?

5. Vhal are the exceptions to the theory that the personal law or the nationality .f a coqporation fotows the place of its incoqporation?

in

The exceptions are:


tlre Phrlippines, we follou,' the theorv of the place

of
(a) For constitutional purposes, even incorporated in the phiJrppines. it ."r.no, exproit

incorporation.

This is rmphed from the deFrnrtion of a foreign corporation by our Corporauon Code as "one formed, organized or existtng under any lar.vs other than those of the Philippines x x x". In other words, if the
corporadon

fesources nor operate pubhc urrhties unress 6070 owned (Art. XII, secs. 2, 10-11, 19g7 Consurutron)

rl corporauon was ^ or d.-relop o.,, ,r^,..rr"' 0f the capriai is Firiprno

corporation; if organized elsewhere or abroad. it is a fotergn corporation. 4.

"r'as

organized

rr

the Philippines, it is a Phrlpprne or domestic

Vhat about the domicile of a corporation? Where is it?

pierce of coryorate rdentin. and go lrrto t1.,. .the 'eil controlJrng stockholders to deter'rinc *l-retrrer
a

(b) For wartime purposes, we adopt rhe control test; i.e.. ';;;; we corporauon is an enem',

"^"";;

corporarion.

According to Article 51 of the Ner.v Civil Code, "When the larv creating or rccognizing them, or anv otirer provision does not F1x the domicilc of jr-rndrcal persons, the same shall be understood to be the place whcrc tlrcrr legal representation is estabiished or where thev exercise dreir pnncipal hrnctions."
l'.r,crr

corporaflon during the last Wbrld War for the purpose of freezrng its assers (Dauid Winethop u phil. Tnul. L_)g69. 3/ /an. , 195?).
fictt<_in also permrts the courts r<r lmpose personal riabilrn, on the stockholdcrs if the c'rporadon form has been used_ ro defeat the pubhc ..,nlr",rr"r.",

Thus, a German_controlled corporation, even ii incotporated in the pl-riJippines, was considered an coemr.

drsregarding tie corporate

The doctrine oi pierciog the corporate veii or

as de.falo ursofar

tk'li.cttvclv organizcd corporation which the lau'regards 1rs lnll()c(.nt third persons are concerned can possess a
zr

wrongs, or protcct fraud


Jarencio, I 61

domicilc ftrr tls r/r //.r,/, ('xlst(.ncc (Mal)onald 27. / 95().

FN'CBAI', L-7991 , Majt

or

.\Ck,1 205).

crtme (.l.art lJoon Bet anrl Lo. u..i.

lurtif,

l.16 BL5l\l 55 ,\55(,L1,\llOi\5

CONFLICI'OF I ,\\VS

BUSINESS ASSOCIATIONS I47

6.

Vhat matteis

are governed bv the personal law

of the corporation?

How may our coufts acquire jurisdiction over doing business in the Philippines?
9.

a foreign corporation

'I'hc pc,rsonll lau' of tire corporati()n (rvhrch. rn thc Phihppines. is

tire placc ()l rnc()rp()ra[on) governs the tequisttcs for t]re formation of tire corporatt<)n. thc reclulr'ed nurnber of mcorporators and tire members ,.,f ti.re floard of I)trectors. the kincls of shares of stock aliowed, thc transfer ()[ stocks in a rval tl-rat it wr>uld be bindrng on ti-rc corporation. the rssuance, aln()unt and legahw of tirc diviclends, and the powers tncl duues of the offtcers. stockholders, and mernbers.
7. ttr(/hat law determines the

Bl
r

service

of sumrrons

on: designated in accordance wirh

(a) rts resrdenr agent


hat purpose;

ra*,for

(b) If no such agent, on rhe governrnent official desrgnated by law ro thar effect; or (c) On any of its officers or agents within the philipprnes. (Sec. 12, Rule 14. 1997 Rules on Civil I'rocedurej.
10. suppose a foreign corporation transacts business without first ,btaining the necessary license, what is the status of its contract?

validity of corporate acts and contracts?

T'he vahditl tl.rc

of

corporate acts and contracts is determined br'

lav of the placc of incorporation and bv the larv of the place of

pertormance. To be vahd and binding, such acts or contracts must bc authorized bv both larvs. If valid in the place of incorporation but void in tlre place o[ performance, or atce uer.ra, the vahdiq' of said acts or contracts is doubtlul and it mav not be griven effect at all, without prejudicc to the principle oi estoppel (Sec. 119, Corporatton Code; Paras, supra, and authorities cited, p. a29). 8. May a foreign corporation sue and be sued in the Philippines?
Yes, if it has the necessarv hcense to do business here (Sec. 123. Corporation Codc). The license is required not to forbid the foreign

is unenforeceable; i.e.. the corporation cannor sue in )ur courts until the necessaq' license is obtained. After the issuance of tire license, suits mav be instiruted even on the pre-license contrzcts
,

The conrract

considered vahd ( Marrhell-lV,e/h s, Co. 1,. hher Co., tupre.

which are

But the person who contracted with the corporation may be considered in estoppel if ire had received benefits from the ..rnr.n., ;lrietcher, vol. I, cvclopedia of Law of pr-ivate corporations, sec. g520).
11.

rvith him without a license?

May a person sue a foreign corporation that transacted business

corporation from perfolnng single acts but to prevent it flrorn acquiring a domicile for purposes of business u'ithout takrng the steps necessanr to render it amenable to suit in the local crsutts (hIarcltall W'e 1l.r d:" Co. u. E/vr Cu.. 16 l'hti. -11 'Iiansacting ol dorng business connotes a continuity of business dcalings and arrangemenrs (Mentholulum Co. u. EllerCo..72 Phil. 521).

Yes, because the corporation cannot put rrp by way of defense tts own failure to comply with the lauz (Gen. Cor. of the phi/. I/. (J nion In.r.

\ode! of' Canton, 48 OG #1 , Jan. 1952, p. 7). But rhe court must be abie to acquire jurisdiction over the corporadon.
12' If the corporation sells its products in the philippines through an agent, is that doing business here?

<>rdinalv l>ursiness
czisual

llvcn a single rct or transaction ma); however, l;e an act of o[ the corporation if it is not merell incidental or

blrt of srrcir charactcr as to drsunctlv indrcate n purpose to dc-, other l>usincss rr tlr(' statc and to make the state a base of operations for thc conduct ol' a part of tlre forcign corporation's ordinan' business ( R;r I '.r.sl Jnlrrntltontl lml,rnl tnJ [\Vorr Corporalion Nankai Kogyo Co., Lld., L "'.

lli2l. \ot'.

10. l()6:'\.

agent, it is doing business here, because thc agent is acung oi its princrpal (Mentholatan (.0. t'. Man,p!/inaz, supra).

tion sells its goods in the Philippines througrr an cxclusive ;istnbuung onl'in behaii

If the forergn corporation sells its products in the phihppines rhrough a resident rnerchant on commrssion basis. it is rhe merchan,. .r.r, the corporation, thar is doing business here. But if the foreign corpora-

l{E

BUSINESS ASll(r('lAl loNS

CONfLICTOFLAWS

coNrLIcroFLAwa
"usINEss

AssocIATIoNs

teg

lit. May a forcign corporation not doing business in the Philippines euc?
Ycs. tn (a) rsolated transactrons; (b; to protect its reputation, corporare nam{and goodwilt

allowed to sue on
the cessation

corporatronis rrcense. 6norur, ,rpr^.

to contracrs""'entered into

ntered into ptevious to l1'11lt""ln'.1lif#:T:.""1 enhcal rule should also apply p'or to the of

the forergn ;d;;;:'-::."t1on. ronues cited, p. 43g).

Thus, a foreign corporatioa can ask

local coutt

to restrain some Filipinos from organizing a local


corpontion with the same name and the same business (lYestern Equipnent Supp! Co. a. Rga, 5l Phil. I l r, provided a similar pnvilege is granted to Philippine corporations by the plaintiff's home state (Sec. 3,
Rep. Act 8293).
1.

B. PARTNERSHIPS
Vhen does
.1 a

partnership exist?

to contnbute money, properff or indus,,v

partnershrp exists when two or more Ders^nc l-;_ r -r bind themselves

(c) for infringement of trademark or rade-name, unfair competition or false description of products, and
infringement of patent (Sec. 160, id.).
14. What about mul 'national or transnational corporations, what law applies to them?

"?'il$ffi il"1i
3;

; ;i'

p;#'

;;;ffi ;;:T"::(TT? #:3#* i::


pers onatity

,,"tPttton'

l_r.j;!"rtnership,

like a corporation, have juridic al

ln the phrhpprles.

These ate actually branches of a big, mother corporation in a hfttrly industroli"ed, hrghly developed foreign country but doing business

separare and distinct from les. that .o.1,

parrnership .,has a.;urichcal personaliry of the iartners,, (Art. 176g, id.).

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 incolporated under the local law of each state rvhere they are doing business, the branches are sE)arate entities govemed by the said local laws, but in reality, the major decisions in their operation and management are controlled by theit mother or parent corporation. However, the branches, having incoqporated in the states where they are established, are govemed by the intemal law of the said states, and their personal laws are the local laws of the host states.

getting away from dre old common simply an aggregate of individuar,. end& distlnct from the partners.

tnscrlverrcl proceedings (Sce Canpo., t\r,r,ao jJ'Co. t: puc. Cont. Co. 14 phil. 91 6). However. in the ,T,."0 Sor.J .a^, , n.-_ ,r_.1. has been developed,

with ju.drcal pcrsonalitie. of tlr.r,

and Latin America, parrnerships are nor

However, in the United States rnd sorne countries in Europe

,"g.i.a ;, ;:;.;i.."r r"Xl;. .rw-i-.i..', For the purpose of

i;;;;;p""n rhar a partnershio rs ;";;;rr* treating ir o ,.porrr.


^, of a partnership?
a

3. Vhat is the personal or governing law

15. May a foreign corporation be sued after drawn from busineee in the Philippines?
Ye s,

it

had already with-

Code of Commerce).

IJke Ph'ippine colporatl.ns, trre personar or governing raw of partnership is the law of

the

countn'#;.";

is creared (See Art.

15

on contracts previously entered into by it. After all, fairness demands that the citizens and residents of the Philippines be affotded the opportunity to sue thcse foreign corporations locally, instead of requiring them to sue in thc foreign countries where they are domiciled. By the same token, thc f<rrcign corporation that has with&awn should also be

Thus, marrers iike organiza,.ron, caDacin ct., tr., r.,n uirrn, " persons, dissolution and wrndrng rp. personal law or the taw of ^,. ^ttgnl,*n".1 t1.," ,,oi" *h";:;
o

f its

con tra

;?;il; ;.i; l;:i ;jffi:: ::':,:Xf.:


lr.,,

;;,

thc partnership,.s

crcated.

For example. in

New

\brk

case wl:ere a

limited partner under

150 llllslNl 'rr'. Atrrrl rl lA lll lNrt

CONTLIC-I OF LAWS CONFLICT OF LAWS

(.rrlr;rrr l,ru, \\',r1, ru('{l tlr l'.1('\r Yrttl'

tot lllcach of contrlrct entefed lnto b\

the liurtted partner rrl,.nr l),nlnr'r',lrt1, ttr l'Jt's'\irlh .l1 vils irelcl that enl;rrge thc liabihn'oiwa:, ilr)l lt,rl,l, ,rtr,l llr,rl l\t lr \'"tli l'ltu'c()Llld n()t \t'il: ltl('l llll(l( l ( .ttl>rltr lalv sll)IPII bccause tht contfact a hililtt rl tlrc

clrt(

f'(

(l f ttl,, trt Nt's \ "rli (irrrlq t'' \''trrju' 6t N)- 2a

lt,rt

187

'\'S'

4. Whcrc is thc tlomicile

of a partnership?
t-:f

tlrrtlcr,'\rticle 5l of the Nerv Civil Code' the domicile

dornesnc cor?orauons' p^rtncI'sl)ll)s ()r:ganlzcd under Phdippine iarv is' Iike vhcre thel :,tl_,. pl^.., rvhcre their legal representation is estabhshed of cxercisc their princrpal funcuons"' C)onsequently' a Partnership created in one state domiciled conclucts its main business in another state n1a' be considcred
rvhicl.r rn tlle latlel state

but

of corporations 5. Are the constitutional limitations on the Powers also applicable to PartnershiPs?
a partnersirip is Yes, so that unless at least 609'i' of tl're capital of development the tn owned bv Fihpinos' tl-re partnersl-rip cannot engage public utilitres' and exploitatron of our naturai resourccs' nor operate

RECOGNITION A}{D ENFORCEMENT OF FOREIGN JUDGMENTS


1. What are the reasons

for the recognition and enforcement of foreign iudgments bv the forum?


The teasons are basicailr- thc sar:re as recognitton by thc forurn

of tire proper foreign lawl and thc exceptions to the apphcauon of the proper forergn law or comin'are also appltcable to foreign judgments.
2.

rvhich is not owned Netthet can a partnershtp 600''o of thc caprtal of lancls in the agricultural b-v Filiputos o.q,rir. bv putcirase or otherrvrse
Philipprnes. rn the Philtppincs Forergn partnerships may be mortgagees of land acquire said for 5 vcars, rer"re*nbl. for another 5 )'tn"' but tirey callnot iand rn a foreclosure proceeding (l{ep' Act No 133)'

Distinguish enforcement from recognition of foreign iudgments.


(a)

Enforcement means that the plaintrff or petitloner wanrs the out and make effective the foreign judgment. ',vhiie recognition rneans that the defendant or respondent is presenting the foreign judgment merelv as a defense, on the basis of ru judicata.

court to

p<-rsitrvelv carr\,'

6. If a PhilipPine court appoints

in to

a receiver for a foreign Partnership with respect the PhilipPines' does the receiver also act as such assets of said partnership in its home state?

(b) Enforcernent implies an act of soverergr)t\': rcc(,gnlu()n il)of iustice (Perkin t'. Ilenpae/ C,onrolitktd hlintng(.0.. L-|981-82, May 28, 1951).
volves merelv a sense
(c) Enforcement reguues a scpar:rtu acuon ()l procecdir,g brouglrt preciselv fo make tirc fcrreign judgnrcr.rt cffccuvc: rcc<>gnition, berng a ()r pr'occcriinu but imphes that an matter o[ defense, necds no ^cti()n action or proceeding has alrcadt' becn hled tire defcndant rvho is ^galnst invokrng the frrreign iudgment.

boriDdarit,. rrl'tht'

Ntl.lxcntlsctlrc.ar.rtlrolttl'oItlrcrcceir,erison]r.wrdrintlreterrit<>rial of tlre l)lrrlrpPln('s, or co-cxtensive vitl-r the ir.rrisdiction

court that irpPorr-rtctl lrirtr'

152

()t, troRt,t( ;N ll tl t(;MliN'l's

l{l;( (,(;Nt I l(lN ANI) llNt'()I{CFIMENT

CONFLICT OF LAWS

CONFLICT OF LAWS

RECOGNITIONANDENFORCEMENT
oF FORETGNTUDGMENTS

153

(tl) l,.rrtof ( (.il1(.il1 c?tnnot extst rvithout recognluor], v'htie recog-

on a criminal! revenue, or administauve lnatter.

nllt()r (l()(:' llol

ll('( (l or tltrt's not tequlre etlforcement'

oi

l',xirlrr;rlt: of tecognition: An Americarl presents a forergn decree clrr,,rt t :rs :r tltictrse in a case for btgarnv zgalnst him rn the

(c) There must be no lack of iurisdicuon. no wanr of nouce. no collusion. no clear mistake of larv or fact I Ruie 39, sec. 48. 1997 Rules on Civil Procedure). (d) The foreign iudgment lnust not conraveoe a sound and
established public po[cv

l)hih111rtrrt's.

lixampleofenforcement:AFitipirrawhoi-radbeendir'orced bv hcr alicn husband under Art' 26 of the Familv Code and who rvas

of the forurn.

to cle,lcd bv the iocal civil regrstrar a rnarriage license for hct to be able official said n-rarrv agaln, hles an actlon with the proper: court to cornpel to issue to her a marriage license on thc basis of the divorce decree obtarned from.her l:v her alien husband'

(e) The judg'rnent must be ret.iudirata; i.e.. the judgment must bc final; dre foreign court must have iurisdicuon over the subject marter and the partres; the judgrne nt rnust be on the rnerits; and tllere was idennn' of partres, subject lnatter, and cause of actron.

3.Forwhatreasonorreasonsm^v^localcourtinthePhilippines refus to recognize or enforce a foreign iudgment?


(a) The requisite

of Civil Procedure provide on the effects of foreign iudgments in the Philippines?


5. $/hat exactly do the 1997 Rules
Sec. -18, Rule 39, 1997 Rules on Crvil Procedr.rrc provrdes:

proof of the forergn judgment mav not

have

becn prcsented.

Tire tnanner of ptovlng a foreign iudgrnent is the


samc 2s proving a foretpp
J211'

(I{ule 1i?' sec' 25' Revised

Rules

of Court)'

(b) The foreiEn iudgment rlav conravene 2 recognized and cstablishecl policv in oul country. An exampie is a foreign decree o[ drvorce obtarned abroad; oI a foreign bv a l;iliptno from iris Fiirpino "r"rfe babv to t]rc Filipino a o[ custodl jrrclgrr.rent awardrng thc
f

"Tl're effect of a iudgment or Final order of a tribunal oi a forergl countr\", having jurisdicuon to rendcr the judgment or final order, is as folkrv,s: (a) In case of a judgn.rent <.rr tlnal ordcr upon a speciiic thing, the iudgment or hnrl order is conclusive upon the trtle to the tlring; and (b) In case of a judgrnent or Ftnal ordcr against a

person, the judgment or final order is presumptivc


an

irthcr'. not to thc Filipino motirer'

:;:*::,:,:T':,LT. :"-:"*
In eithcr .n.",
al-,.

judgmcnt or final r>rcler mar

:li""" "'H,

d'lhe ir

'l'lrc irtlrrilrrtslr.irtton o[iusticc in the countn v.there the foreign or not beyond lrrrillnrcrrt ( lttll(' ll()lll ttt;tY lrt' shockrngly corrupt
(t.)
rt'1 I rr ,,tt-l t

be repcllcd bt' evidence of a waut <-l[ jurisdicriolr, \r'anl oi notice to tire par6,, collusion, fraud. or clear nristak< of larv or fact". 6. \$[ihat are the differences between the effects of a final iudgment

rl,r't' l);tul.. srrllrlr.


4.

11.

75)

whar irfc tltc (.r,n(litir,trr .rf r..(luifr:mctrts bcfore a local court in the PlrilipprlrrI ('lll ettftrrt'r ot tt't'ttgtrizt t firrcign iudgment?
(:r

or ordCr under the above rule, and the cffects of such iudgment or order under the former Sec. 50 of Rulc 39 of thc llevised Rules t,l' Court, which the foregoing Rule in tlre 1997 Rulcs of Civil Procc' dure amended?
(a) Under thc forrner Sec, 50

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pirrol ol tlrc lirrcttl-t judgment'

of Rule

39

of

the ltevrscd Rules ol

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11

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CABAIAIUAN CIIY

lltrtlrt scr. ,lll. lLulc 1(), ol tlrc l()()/ l{rrlt.:, orr (,tvtl l)ror-t:tlufc, ltou,t'r''r'r. itll ;rrtl1|ttcltls (,t ()t'(l('rs ol lor<'t1'rr ( oulli\, wllt'llrcr rn rcn ot itl Penonutt, ilr(' c()nsidrrccl rncrclv fnrnil filtr( ( )r l)r('sunll)lrv(. cvrclcncc of a right bctwcr:n the partrcs at)d th('rr su(( cssr)ts ut ult('r('st Iry a subse<1ucnt ude, arrd both kinds of ;udgmcnts,rr('riul)l('('t to tlrc tlrlcnscs of want o[ jurisdrction on tbe part of thc foru:r11r c()rrrt. w,ult o1'notrcc to the defendant or respondent, collusion, fratrrl or t:lt:ar rlrstake of law or [act. @) The formcr Scc. 50 of Rr.rlc 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 hnahry of judgments or orders; i.e., the ruies of


.fad.tcata.

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