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CONFLICT OF LAWS

Midterm Reviewer

IN GENERAL 2. Determine whether to apply the INTERNAL or


FOREIGN law.
CONFLICT OF LAWS
JURISDICTION is conferred by law.
That part of law which comes into play when the
issue before the court affects some fact, event, or SUBJECT - Defined as the power to hear and
transaction that is so clearly connected with a MATTER determine the cases of the general class
foreign system of law as to necessitate recourse to to which the proceedings in question
that system. belong.
Part of the MUNICIPAL LAW of a state (not part of - Must be invoked by filing the appropriate
International Law). COMPLAINT or PETITION [C/P].
- Generally, the court needs only to look at
Per Atty. Torregosa [PAT]: the face of the C/P to determine w.o.n. it
The study of conflict of laws is based on one universal truth has jurisdiction.
- If there is prima facie showing of
that each state/country has its own body of laws. And its body
jurisdiction TRIAL. If evidence shows that
of laws consists of two sets of laws: (1) internal laws which
it has no jurisdiction DISMISS.
apply to purely local or domestic cases which do not involve
- BUT, in Conflict, the POSSIBLE
foreign elements and (2) conflict of laws which applies to
ENFORCEABILITY of its Decision in foreign
cases involving foreign element. Every body of laws has these states must also be considered.
two kinds of classification of laws purely internal and PERSON - The competence/power of the court to
conflict of laws. render a judgment that will bind the
parties involved.
CONFLICT PIL - Plaintiff acquired the moment action is
Private Individuals Sovereign States, instituted.
PERSONS
or Corporations UN, etc. - Defendant when appearance is
Municipal in International in entered voluntarily OR by the coercive
NATURE
character. character. power of legal process (summons).
Strictly personal in Generally affect *personal appearance = consent, but
TRANSACTION
nature. public interest not when it is for the sole purpose of
Judicial or Diplomatic questioning the jurisdiction of the
administrative negotiations, court.
REMEDIES mediation, etc. OR
reprisals, embargo, SUMMONS [when in Pesonam]
war a. Personal Service
i. To the defendant in person; or
ii. Tendering it to him
CONFLICT OF LAWS CASE any case which involves b. Substituted Service
facts occurring in more than one state or nation, so that i. With some person of suitable age and
in deciding the case, it is necessary to make a choice discretion in defendants residence
between laws of different states or countries. ii. With some competent person in charge
*States here do not only mean foreign sovereign of defendants office
countries but also political subdivisions of states (i.e. RES - Over the thing/particular subject-matter in
State of Texas, New York, etc.). controversy.
- The purpose of the suit in this case is to
PAT: The case involves foreign element when some of its affect interests of all persons in a thing
events, facts or transactions occurred in more than one state [binds the whole world].
and affected by the diverse laws of the states involved. *quasi in rem affects the interest of
particular persons in a thing.

JURISDICTION & CHOICE OF LAW SUMMONS [when in Rem]


a. Personal Service
HOW TO DEAL WITH CONFLICT PROBLEM b. Substituted Service
1. Determine if the court has JURISDICTION c. By Publication
If YES It should then determine whether it Only in rem, quasi in rem, involves
should assume jurisdiction or dismiss case personal status of the Plaintiff.
based on forum non conveniens. d. Extra-territorial Service

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW


1 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
CONFLICT OF LAWS
Midterm Reviewer

i. By Personal Service (extraterritorial service).


ii. By Publication [but copy of summons PUBLIC Republic of the Phils. Solicitor
and order must be sent by reg. mail to CORPORATIONS General
last known address] Provinces/Cities/Municipalities
iii. In Any Other Manner that the Court may Executive Heads/Legal Officer
deem Sufficient
++Dissolved Corporation serve to the last set of officers.
Grounds: ++Doing Business in the Phils. there must be a continuity
v D does not reside and is not found in the of conduct and intention to establish continuous business.
Phils. and the action affects personal
status of the P FORUM NON CONVENIENS court may refuse to exercise
v D does not reside and is not found in the or assume jurisdiction, in view of the ff. practical reasons:
Phils. and action relates to property w/in a. Evidence and witnesses not readily available
Phils. w/c D has a claim, lien, or interest b. Court docket is already clogged
(actual or contingent). c. Matter can be better tried and decided in another
v D is a non-resident but the subject of the jurisdiction (main aspects of the case transpired there
action is property located in the Phils., in or witnesses are there).
w/c the relief demanded consists, d. Curb evils of forum shopping
wholly/in part, in excluding the D from e. Forum has no particular interest in the case
any interest therein. f. Other courts are open and the case may be better
v When prop. of a non-resident defendant tried in said courts
has been attached in the Phils. g. Inadequacy of the local judicial machinery for
effectuating right sought to be enforced
SERVICE OF SUMMONS IN EXCCEPTIONAL CASES h. Difficulty of ascertaining foreign law available.
ENTITY W/OUT Service to any one (1) of them.
JURIDICAL Service to person in charge of the INSTANCES WHEN INTERNAL/DOMESTIC LAW HAS TO BE
PERSONALITY place of business. APPLIED
PRISONER Serve to the jail warden (automatically 1. Law of the FORUM EXPRESSLY SO PROVIDES in its
considered deputized). conflicts rules
MINORS AND MINOR: To minor and his 2. When the PROPER FOREIGN LAW has NOT BEEN
INCOMPETENTS parents/guardian PROPERLY PLEADED AND PROVED
INCOMPETENT: the incompetent and *the court assumes that the foreign law is the
the guardian same as the internal law [aka PROCESSUAL
DOMESTIC President PRESUMPTION].
PRIVATE Managing Partner To Prove Foreign Law:
JURIDICAL General Manager Written
ENTITY Corporate Secretary a. Official Publication
Treasurer b. COPY OF THE LAW ATTESTED by the OFFICER
In-House Counsel HAVING LEGAL CUSTODY of the record or his
*enumeration is exclusive; substantial deputy, accompanied by a CERTIFICATE of
compliance argument is no longer any Phil. embassy, consular, or foreign service
compelling officer in the foreign country where the record
is kept and AUTHENTICATED BY THE SEAL of his
FOREIGN Corporation must be doing business
office.
PRIVATE in the Philippines.
Unwritten
JURIDICAL If with designated resident agent
a. Oral testimony of EXPERT WITNESS
ENTITY++ serve to the designated agent (15D
b. Printed and published books of reports of
to file Answer).
DECISIONS of the country involved (if proved
If w/out designated agent serve to
to be commonly admitted in its courts).
the appropriate Phil govt. officer (30D
3. Case involves any of the EXCEPTIONS to the
to file Answer).
application of the proper foreign law.
*When foreign corp. not doing
business in the Phils. cannot be *Foreign law is to be interpreted in the same way as the
sued. courts of the country where it comes from interprets it.
*if not doing business in the Phils. but EXC: when we have a statute worded identically
agrees to be sued apply Sec. 15 we can apply the interpretation of our courts.

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW


2 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
CONFLICT OF LAWS
Midterm Reviewer

For the forum court to proceed, try and decide the case
WHEN FOREIGN LAW CANNOT BE APPLIED involving foreign element, is asked to satisfy itself that local
a. It runs counter to sound and established public policy judicial machineries are adequate.
of the forum.
b. Foreign law is contrary to the almost universally Requisites:
conceded principles of morality. a. Phil court is the CONVENIENT FORUM where the
c. Foreign law involves procedural matters parties to the case will resort
d. It is penal in character b. Phil court is in the position to INTELLIGENTLY
e. It is purely fiscal/administrative in nature DECIDE on the facts and laws involve in the case
f. Will work undeniable injustice to the citizens or c. Phil court has the POWER or likely to have the power to
residents of the forum
ENFORCE ITS DECISION.
g. Application would endanger the vital interests of the
State.
Before these requisites are complied with, the forum may
h. Case involves real or personal property located in our
proceed to assume jurisdiction, try the case and render
country.
judgment. Otherwise, the forum court may decide to dismiss
PAT: the case on ground of forum non-convenience.
THREE STEPS IN DEALING WITH CASES WITH
FOREIGN ELEMENT MANILA HOTEL V. NLRC
1. DETERMINE JURISDICTION (refer to discussion QF: Filipino works in the State of Oman as a printer. While in
above). Oman, the Filipino got an employment offer from a Chinese
Take Note: in the Rules of Court, while we have specific Palace Hotel based on Beijing, China. Attracted of the offer,
rules on serving of summons insofar as foreign private the Filipino resigned from his employment in Oman and
juridical entity is concerned officers, these only apply accepted the employment and eventually worked in Beijing.
when foreign private entity is doing business in the Before the expiration of his term, the Filipino was terminated
Philippines. The service of summons maybe effected on the ground retrenchment. He went home and filed an action
upon the resident agent designated by the foreign against the ER as well as another corporation before the
corporation, or in the absence of such resident agent, by NLRC.
appropriate government officer designated for that
purpose, or by any of the corporations officers or agents HELD: SC ruled against Filipino and cited the ff:
within the Philippines. Who are these officers authorized 1. Phil court is NOT THE CONVENIENT FORUM. Why?
to receive summon for foreign private juridical entity. It All the essential components of the contract, negotiation,
depends on the nature of the business that a foreign perfection, termination, place of employment, employer
corporation is engaged in. being a foreign corporation, main witnesses are non-
Banking summons should be served to superintendent residents of the Philippines, all these pertains to foreign
of the bank countries , either Oman or China. The only link there is
Insurance service is effected upon insurance that the complainant is a Filipino.
commissioner 2. Phil court is NOT IN THE POSITION TO
Other business - through SEC INTELLIGENTLY DECIDE ON THE FACTS AND
Take Note: Theres no provision in our rules which LAWS OF THE CASE. It also considered that the
provides for service of summons insofar as foreign private contract was executed abroad. And under the law on lex
juridical corporations not doing business in the loci celebracionis should be determined by the laws
Philippines. But doesnt follow that jurisdiction over them where the contract was entered into. Similarly, the Phil
cannot be acquired. How? Reserved when we discuss court not in the position to intelligently decide on the facts
foreign corporations later. Only jurisprudence. of the case because the alleged termination of the contract
and the circumstances surrounding and leading to
2. ADEQUACY OF JUDICIAL MACHINERY [FORUM termination, all of them took place abroad. All these
NON CONVENIENS] factual issues are to be decided on the basis of evidence
The court is not compulsorily obliged to assume available outside.
jurisdiction, proceed to trial and decide the case. In cases 3. Phil court has NO AUTHORITY TO ENFORCE THE
involving foreign element, the Court is given discretion JUDGMENT. Even if were to be assumed that the court is
to desist from assuming jurisdiction when it finds that in the position to decide on the factual and legal issues of
local judicial machineries are not adequate to decide the the case, nevertheless there has doubts if it can enforce
case. the judgment. Why? Principal employer was not even
impleaded and served summons. The requisites for the
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
3 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
CONFLICT OF LAWS
Midterm Reviewer

Phil courts, the forum court, to assume jurisdiction are not case, the forum court is helpless but to apply Philippine law.
present, therefore, Phil court is not the convenient forum. The Principle of Processual Presumption takes place.
Processual Presumption foreign laws courts cannot take
PHIL SEC INVESTMENT V. CA judicial notice of foreign laws; should be proved as a fact.
QF: The defendant in the case filed in the Philippines filed a Failure to prove the foreign law obliges the court to
motion to dismiss in a civil case pending in the Philippine presume that the foreign law is the same as our laws.
courts on the ground of forum non-convenience, because the
transaction happened there and most of the parties are in the YAO KEE V. GONZALES
States. QF: Case involving a dispute over the estate of Mr. Sy Kiat
HELD: The propriety of dismissing a case on the ground of (decedent). After his death Aida Gonzales, et al filed an action
forum non-convenience REQUIRES FACTUAL to settle the estate of Sy Kiat and Aida prays that she be
DETERMINATION. Forum non-convenience is more appointed as administratix of her father. This petition was
properly a matter of defense. WHILE COURT MAY opposed by Yao Kee claiming that she is the lawful wife of Sy
DISMISS ON BASIS OF FORUM NON-CONVENIENCE, Kiat. During trial, her effort to prove that indeed she is the
IT MAY DO SO ONLY AFTER VITAL FACTS ARE lawful wife unfortunately, Yao kee failed to prove the Chinese
ESTABLISHED WHERE SPECIAL CIRCUMSTANCES laws and customs on marriage.
ARE SHOWN TO JUSTIFY THE COURTS DESISTANCE HELD: From these facts, SC applied the processual
FROM ASSUMING JURISDICTION. Forum non- presumption. It is now presumed that Chinese laws on
convenience cannot be used as a ground for a motion to marriage are the same as our laws on marriage. And in our
dismiss. It is improper for a party to file MTD only on the laws, one of the formal requisites on marriage is a valid
ground of forum non-convenience implying that you go to marriage ceremony which requires the presence of
trial, prove the facts, only then that the court can determine if solemnizing officer. Since there was no solemnizing officer in
forum non-convenience warrants the dismissal. the marriage of Yao Kee and Sy Kiat, there was no valid
marriage to speak of.
RAYTHEON V. ROZY
QF: Defendant alleged forum non convenience by way of SECOND INSTANCE: When the case falls under any of the
affirmative defense in an answer. And, to go around the EXCEPTIONS to the application of a foreign law. The forum
PhilSec Investment ruling, the defendant in Raytheon filed a court is helpless or has no other choice but to apply the
motion for hearing of affirmative defenses on forum non- Philippine law instead.
convenience. No MTD since it was prohibited so he moved for 1. CONTRARY TO UNIVERSALLY RECOGNIZED
a motion for hearing of affirmative defenses instead. PRINCIPLE OF MORALITY. E.g. law legalizes
HELD: Still Not allowed! FACTUAL determination is prostitution, law legalizes corruption or incestuous
required. Although the SC did not categorically say that you marriage. Even if valid there, cannot be applied in the
go to trial [no other inference can be made]. Philippines. Basis: Art. 17 (3) Prohibitive laws
concerning persons, their acts or property, and those
3. CHOICE OF LAW - essentially, COL is a choice of law which have for their object public order, public policy
problem. and good customs shall not be rendered ineffective by
laws or judgments promulgated, or by determinations or
Guidelines available designed to aid the court in making the conventions agreed upon in a foreign country.
proper choice of law in deciding cases involving foreign 2. FOREIGN LAW INVOLVES PROCEDURAL
element: MATTERS. Governed by lex fori or where the court sits.
E.g. ROC of the US cannot be applied in the Phils.
FIRST GUIDELINE: Not all cases involving foreign 3. WHEN THE FOREIGN IS PENAL IN NATURE.
element requires the choice of law. There are instances which Cannot be applied here because we adhere to the
although involving facts, occurrence or transactions affected principle of territoriality; crimes are governed by the
by foreign laws, there are instances when the forum court has place where crime is committed.
no other choice but to apply the internal law. 4. FOREIGN LAW IS PURELY FISCAL OR
ADMINISTRATIVE IN NATURE. Refers to revenue
Instances: laws or tax laws. E.g. tax laws in the US cannot be
FIRST INSTANCE: WHEN THE APPROPRIATE FOREIGN enforced in the Phils. Same also with administrative laws
LAW HAS NOT BEEN ALLEGED AND PROVED OR HAS or internal laws cannot be applied in the Phils.
BEEN ALLEGED BUT NOT PROVED, this situation calls 5. WHEN THE FOREIGN LAW MIGHT WORK
for the application of the internal law. Even if the foreign law UNDENIABLE INJUSTICE TO THE CITIZENS OR
is the law applicable, therefore should have been applied in the
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
4 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
CONFLICT OF LAWS
Midterm Reviewer

RESIDENTS OF THE FORUM. Case at bar: Saudia ER-EE relationship prescribes in 3 yrs; Amiri Decree in
Arabia Airline v. Milagros Bahrain where employment took place, prescription is 1 yr.
6. WHEN THE APPLICATION OF THE FOREIGN LAW HELD: SC ruled it is 3 yrs. It cannot be 10 year-prescription
WOULD ENDANGER THE VITAL INTERESTS OF in Art. 1144 because that applies only in contracts other than
THE STATE. employment contracts. Not also 1 year under the Amihri
7. WHEN THE CASE INVOLVES REAL OR Decree although it is deemed incorporated in the contract; it
PERSONAL PROPERTY LOCATED IN OUR cannot be applied because to do so is contrary to sound and
COUNTRY. established public policy of the forum PROTECTION TO
8. LABOR.
AMERICAN BANK V. AMERICAN REALTY
CORPORATION SECOND GUIDELINE.
QF: Three (3) borrowers got American Realty (a domestic CHARACTERIZATION - process of assigning these factual
corporation) to execute a REM to guaranty the loans involving situations to its proper legal categories. The court can easily
properties located in the Philippines. Borrowers failed to pay determine the proper solution or the point of contact. By
the loan as restructured, American bank filed cases abroad to Characterization it makes the job of the court in making the
collect the balance. 1 case filed in HK, 2 cases were filed in choice of law much easier.
England. While cases were pending, American Bank instituted
an action for foreclosure against American Realty. Eventually, TWO COMPONENTS of every Conflict of Law situation:
properties were foreclosed ad bought by a third party during 1. FACTUAL SITUATION essentially the problem;
the foreclosure sale. American Realty went to court against refers to the facts, events, or transactions that occurred in
American Bank questioning the validity of foreclosure various states and affected by various laws. These factual
proceedings contending that by filing cases abroad to collect situations are classified into various categories depending
loan obligations, American bank waived its right to avail of on the nature of the problem: status and capacity, validity
foreclosure as a remedy. American Bank argued that the of contracts, of marriage, properties, torts, crimes, etc.
parties expressly stipulated that any dispute arising from the 2. Each category corresponds to a POINT OF
transaction should be resolved by laws England. The parties CONTACT/SOLUTION.
had stipulated a choice of law clause specifying the laws of
England. According to American Bank, under the laws on FACTUAL SITUATION POINT OF CONTACT
England, theres no problem with a creditor pursuing both A PROBLEM INVOLVING Art. 15 status, condition
remedies (collect the loan and foreclose the mortgage). CAPACITY, CONDITION OR and capacity should be
HELD: SC ruled otherwise and said that the law to apply here STATUS determined by the laws
is the law of Philippines which prohibits the creditor to avail where that person
of the two remedies. Availment of one remedy amounts to a concerned is a national
waiver of the other. On the basis of Philippine laws, the filing EXTRINSIC VALIDITY OF Art. 17 lex loci
for collection abroad amounts to waiver of the American Bank CONTRACT celebrationis the form
to institute foreclosure proceedings. On the question of choice and solemnities of
of law clause, SC said even if the laws in England do not contracts, wills, and other
prohibit the institution of foreclosure proceeding during public instruments shall be
pendency of an action for collection, this foreign law cannot governed by the laws of
be applied in the Philippines. One the exceptions to the the country in which they
application of foreign law, when it contravenes the sound and are executed.
established public policy of the forum. Public policy VALIDITY OF MARRIAGE Art. 26 lex loci
proscribes the splitting of a single cause of action. celebrationis all marriages
solemnized outside the
Philippines, in
CADALIN V. POEA
accordance with the laws
QF: A class suit filed by less than a hundred complainants
in force in the country
who were OFWs, some worked in Bahrain. Alleging violation
where they were
of the employment contract returned to the Phil and filed an solemnized, and valid
action against the foreign ER and local recruitment agency. there as such, shall also
Crucial issue raised in this case dwells on the matter of be valid in this country
prescription. The case calls for 3 conflicting rules on except those prohibited
prescription. 1144 of the NCC an action to enforce a written under Article 35(1), (4), (5)
agreement prescribes in 10 years; 291 LC action arising from and (6), 36, 37 and 38.

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW


5 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
CONFLICT OF LAWS
Midterm Reviewer

SAUDIA AIRLINES V. MILAGROS PAT: So there are basically three guidelines in making the
QF: Mila worked as a flight attendant. There was attempted proper choice of law in order to resolve a case involving a
rape. There were investigations. Then, ER deceived her to go foreign element. Using the guidelines, it may happen that the
to the head office, and there she learned that she was under court will decide to apply the appropriate foreign law
trial for adultery, etc. She was convicted but pardoned. She allowing the foreign law to operate in the Philippines.
was terminated by her employer. Mila returned to the Phil and
made her last stand; filed a case for damages against her ER Is it derogation or violation of sovereignty of the state? No, as
based on Art. 19 and 21 of the CC. In their defense, ER raises justified by the following theories:
two essential issues: jurisdiction and choice of law. THEORY OF
HELD: On jurisdiction, ER argued that Milas purported COMITY No foreign law would be allowed to
cause of action Art. 19 and 21 on human relations, abuse of operate in another state except by
rights. Based on the allegations in the complaint. These abuses the comity of nations i.e. the
were committed in Saudi Arabia, therefore, jurisdiction over reciprocal courtesy w/c members of
the case should be lodged before the Arab courts. SC rejected the family of nations owe to one
this and held that jurisdiction should be determined on the another.
basis of the allegations in the Complaint and existing
applicable laws. The basis of the complaint of Mila is the 2 Principles (Based on):
human relations provision in the NCC which is within the Reciprocity
jurisdiction of RTC. Persuasiveness of a Foreign
On the issue of choice of law. Saudia Arabia argued that the Judgment
factual situation is of TORT, therefore, the corresponding VESTED-RIGHT Vested rights should be protected.
connecting factor is the lex loci delicti commisi, the place Courts enforce not the foreign law
where the tortuous act was committed. It appears that most of or foreign judgment but the right or
the acts were committed in Saudi Arabia therefore it should be rights that have been vested under
such law or judgment.
governed by the laws of Saudi, not Philippine laws. SC
Rights once acquired under foreign
disagreed and held that while it is true that the factual situation
law or judgment should be enforced
is of TORT, therefore the connecting factor is lex loci delicti
regardless of where the suit for its
commisi, it doesnt follow that Saudi law is the lex loci delicti enforcement is filed.
commisi. Judging from the allegations in the Complaint, there EXC when foreign law is against
were various facts, events and transactions involved in the public policy of the forum.
case which occurred either in the Philippines, Saudi Arabia or LOCAL LAW We apply the foreign law not
Jakarta. This case involves SERIES of alleged tortuous acts. because it is foreign, but because
Its not accurate to say that lex loci delicti commisi is the our own law, by applying a similar
Saudi Arabia. rule, requires us to do so.
SC applied the STATE OF THE MOST SIGNIFICANT HARMONY OF Identical or similar problems should
RELATIONSHIP RULE which states that when the tortuous LAWS be given identical or similar
acts consists of various acts, what determines is the totality of solutions.
the injury sustained by the complainant. THE COUNTRY OF JUSTICE The proper foreign law should be
THE MOST SIGNIFICANT RELATIONSHIP OCCURRED applied to attain the dispensation of
IS THE LEX LOCI DELICTI COMMISI. It is the Philippines justice
because: ONE, THE COMPLAINANT IS A FILIPINA,
SECOND, THE ER ALTHOUGH FOREIGN BUT DOES *NOT EXCLUSIVE in the absence of an applicable
BUSINESS IN THE PHILIPPINES; THIRD, THE DECEIT provision in the code or statute, the various theories
WAS EMPLOYED WHILE MILA WAS IN THE should be examined and weighed as the bear on a
PHILIPPINES enticing Mila to go to Saudi Arabia in the guise given conflicts problem.NO SINGLE THEORY contains the
of helping the investigation but it was the intention really to whole truth, no one approach is completely valid.
charge, try, prosecute and convict Mila.
NATURE & COMPOSITION OF CONFLICT
SECOND GUIDELINE. RULES
Involves the RENVOI. (please see page 9).
A conflicts rule or provision of law is a provision found in
THEORIES THAT JUSTIFY APPLICATION our own law which governs a factual situation possessed
OF FOREIGN LAW of a foreign element.

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW


6 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
CONFLICT OF LAWS
Midterm Reviewer

2 KINDS the community are


concerned. i.e.: Civil status
1. ONE-SIDED RULE indicates when Philippine law may of a person, paternity and
apply. filiation
i.e.
Art. 818. Two or more persons cannot make
a will jointly, or in the same instrument, DIFFERENT THEORIES ON HOW THE PERSONAL LAW OF AN
either for their reciprocal benefit or for the INDIVIDUAL IS DETERMINED:
benefit of a third person. (669)
a. The NATIONALITY THEORY(aka personal theory)
status and capacity of a person is determined by
2. ALL-SIDED/MULTILATERAL RULE indicates whether to
the law of his nationality or his national law
apply local law or the proper foreign law.
b. The DOMICILIARY THEORY (aka territorial theory)
i.e.
status and capacity of a person is determined
Art. 17. The forms and solemnities of
by the law of his domicile
contracts, wills, and other public
c. The SITUS or ECLECTIC THEORY the law of the
instruments shall be governed by the laws of
the country in which they are executed. particular place or situs of an event or
transaction as generally the controlling law.

PARTS OF EVERY CONFLICTS RULE *In the Philippines, we follow the NATIONALITY
THEORY.
1. FACTUAL SITUATION
2. POINT OF CONTACT OR CONNECTING FACTOR THE NATIONALITY THEORY

The 1st states certain operative facts, the legal The NATIONALITY THEORY (aka personal theory) status
consequences of which are determined in the 2nd part and capacity of a person is determined by the LAW OF
(the 1st part raises while the 2nd part answers). HIS NATIONALITY OR HIS NATIONAL LAW.

Characterization process of assigning a certain set of In the field of conflict of laws, nationality and citizenship
facts or factual situation to its proper or correct legal are the same [nationality=citizenship].
category.
- By categorizing the legal problem (i.e. tort, DIFFERENT KINDS OF CITIZENS IN THE PHILIPPINES:
contract, succession, etc.) the court or the 1. NATURAL-BORN CITIZENS who are citizens from
parties involved reach the proper solution birth without having to perform any act to
whether to apply the local law or the proper acquire or perfect their Philippine citizenship
foreign law. 2. Citizens BY NATURALIZATION formerly aliens but
- a.k.a. classification or qualification by judicial, legislative or administrative process,
they have become Filipino citizens.
LEX FORI determines the problems characterization [on
the ground of necessity and convenience]. Each country or state has the sole power and authority to
*unless the result would be a clear injustice. determine under its internal or municipal law who are its
citizens or nationals (Art. 2 of the Hague Convention on
PERSONAL LAW- THEORIES ON Conflict of Nationality Laws).
Therefore, as long as he is a Filipino citizen, our
DETERMINING PERSONAL LAW
country is not concerned if he has any other
citizenship.
PERSONS PERSONAL LAW that which attaches to him
wherever he may go; the law that generally governs his In case of a STATELESS PERSON he has NO NATIONAL
status, capacity, condition, family relations and the LAW!
consequences of his action. Therefore the nationality theory cannot be
applied. In this case, the court shall apply the law
STATUS CAPACITY of his domicile or if he has none, the law of the
Consists of personal Only part of ones status. country of his temporary domicile.
qualities and relationships,
more or less permanent, CITIZENSHIP OF A FILIPINO WOMAN WHO MARRIES A
with which the state and FOREIGNER
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
7 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
CONFLICT OF LAWS
Midterm Reviewer

Under the 1987 Constitution, citizens of the Philippines


who marry aliens shall retain their citizenship, unless by DOMICILE defined
their act or omission, they are deemed, under the law, to It is the place where a person has his true, fixed,
have renounced their Philippine citizenship. (This provision permanent home and principal establishment, and to
now applies to both males and females who marry aliens) which, whenever he is absent, he has the intention of
returning (Story, Conflict of Laws, Sec. 41)
CITIZENSHIP OF AN ALIEN WOMAN WHO MARRIES A For the exercise of civil rights and fulfillment of civil
FILIPINO HUSBAND obligation, the domicile of natural persons is the place if
An alien woman marrying a Filipino, native-born or their habitual residence (Art. 50, NCC)
naturalized, becomes ipso fact a Filipino provided that No person can ever be without a domicile
she is not disqualified to be a citizen of the Philippines A person cannot have two simultaneous domiciles
under Sec. 4 of the same law. Note: an alien woman A natural person, free, and one of age and under no
married to an alien husband who (the husband) disability can change his domicile at pleasure
subsequently naturalized also follows the Philippine
citizenship of her husband provided that she does not DOMICILE RESIDENCE
suffer any of the disqualifications. Relatively more permanent Temporary stay of a person
abode of a person in a given place
PAT: Fixed, permanent A place of abode, whether
This is the theory adhered to by the Phils. residence to which, when permanent or temporary
absent, one has the
Art. 15 of the CC laws relating to family rights and intention of returning
duties.shall be binding upon citizens of the Phils, although
living abroad. It is clear that it makes reference only to *Residence is not domicile but domicile is residence
Filipino citizens. Theres no doubt as to a Filipino citizen
because he is to be governed by Phil. Law. But what about DOMICILE CITIZENSHIP
foreigners? If a case is filed in our court, and the issue Ones permanent place of Ties of allegiance and
involves status, legal capacity of the individual who is a abode loyalty
foreigner. How is the court supposed to determine his personal
law? This was settled in the case of: IMPORTANCE OF KNOWING THE DOMICILIARY THEORY
(although our country follows the nationality theory)
RECTO V. HARDEN a. In some cases, our own law makes the law of the
QF: Mrs. Harden is applying for divorce abroad. Recto was domicile of a person the controlling factor in the
engaged by Mss. Harden to protect her interest here. In the solution of conflict cases
retainership agreement, Harden obliged to pay Recto- b. Sometimes, our law makes either the law of ones
stipulated attorneys fees. However, Harden refused to pay. nationality or that of his domicile as the
According to Harden agreement is void-since divorce is controlling factor
against public policy in the Philippines therefore it is void. A c. In cases of stateless individuals, or those with dual
void contract creates no right. Therefore, Atty. Recto cannot or multiple nationalities, the domiciliary theory
enforce the contract. runs to the rescue of the nationality theory
HELD: It is not true that the professional services were in d. Citizens of countries like the US or Great Britain,
connection to divorce; while related, the real purpose is to which follow the domiciliary theory, may
become involved in litigation in our country
protect Mrs. Hardens rights in the conjugal partnership. it
which follows the nationality theory.
should be noted both Spouses Harden are Americans. Hence,
they are governed by their national law---under US laws,
DIFFERENT KINDS OF DOMICILE
divorce is valid. Hence, contract is valid even if assumed that a. Domicile of ORIGIN domicile assigned by law to
contract is predicated on divorce. a person at the moment of his birth. This never
So in short, Article 15 equally applies to foreigners. changes for a person is born only once.
b. CONSTRUCTIVE Domicile/Domicile by operation
THE DOMICILIARY THEORY of Law the domicile assigned by law to a
person after birth on account of a legal disability,
DOMICILIARY THEORY like minority, insanity, imprisonment, etc. This may
It is the theory whereby the status, condition, family change from time to time.
rights and obligations, and capacity of a person are c. Domicile of CHOICE domicile of a person sui
governed by the law of his domicile. juris because he has his home there and to
which, whenever absent, he intends to return.
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
8 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
CONFLICT OF LAWS
Midterm Reviewer

iii.
If there is a separation de facto,
RULES IN DETERMINING ONES DOMICILE OF ORIGIN the wife can also have a
A. LEGITIMATE CHILD separate domicile.
His domicile of origin is that of his parents at B. VOIDABLE MARRIAGE
the time of this birth Apply the same rules as when the
If parents are separated, the domicile of the marriage was valid
custodial parents After annulment, the wife can freely
B. ILLEGITIMATE CHILD select her own domicile of choice
The domicile of origin is that of the mother at C. VOID MARRIAGE
the time of his birth Wife can have a domicile separate
C. LEGITIMATED from the husband.
The domicile of his father at the time of his birth
D. ADOPTED CHILD 4. OTHER PERSONS
The domicile of his real parents at the time of a. CONVICT OR PRISONER his domicile is
his birth the one he had possessed prior to his
E. FOUNDLING incarceration.
His domicile of origin is the country where he b. SOLDIERS domicile before their
was found. enlistment
c. PUBLIC OFFICIALS OR EMPLOYEES
RULES ON DETERMINING ONES CONSTRUCTIVE DOMICILE ABROAD like diplomats, consular officials,
1. MINORS etc. domicile is the one they had
a. Legitimate- domicile of both parents. In before they were assigned elsewhere,
case of disagreement, that of the father unless they voluntarily adopt their place
unless there is judicial order to the of employment as their permanent
contrary. residence.
b. Illegitimate- domicile of the mother
c. In case of absence or death of either THE SITUS OR ECLECTIC THEORY
parent, the domicile of the present
parent. The capacity, condition, status and family relations of a
d. Adopted- domicile of choice of the person are governed not necessarily by the law of his
adopter. nationality, or the law of his domicile, but by the law of
the place where an important element of the problem
2. INSANE, IDIOTS, IMBECILE occurs or situated.
They cannot select their own domicile, the law
assigns their domicile to them. 2 KINDS OF PARTICIPATION OF INDIVIDUAL CONCERNED
a. If they are below the age of majority, the
rules on minors apply to them A. Active Participation
b. If they are of age and have guardians,
they follow the domicile of choice of when the act is done voluntarily, the governing law
their guardians. If they have no is the actual situs of the transaction or event.
guardians, their constructive domicile is i.e.: in the act of getting married is voluntarily, the
their domicile of choice before they validity of the marriage is governed by its actual
became insane. situs or lex loci celebrationis

3. MARRIED WOMEN B. Passive Participation


A. VALID MARRIAGE
i. The constructive domicile of the the effects of the act are set forth or determined
wife is the domicile of both by law, the governing law is the law of the legal situs;
spouses unless the law allows the i.e., the domicile of the individual concerned.
wife to have a separate i.e.: with respect to the rights and obligations, and
domicile. property relations, of the Filipino couple, however,
ii. If there is legal separation they are governed by the national law of the
between the spouses, the wife spouses, which regulates or fixes such matters
can have her own domicile of between them.
choice

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW


9 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
CONFLICT OF LAWS
Midterm Reviewer

*If the transaction involves property, real or personal, the Succession is Art. 16 2nd par. So we have here a situation of an
law that determines the validity of transaction is lex situs internal law on succession particularly on the amount of
or lex rei sitae (law of the country where it is situated) successional rights of an illegitimate child and conflict law
rule Art. 16. In making now the choice of law, the forum court
THE PROBLEM OF THE RENVOI naturally apply Art. 16. There is now an issue whether or not
to apply the internal law of the US or the internal law of the
RENVOI means refer back Philippines. In the US there is no system of legitime, every
person has the right to dispose of his estate in any manner as
RENVOI PROBLEM arises when there is doubt as to he wishes. No legitime. So thats the internal law of the US
whether the reference by the lex fori to the foreign law particularly on the distribution of the estate. So the forum
involves a reference to the INTERNAL LAW of the foreign court was confronted with this whether or not to apply the
law or a reference to the ENTIRETY of the foreign law internal law of the US or the internal law of the Phils. xxx
[including its conflicts rules]. Art. 16 refers to the NATIONAL LAW of the decedent. Since
Note: 2 PARTS OF EVERY MUNICIPAL LAW Christensen is an American Citizen, the law referred to by the
1. Purely internal or DOMESTIC LAW Court is the law of the US in so far as succession is concerned.
2. Rules in CONFLICT OF LAWS
But as I said earlier, that law did not specify whether it refers
PAT:
to the internal law or the entire laws including the conflict law
The problem of renvoi arises when theres doubt as to whether
rules. What is the conflict law rule on Succession in US?
a reference by the forum to a foreign law is a reference to the According to a case, it is the law of the place where the
internal law of a foreign state or whether it is a reference to the decedent is DOMICILED. So while in the Phils, our conflict
entire body of laws including conflict of law rules. Lets say law rule is National Law. In the US, the conflict law rule is
our own conflict of law rule in succession particularly Article
law of decedents Domicile at the time of death. Should the
16 2nd paragraph of the Civil code which says that intestate
court interpret the law being referred to in 16 as the internal
and testamentary succession, both with respect to the order of law of the US or is it national law of the decedent- including
succession and to the amount of successional rights and to the the conflict of law rules which adheres to the domiciliary
intrinsic validity of testamentary provisions, shall be regulated theory ? So thats the renvoi now.
by the national law of the person whose succession is under
consideration, whatever may be the nature of the property and
4 SOLUTIONS COURT CAN ADOPT WHEN CONFRONTED
regardless of the country wherein said property may be WITH RENVOI
found. meaning the national law of the decedent. 1. REJECT the court does not want the case to be
sent back to us.
You will realize that Article 16 makes reference to a foreign PAT: Forum court will consider the law being referred to
law which is the national law of the decedent. But you will as internal law of the foreign country and therefore
realize that 16 does not specify whether that law being applying it in the case of Aznar, the opposition of Helen
referred to as the law of the decedent refers to the internal law is w/o basis.
of the state of which the decedent is a citizen or whether that
law being referred to is the entire body of laws including its 2. ACCEPT accepts the referral back of the case
own conflict rules. Art. 16 simply states the national law of the [Philippine law will therefore be applied].
decedent. Hence it is couched in general terms. So how does a *single renvoi/transmission
problem of renvoi arise? PAT: This is the solution in the Philippines. So far, we
have the case of Christensen v. Aznarthe forum court
This is illustrated in the case of INTESTATE ESTATE OF should accept the referral of the issue and ultimately
CHRISTENSEN V. AZNAR. apply the internal law of the Philippines.
Christensen is an American citizen but domiciled in the Rule in the case of Aznar that foreign law being referred
Philippines. Before he died he executed a will and left an to should be understood as the entire body of laws
estate located in the Philippines. In his will, he bequeathed the including the conflict of laws rule
bulk of his estate to his legit daughter while leaving a portion
to a Filipino, a certain Helen who turned out to be his 3. THEORY OF DESISTMENT i.e. we refrain from
illegitimate child. Helen objected because her legitime is applying national law if said law follows the
impaired. domiciliary theory [in the end, we still apply
Philippine law].
Under phil. Laws the internal law involving succession 4. FOREIGN COURT THEORY simply do what the
particularly in this case is about share of the illegitimate foreign court would do if confronted with the same
daughter. On the other hand, the conflict of laws rule of problem (gaya-gaya, puto maya).

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW


10 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
CONFLICT OF LAWS
Midterm Reviewer

DOUBLE RENVOI when the local court, in adopting the relative, or a friend, may appoint a person to
foreign court theory, discovers that the foreign court represent him in all that may be necessary.
accepts the renvoi. But since the foreign law remits the This same rule shall be observed when under similar
case to Philippine law, being the law of the deceaseds circumstances the power conferred by the absentee
domicile, the foreign court may discover that Philippine has expired. (181a)
law does not accept the remission, so the foreign court, Art. 384. Two years having elapsed without any
news about the absentee or since the receipt of the
sitting as a Philippine court, would still apply its own
last news, and five years in case the absentee has
internal law. This is then what our court will apply.
left a person in charge of the administration of his
property, his absence may be declared. (184)
TRANSMISSION process of applying the law of a foreign Art. 385. The following may ask for the declaration
state thru the law ofr a second foreign state. of absence:
i.e. chinese citizen domiciled in the Philippines but died (1) The spouse present;
with properties in England. (2) The heirs instituted in a will, who may present
English law [following domiciliary thoey] will refer an authentic copy of the same;
to Philippine law. (3) The relatives who may succeed by the law of
Philippine law [following National theory] will refer intestacy;
to Chinese law. (4) Those who may have over the property of the
Chinese law will then be ultimately applied. absentee some right subordinated to the condition
of his death. (185)
Fairness, equity, and justice are to be considered in
determining the course of action with renvoi problems. PRESUMPTION OF ABSENTEES DEATH
REMARRIAGE 4 YRS of absence (ordinary)
CONFLICT RULES ON STATUS AND 2 YRS if disappearance is with
danger of death**
CAPACITY Declaration of Presumptive Death is
necessary to remarry (FC).
BIRTH determines PERSONALITY.
ALL OTHER
BUT, it may be considered to begin at CONCEPTION.
PURPOSES
Subject to the following conditions: 7 YRS of absence
EXCEPT
For purposes favorable to the fetus [i.e. given donation,
SUCCESSION
acknowledged by the father, etc.]
SUCCESSION 10 YRS of absence
If it is born alive in accordance with Art. 41.
5 YRS if absentee disappeared
ORDINARY if intra-uterine life of 7 MOS. OR
after the age of 75.
MORE it is alive at the time it is completely
delivered from the mother's womb; OR BUT TAKE NOTE OF. . .
Art. 391. The following shall be presumed dead
EXTRAORDINARY if the fetus had an intra-uterine
for all purposes, including the division of the
life of less than 7 mos., it should live for AT LEAST
estate among the heirs:
twenty-four hours after its complete delivery from (1) A person on board a vessel lost during a sea
the maternal womb. voyage, or an aeroplane which is missing, who
has not been heard of for four years since the
BEGINNING OF PERSONALITY governed by PERSONAL loss of the vessel or aeroplane;
LAW [Nationality or Domiciliary Theory]. (2) A person in the armed forces who has taken
part in war, and has been missing for four years;
DEATH extinguishes personality [physical death is (3) A person who has been in danger of death
contemplated here]. under other circumstances and his existence has
not been known for four years. (n)
ABSENCE status of a person who has disappeared from **Note: For Remarriage, 2 years only.
his domicile, his whereabouts being unknown, without
leaving an agent to administer his property, or evn if he AGE OF MAJORITY determined by PERSONAL LAW.
had left an agent, the power conferred on the agent has
expired. CAPACITY TO CONTRACT determined by PERSONAL
Governed by PERSONAL LAW LAW.
EXC: when real or personal property is involved [lex
Art. 381. When a person disappears from his rei sitae]
domicile, his whereabouts being unknown, and
without leaving an agent to administer his property, TITLE OF NOBILITY determined by NATIONAL LAW.
the judge, at the instance of an interested party, a

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW


11 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
CONFLICT OF LAWS
Midterm Reviewer

Persons with titles may continue using them in our that they take each other as husband and wife in
country. BUT, our Constitution does not allow titles of the presence of not less than two witnesses of legal
nobility, so if theyre naturalized must be renounced. age. (53a, 55a)

LEGISLATIVE JURISDICTION power of personal law to Absence of any formal or essential requisite will render
govern ones status wherever he goes. the marriage VOID AB INITIO.
JUDICIAL JURISDICTION power of the courts to decide EXC: Art. 35 (2) Those solemnized by any person not
questions or controversies concerning ones status. legally authorized to perform marriages unless such
i.e. our courts decide the status and capacity of a marriages were contracted with either or both parties
person [if it has jurisdiction or if it has the power to do believing in good faith that the solemnizing officer
so] BUT using his/her personal law [because of the had the legal authority to do so.
jurisdiction of his personal law/legislative jurisdiction]. BUT an irregularity in the formal requisite shall not affect
the validity of the marriage (only party liable for
PAT: TRANSGENDERS: Theoretically, its possible that irregularity will be liable).
some countries recognized sex transplant as a mode of
changing gender. Suppose a country recognizes this, a man Art. 2 and 3 also applies to FOREIGNERS who get married
becoming woman, and under his law he is legally a woman. in the Phils.
*if one or both of the parties are FOREIGNERS
Married to man, husband and wife according to their laws.
Certificate of Legal Capacity to Contract Marriage
Visited the Philippines, who are we to say they are not
must be issued by the diplomatic or consular officials
husband and wife? The condition of whether married or not is
of her country in the Phils.
a question of STATUS. Art. 15 Status is governed by national **if STATELESS person only an Affidavit stating
law. Exceptions as to recognition of foreign law: when it is capacity to marry (capacity is based on law of
contrary to the sound and established policy of the forum. domicile).
Thats you fallback position there.
COMMON LAW MARRIAGES IN THE PHILS.
CONFLICT RULES ON MARRIAGE Between Filipinos VOID
Between Foreigners who came to the country as
Arise due to the different public policies, cultures, or husband and wife as a result of such a union VALID.
codes of morality of countries thereby leading to different *but must not be contra bonus mores or universally
laws in determining the validity of marriage as a contract. considered incestuous.

To deny validity to marriages that do not conform to our WHEN 2 FILIPINOS MARRY EACH OTHER ABROAD
idea or concept of marriage would create a very serious
problem in, among other things: Art. 26. All marriages solemnized outside the
a. Status of children Philippines, in accordance with the laws in force in
b. Property relations bet. spouses the country where they were solemnized, and valid
c. Parental authority there as such, shall also be valid in this country,
except those prohibited under Articles 35 (1), (4),
d. Rights of succession bet. spouses and members
(5) and (6), 36, 37 and 38. (17a)
of their family
We follow LEX LOCI CELEBRATIONIS valid there, valid
PHILIPPINE INTERNAL LAW ON VALIDITY OF MARRIAGES
here!
EXC: 1 or both did not have CAPACITY
Art. 2. No marriage shall be valid, unless these
BIGAMOUS or POLYGAMOUS
essential requisites are present:
(1) Legal capacity of the contracting parties who No CONSENT (Mistaken Identity)
must be a male and a female; and PSYCHOLOGICAL INCAPACITY
(2) Consent freely given in the presence of the INCESTUOUS
solemnizing officer. (53a) Void by reason of PUBLIC POLICY

Art. 3. The formal requisites of marriage are: Marriage by 2 Filipinos abroad may be conducted by a
(1) Authority of the solemnizing officer; COUNSUL-GENERAL, CONSUL or VICE-CONSUL (Consular
(2) A valid marriage license except in the cases official performs the duties of the civil registrar and the
provided for in Chapter 2 of this Title; and solemnizing officer).
(3) A marriage ceremony which takes place with the
appearance of the contracting parties before the WHEN 2 FOREIGNERS MARRY EACH OTHER ABROAD
solemnizing officer and their personal declaration

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW


12 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
CONFLICT OF LAWS
Midterm Reviewer

We still apply LEX LOCI CELEBRATIONIS BUT, we do not PERSONAL RIGHTS AND DUTIES OF HUSBAND AND WIFE
apply ALL the exceptions in Art. 26 INCESTUOS UNDER PHILIPPINE LAW
marriages are the only EXCEPTION.
*or those marriages highly immoral i.e. bigamous or a. To live together, observe mutual love, respect, and
polygamous in Christian countries. fidelity, and render mutual help and support.
b. To fix together the family domicile (in case of
WHEN FILIPINO & FOREIGNER MARRY EACH OTHER disagreement the court shall decide).
ABROAD (Mixed Marriage Abroad) c. Jointly responsible for support of the family
d. Management of the household
If the marriage is VOID AS TO ONE AND VALID AS TO THE e. Aggrieved spouse may apply to the court for relief in
OTHER VALID! case one spouse neglects his or her duties, etc.
EXCEPT: universally incestuous or highly immoral. f. To exercise a legitimate profession without consent of
the other (EXC when objections are raised on valid,
WHEN FILIPINO & FOREIGNER MARRY EACH OTHER IN THE serious, and moral grounds).
PHILS. (Mixed Marriage Here)
PROPERTY RELATIONS
Our LAW should be followed otherwise, our public
policy would be violated (both as to the intrinsic and BOTH FILIPINOS Philippine Law.
extrinsic). SAME NATIONALITIES (Both Foreigners) Depends if they
are governed by the Nationality Theory or the
MARRIAGE AS A STATUS Domiciliary Theory.
DIFFERENT NATIONALITIES (Filipino and Foreigner)
2 ASPECTS *Filipina who Marries a Foreigner she shall retain her
1. Personal Rights and Obligations of the Spouses Filipino citizenship unless by her acts she is deemed to
(Personal Relations) purely personal to the have renounced her citizenship this means she is
spouses. still protected by her national law (PHILIPPINE LAW)
2. Property Relations law lays down rules and and their property relations will be governed by it as
judicial sanctions. well.
DIFFERENT NATIONALITIES (Both Foreigners) law of the
PERSONAL RELATIONS husband.
1. BOTH FILIPINOS Philippine Law (Nationality Theory) **with respect to the EXTRINSIC VALIDITY of contracts
2. SAME NATIONALITIES (Other than Filipino) Depends affecting real property LEX SITUS governs.
if they are governed by the Nationality Theory or
Domiciliary Theory. WHEN THERE IS ACQUISITION OF NEW NATIONALITY
3. SPOUSES OF DIFFERENT NATIONALITIES Depends on
the national law of the husband (w.o.n. it adheres to Apply the DOCTRINE OF IMMUTABILITY OF MATRIMONIAL
Nationality or Domiciliary Theory). REGIME
EXC: National Law of the husband violates the Regardless of the change of nationality of the
public policy of the forum or the national law of husband or the wife or both, the original property
the wife happens to be the law of the forum. regime that prevailed at the start of their
*Filipina who Marries a Foreigner she shall marriage prevails.
retain her Filipino citizenship unless by her Reasons for the Rule:
acts she is deemed to have renounced her a. Marital Peace
citizenship this means she is still protected b. Avoid Prejudice to Creditors
by her national law (Philippine Law) and their c. For spouses to protect themselves from
personal relations will be governed by it. each other

WHEN THERE IS ACQUISITION OF NEW NATIONALITY **Immutability of Property Regime is different from
Immutability of the law governing said regime.
1. IF BOTH ACQUIRE NEW ONE BY THEIR COMMON ACT
new national law will govern ANNULMENT AND DECLARATION OF NULLITY OF
2. IF HUSBAND ALONE CHANGES last common MARRIAGE
nationality of the spouses (to avoid prejudice to the
wife who would suffer a change in her rights without PRELIMINARY MATTERS
any free exercise of choice on her part).

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW


13 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
CONFLICT OF LAWS
Midterm Reviewer

ANNULMENT remedy if the marriage is voidable or EXC: that which is validly obtained by a Foreigner
annullable. from his or her Filipino spouse capacitating him or her
DECLARATION OF NULLITY remedy if the marriage is void to remarry.
ab initio. Art. 26, par. 2. Where a marriage between a
Filipino citizen and a foreigner is validly
VOIDABLE MARRIAGE VOID MARRIAGE celebrated and a divorce is thereafter validly
Can be validated either by Cannot be convalidated. obtained abroad by the alien spouse
capacitating him or her to remarry, the Filipino
free cohabitation or
spouse shall have capacity to remarry under
prescription. The only property
Philippine law.
relationship between the
Same property regime as in parties is a co-ownership This is meant to avoid the absurd situation where
a valid marriage. (Art. 147-148). a Filipino is still married to his or her alien spouse
although the latter is no longer married to the
Children are legitimate if Children are illegitimate former and may already have another spouse.
conceived before the (EXC those children of void *This does not apply when the divorce was obtained
decree of annulment. marriages under Art. 36 abroad by a Filipino spouse because they are
and 53). governed by Phil. laws and our laws do not allow
Marriage cannot be divorce.
attacked collaterally Marriage may be attacked **BUT, Divorce obtained by Filipino citizens after they
attacked. directly or collaterally. have been naturalized is recognized.
Dissent of Sempio-Diy:
Marriage can no longer be Marriage can still be Divorce obtained by Filipinos who have been
impugned after the death impugned even after the naturalized are recognized not under Art. 26, par. 2
of the spouses. death of the spouses. which should apply only to mixed marriages but by
applying the rules on Conflict of Laws (p. 119).
*JUDICIAL DECLARATION OF NULLITY MUST BE SOUGHT
The absolute nullity of a previous marriage may be In the Phils., a Decree of DIVORCE obtained abroad by
invoked for purposes of remarriage on the basis solely alien spouses is recognized IF VALID UNDER THEIR
of a final judgment declaring such previous marriage NATIONAL LAW.
void (in other words, you cannot assume!).
Otherwise, the subsequent marriage will be LEGAL SEPARATION OR RELATIVE DIVORCE
considered BIGAMOUS and VOID!
CONFLICT RULES ABSOLUTE DIVORCE dissolves the marriage and the
parties can marry again.
GR: The LEX LOCI CELEBRATIONIS is applied. LEGAL SEPARATION only separation from bed and
The law that determines validity should also be board but the parties remain married.
the law that determines invalidity.
LEGAL SEPARATION ANNULMENT
EXCEPTIONS: Marriage is not defective. Marriage is defective.
1. When 2 FILIPINOS marry abroad the grounds are the
exceptions to in Art. 26, namely: Grounds arise after the Grounds must exist at the
a. 1 or both did not have CAPACITY marriage. time or before the
b. BIGAMOUS or POLYGAMOUS celebration of the
c. No CONSENT (Mistaken Identity) marriage.
d. PSYCHOLOGICAL INCAPACITY
E. INCESTUOUS Parties are still married to Marriage is set aside and
f. Void by reason of PUBLIC POLICY each other and cannot the parties can marry
remarry. again.
2. As to FOREIGNERS who marry abroad exceptions are:
a. Highly immoral marriages Grounds are those given Grounds for annulment are
b. Universally incestuous marriages by the national law or the those given by the lex loci
domiciliary law of the celebrationis (subj. to
ABSOLUTE DIVORCE parties concerned certain execptions).
(question is one of status).
GR: Family Code does not allow DIVORCE.
CONFLICT RULES
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
14 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
CONFLICT OF LAWS
Midterm Reviewer

1. SAME NATIONALITY grounds are those given by (6) Where the action is barred by
their personal law (whether national or domiciliary). prescription. (100a)
2. DIFFERENT NATIONALITIES personal law of the
husband and the wife are both available (Hague Prescriptive period is 5 years from the time of the
Convention). occurrence of the cause.

JURISDICTION Wife cannot drop the name of the husband, whether she
In case of aliens, we do not assume jurisdiction unless the is the guilty party or not.
national law of the parties is willing to recognize its
jurisdiction. PAT: Our Conflict of Law rules in marriage is spell out in Art.
Foreigners may ask for legal separation here even if they
26 of FC all marriages solemnized outside the Philippines, in
did not get married in this country what is important is accordance with the laws in force in the country where they
jurisdiction over both parties (and the procedural were solemnized, and valid there as such, shall also be valid in
requirements are complied with). this country except those prohibited under Article 35(1), (4),
*it is enough that the petitioner foreigner has resided in (5) and (6), 36, 37 and 38.
the Phils. for 6 mos. General Rule: valid there abroad, valid in the Philippines.
Application of Art. 26 depend on various circumstances. It
Art. 55. A petition for legal separation may be filed contemplates different situations.
on any of the following grounds:
(1) Repeated physical violence or grossly abusive SITUATION 1. Marriage between foreigners celebrated
conduct directed against the petitioner, a common abroad.
child, or a child of the petitioner; Both parties are aliens and solemnized abroad. By virtue of
(2) Physical violence or moral pressure to compel
Art. 26, if valid at the place of solemnization, it should be
the petitioner to change religious or political
affiliation;
valid in the Philippines. Exception: if marriage is considered
(3) Attempt of respondent to corrupt or induce the as universally incestuous (parent-child; brother-sister).
petitioner, a common child, or a child of the The exceptions provided in Art. 26(1) does not apply insofar
petitioner, to engage in prostitution, or connivance as marriages between foreigners abroad. Why? 35, 36, 37, 38
in such corruption or inducement; all pertains to status. And status is governed by nationality
(4) Final judgment sentencing the respondent to under Art. 15.
imprisonment of more than six years, even if
pardoned; SITUATION 2. Marriage between Filipinos abroad.
(5) Drug addiction or habitual alcoholism of the
Art. 26 if valid at the place of solemnization, valid in the
respondent;
(6) Lesbianism or homosexuality of the respondent; Philippines except:
(7) Contracting by the respondent of a subsequent Art. 35(1), (4), (5) and (6)
bigamous marriage, whether in the Philippines or Cases falling under Art. 35(1), (4), (5) and (6) are void even if
abroad; valid in the country where the marriage was solemnized.
(8) Sexual infidelity or perversion; Art. 36 psychological incapacity
(9) Attempt by the respondent against the life of Art. 37 incestuous (parent-child; brother-sister)
the petitioner; or Art. 38 void marriages by reason of public policy
(10) Abandonment of petitioner by respondent The exceptions provided under Art. 26(1) applies in this case
without justifiable cause for more than one year.
because the parties are Filipinos.
For purposes of this Article, the term "child" shall
include a child by nature or by adoption. (9a)
SITUATION 3. Marriage between foreigners in the
Art. 56. The petition for legal separation shall be Philippines.
denied on any of the following grounds: It is valid if it complies with Philippine laws but their capacity
(1) Where the aggrieved party has condoned the to contract marriage is determine by their own national law
offense or act complained of; pursuant to Art. 21 of the FC. What is required is for the
(2) Where the aggrieved party has consented to the applicant should submit to LCR a duly authenticated
commission of the offense or act complained of;
certificate of legal capacity to contract marriage issued by
(3) Where there is connivance between the parties
in the commission of the offense or act constituting
their respective consular office. This is enough for the LCR to
the ground for legal separation; issue the marriage license; once issued, he can now contract
(4) Where both parties have given ground for legal marriage anywhere in the Philippines. Valid if it should
separation; comply with Philippines laws on marriage but their capacity is
(5) Where there is collusion between the parties to determined by their own national law.
obtain decree of legal separation; or
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
15 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
CONFLICT OF LAWS
Midterm Reviewer

remarry, this is only a consuelo de bobo. Why? Theres still


SITUATION 4. Marriage between Filipinos in the Philippines. something to do. The law still wants her/him to engage the
Obviously, everything should be governed by Philippine laws. services of a lawyer which comes with handsome fees and go
to the rigors of trial with the risk of case be dismissed before
SITUATION 5. Marriage between a Filipino and a foreigner he/she can remarry.
in the Philippines.
Mixed marriage but solemnized in the Philippines. Rule: it is REPUBLIC. V. ORBECIDO
valid if it complies with Philippine laws on marriage but the SC made this provision applicable to a situation where the
legal capacity of the foreigner is determined by his own marriage is between two Filipinos but subsequently one of
national law. them became a citizen of a foreign country and while being a
foreign national, obtained a divorce decree. SC said the
SITUATION 6. Mixed marriage between a Filipino and a requirement of mixed marriage is determined not at the time
foreigner solemnized abroad. of marriage but at the time the divorce decree is obtained. It
Rule: if valid there, valid here but if that marriage falls under doesnt matter that if at the time of marriage both are Filipinos
any of the exceptions enumerated in Art 26(1), the marriage is so long at the time the divorce decree is obtained one is
VOID insofar as the Filipino spouse is concerned. Result here already a foreigner.
is a hybrid marriage. VALID insofar as the foreigner; VOID
insofar as the Filipino. But insofar as the Filipino spouse is concerned, contracting a
subsequent marriage does not come easy. Still required the
Theoretically, this is possible. This is now the dilemma. No filing of a petition for declaratory relief for him/her to
provision in the FC or any existing law which specifically remarry.
addresses this concerned.
What must be proved in the Petition for Declaratory Relief
Opinion of Paras: In a situation like this, we should consider proceedings?
the marriage if valid there and falls under any of the Orbecido Case. SC said the Filipino spouse should prove:
exceptions insofar as Filipino spouse is concerned, should be (1) the EXISTENCE OF THE DIVORCE DECREE
considered valid to be consistent with our policy that every OBTAINED ABROAD. How? Sec. 24, 25 of Rule 132 on
doubt should be resolved in favor of validity marriage. We are Rules of Evidence. A certified true copy of the divorce decree,
pro-marriage. No specific provision on this issue but theres certified by the custodian, accompanied by a certification of
legal sense and logic in the opinion of Paras. the consular office that the custodian has the legal custody of
the document. Authenticated copy of divorce decree should be
Question: What happens if a foreign spouse who is married to submitted in court.
a Filipino obtains a divorce decree abroad? (2) that the DIVORCE IS IN ACCORDANCE WITH LAWS
This is addressed in Art. 26(2) Where a marriage between a ALLOWING IT. The laws of the place where the divorce
Filipino citizen and a foreigner is validly celebrated and a decree was obtained should be proved, take note our courts do
divorce is thereafter validly obtained abroad by the alien not take judicial notice, these foreign laws should be prove as
spouse capacitating him or her to remarry, the Filipino spouse a fact.
is likewise have capacity to remarry under the Philippine law. (3) that the DIVORCE DECREE OBTAINED ABROAD
CAPACITATES THE FOREIGN SPOUSE TO REMARRY.
Art. 26(2) is the only positive law in our jurisdiction which Divorce is of two kinds: absolute and relative. Absolute
clearly acknowledges the validity of divorce insofar as capacitates one to remarry; relative/restricted does not. Its
Filipino is concerned by declaring that the Filipino spouse is relevant to prove the kind of divorce obtained. If absolute,
likewise capacitated to remarry, the law in effect capacitates the foreign spouse to remarry. IMPORTANT
acknowledges the validity of divorce, although as a matter of (4) Recio v. Recio. A divorce decree obtained abroad by an
policy we do not recognize divorce. alien may be recognized valid here IF VALID IN
ACCORDANCE WITH NATIONAL LAW OF THE ANY
Rationale: To remedy the unfair situation where a Filipino SPOUSE. It is not enough to prove the law of the place where
spouse remains married to an alien spouse who is no longer the divorce decree was obtained, but just as important it is to
married to the Filipino spouse. To promote fairness on the part prove that the divorce decree is valid in accordance with the
of Filipino spouse, Art. 26(2) which expressly afford the national law of the party who obtained the divorce. It is
Filipino spouse to remarry as well. possible that an alien spouse is a citizen of another country
and obtained the divorce in another country.
Take note that this capacity to remarry is not automatic. While (see also Recio Case)
the law recognizes the capacity of the Filipino spouse to
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
16 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
CONFLICT OF LAWS
Midterm Reviewer

AS TO REQUIREMENT TO BE ABLE TO REMARRY


Filipino Spouse By virtue of Obrecido, the Filipino spouse PROPERTY RELATIONS
before he/she can remarry has to file petition for declaratory When at least one of the spouse is a Filipino, Philippine laws
relief. apply on matters involving property relations. conjugal
Alien Spouse SC said, for an alien spouse to remarry in the partnership, absolute community, etc.
Philippines, all he needs is to submit certificate of legal Exceptions:
capacity issued by his/her consular official. This certificate of if both spouses are aliens
legal capacity is prima facie evidence of his legal capacity to extrinsic validity of contracts involving properties located
contract marriage. The alien spouse does not have to prove the outside the Philippines whether executed abroad or in the
divorce decree and it validity, unlike the case of a Filipino Philippines. Rationale: involves property so Lex Rei Sitae
spouse.

What is now the status? the only purpose of declaratory relief


is to remarry but to avoid absurd situation when there is a
hiatus between the finality of the divorce decree and the CONFLICT RULES ON STATUS OF
finality of declaratory relief petition, I inclined to believe that CHILDREN
the status should severed at the time the divorce decree was
obtained. Otherwise, it would be absurd when there is no more LEGITIMACY
marriage to speak of yet he remains married. STATUS:
DIVORCED IF THE PARENTS HAVE THE SAME NATIONALITY common
national law of the parents.
WITHOUT D.R. BUT REMARRIES IF DIFFERENT NATIONALITIES national law of the father.
If the Filipino spouse subsequently contracts marriage without
declaratory relief I dont think there is bigamy there since we LEGITIMATE CHILDREN conceived or born during the
recognized divorce decree insofar as the alien spouse is marriage of the parents.
concerned,. Again, the only purpose of declaratory relief is for *children born of void marriages under Art. 36
purposes of remarriage. But for prosecution for bigamy, I (psychological incapacity) and Art. 53 (born before
doubt it. parent delivers the presumptive legitime).
**children conceived as a result of artificial
Filipino, naturalized in another country, then divorced the insemination are considered legitimate.
moment the Filipino spouse becomes an alien, he ceased to be ILLEGITIMATE CHILDREN children conceived and born
governed by Philippine laws. Only certificate of legal capacity outside a valid marriage xxx unless otherwise provided in
the Code.
if he/she intends to remarry here.
LEGITIMATE/D ILLEGITIMATE
A STATELESS PERSON in the high seas, what are the
requirements? Bear surname of the father Use surname of the mother
and the mother (or the father if
Art. 21 if a foreigner wants to marry here, the requirement for
recognized).
marriage license is the certificate of legal capacity issued by
To receive support from Under parental authority of
his consular office. If the applicant is a stateless individual,
their parents, ascendants, the mother
one who has no country, the only requirement is an affidavit brothers and sisters
setting forth the circumstances of his legal capacity. The Support
question there is by whose law should the legal capacity be Entitled to legitime and
determined? Legal capacity is a matter of law. Obviously, it other successional rights. Legitime (equal to of the
cannot be national law because he is not a national of any legitimate child)
country. Principle in international law, its possible for a
person to have no country, one who is stateless (not a citizen DETERMINING RIGHTS AND DUTIES BETWEEN PARENT AND
of any country) but it is impossible for one to have no CHILD
domicile. Domicile is of two kinds: permanent and temporary.
If you come here in the Philippines to apply for a marriage If LEGITIMATE
license, thats temporary domicile. High seas, theoretically, PARENTS HAVE SAME NATIONALITIES their common
but in reality its not possible for one to have no domicile for personal law.
purposes of marriage. Sometime, somewhere, you need to go DIFFERENT NATIONALITIES personal law of the father.
to the LCR. Philippine law is the basis for his legal capacity to
marry. Philippines is deemed to be his temporary domicile. If ILLEGITIMATE

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW


17 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
CONFLICT OF LAWS
Midterm Reviewer

Personal law of the MOTHER. Determined by the same law that created the
BUT, personal law of the father applies if the child is relationship of adoption.
subsequently recognized.
LEGAL EFFECTS OF ADOPTION (GENERAL)
DOCTRINE OF IMMUTABILITY OF STATUS 1. Successional rights of the adopted child
Status of a child is not affected by a subsequent 2. Parental authority
change of nationality of the parents. 3. Use of the surname of the adopter
BUT, the rights and duties of parent and child
would, after the parents change of nationality, WHO MAY ADOPT
be governed by the new national law of the Sec. 7, RA 8552 (this is the one discussed by Sempio-Diy)
parents. a. FILIPINO CITIZEN of legal age, in possession of full civil
capacity and legal rights, of good moral character,
LEGITIMATION has not been convicted of any crime involving moral
turpitude, emotionally and psychologically capable
Legitimization a process whereby children who in fact of caring for children, at least sixteen (16) years older
were born in lawful wedlock and should therefore be than the adoptee, and who is in a position to support
ordinarily considered illegitimate children are regarded and care for his/her children in keeping with the
as legitimate. means of the family.
*Legitimated children have the same rights as *sixteen (16) year difference between the age of
legitimate children (Art. 179, FC). the adopter and adoptee may be waived when:
i. adopter is the biological parent of the
The common national law of the parents governs. adoptee
IF the parents have different nationalities, the national ii. Adopter is the spouse of
law of the father governs. the adoptee's parent.
*in countries following the domiciliary theory, the law b. ALIEN possessing the same qualifications as above
of the domicile of the parents govern or the law of stated for Filipino nationals.
the domicile of the father. Provided:
his/her country has diplomatic relations with the
REQUISITES IN ORDER FOR A CHILD TO BE LEGITIMATED: Philippines
Art. 177. Only children conceived and born outside he/she has been living in the Philippines for at least
of wedlock of parents who, at the time of the three (3) continuous years prior to the filing of the
conception of the former, were not disqualified by application and maintains such residence until the
any impediment to marry each other may be adoption decree is entered
legitimated. (269a) he/she has been certified by his/her diplomatic or
consular office or any appropriate government
DOCTRINE OF IMMUTABILITY OF STATUS applies. agency that he/she has the legal capacity to adopt
Therefore, despite the change of citizenship/personal in his/her country
laws of the parents/father status as legitimated child that his/her government allows the adoptee to enter
remains. his/her country as his/her adopted son/daughter.
**this is the same as in a legitimate child because. . . Provided, Further, That the requirements on residency
Art. 180. The effects of legitimation shall retroact and certification of the alien's qualification to adopt
to the time of the child's birth. (273a)
in his/her country may be waived for the following:
i. a former Filipino citizen who seeks to adopt a
ADOPTION
relative within the fourth (4th) degree of
consanguinity or affinity; or
Current Applicable Laws
ii. one who seeks to adopt the legitimate
1. RA 8043 Inter-Country Adoption
son/daughter of his/her Filipino spouse; or
2. RA 8552 Domestic Adoption
iii. one who is married to a Filipino citizen and
seeks to adopt jointly with his/her spouse a
LAW THAT DETERMINES RELATIONSHIP CREATED
relative within the fourth (4th) degree of
The childs personal law (to protect his well-being).
consanguinity or affinity of the Filipino
BUT, if the child does not reside in the country of his
spouse.
citizenship personal law of the adopter OR
c. GUARDIAN with respect to the ward after the
personal law of the child and the adopter
termination of the guardianship and clearance of
concurrently.
his/her financial accountabilities.
LAW THAT DETERMINES THE LEGAL EFFECTS
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
18 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
CONFLICT OF LAWS
Midterm Reviewer

RA 8552 requires HUSBAND and WIFE to adopt jointly.


EXC: VALIDITY OF WILLS
a. When one spouse seeks to adopt his/her own
illegitimate child 1. EXTRINSIC VALIDITY
b. When one spouse seeks to adopt the a. FILIPINO Abroad he may comply with the
illegitimate child of the other formalities of Philippine law or the lex loci
c. Where spouses are legally separated other celebrationis.
spouse can adopt alone without the consent B. ALIEN Abroad lex nationalii, lex domicilii, lex
of the other. loci celebrationis.
c. ALIEN in the Phils. lex nationalii or lex loci
LEGAL EFFECTS OF ADOPTION (UNDER PHILIPPINE LAW) celebrationis (Phil. law).
1. All legal ties between the biological parent/s and the d. For HOLOGRAPHIC Wills only requirements are:
adopted child are severed and the same shall be it must be entirely written, dated, and signed by
vested in the adopter/s (EXC where the biological the hand of the testator himself (no other req.).
parent is the spouse of the adopter). 2. INTRINSIC VALIDITY
2. The adopted child shall be considered for all intents GR: Determined by LEX NATIONALII or LEX DOMICILII.
and purposes to be the legitimate child of the Philippines applies lex nationalii.
adopter/s (same rights as legitimate child).
3. Adopter/s and the adopted child shall have *JOINT WILLS
reciprocal rights of succession. Filipinos cannot make joint wills whether here or
abroad notwithstanding lex loci celebrationis.
Adoption proceedings are IN REM (Publication is Joint wills made by aliens abroad shall be considered
required). valid in the Phils. if valid according to lex nationalii,
Mere agreement of adoption is not a valid adoption lex domicilii, or lex loci celebrationis.
COURT DECREE is required. Joint wills made by an alien and a Filipino are valid
only as to the alien if his lex nationalii, lex domicilii, or
Mere registration of the child in the civil registry as the lex loci celebrationis allows it.
child of the adopter is not a valid adoption. Joint wills made by aliens in the Philippines are void
Capacity and right of the adopter is determined by the as a matter of public policy.
law enforced at the time petition is filed.
INTESTATE SUCCESSION
RECOGNITION OF FOREIGN DECREE OF ADOPTION
Under Sec. 48 of Rule 39 we can recognize the foreign Law of the country where one is a citizen or law of the
decree of adoption provided the foreign court had country where he is domiciled.
jurisdiction to render the said decree. In the Phils., we apply lex nationalii.
Also there should not have been:
a. Want of notice REVOCATION OF WILLS
b. Collusion
c. Extrinsic Fraud Art. 829. A revocation done outside the Philippines,
d. Clear mistake of law and fact by a person who does not have his domicile in this
country, is valid when it is done according to the
law of the place where the will was made, or
CONFLICT RULES ON WILLS,
according to the law of the place in which the
SUCCESSION, and ADMINISTRATION OF testator had his domicile at the time; and if the
THE ESTATE OF DECEASED PERSONS revocation takes place in this country, when it is in
accordance with the provisions of this Code. (n)
2 THEORIES IN DETERMINING PROPER LAW FOR
TRANSMISSION OF SUCCESSIONAL RIGHTS If the REVOCATION is done outside the Philippines by a
person who is domiciled here VALID if made in
1. UNITARY OR SINGLE SYSTEM only one law accordance with our law or the place where the
determines transmission of real as well as personal revocation was made (lex loci actus).
properties.
2. SPLIT OR SCISSION SYSTEM succession to real PAT: Revocation of Wills depends where it was revoked:
property is governed by lex situs while succession to Revocation is made outside by someone who is not domicile
movable or personal property is governed by law of of the Philippines. Two governing laws:
the domicile of the deceased at the time of his
death.

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW


19 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
CONFLICT OF LAWS
Midterm Reviewer

Revocation is valid if it was made in accordance with the law Wills proved and allowed in a foreign country according
of the place where the will was executed; or if made in to the laws of such country may be allowed, filed, and
accordance with the law of the domicile at the time of recorded by the proper court in the Phils.
revocation. BUT, it still has to be REPROBATED in the Phils. in
accordance with out procedural law.
N.B. law of the domicile or law of the place of the person who
revokes the will is domiciled at the time of revocation. Evidence necessary for the probate of will probated
Because a person may change his domicile form time to time. outside the Phils.
DOMICILE AT THE TIME OF REVOCATION. a. Due execution of the will in accordance with foreign
law.
b. Testator had his domicile in the foreign country where
Revocation made outside of the Philippines by a person who is
the will was probated
a domicile in the Philippines. Note: DOMICILE not citizen.
c. The will had been admitted to probate in said
He may be a foreigner. He can make revoke a will abroad.
country
How do you determine the validity of that revocation? Two
d. The foreign tribunal is a probate court.
governing laws: e. Laws of the foreign country on procedure and
PHILIPPINE LAW the one who revokes the will is a allowance of wills were followed.
domicile of the Philippines; or if it complies or observes the
LAWS OF THE PLACE WHERE THE REVOCATION WAS PAT: Question: Will probated abroad maybe re-probated here
MADE. in the Philippines. How to re-probate?
Probate proceedings concern with genuineness and due
Either of these two laws, revocation done outside by a person execution of the will. The facts sought to be established in the
domiciled in the Philippines is valid. probate proceeding is the will genuine and duly executed by
the testator. In proving the genuineness and due execution of
REVOCATION DONE IN THE PHILIPPINES should be the will, requirement you present witnesses to establish that
done in accordance with Philippine laws the testator is of sound and disposing mind at the time the
execution, that he executed the will on his own free will free
INTERPRETATION OF WILLS form any vices of consent, etc. A tedious process because you
have to prove all the formal requirements and the fact that it
a. Literal meaning shall control if the terms are clear and
was genuinely executed.
unambiguous.
*Contemporaneous and subsequent acts of the
In case of a will already probated abroad and brought to the
testator may also be considered.
Philippines for re-probate, the rule is you dont need to prove
b. If testators intention cannot be ascertained by the
preceding rules ambiguous words are to be
all over again the genuineness and due execution of the will.
interpreted in accordance with the law which was No need to bring in witnesses from abroad and testify before
most probably in the mind of testator when he used the court where the re-probate is pending. Only requirement is
those words and with which he is presumed to be to submit to the Philippine court a copy of the judgment of the
most familiar. court approving the will and a copy of the will itself duly
c. If the will admits of different interpretations that authenticated by the consular office in the place where these
which will make the disposition operative shall be documents are kept. Only a summary proceeding; no need to
preferred. re-try it all over unlike in a first probate where proceeding is
d. Every effort should be made to prevent intestacy. extensive

PROBATE ADMINISTRATION OF ESTATE OF DECEASED PERSONS


ADMINISTRATION the process of determining and
Probate process of providing before a competent realizing the assets of a deceased person, the payment
court the: of the debts of the estate and the actual distribution of
Due execution of a will the residue to the heirs.
That testator was possessed of testamentary capacity Procedural in nature therefore lex fori governs.
The approval by said court of the will
EXECUTOR appointed in a will and qualified by the
Allowance/disallowance essentially procedural in court to be in charge of the distribution.
nature law of the forum applies.
ADMINISTRATOR appointed by the court to take
charge of the distribution (there is no will).

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW


20 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
CONFLICT OF LAWS
Midterm Reviewer

*Appointed by the court where the deceased was a. Disposition, conveyance or encumbrance of property
domiciled at the time of his death or where his properties b. Forms and solemnities of contracts involving
are found. properties their conveyance, encumbrance disposition
c. Ownership
The rights, powers, and duties of the executor or d. Co-ownership
administrator are coextensive with the territorial e. Lease
jurisdiction of the court that qualified or appointed him. f. Mortgage
g. Registration
PRINCIPAL DOMICILIAR ADMINISTRATION administration h. Easement
granted in the country of the deceaseds last domicile. i. Prescription
ANCILLARY ADMINISTRATION administration in other
j. Capacity of the contracting parties
countries where the deceased also left properties.
*the domiciliary administrator has no power over and
In other words, if it involves personal or real property, all
is not entitled to the possession of properties of the
three components of a contract are governed by lex rae sitae.
deceased in another country which must be
delivered to the ancillary administrator of the
Unlike in ordinary contract where each component is
deceaseds estate in that country to be administered governed by different rules.
by the latter.
LIMITATIONS:
CADUCIARY RIGHTS in cases where the deceased left
no heirs, the State shall have the right to consider his 1. PROPERTY IS INVOLVED IN SUCCESSION
properties as bona vacantia and seize all property of the Succession is a mode of acquisition of ownership. It involves
deceased lying within its borders. transfer of ownership from the decedent to the heir. While
*it may also mean that a State is considered as the these may involve transfer of ownership, title to property, this
last heir of the deceased person and therefore is not however governed by lex rae sitae because the factual
succeeds to his properties as such. situation now is no longer a matter of property. Strictly, the
factual situation now is on succession, whether intestate or
CONFLICT RULES ON PROPERTY testamentary succession because under second paragraph of
Article 16 [National Law of the decedent].
Art. 15. Real property as well as personal property
is subject to the law of the country where it is 2. THE PROPERTY IS ONLY INCIDENTAL TO THE
situated. MAIN CONTRACT.
LEX REI SITAE/LEX SITUS is therefore adopted for both real The main contract being the rights and obligations of the
property and even personal property. parties. In other words, lex rae sitae, does not apply in an
*due to the growing complexity and variety of ordinary contract although that ordinary contract may involve
personal property no longer making them immediately
a property incidentally.
connected with the person of the owner.
A typical example of this case is a contract of design.
LEX SITUS AS TO REAL PROPERTY
Covers the extrinsic and intrinsic validity of transactions
Example Mr. Tibon is an architect. His expertise is engaged
over real property (alienations, transfers, mortgages, by Miss Corollo to design a multi-million residential house
capacity of the parties, effects of ownership, etc.) that Mr. Tibon offers to Miss Corollo as a consideration for
future marriage. This is a contract which involves property
EXC (when lex situs does not apply): but if you look at it, its an ordinary contract of service
SUCCESSION national law of the decedent is involving the services of Mr. Tibon. The presence of the
followed. property there is only incidental. If the contract partakes of
CONTRACTS proper law of the contract is followed: this nature where the property is only incidental to the main
Lex loci voluntatis; or contract, you dont apply lex rae sitae but the law on ordinary
Lex loci intentionis contract.

Now, as pointed out earlier, all aspects pertaining to property


PAT: The rule is LEX RAE SITAE---the law of the place are governed by lex rae sitae. But the question is, to what
where the property is located. extent?

These matters may include the following: LAUREL VS. GARCIA


RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
21 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
CONFLICT OF LAWS
Midterm Reviewer

QF: Involves the planned sale of the Roponggi property in conflict of laws, lex rae sitae does not only cover a situation
Japan which the Philippine government acquired from Japan where there is a dispute over title of a property involved.
by virtue of a certain treaty because of the war there was that Instead, all aspects---conveyance, encumbrance, forms and
Reparation Agreement where the government of Japan solemnities, intrinsic aspect, capacity of the parties, all these.
conveyed to the Philippines, by way of damage that Japan
caused during the World War. This was opposed and one of (For intangible and movables, see rules below from Sempio-
the arguments put forward by those who oppose the Dy discussed in passing only).
disposition of the Roponggi property was that Roponggi
property is a property of public dominion defined under LEX SITUS AS TO PERSONAL PROPERTY
Article 420 of the Civil Code as a property intended for some There is no problem when the movable is tangible and
public service. And therefore being a property of public has a fixed situs.
dominion, its beyond the commerce of man, beyond
appropriation by any individual even the government. Problem arises when the movable is mobile or usually in
For those who advocated for the disposition of Roponggi motion.
argued that its not proper to invoke Article 420 of the Civil
Code because the property is located in Japan and therefore it CONSTRUCTIVE SITUS is therefore given to these movables.
is governed by the law of Japan although they did not prove
VESSELS
the exact law of Japan for that matter but they said that Japan
3. Law of the Flag if a public vessel.
law allows disposition of the property.
4. Law of the Country or Place of Registry private
or commercial vessel.
HELD: The Supreme Court said there was no conflict of laws
*if vessel is temporarily docked at a foreign port
in this case. While lex rae sitae provides that real or personal said port is considered its temporary situs.
property is governed by the law of the place where they are
situated, this principle of lex rae sitae applies only when there GOODS IN TRANSIT
is issue as to the title of the property involved. In this case of 1. Liability for LOSS DESTINATION.
Roponggi, according to the Supreme Court, there is no issue at 2. Validity and Effect of Seizure place where the
all insofar as the title of the property because all along all goods were seized.
parties to the case are one that the property belongs to the 3. Disposition or Alienation proper law of
government of the Philippines. There are no conflicting contract between the parties.
claims over the ownership of the property.
INTANGIBLE PERSONAL PROPERTIES
With this the Supreme Court said you dont apply lex rae A. CREDITS
sitae. Its not even relevant for purposes of resolving the issue Involuntary Transfer/Assignment of Debt place
of whether or not the property may be disposed. If you look at where the debtor may be served with summons
the decision it would appear that lex rae sitae is limited only in (usually his domicile).
a situation where the ownership of the property is disputed. Voluntary proper law of the contract.

I have serious reservation on this ruling because if you read B. NEGOTIABLE INSTRUMENTS
the literature on conflict of laws, you have the Salonga, you Negotiability LAW GOVERNING THE RIGHTS
have the Agpalo, you have the book of Sempio-Diy, all of EMBODIED IN THE INSTRUMENT.
them are saying that all aspects---the conveyance, formality, Transferability law at the TIME of transfer,
delivery, or negotiation.
the capacity of the contracting parties, all these matters are
governed by lex rae sitae. Now the issue of whether or not the
C. SHARES OF STOCK
property may be sold is obviously an issue which pertains to
Corporation + Another Person law of the place
the intrinsic aspect of the contract whether the subject matter of INCORPORATION.
may be the subject of a sale transaction. Or the issue on Between Parties PROPER LAW OF THE
whether or not there is authority to sell that relates to capacity CONTRACT.
of the contracting parties which, according to the writers, is
one of the matters which are governed by lex rae sitae. D. FRANCHISES
Law of the STATE GRANTING THE FRANCHISE.
For the Supreme Court to say that the lex rae sitae does not
apply because the problem does not involve an issue of title E. GOODWILL
over the property, I really have a serious reservation with that Law of the place WHERE THE BUSINESS IS CARRIED
ruling because as I said, you look at all the literatures of ON.
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
22 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
CONFLICT OF LAWS
Midterm Reviewer

*Goodwill the patronage of any established b. When lex loci celebrationis contravenes an
trade or business; the benefit acquired by an established policy in the forum
establishment beyond the value of its capital c. Applying it would result to gross injustice to the
stocks, funds, or property in consequence of the people of the forum
general public patronage and encouragement d. Transaction is contra bonos mores
that it receives from its customers.
PAT: Our Conflic of Laws on the matter is Article 17 of the
F. INTELLECTUAL PROPERTY RIGHTS Civil Code which says that: forms and solemnities of
contracts, wills and other public instruments shall be governed
GR: protected by the State that granted or by the law of the place where these contracts are executed.
recognized them.
By the way the extrinsic aspect of contracts refers to forms
But, according to RA 8293 and solemnities---only the extrinsic, the outside, the form, the
Section 3. International Conventions and physical requirements of a contract. So these matters may
Reciprocity. - Any person who is a national
include whether a contract is oral, whether a contract is in
or who is domiciled or has a real and
effective industrial establishment in a
writing, whether the contract requires notarization, whether
country which is a party to any convention, the contract requires instrumental witnesses and if so, how
treaty or agreement relating to intellectual many instrumental witnesses are required.
property rights or the repression of unfair
competition, to which the Philippines is also So the governing law is the place of execution. There is no
a party, or extends reciprocal rights to problem if the contract is executed in one place because that
nationals of the Philippines by law, shall be place is the governing law, the law of that place is the
entitled to benefits to the extent necessary governing law. The problem arises when the contract, as you
to give effect to any provision of such
will know- a contract may undergo several stages. The
convention, treaty or reciprocal law, in
addition to the rights to which any owner of problem arises when a part, an important aspect of the contract
an intellectual property right is otherwise took place in one state and the other important aspect or
entitled by this Act. (n) component of the contract took place in another state as when
the offer was made in one state, the acceptance of the offer
In other words, Philippines must be a co-party in a was made in another state. So in this case, what should be the
treaty/convention of the country where the place of execution, for purposes of conflict of laws rule?
foreigner is domiciled or is a national AND there
must be reciprocity of rights. We have Article 1319 of the Civil Code which says that
contract is perfected by the meeting between the offer and the
CONFLICT RULES ON CONTRACTS acceptance of the offer. But if the offer was made through
writing or through telegram or similar means, the acceptance
CONTRACT a meeting of the minds between two shall not be binding unless it is communicated to the offeror in
persons whereby one binds himself, with respect to the which case the contract is presumed to have been perfected in
other to give something or to render some service. the place where the offer was made.

EXTRINSIC VALIDITY So perfection, the contract is perfected the moment the


acceptance is made known to the offeror. So thats the last
GR: governed by LEX LOCI CELEBRATIONIS stage of the contract, that is the last step that perfects the
contract, the moment the acceptance is known by the offeror.
If via LETTER/TELEGRAM And since the offeror is presumed to be in the place where the
Acceptance made by letter or telegram does not
offer is made, for purposes of lex loci celebrationis, the place
bind the offerer except from the time it came to his
knowledge. The contract, in such a case, is
where the offer was made is deemed to be the place of
presumed to have been entered into in the place execution.
where the offer was made. (1262a)
Take note however that lex loci celebrationis, insofar as the
EXC to lex loci celebrationis extrinsic aspect of a contract is concerned, has its limitation.
a. When place of execution is merely This does not apply when the place of execution is obviously
casual/incidental apply MOST SIGNIFICANT casual or incidental only to the contract as when all the
RELATIONSHIP (the law of the place with the MSR important components of the contract took place in or pertain
to the transaction). to one state and the contract was executed in another state.

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW


23 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
CONFLICT OF LAWS
Midterm Reviewer

Casually and incidentally, in which case, you dont consider So issues pertaining to the validity of the contract insofar as
that place of execution as the lex loci celebrationis for the capacity of the contracting parties is concerned, you refer
purposes of the conflict rules. to Article 15---the national law of the parties involved.

What is the governing law insofar as the extrinsic aspect of the Limitation is when again the contract involves property, real
contract if the place of execution appears only as incidental to or personal because if it does capacity of the contracting
the contract? parties should now be determined again by lex rae sitae. In
short, capacity of the contracting parties is governed by
When this happens, you now apply the appropriate law of the nationality theory only if the contract is an ordinary contract
contract. Meaning to say, you have to determine the law of that does not involve property.
the contract impliedly or presumed to have been impliedly
agreed upon by the parties using the most significant So you have to distinguish these three different components.
relationship principle. The contract may be extrinsically valid but may not be valid
intrinsically. Or it may be intrinsically valid but not valid
So you will now determine the law of the contract by insofar as the capacities of the contracting parties because
determining the various aspects or components of the these components are governed by different rules.
contracts. If most of the important components of the contract
take place or pertain to a particular state and that state claims INTRINSIC VALIDITY
to have the most significant relationship insofar as the contract
is concerned, that state is deemed to be the place where the GR: proper law of the contract (i.e. lex loci
contract has been executed although in reality the contract VOLUNTATIS/INTENTIONIS).
may have been executed somewhere else. So you apply now
the most significant relationship principle. In the Phils.
There is no specific provision of law, BUT our policy is to
You review the case of Saudi Arabian Airlines, where the give effect to the intention of the parties (the expressed
Supreme Court applied this principle although in relation to a intention or the implied intention). *aka Choice of Law
tort case but the principle is exactly the same. *as determined by many factors i.e. law with the
most substantial connection with the transaction or
the law that may be presumed to be intended by
CAPACITY TO ENTER INTO CONTRACTS
the parties to bind their transactions.
GR: governed by PERSONAL LAW of the parties (National
Law or Domiciliary Law).
Some Limitations to Choice of Law
EXC: contracts involving alienation or encumberance
a. Law must have connection with the transaction.
of properties (real and personal) LEX SITUS
b. If the law selected should change, the new law shall
be applied (EXC where the change is so
i.e. a Filipino (18 y.o.) who enters into a contract in a
revolutionary that it could not have been foreseen
country where age of majority is 21 cannot later on plead
by the parties).
his incapacity HE IS GOVERNED BY PHIL. LAW (Art. 15,
c. Cannot stipulate on jurisdiction of courts or oust the
NCC).
courts of their jurisdiction.
BUT, if an alien (18 y.o.) enters into a contract in the
d. Cannot contract away applicable provisions of law
Philippines, he cannot later on plead his incapacity
that are impressed with public interest or involve
just bec. age of majority based on his national law is
public policy (i.e. labor)
21 it would greatly IMPEDE BUSINESS
e. Several laws may be selected (each of which may
TRANSACTIONS.
govern certain elements of the transaction).
To Reconcile:
Nationality Theory should be limited to family and
Intrinsic validity refers to the essence or the substantive aspect
domestic relations. of the contract, specifically this refers to the nature of the
Proper Law of the Contract business/commercial contract, whether the contract by its very nature is valid like a
transactions contract of lingam massage service. Is it valid by its nature?
So this question as to the validity of the contract by its very
PAT: Capacity of the contracting parties is a matter of nature concerns the intrinsic aspect of the contract.
personal law and therefore we apply the nationality theory Other matters falling under intrinsic may refer to the terms and
under Article 15. conditions of the contract, whether the terms stipulated or
embodied in the contract are valid or not. Or the subject
matter of the contract. Anything which relates to the

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW


24 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
CONFLICT OF LAWS
Midterm Reviewer

substance as contradistinguished from form falls under Apply the lex loci intentionis or the law impliedly or
intrinsic validity. presumed to have been agreed upon by the parties.
You will know that there is no specific provision in our laws So not expressly stipulated upon by the parties, but under the
which govern the intrinsic aspect of the contract insofar as circumstances, it can be reasonably inferred that the parties
conflict of laws rule is concerned. agree that this particular law should govern their contract
However, most writers suggest that for this purpose, the forum insofar as the intrinsic aspect.
court should be consistent with the policy adopted in our To determine this, use the most significant relationship
jurisdiction that parties are free to stipulate. The contracting principle.
parties to a contract are free to stipulate anything in the How? By determining the various components of the
contract. This is the so-called liberality of contract principle contracts: the place of negotiation, the place where the
consistent with Article 1306 of the Civil Code which says that contract was actually executed by the parties, the place where
parties to the contract may establish such stipulations, clauses, the subject matter may be found, the place of performance, so
terms and conditions as they may deem convenient provided all these various components of the contract should be taken
these do not or these are not contrary to law, public policy or into consideration to determine if these or most of these
good morals or customs. So this espouses the liberality of components pertain to one state. If it does, then that state, the
contract principle. Having said this, most writers suggest that law of that state should be deemed to be the lex intentionis and
for purposes of conflict of laws rule insofar as intrinsic apply that law accordingly.
validity of contract is concerned, what matters is the intention Apply the law of the country or he state where the validity of
of the parties. the contract is likely to be sustained.
So the governing law that determines the intrinsic validity of a If under the circumstances it cannot be reasonably inferred
contract, according to most writers are the following: that one state claims to have the most significant relationship
because all the important components of the contract took
Lex loci voluntatis or the law expressly agreed upon by the place or pertain to various states evenly distributed, in other
parties. words, no single state can claim most significant relationship
So you see the intention, the express avowed intention of the the forum court, to resolve the issue, will now apply the law of
parties. Now how do you determine the lex voluntatis or the the country or the state where the validity of the contract is
law expressly agreed upon by the parties? likely to be sustained.
Again this is consistent with the policy in our jurisdiction that
This is commonly manifested by the so-called choice of law the intention of the parties as much as possible should be
clause in a contract, this is a standard clause or provision in a observed.
contract especially foreign contracts; the stipulation on the
choice of law where the parties expressly agree that any THERE IS HOWEVER LIMITATION TO ALL THESE
dispute arising from the contract shall be governed by the law PRINCIPLES.
of that particular state. The principle of lex loci celebrationis and these principles we
discussed in relation thereto, do not apply when the contract
There is however a limitation to this rule because (1) the involves property. Take note! Lex loci celebrationis applies
parties may not stipulate on a particular law which has nothing only in ordinary contracts. The moment a contract involves a
to do at all with the contract. So this is governed by the rule property whether real or personal, lex loci celebrationis is
on reasonable connection. taken out of the equation, what applies now is lex rae sitae
While the parties are free to stipulate on a specific law that under Article 16, first paragraph, it says: real property as well
they want their contract to be governed, this should be as personal shall be governed by the law of the place where
analyzed with the reasonable connection with the contract so they are located.
the parties cannot stipulate on the law of Pakistan for example
if all the other important components of the contract are to be SPECIAL CONTRACTS
performed or take place or pertain to other states. So while the 1. BARTER, SALE, DONATIONS
parties may stipulate as to specific law, make sure that this law Extrinsic lex situs
is reasonably connected to the contract, otherwise that choice Intrinsic- lex situs
of law clause can never be enforced. Capacity of Parties lex situs
What happens if a contract does not contain a choice of law
clause? Meaning, there is nothing in that contract where the
intention of the parties can be ascertained as to the specific 2. LEASE OF PROPERTY
law that governs their contract insofar as intrinsic aspect of the If it creates REAL rights (period of 1 yr or
more/registered) lex situs
contract.
If month-to-month, week-to-week, etc.

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW


25 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
CONFLICT OF LAWS
Midterm Reviewer

Extrinsic lex loci celebrationis


Intrinsic- lex loci voluntatis/intentionis
Capacity of Parties personal law of the parties

3. PLEDGE, CHATTEL MORT., REM, ANTICHRESIS


Extrinsic lex situs
Intrinsic- lex situs
Capacity of Parties lex situs

4. LOAN
Extrinsic lex loci celebrationis
Intrinsic- lex voluntatis/intentionis
Capacity of Parties personal law of the parties

5. LEASE OF SERVICE
Extrinsic lex loci celebrationis
Intrinsic- lex loci voluntatis/intentionis
Capacity of Parties personal law of the parties

6. TRANSPORTATION/CARRIAGE
This is a contract to render service, so:
Extrinsic lex loci celebrationis
Intrinsic- lex loci voluntatis/intentionis
Capacity of Parties personal law of the parties
*LIABILITY FOR LOSS/DESTRUCTION/DETERIORATION
OF GOODS IN TRANSIT law of the DESTINATION of
the goods.
COGSA liability may be limited unless value is
declared by the shipper and such declaration is in
the BOL.
AIR liability for death/injury/damage to passenger
or cargo is governed by the WARSAW Convention.
liability if there is malice, gross negligence,
bad faith, improper discrimination the carrier is
liable for damages beyond those limited in
Warsaw Convention.

IN SUMMARY (More or Less)


If REAL CONTRACT lex situs.
If PERSONAL CONTRACT law on contracts will
apply, hence:
Extrinsic lex loci celebrationis
Intrinsic- lex loci voluntatis/intentionis
Capacity of Parties personal law of the parties

*** *** *** -END- *** *** ***

The good of the people is the greatest law.


- Marcus Tullius Cicero

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW


26 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book