conflict - sempio-diy book reviewer

8/20/2019 Conflict - Sempio-Diy Book Reviewer

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Conflict of Laws Comprehensive reviewer of Sempio-Diy book

Lesley Claudio (A 2012) of 22

Chapter 1In General

Conflict of LawsThat part of the municipal law of a state which directs itscourts and administrative agencies, when confronted with alegal problem involving a foreign element, whether or notthey should apply a foreign law or foreign laws

Conflict of laws caseAny case which involves facts occurring in more than onestate or nation, so that in deciding the case, it is necessaryto make a choice between the laws of different states orcountries

Note: Conflict of laws is NOT part of international law.Although it is sometimes thought of as part of internationallaw because of the presence of a foreign element in a givenproblem, it is not international law in character but is part of the municipal law of each state. By municipal law in Conflictof Laws is meant the internal or local law of each state.

Conflict of laws vs. public international law

Public

InternationalLaw

Conflict of laws

As to personsinvolved

Governssovereign statesand entities thatare internationallyrecognized orpossessed of internationalpersonality

Governs privateindividuals orcorporations

As to nature International incharacter

Municipal incharacter

As totransactionsinvolved

Applies only totransactions inwhich onlysovereign states

or entities withinternationalpersonality areconcerned andwhich generallyaffect publicinterest

Deals withtransactionsstrictly private innature in which

the country assuch hasgenerally nointerest

As to remediesapplied

The concernedstates may firstresort to peacefulremedies. If theseremedies fail, thestates concernedmay resort toforcible remedies

Recourse is hadto judicial oradministrativetribunals inaccordance withthe rules of procedure of thecountry wherethey sit

Sources of Conflict of Laws1. Direct sources

Treaties International conventions Constitutions Codifications and statutes Judicial decisions International customs

2. Indirect sources Natural moral law

Writings and treaties of thinkers andfamous writers

Chapter 2Jurisdiction and choice of law

How one deals with a problem in Conflict of Laws1. First, determine whether the court has jurisdiction

over the case.

If it has no jurisdiction, the case should bedismissed

If it has jurisdiction, the court willdetermine whether it should assume

jurisdiction over the case or dismiss it onthe ground of forum non conveniens

It is the law of the forum that determineswhether the court has jurisdiction over thecase

2. It will next determine whether to apply the internallaw of the forum or the proper foreign law

Three kinds of jurisdiction1. Jurisdiction over the subject matter2. Jurisdiction over the person3. Jurisdiction over the res

Jurisdiction over the subject matter Conferred by law Defined as the power to hear and determine cases

of the general class to which the proceedings inquestion belong

Cannot be conferred by consent of the parties orby their voluntary submission

Must be invoked by filing the proper complaint orpetition with the court.

Note: In the realm of Conflict of Laws, however, thereis another element which the court must consider indetermining the matter of jurisdiction the possible

enforceability of its decision in foreign states, subject to

the rights of said states.

Jurisdiction over the person The competence or power of a court to render a

judgment that will bind the parties involved Jurisdiction over the plaintiff : Acquired the

moment he invokes the power of the court byinstituting the action by the proper pleading

Jurisdiction over the defendant: Acquired whenhe enters his appearance or by the coercive powerof legal process exerted by the court over him

personal or substituted service of summonso EX: If appearance is for the sole purpose

of questioning the jurisdiction of the court.

Note: Question of erroneous service of summons must

be raised before judgment is rendered, or this would bea case of waiver. Defective service may be cured byactual receipt of summons or if in any other manner,knowledge of the existence of the case

Jurisdiction over the Res Jurisdiction over the particular subject matter in

controversy, regardless of the persons who may beinterested therein

The basis of the exercise of this jurisdiction is thepresence of the property within the territorial

jurisdiction of the forum even though the courtmay not have personal jurisdiction over the





persons whose interests in the property areaffected

The purpose of the suit is not to impose a personaliability on anyone but it is to affect the interests of all persons in a thing.

Jurisdiction in personam Jurisdiction over the res

Binds only the parties andtheir successors in interest

Binds the whole world

Actions quasi in rem The purpose is neither to impose a personal liability

in a thing nor to affect the interests of all personsin a thing, but to affect the interests of particularpersons in a thing.

An action affecting the personal status of theplaintiff is also classified as an action quasi in rem

Service of summons, how effected1. In actions in personam

(1) Personal service(2) Substituted service

Note: Service by publication would NOT besufficient

2. Service by publication(1) Action in rem(2) Action quasi in rem(3) Action involves the personal status of

plaintiff

3. Extraterritorial service of summons(1) When the defendant does not reside and

is not found in the Philippines, and theaction affects the personal status of theplaintiff

(2) When the defendant does not reside andis not found in the Philippines, and theaction relates to or the subject of which is,property within the Philippines (real orpersonal), in which the defendant has aclaim, a lien or interest, actual orcontingent

(3) When the defendant is a non-resident butthe subject of the action is propertylocated in the Philippines in which therelief demanded consists in excluding thedefendant from any interest therein

(4) When the property of a non-residentdefendant has been attached in thePhilippines

While a writ of attachment maybe issued by the court, saidwrit cannot be implementeduntil the court has acquired

jurisdiction over the non-resident defendant

Extraterritorial service, how effectedBy leave of court:

1. By personal service

2. By publication, but copy of the summons and theorder of the court must be sent by registered mailto the defendant’s last known address

3. In any other manner that the court may deemsufficient, e.g., by registered mail

Instances when court may refuse to exercise jurisdiction over a case on the basis of forum nonconveniens

1. The evidence and the witnesses may not be readilyavailable in the forum

2. The court dockets of the forum may already beclogged so that to permit additional cases wouldhamper the speedy administration of justice

3. The belief that the matter can be better tried and

decided in another jurisdiction, either because themain aspects of the case transpired there or thematerial witnesses have their residence there

4. To curb the evils of “forum shopping” the non-resident plaintiff might have filed the case in theforum merely to secure procedural advantages orto annoy or harass the defendant

5. The forum has no particular interest in the case

the parties not being citizens of the forum or areresidents elsewhere, or the subject matter of thecase evolved somewhere else

6. Other courts are open and the case may be bettertried in said courts

7. The inadequacy of the local judicial machinery foreffectuating the right sought to be enforced by theplaintiff

8. The difficulty of ascertaining the foreign lawapplicable

Note: The doctrine should generally apply only if thedefendant is a corporation. For if the defendant is anindividual, the proper forum may not be able to acquire

jurisdiction over him, thus leaving the plaintiff withoutany remedy.

Three instances when the forum has to apply theinternal or domestic law (lex fori) in deciding a casein conflicts of law

1. When the law of the forum expressly so provides inits conflicts rules

2. When the proper foreign law has not been properlypleaded and proved

3. When the case involves any of the exceptions tothe application of the proper foreign law (i.e.exceptions to comity)

Why foreign law cannot be applied if it has not beenpleaded and provedOur courts cannot take judicial notice of foreign laws

How a foreign law is proved under our Rules of Court1. Written law

(1) An official publication thereof (2) A copy of the law attested by the officer

having legal custody of the record or byhis deputy, accompanied by a certificateof any Philippine embassy, consular, or

foreign service officer in the foreigncountry where the record is kept, andauthenticated by the seal of his office

2. Unwritten law(1) The oral testimony of expert witnesses(2) By printed and published books of reports

of decisions of the country involved if proved to be commonly admitted in itscourts

Processual presumption of lawThis rule means that when the proper foreign law has notbeen properly proved, the court of the forum may presume





that said foreign law is the same as its local or domesticlaw, which it can now apply

Exceptions to the applications of a foreign law1. When the application of the foreign law would run

counter to a sound and established public policy of the forum

2. When the foreign law is contrary to the almostuniversally conceded principles of morality (contra

bonos mores)3. When the foreign law involves procedural matters EX: When the law is both procedural and

substantive4. When the foreign law is penal in character

EX: A penal clause in a contract mayhowever be enforced here because suchclause is not criminal in nature butprovides only for liquidated damages

5. When the law is purely fiscal (i.e., revenueproducing) or administrative in nature

6. When the foreign law might work undeniableinjustice to the citizens or residents of the forum

7. When the application of the foreign law wouldendanger the vital interests of the State

8. When the case involves real or personal property

located in our country

Chapter 3Theories that justify the application of the foreign law

Theories that justify the application of the foreign lawinstead of domestic or internal law

1. Theory of comity2. Vested right theory3. Theory of local law4. Theory of harmony of laws5. Theory of justice

Theory of comityAccording to this theory, no foreign law would be allowed to

operate in another state except by the comity of nations

ComityThe recognition which one state allows within itsterritory, to the legislative, executive, or judicial acts of another nation

Two principles upon which the theory of comityrests

1. The comity based on reciprocity2. The comity based on the persuasiveness of a

foreign judgment Our Civil Procedure still follows the

principle of reciprocity because inSec. 48, Rule 39, a foreign final

judgment or order “is presumptive

evidence of a right as between theparties and their successors ininterest

The vested-rights theoryUnder this theory, our courts enforce not the foreign law orforeign judgment but the right or rights that have beenvested under such law or judgment.

Rights once acquired should be enforced regardlessof where the suit for its enforcement was filed.

Theory of local lawUnder this theory, we apply a foreign law not because it isforeign, but because our own law by applying a similar rulerequires us to do so, hence it is as if the foreign law hasbecome part of our own internal or domestic law.

Theory of harmony of lawsUnder this theory, identical or similar problems should begiven identical or similar solutions thus resulting in harmony

of laws

Theory of justiceSince the purpose of all laws, including Conflict of Laws, isthe dispensation of justice, the proper foreign law should beapplied in order to attain this objective

The defect of this theory, however, is that differentpersons may have different ideas of what is just

Note: No single theory contains the whole truth; no oneapproach is completely valid. All of the theories havevalidity. This suggests that they are not entirely exclusive.

Chapter 4Nature and composition of conflicts rules

Purely internal provision of law vs. conflicts rule

Purely internal provisionof law

Conflicts rule/ Aprovision in conflict of laws

Governs a domesticproblem, i.e., one without aforeign element

A provision found in our ownlaw which governs a factualsituation possessed of aforeign element

Example: Art. 796 Allpersons who are notexpressly prohibited by lawmay make a will

Example: Art. 16 Realproperty as well as personalproperty is subject to thelaw of the country where itis situated

Two kinds of conflicts rules

1. One-sided rule Indicates when Philippine law will apply Example: Article 15 of the CC Laws

relating to family rights and duties, or tothe status, condition, and legal capacity of persons, are binding upon citizens of thePhilippines even though living abroad

2. All-sided or multilateral rule Indicates whether to apply the local law or

the proper foreign law Example: Art. 16 Real property as well

as personal property is subject to the lawof the country where it is situated

Parts of every conflicts rule1. The factual situation – the set of facts or

situation presenting a conflicts problem becausethere is a foreign element involved

2. The point of contact or connecting factor –The law of the country with which the factualsituation is most intimately connected

Note: The first part raises while the second partanswers a legal question





Chapter 5

Characterization of conflict rules

CharacterizationOtherwise known as “classification” or “qualification” is theprocess of assigning a certain set of facts or factualsituation to its proper or correct legal category. Bycharacterizing the legal problem, the court of the parties

involved reach the proper solution whether to apply thelocal law or the proper foreign law

Most writers hold that on the grounds of practicalnecessity and convenience, it is the forum or thelex fori that should determine the problem’scharacterization unless the result would be a clearinjustice

Note: Modern trend is to consider prescriptive periodsor Statute of Frauds that the parties had in mind at thetime the transaction took place

Chapter 6Persona law – Theories in determining one’s personal

law

Personal law.That which attaches to him wherever he may go. The lawthat generally governs his status, capacity, condition, familyrelations, and the consequences of his actuations. It maybe:

1. National law2. Law of his domicile3. Law of the situs

Status vs. capacity

Status Capacity

Place of an individual insociety and consists of personal qualities andrelationships more or lesspermanent, with which thestate and the community areconcerned

Only part of one’s status andmay be defined as the sumtotal of his rights andobligations

Two kinds of capacity1. Juridical capacity

Passive capacity The fitness to be the subject of legal

relations2. Capacity to act

Active capacity The power to do acts with legal effects

Characteristics of status

1. It is conferred principally by the State, not by theindividual

2. It is a matter of public interest or social interest3. Being a concept of social order, it cannot easily be

terminated at the mere will or desire of the partiesconcerned

4. It is generally supposed to have a universalcharacter

Different theories on how the personal law of anindividual is determined

1. The nationality theory Personal theory The status and capacity of a person are

determined by the law of his nationality orhis national law

2. The domiciliary theory By virtue of which the status and capacity

of a person is determined by the law of hisdomicile Territorial theory

3. The situs or eclectic theory Views the law of a particular place or situs

of an event or transaction as generally thecontrolling law

Note: The Philippines follows the nationalitytheory.

Nationality v. citizenship

Nationality Citizenship

Refers to membership in apolitical community, onethat is personal and more or

less permanent, nottemporary.

A citizen is one who owesallegiance to and is entitledto the protection of the

State

In the field of Conflict of Laws, nationality and citizenshipare the same

Chapter 7

The Nationality Theory

Different kinds of citizenship in the Philippines1. Natural born citizens

Those who are citizens from birth withouthaving to perform any act to acquire orperfect their Philippine citizenship

Native-born FilipinosThose born in the Philippines. Natural-borncitizens may not be native-born if they wereborn abroad

2. Citizens by naturalization Those who were formerly aliens but by

judicial, legislative, or administrativeprocess, have become Filipino citizens

Jus soli v. jus sanguinis

Jus soli Jus sanguinis

A person is a citizen of thecountry where he was bornor of the country of his birth

It is citizenship by blood

This is the rule that we

follow in the Philippines

Note: Each country or state has the sole power andauthority to determine under its internal or municipal lawwho are its citizens or nationals

Dual allegiance under Sec. 5, Article IV of theConstitutionThe provision in the Constitution (dual allegiance of citizensis inimical to national interest and shall be dealt with bylaw) is concerned not with dual citizenship per se but withnaturalized citizens of the Philippines who still maintain theirallegiance to the countries of their origin.





Effective nationality theoryWithin a third state, a person having more than onenationality shall be treated as if he had only one. Withoutprejudice to the application of its law in personal mattersand of any conventions in force, a third state shall apply thenationalities which any such person possesses, recognizeexclusively in its territory either the nationality of thecountry in which he is habitually and principally a resident,or the nationality of the country with which in the

circumstances he appears to be in fact mostly connected The law of the country of which the deceased was

both a citizen and a domiciliary at the time of herdeath is considered more effectively connected toher than her other national law.

Citizens of the Philippines under the 1987Constitution

1. Those who are citizens of the Philippines at thetime of the adoption of this Constitution

2. Those whose fathers or mothers are citizens of thePhilippines

3. Those born before January 17, 1973, of Filipinomothers, who elect Philippine citizenship uponreaching the age of majority and

4. Those who are naturalized in accordance with law

Citizenship of a Filipino woman who marries aforeignerCitizens of the Philippines who marry aliens shall retain theircitizenship unless by their act or omission they are deemed,under the law, to have renounced their Philippine citizenship(Article 4, Sec. 4, 1987 Constitution)

Citizenship of an alien woman who marries a FilipinohusbandUnder Sec. 15 of the Revised Naturalization Law (Com. ActNo. 475), an alien woman marrying a Filipino, native-bornor naturalized, becomes ipso facto a Filipino, provided she isnot disqualified to be a citizen of the Philippines under Sec.4 of the same law.

It is enough that an alien wife proves that she is

not disqualified to be a Filipino citizen notnecessarily in court but even before an agency likethe Immigration Commission

Note: An alien woman married to an alien husbandwho (the husband) is subsequently naturalized alsofollows the Philippine citizenship of her husband,provided she does not suffer from any of thedisqualifications under Sec. 4 of the same RevisedNaturalization Law. This is a case of derivativenaturalization (similar to the minor children of anaturalized Filipino citizen)

NaturalizationThe process of conferring on an alien the citizenship of

another country by any of the means provided by law.

Modes of acquiring Philippine citizenship bynaturalization

1. Judicial process Com. Act No. 475 as amended by RA 530

2. Legislative process When Philippine citizenship is conferred by

a special act of Congress on deservingaliens

3. Administrative process RA 9139 or the Administrative

Naturalization Law of 2000

Under this law, a Special Committee onNaturalization is created, with the powerto approve, deny, or reject applications fornaturalization filed with said Committee

Derivative naturalizationPhilippine citizenship conferred on:

1. The wife of a naturalized husband2. The minor children of a naturalized father

3. The alien wife of a natural born or naturalizedcitizen, in the latter case, the marriage havingtaken place after the husband’s naturalization





Naturalization

Judicial naturalization under Com. Act. 475,as amended

Administrative naturalization under RA 9139 orthe Administrative Naturalization Law of 2000

Qualifications 1. The petitioner must not e less than 21 yearsof age on the date of the hearing of thepetition

2. He must have, as a rule, resided in thePhilippines for a continuous period of not less

than 10 years3. He must be of good moral character, and

believe in the principles underlying thePhilippine Constitution, and must haveconducted himself in a proper andirreproachable manner during the entireperiod of his residence in the Philippines inhis relation with the constituted governmentas well as with the community in which he isliving

4. He must own real estate in the Philippinesworth not less than 5,000, Philippinecurrency, or must have some lucrative trade,profession, or occupation

5. He must be able to speak and write English orSpanish and any one of the principal

languages and6. He must have enrolled his minor children of

school in any of the public or private schoolsrecognized by the Bureau of Private Schoolswhere Philippine history, government, andcivics are taught or prescribed as part of theschool curriculum during the entire period of the residence required of him, prior to thehearing of his petition for naturalization ascitizen

1. The applicant must be born in the Philippinesand residing therein since birth

2. The applicant must not be less than 18 years of age, at the time of filing of his/her petition

3. The applicant must be of good moral character

and believes in the underlying principles of theConstitution and must have conductedhimself/herself in a proper and irreproachablemanner during his/her entire period of residence in the Philippines in relation with theduly constituted government as well as with thecommunity in which he/she is living

4. The applicant must have received his/herprimary and secondary education in any publicschool or private education institution dulyrecognized by the DECS, where Philippinehistory, government, and civics are taught andprescribed as part of the school curriculum andwhere enrollment is not limited to any race ornationality: Provided, that should he/she haveminor children of school age, he/she must have

enrolled them in similar schools.5. The applicant must have a known trade,

business, profession, or lawful occupation, fromwhich he/she derives income sufficient forhis/her support and if he/she is married and/orhas dependents, also that of his/her family:Provided, however, that this shall not apply toapplicants who are college degree holders butare unable to practice their profession becausethey are disqualified to do so by reason of theircitizenship

6. The applicant must be able to read, write, andspeak Filipino or any of the dialects of thePhilippines, and

7. The applicant must have mingled with theFilipinos and evinced a sincere desire to learnand embrace the customs, traditions, and idealsof the Filipino people

Disqualifications 1. Those opposed to organized government or affiliated with any association of group of person whouphold and teach doctrines opposing all organized governments

2. Those defending or teaching the necessity of or propriety of violence, personal assault orassassination for the success or predominance of their ideas

3. Polygamists or believers in the practice of polygamy4. Those convicted of crimes involving moral turpitude5. Those suffering from mental alienation or incurable contagious disease6. Those who, during the period of their residence in the Philippines, have not mingled socially with

Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions, andideals of the Filipinos

7. Citizens or subjects of nations with whom the Philippines is at war8. Citizens or subjects of a foreign country whose laws do not grant Filipinos the right to be naturalized

citizens or subjects thereof





Loss of citizenshipUnder Com. Act 63, as amended, a Filipino citizen may losehis citizenship in any of the following ways:

1. By naturalization in a foreign country2. By express renunciation of citizenship3. By subscribing an oath of allegiance to support the

constitution or laws of a foreign country uponattaining twenty-one years of age or more

4. By accepting commission in the military, naval, or

air service of a foreign country5. By cancellation of the certificate of naturalization6. By having been declared by competent authority, a

deserter of the Philippine armed forces in time of war, unless subsequently a plenary pardon oramnesty has been granted; and

7. In case of a woman, upon her marriage to aforeigner, if, by virtue of the laws in force in herhusband’s country, she acquires his nationality

Under the 1987 Constitution, however,the woman retains her Philippinecitizenship unless by her act or omissionshe is deemed under the law to haverenounced her Philippine citizenship

Philippine citizenship, how reacquired

Under C.A. 63, as amended, Philippine citizenship may bereacquired as follows:

1. By naturalization, provided the applicant possessesnone of the disqualifications

2. By repatriation of deserters of the Army, Navy, orAir Corps, Provided, that a woman who lost hercitizenship by reason of her marriage to an alienmay be repatriated in accordance with theprovisions of this Act after the termination of themarital status

3. By direct act of Congress

RA 9225 – Citizenship Retention and ReacquisitionAct of 2003Under this law, natural born Filipino citizens who had beennaturalized in foreign countries are deemed to have

reacquired Philippine citizenship by taking an oath of allegiance to the Philippine Constitution and laws. Thosewho become naturalized in foreign countries after theeffectivity of the Act retain their Philippine citizenship upontaking the same oath

Chapter 8

Domiciliary Theory

Domiciliary theoryIt is the theory whereby the status, condition, family rightsand obligations, and capacity of a person are governed bythe law of his domicile or the lex domicilii

Domicile

It is the place where a person has his true, fixed,permanent home, and principal establishment, and towhich, whenever he is absent, he has the intention of returning.

Art. 50 of the CC: For the exercise of civil rightsand fulfillment of civil obligations, the domicile of natural persons is the place of their habitualresidence

Domicile v. residence

Domicile Residence

Denotes a fixed, permanentresidence to which, whenabsent, one has theintention of returning

Used to indicate a place of abode, whether permanentor temporary

Residence is not domicile, but domicile is residence coupledwith intention to remain for an unlimited time

Domicile v. citizenshipDomicile Citizenship

Speaks of one’s permanentplace of abode

Indicates ties of allegianceand loyalty

A person may be a citizen or national of one sate and adomiciliary of another

Note: The forum applies its own concept of domicile indetermining the domicile of a litigant before its courts (lawof the forum/lex fori, NOT national law, is the law thatdetermines one’s domicile)

Different kinds of domicile1. Domicile of origin: The domicile assigned by law

to a person at the moment of his birth2. Constructive domicile or domicile by

operation of law: The domicile assigned by law toa person after birth on account of a legal disability,like minority, insanity, imprisonment, etc.

3. Domicile of choice: The domicile of a person sui juris because he has his home there and to which,whenever absent, he intends to return

Principles regarding one’s domicile of choice1. No person can ever be without a domicile or every

natural person must have a domicile2. A person cannot have two simultaneous domiciles3. A natural person, free (not a prisoner) and sui juris

(one of age and under no disability), can changehis domicile at pleasure

4. A domicile, once acquired, is retained until a new

one is gained5. The presumption being in favor of the continuanceof an existing domicile, the burden of proof is onthe one who alleges that a change of domicile hastaken place

6. To acquire a new domicile of choice, the followingmust concur:

(1) Residence or bodily presence in the newlocality

(2) An intention to remain there (animusmanendi) and

(3) An intention not to return to the formerabode (animus non revertendi)

Rules determining one’s domicile of origin

If the child is legitimate His domicile of origin is that

of his parents at the time of his birth

If parents are separated, thedomicile of the custodialparent

If the child is illegitimate His domicile of origin is thatof the mother at the time of his birth

If the child is legitimated The domicile of his father atthe time of his birth controls

If the child is adopted The domicile of origin is thedomicile of his real parents





at the time of his birth, NOTthe domicile of the adopters

If a foundling The domicile of origin is thecountry where it was found

Rules determining one’s constructive domicile

MINORS

1. If legitimate, the domicile of both parents In case of disagreement, that of the

father, unless there is a judicial order tothe contrary

2. If illegitimate, the domicile of the mother3. In case of absence or death of either parent, the

domicile of the present parent. Even in case of remarriage of the

surviving parent, still his/her domiciledetermines the constructive domicile of the minor child

4. If the child is adopted, the domicile of choice of theadopter is the child’s constructive domicile

INSANES, IDIOTS, IMBECILES

The law assigns their domicile to them:1. If they are below the age of majority, the rules on

minors apply to them2. If they are of age and have guardians, they follow

the domicile of choice of their guardians3. If they are of age and have no guardians, their

constructive domicile is their domicile of choicebefore they became insane

MARRIED WOMEN

If the marriage is valid

1. The constructivedomicile of the wife isthe domicile of bothspouses, unless the lawallows the wife to have aseparate domicile forvalid and compellingreasons

2. If there is legalseparation between the

spouses, the wife canhave her own domicileof choice

3. If there is a separationde facto, the wife canalso have a separatedomicile

If the marriage isvoidable

Apply the same rules whenthe marriage is valid.However, after annulment,the wife can freely select herown domicile of choice

If the marriage is void The wife can have a domicileseparate from the husband

OTHER PERSONS

Convict or prisoner His domicile is the one he

had possessed prior to hisincarceration

Soldiers Their domicile is theirdomicile before theirenlistment

Public officials or

employees abroad(diplomats, etc)

Their domicile is the one

they had before they wereassigned elsewhere, unlessthey voluntarily adopt theirplace of employment astheir permanent residence

Chapter 9

The situs or eclectic theory

Situs or eclectic theoryThe capacity, status, and family relations of a person aregoverned not necessarily by the law of his nationality or thelaw of his domicile but by the law of the place (situs) wherean important element of the problem occurs or is situated

Two kinds of participation of an individual under thesitus or eclectic theory

1. If participation is active – When he does an actvoluntarily, the governing law is the law of theactual situs of the transaction or event

2. If the participation is passive – When theeffects of the act are set forth or determined bylaw, the governing law is the law of the legalsitus, i.e., the domicile of the individual concerned

Chapter 10The problem of the “renvoi”

Renvoi

A French word which means “refer back” or “return”

In Anglo-American countries, the term used is “remission,” which means to refer a matter forconsideration or judgment

When does the problem of renvoi arise?The problem of renvoi arises when there is doubt as towhether the reference by the lex fori (the law of the countrywhere the problem arises) to the foreign law involves:

1. A reference to the internal law of the foreign law or2. A reference to the entirety of the foreign law

including its conflicts rules In such case, if the first state follows the

nationality theory, and the second statefollows the domiciliary theory, the

problem of renvoi will most probably arise

Four solutions the court can adopt when confrontedwith a renvoi problem

1. Reject the renvoi This means that the court does not want

the problem to be sent back to us. As in the case of the testate or intestate

succession of a foreigner but domiciled inour country, we would simply apply hisnational law or the internal law of hiscountry

2. Accept the renvoi Accept the referral or transmission of the

case back to us, so that instead of

applying the foreign internal law,Philippine law is applied Single renvoi or single transmission

3. Follow the theory of desistment or the mutualdisclaimer of jurisdiction theory

Refrain from applying the national law of the deceased foreigner, although our lawtells us to do so.

If said law follows the domiciliary theoryand directs that we apply the law of thedomicile of the deceased, so in the end,we still apply Philippine law





4. Apply the foreign court theory We would simply do what the foreign

court would do if confronted with thesame case

Advantage of this theory is that regardlessof the forum, the applicable law will be thesame

Can also result in international ping pong

Double renvoiThis occurs when the local court, in adopting the foreigncourt theory, discovers that the foreign court accepts the

“renvoi.” But since the foreign law remits the case toPhilippine law, being the law of the deceased’s domicile, theforeign court may discover that Philippine law does notaccept the remission (as it applies the national law of thedeceased) so the foreign court, sitting as a Philippine court,would still apply its own internal law. This is then what ourcourt will apply.

Theory of transmission v. renvoi

Theory of transmission Renvoi

Transmission is the processof applying the law of aforeign state thru the law of

a second foreign state

Renvoi means to refer amatter for consideration or

judgment

Transmission involves threelaws

Renvoi involves two laws

Chapter 11

Conflict rules on status and capacity

When human personality begins under our law Art. 40, NCC: Birth determines personality, but

the conceived child shall be considered born for allpurposes that are favorable to it, provided it beborn later with the conditions specified in thefollowing article

Art. 41, NCC: For civil purposes, the fetus isconsidered born if it is alive at the time it is

completely delivered from the mother’s womb.However, if the fetus had an intra-uterine life of less than 7 months, it is not deemed born if it dieswithin 24 hours after its complete delivery from thematernal womb

Personality really begins at conception, subject to thefollowing conditions:

1. The purpose is favorable to the fetus2. If it is born alive under Art. 41 of the NCC

Two kinds of children1. Ordinary – With an intra uterine life of at least 7

months2. Extraordinary – With an intra-uterine life of less

than 7 months, in which case it must live for at

least 24 hours after complete delivery from themother’s womb

Note: In Conflict of Laws, personal law determines thebeginning of one’s personality.

Civil personality, when extinguishedArt. 42 of the NCC: Civil personality is extinguished bydeath

Refers to physical death not civil death A declaration of death in accordance with one’s

personal law (whether his national law or the law

of his domicile) by a court of competent jurisdictionis considered valid for all purposes

Absence, definedA special legal status pertaining to a person who hasdisappeared from his domicile, his whereabouts beingunknown, without leaving an agent to administer hisproperty or even if he had left an agent, the powerconferred by the absentee on the agent has expired

One status of being absent is determined inaccordance with his personal law

Our own courts also have jurisdiction to declare analien domiciliary in the Philippines as absent

Judicial declaration of absence under Philippine lawAfter the lapse of two years without any news about theabsentee or since the receipt of the last news, and fiveyears if the absentee has left an administrator of hisproperty, his absence may be declared

Instances when an absentee may be presumed deadand for what purposes

1. For purposes of remarriage – the absentee maybe presumed dead after four years of absence,the present spouses having a well-founded belief

that the absentee is already dead However, in case of disappearance where

there is danger of death, an absence of 2years is enough

2. For all other purposes EXCEPT succession – anabsence of seven years, it being unknown whetheror not the absentee still lives

3. For the purpose of succession – an absence of 10 years is required, except if the absenteedisappeared after the age of 75 years, in whichcase an absence of 5 years is enough to open hissuccession

What determines the age of majority in Conflict of Laws?It is the personal law of the person that determines whether

he has reached the age of majority or not.

Our conflicts rules on capacity to contractA person’s capacity to contract is governed by his personallaw, whether it is the lex nationalii or the lex domicilii

EX: Contracts involving real or personal property inwhich cases the lex situs or lex rei sitae appliesincluding the capacity of the contracting parties

Note: It is suggested that Article 15 of the CC applying thenationality theory be limited to strictly family and domestictransactions, while the law governing the contract shouldgovern ordinary day-to-day business contracts.

Change of names and surnames

A change of name is a special proceeding to establish thestatus of a person involving his relation with others. Alienscan ask for change of name in the Philippines, provided theyare domiciled here.

But an alien whose citizenship is eithercontroverted or doubtful cannot ask for a change of name

Legislative jurisdiction vs. judicial jurisdiction overone’s status

Legislative jurisdiction Judicial jurisdiction

Legislative jurisdiction overone’s status is the power of

Judicial jurisdiction overone’s status is the power of





his personal law to governhis status wherever he goes

the courts to decidequestions or controversiesconcerning one’s status

Note: Thus, our courts can decide cases involving thestatus and capacity of foreigners brought before them, butin doing so, our courts will apply the personal law of theforeigner, whether it be his national law or the law of hisdomicile, depending on what theory the country of his

citizenship follows. Example: Even if the personal law of the foreigner

allows divorce, he cannot apply for divorce from hisspouse before a Philippine court because we do notrecognize divorce and our courts have no

jurisdiction to grant divorces. However, a foreignerwho applies for legal separation in our country on aground available under his national law but notunder our law, may obtain a favorable judgmentfrom our courts, because it is his national law onlegal separation that our courts will apply, butsubject to our procedural law.

Chapter 12Conflicts rules on marriage

Philippine internal law on the formal validity of marriages or the validity of marriage as a contract

1. Essential requisites(1) Legal capacity of the contracting parties

who must be male and female(2) Consent freely given in the presence of a

solemnizing officer2. Formal requisites

(1) Authority of the solemnizing officer(2) A valid marriage license(3) A marriage ceremony takes place with the

appearance of the contracting partiesbefore the solemnizing officer and theirpersonal declaration that they take eachother as husband and wife in the presence

of not less than two witnesses of legal age

Note: The above formal requisites apply to foreigners whoget married in the Philippines. If one or both of the partiesare foreigners, the foreigner must submit a certificate of legal capacity to contract marriage issued by the diplomaticor consular officials of his/her country in the Philippinesbefore he/she can be issued a marriage license. Statelesspersons or refugees need only to submit an affidavit statingthe circumstances showing such capacity to contractmarriage

Common law marriages of foreignersAs to common law marriages of foreigners who come to thePhilippines as husband and wife, it would seem that weshould consider the marriage valid if valid under their

national law or the law of the place where the relationshipbegan. But the marriage must not be contra bonos mores oruniversally considered incestuous

Foreign marriages of FilipinosGR : Under Art. 26 of the Family Code, all marriages outsidethe Philippines in accordance with the laws in force in thecountry where they were solemnized and valid there assuch, shall also be valid in this country, except thoseprohibited under Articles 35(1), (4), (5), and (6), 36, 37,and 38.

In other words, we follow the rule of lex locicelebrationis

EX: A foreign marriage of Filipinos in a foreign country willstill be void in the Philippines if:

1. Either or both parties did not have legal capacity toget married (Art. 35 (1))

2. The marriage is immoral for being bigamous orpolygamous (Art. 35 (4))

3. Consent of one party is lacking, because of mistakeas to the identity of the other (Art. 35 (5))

4. One of the parties was psychologically

incapacitated at the time of the marriage to complywith the essential marital obligations (Art. 36)5. The marriage is incestuous (Art. 37)6. The marriage is void by reason of public policy

(Art. 38)

Note: Consular marriages of Filipinos abroad are valid (Art.10, Family Code)

Conflicts rules on marriages between foreignerssolemnized abroad

1. We still apply the rule of lex loci celebrationis, butnot the exceptions in the first par. of Art. 26 of theFamily Code which apply only to Filipinos

But universally considered incestuousmarriages and marriages that are highly

immoral are excepted2. Proxy marriages – Not allowed under Philippine

internal law Rule in the US – if permitted by the law of

the place where the proxy participates inthe marriage ceremony, proxy marriagesare entitled to recognition insofar as theformal validity of the marriage isconcerned

3. Marriages on board a vessel on the high seas –Since the country whose flag the ship is flying has

jurisdiction over the ship, the rule is thatcompliance with the law of the said country isrequired for the marriage to be valid

4. If the parties or at least the husband is a Muslim –it is believed that we would recognize up to four

marriages of the same husband (Philippine MuslimCode on Personal Laws)

Mixed Marriages

Marriage between aFilipino and foreignerABROAD

If the marriage is validunder the law of one of thespouses while void underthe law of the other, weshould uphold the validity of the marriage, unless themarriage is universallyincestuous or highly immoral(the same rule as toforeigners who get marriedabroad)

Marriage between aFilipino and a foreigner inthe PHILIPPINES

The national law of theFilipino – Philippine lawshould be followed –otherwise our public policywould be violated

Two aspects of marriage as a status1. Aspect of personal rights and obligations of the

spouses Purely personal and are not ordinarily

interfered with by the courts





2. Aspect of their property relations The law lays down rules and judicial

sanctions as they may affect publicinterest

Law governing personal relations of spouses inConflict of Laws

1. Countries that follow the nationality theory (e.g.Philippines) – apply the spouses’ national law in

determining their personal relations with eachother2. Countries that follow the domiciliary theory – the

personal relations of the spouses are governed bythe law of their domicile

Spouses of different nationalities: law governing theirpersonal relationsGR : The personal relations of the spouses are governed bythe national law of the husband

Alien woman whomarries a Filipinohusband

Ipso facto becomes a Filipinocitizen if she does not sufferunder any disqualificationfor naturalization as aFilipino citizen

Personal relations:national law of the husbandshall govern (GR)

A Filipina who marries analien husband

Constitution provides thatshe “shall retain herPhilippine citizenship, unlessby her act or omission, sheis deemed, under our law, tohave renounced hercitizenship”

Personal relations: Art. 80of the Family Code providesthat the national law of thewife or Philippine law wouldgovern the spouses’ personal relations (rule wasintended to protect theFilipino wife)

Conflict rules on the law governing personal relationsof spouses who c h a n g e n a t i o n a l i t ie s

General Rules1. If the spouses have the same nationality but they

acquire a new nationality by their common act –their new national law will govern their personalrelations

2. If the husband alone changes his nationality afterthe marriage – the law of the last commonnationality of the spouses would govern

3. If the spouses retain their different nationalitiesafter the marriage – National law of both spousesshould govern

RE: 3 Better solution: apply the nationallaw of the husband at the time of themarriage

EXCEPTIONS1. If the national law of the husband violates public

policy of the forum2. The national law of the wife happens to be the law

of the forum

Conflicts rules on the property relations of husbandand wifeGR : Property relations of the spouses are governed byPhilippine law, regardless of the place of the celebration of marriage and their residence (nationality theory)

If one spouse is a Filipino (wife or husband) andthe other is an alien, Philippine law would stillgovern

EX: 1. If both spouses are aliens – general rule in Conflictof Laws will apply

2. With respect to extrinsic validity of contractsaffecting real property – the lex situs will governthe formalities to be observed for the contract’svalidity

Doctrine of immutability of matrimonial (property)regime of the spousesRegardless of the change of nationality by the husband orthe wife or both, the original property regime that prevailedat the start of their marriage prevails

Immutability of the property regime v. immutabilityof the law governing the property regime

Immutability of theproperty regime

Immutability of the lawgoverning the propertyregime

A subsequent change of nationality by the husbandor wife or both does NOTchange the original propertyregime

The law that creates andgoverns the property regimemay change

Annulment v. Declaration of nullity of marriage

Annulment Declaration of nullity

Remedy if the marriage isvoidable or annullable (validuntil annulled)

Remedy if the marriage isvoid ab initio

Voidable v. void marriage – legal effectsVoidable marriage Void marriage

It can be convalidated eitherby free cohabitation orprescription

It cannot be convalidated

The same property regimeas in a valid marriage isestablished between thespouses

The only propertyrelationship between theparties is a co-ownership

The children are legitimate if conceived before the decreeof annulment

The children are illegitimate,except children of voidmarriages under Art. 36 and53 of FC

Art. 36 – children born

under marriage that is void

on the ground of psy.Incapacity

Art. 53 – children born of the first marriage of partiesbefore said first marriagehad been annulled ordeclared void, and thosewho marry a second timewithout delivering thepresumptive legitime of thechildren of their firstmarriage





The marriage cannot beattacked collaterally

The marriage may beattacked directly orcollaterally

The marriage can no longerbe impugned after the deathof the spouses

The marriage can still beimpugned even after thedeath of the spouses

Conflicts rules on annulment and declaration of nullityof marriage

1. In Conflict of Laws, the grounds for annulment of marriage and for declaration of nullity of marriageare the grounds provided for by the law alleged tohave been violated lex loci celebrationis or the

law of the place where the marriage wascelebrated

Reason: Considering that it is the lex locicelebrationis that is usually applied todetermine whether a marriage is valid ornot, it is the same law that alsodetermines whether a marriage is voidableor void

2. As for declaration of nullity of marriage betweentwo Filipinos abroad, the grounds are theexceptions to the lex loci celebrationis in Article 26of the Family Code:

(1) Either or both parties did not have legalcapacity to get married (Art. 35 (1))

(2) The marriage is immoral for beingbigamous or polygamous (Art. 35 (4))

(3) Consent of one party is lacking, becauseof mistake as to the identity of the other(Art. 35 (5))

(4) One of the parties was psychologicallyincapacitated at the time of the marriageto comply with the essential maritalobligations (Art. 36)

(5) The marriage is incestuous (Art. 37)(6) The marriage is void by reason of public

policy (Art. 38)3. As to foreigners who get married abroad – the

exceptions to the lex loci celebrationis would be thesame as those in marriages as a contract:

(1) Marriages that are highly immoral(2) Universally incestuous marriages

4. Consular marriages – either the national law or thelaw of the domicile of the parties applies

Courts that have jurisdiction over cases forannulment or declaration of nullity of marriage

1. In the Philippines – since we follow the nationalitytheory, our courts have jurisdiction

Citizens and domiciliaries can file in thePhilippines, even if the defendant is a non-resident

2. In other countries – it is usually the courts of the parties’ domicile who have jurisdiction over such

cases since that is the place which has the greatestinterest in the domestic relations of the spouses

Rules on the validity of foreign divorces by foreignersabroad

1. Hague Convention states that a foreign divorce willbe recognized in the contracting states if, at thedate of the filing of the proceedings:

(1) The petitioner or respondent had his orher habitual residence in the state wherethe divorce was obtained

(2) If both spouses were nationals of saidstate

(3) Although the petitioner was a national of another country, he or she had his or herresidence in the place where the divorcewas obtained

2. In the US, a state has a duty to recognize a divorceobtained in a sister state if the spouses weredomiciled in the latter state

3. A divorce obtained in a foreign country would berecognized under the same circumstances that a

divorce obtained from a sister state is givenrecognition4. in the Philippines, if both spouses are aliens, we

recognize a decree of divorce obtained by themabroad if valid under their national law

5. If one of the spouses is a Filipino and the other analien, we also recognize the divorce obtained bythe alien spouse abroad

Legal separation v. divorce

Legal separation Divorce

Relative divorce, only aseparation from bed andboard but the parties remainmarried

Absolute divorce, dissolvesthe marriage and the partiescan marry again

Legal separation v. annulment of marriageLegal separation Annulment

Marriage is not defective Marriage is defective

Grounds arise after themarriage

Grounds must exist at thetime of or before thecelebration of the marriage

Parties are still married to

each other

Marriage is set aside

Grounds are those given bythe national law or thedomiciliary law – question isone of status

Grounds are those given bythe lex loci celebrationissubject to certain exceptions– questions the veryexistence of status

Conflict rules on legal separation

1. If the parties are of the same nationality – groundsfor legal separation are those given by theirpersonal law (national law or domiciliary law)

2. If the parties are of different nationalities –grounds for legal separation are those under boththe personal law of the husband and wife

Courts that may grant legal separation1. Jurisdiction in the case of aliens is not assumed by

the forum unless the national law of the parties iswilling to recognize its jurisdiction

2. In the Philippines, foreigners may ask for legalseparation here, even if they did not get married inthis country. What is important is that the courthas jurisdiction over both parties

3. Most countries assume jurisdiction over case for

legal separation on the basis of the domicile of oneof the parties or the matrimonial domicile

Note: It is NOT necessary that the cause for legalseparation take place in the country for our courts tohave jurisdiction over the case.

Grounds for legal separation under Philippine internallaw (Article 55, FC)

1. Repeated physical violence or grossly abusiveconduct against the petitioner, a common child, ora child of the petitioner





2. Physical violence or moral pressure to compel thepetitioner to change religious or political affiliation

3. Attempt to corrupt or induce the petitioner, acommon child, or a child of the petitioner, toengage in prostitution, or connivance in suchcorruption or inducement

4. Final judgment sentencing the respondent toimprisonment of more than 6 years, even if pardoned

5. Drug addiction or habitual alcoholism of therespondent6. Contracting by the respondent of a subsequent

bigamous marriage, whether in the Philippines orabroad

7. Lesbianism or homosexuality of the respondent8. Sexual infidelity or perversion9. Attempt by the respondent against the life of the

petitioner10. Abandonment of petitioner by respondent without

justifiable cause for more than one year

Defenses to legal separation under Philippine internallaw (Article 56, FC)

1. Condonation of the offense or the act complainedof

2. Consent of the aggrieved party to the commissionof the act or offense complained of

3. Connivance between the parties in the commissionof the offense or act constituting the ground forlegal separation

4. Where both parties have given ground for legalseparation

5. Collusion between the parties to obtain legalseparation

6. Prescription

Note: The prescriptive period for filing of an action for legalseparation in the Philippines is 5 years from the time of theoccurrence of the case (Art. 57, FC)

Chapter 13Status of Children

Conflict rules in determining legitimacy of children1. If the parents are of the same nationality – their

common personal law (national law or law of domicile) will be applied

2. If the parents are of different nationalities –personal law of the father governs

Legitimate and illegitimate children under Philippineinternal law

1. Legitimate children – children conceived or bornduring the marriage of the parents

2. Illegitimate children – children conceived and born

outside a valid marriage

EX: Children born of void marriages underArticle 36 (psychological incapacity) andArticle 53 (those born of the first marriageof parties before said first marriage hadbeen annulled or declared void, and whomarry a second time without deliveringthe presumptive legitime of the children of their first marriage are consideredLEGITIMATE CHILDREN

Law governing the rights and duties between parentand child

1. If the child is legitimate – either the commonpersonal law of the parents or the personal law of the father if the parents are of differentnationalities governs

2. If the child is illegitimate – The personal law of themother is decisive, UNLESS the child issubsequently recognized by the father, in which

case the rules on legitimate children will be applied

Doctrine of immutability of statusThe status of a child (whether legitimate or illegitimate) isnot affected by a subsequent change of nationality of theparents

But the rights an duties of parent and child wouldafter the parents’ change of nationality, begoverned by the new national law of the parents

Legitimation, definedA process whereby children who in fact were not born inlawful wedlock and should therefore be ordinarily consideredillegitimate children are by fiction of law and uponcompliance with certain legal requirements, regarded by lawas “legitimate,” it being supposed that they were born after

their parents had already been validly married.

Conflicts rules on legitimation of children1. The requisites of legitimation are generally

considered those prescribed by the national law of the parents, and if the latter have different nationallaws, the national law of the father

2. In countries following the domiciliary theory, law of the domicile of the parents, or in proper cases, thelaw of the domicile of the father should govern

Philippine internal law on legitimation of children(Articles 177-182, FC)Requisites for legitimated children

1. The child was conceived AND born outside lawfulwedlock

2. The parents at the time of the child’s conception,were not disqualified by any impediment to marryeach other

Note: Legitimation creates a permanent (immutable) statusof the child

AdoptionAn act, which establishes a relationship of paternity andfiliation and in so doing, endows the child with legitimatestatus

Law which determines whether the relationship of adoption has been created or not

1. The child’s personal law

2. If the child does not reside in the country of hiscitizenship – the personal law of the adopter willgovern, or the personal law of the adopter and thatof the child will be applied concurrently

Law which determines the legal effects of adoptionThe legal effects of adoption are determined by the samelaw that created the relationship of adoption





Adoption by aliens in the PhilippinesUnder RA 8552 or the Domestic Adoption Act of 1998, aliens(who are not even former Filipino citizens) can adopt in ourcountry, provided:

1. The have the same qualifications as those requiredof Filipino citizens

2. Their countries have diplomatic relations with ourcountry

3. They have been living in the Philippines for at least

3 years prior to the filing of the petition foradoption, and maintain such residence until theadoption decree is entered

4. The have been certified by their diplomatic orconsular offices or by any appropriate governmentagency that they have the legal capacity to adoptin their own countries and

5. Their government allows the adopted child to entertheir own country as their adopted child

Special aliens who can adopt under RA 85521. A former Filipino citizen who seeks to adopt a

relative within the 4th degree of consanguinity oraffinity

2. One who seeks to adopt the legitimate son ordaughter of his or her Filipino spouse

3. One who is married to a Filipino citizen and seeksto adopt jointly with his or her spouse a relativewithin the 4th degree of consanguinity or affinity of the Filipino spouse

These aliens need not comply with the residency in thePhilippines and they also need not submit a certification thatthey have the capacity to adopt from the diplomatic orconsular office of their country in the Philippines or anyother government agency

Note: RA 8552 still requires that the (alien) husband andwife must jointly adopt. However in cases where thespouses are legally separated, the husband or the wife canadopt alone, and the consent of the other spouse to anadoption filed by one spouse is not necessary

Nature of adoption in Philippine law1. Adoption proceedings are always judicial an din

rem, i.e., publication is required2. A mere agreement of adoption between the

adopters and the parents of the child is not a validadoption, nor the fact that the child had beenadopted de facto (ampon) by the alleged adoptingparents

3. Neither is mere registration of the child in the civilregistry as the child of the adopter a validadoption. This even amounts to the crime of simulation of birth

4. The capacity and right of the adopter to file apetition for adoption are governed by the law inforce at the time the petition is filed , and cannot be

impaired by a new law disqualifying him or her foradoption

Recognition of a foreign decree of adoptionWhile there is no provision of law nor jurisprudenceexpressly requiring the Philippines to recognize a foreigndecree of adoption, it is believed that under Sec. 48 of Rule39 of the Rules on Civil Procedure, we can recognize suchforeign decree of adoption provided the foreign court had

jurisdiction to render said decree, and that there is no wantof notice, collusion, extrinsic fraud, or clear mistake of lawor fact leading to the foreign decree of adoption

Does adoption confer on the adopted child thecitizenship of the adopter?No. Adoption does not confer on the adopted child thecitizenship of the adopter. Adoption is a matter political andnot civil in nature, and the ways in which it should beconferred are outside the ambit of the Civil Code.

Chapter 14

Wills, succession, and administration of the estate of

deceased persons

Two theories or systems in determining the properlaw for the transmissions of successional rights

1. Unitary or single system – only one lawdetermines transmission of real as well as personalproperties

2. Split or scission system – Succession to realproperty is governed by the lex situs, whilesuccession to movable or personal property isgoverned by the law of the domicile of thedeceased at the time of his death

Note: In the Philippines, we follow the unitary or singlesystem, in that Article 16 of the NCC applies thenational law of the deceased, whatever may be thenature of the property and regardless of the countrywhere the property is found

Extrinsic v. intrinsic validity of wills

Extrinsic validity Intrinsic validity

Forms and solemnities of wills

Substance of wills

Deals with the forms andsolemnities in the making of wills which include:

1. Age andtestamentarycapacity of thetestator

2. Form of the will

(notarial orholographic) etc

Concerns itself with:1. Order of succession2. Amount of

successional rights,and other mattersof substance

Conflicts rules in the Philippines on extrinsic validityof wills

1. If a Filipino makes a will abroad - he may complywith the formalities of Philippine law (lex nationalii)or the lex loci celebrationis (the law of the placewhere he was at the time of the execution of thewill) – Art. 815, NCC

2. If an alien makes a will abroad - he may complywith the formalities of his lex nationalii (law of thecountry of which he is a citizen, the lex domicilii(law of his domicile0, or the lex loci celebrationis

3. If an alien makes a will in the Philippines – he maycomply with the formalities of his own country (lex

nationalii) or of Philippine law (lex locicelebrationis)

4. Holographic wills – must be entirely written, dated,and signed by the hand of the testator. It is subjectto no other form and may be made in or out of thePhilippines and need not be witnessed (Art. 810,NCC)

Conflicts rules on joint wills1. Filipinos cannot make joint wills whether he or

abroad





2. Joint wills made by aliens shall be considered validin the Philippines if valid according to their lexnationalii or lex domicilii or if valid under lex locicelebrationis

3. Joint wills made by aliens in the Philippines arevoid even if valid under their lex nationalii or lexdomicilii in order that our public policy on joint willsmay not be militated against

4. A joint will executed by an alien and a Filipino

citizen abroad will be valid even as to the alien (if his national law or law of his domicile or lex locicelebrationis allows it) but void as to the Filipino

Conflicts rules on intrinsic validity of wills1. lex nationalii – in countries that follow the

nationality theory2. lex domicilii – in countries that follow the

domiciliary theory

What governs the intrinsic validity of wills in thePhilippinesThe NCC applies the lex nationalii of the decedent

Note: in case of conflict between the nationalitytheory and the domiciliary theory, we can treat thecase as one of “renvoi” so that we can still apply

Philippine law even if the deceased was a citizen of another country

Conflicts rules if a person dies intestate1. In civil law countries – the national law of the

decased applies2. In common law countries – the lex domicilii of the

deceased at the time of death applies with respectto personalty, while the lex situs applies withrespect to real property

Conflicts rules on revocation of wills1. Under Art. 829 of the NCC, a revocation done

outside the Philippines by a person who does nothave his domicile here is valid if done according to:

(1) The law of the place where the will wasmade (lex loci celecbrationis) or

(2) The law of his domicile at the time of revocation (lex domicilii)

Note: ignores the law of the place of revocation

2. If the revocation is done in the Philippines, it isvalid if made in accordance with the provisions of our CC

3. If the revocation is done outside the Philippines bya person who is domiciled here, it is valid if madein accordance with our law (lex domicilii) or lex lociactus of the revocation (the place where therevocation was made)

Probate, definedProbate is the process of proving before a competent courtthe due execution of a will, that the testator was possessedof testamentary capacity, and the approval by said court of the will

Conflict rules on probate of wills1. The allowance of disallowance of a will is

essentially procedural, so that the law of the forumapplies to all procedural matters

2. Art. 838, 1st par: “now will shall pass either realor personal property unless it is proved andallowed in accordance with the Rules of Court”

3. There is no period of prescription for the probate of a will

4. Wills proved and allowed in a foreign countryaccording to the laws of each country may beallowed, filed, and recorded by the proper court inthe Philippines

5. Although a foreign will had already been probatedin a foreign country, it still has to be reprobated inthe Philippines in accordance with our procedural

law

it is sufficient to ask for the enforcement of the foreign judgment of the probate abroad6. The evidence necessary for the probate or

allowance of wills which have been probatedoutside the Philippines are:

(1) The due execution of the will inaccordance with the foreign law becausewe cannot take judicial notice of foreignlaws

(2) The testator had his domicile in theforeign country where the will wasprobated

(3) The will had been admitted to probate insaid country

(4) The foreign tribunal is a probate court(5) The laws of the foreign country on

procedure and allowance of wills werefollowed

Administration of estate of deceased personsAdministration is the process of determining and realizingthe assets of a deceased person, the payment of the debtsof the estate, and the actual distribution of the residue tothe heirs

Conflicts rules on administration of estate of deceased by persons

1. Administration is procedural in nature. It is the lexfori that governs not the law that determines howthe estate of the deceased is to be distributed

2. In charge of the administration is the executor oran administrator with a will annexed or an

administrator

Executor Administratorwith a willannexed

Administrator

Appointed bytestator inhis will

Appointed bythe court if there is a willbut no executedis designatedtherein

Appointed bythe court if there is no will

3. The executor is qualified, and the administrator of the estate is appointed, by the court of the countrywhere the deceased was domiciled at the time of

his death, or if he was a non-domiciliary, thecountry where his properties are found 4. The rights, powers, and duties of the executor or

administrator are coextensive with the territorial jurisdiction of the court that qualified or appointedhim

5. Principal domiciliary administration v. ancillaryadministration

Principal domiciliaryadministration

Ancillaryadministration

Administration grantedin the country of the

Administration in othercountries where the





deceased’s last domicile deceased also leftproperties

6. The domiciliary administrator of the estate of adeceased American citizen in the US has no powerover and is not entitled to the possession of thestock certificates of shares of stock by thedeceased in a Philippine corporation, whichcertificates must be delivered to the ancillary

administrator

Caduciary rights of state in Conflict of LawsThere are two theories adopted by different states so thatthey may claim the properties left by a deceased who leftno heirs and no will:

1. Some countries adopt the theory that suchproperties have become ownerless (bona vacantia)hence they should revert to the State where theyare situated by escheat properties pass to the State as an incident of

sovereignty, not as an heir2. In the Philippines and some civil law countries –

the theory adopted is that the State is the last heirof a deceased person. Hence, the State succeedsto the properties left by said deceased as an heir.

Chapter 15PROPERTY

Conflict rules on real property and personal propertyGR : lex situs/ lex re sitae law of the place where the

property is located

Old rule on law on personal property/movables -Mobilia sequuntur personamPersonal effects or belongings of owner carried withhim wherever he went. Given artificial status since did not have fixed status

– personal law of the owner

Philippine rule on personal propertiesArt. 15 of the CC real property as well as personalproperty is subject to the law of the country where it issituated

Matters governed by lex situs with respect to realproperty

1. Extrinsic validity2. Intrinsic validity3. Capacity of contracting parties4. Interpretation of documents5. Effects of ownership6. Co-ownership7. Accession8. Usufruct

9. Lease10. Easement11. Quieting of title12. Registration13. Prescription14. Police power15. Eminent domain16. Taxation

Exceptions to the rule on lex situs with respect to realproperties

1. Succession governed by national law (inPhilippines) not lex situs

2. Contracts involving real property but do not dealwith title or real rights over the property, the issuebeing the contractual rights and liabilities of parties governed by the proper law of the contract (lex

loci voluntatis or lex loci intentionis)3. In contracts where real property is given as

security by way of mortgage to secure a principlecontract (i.e. loan) loan is governed by theproper law of the contract which the mortgage is

governed by the lex situs4. While the validity of the transfer of land must bedetermined by the lex situs, the validity of thecontract to transfer is determined by the properlaw of the contract

Rules in giving constructive situs to choses inpossession that are usually in motion

VESSELS

Public vessel Law of the flag

Private or commercialvessel

Law of the country orplace of registry

If vessel is docked at aforeign port

Said port is deemed as itstemporary situs

GOODS IN TRANSIT

As to liability for loss,

destruction, ordeterioration of goodsin transit

Law of destination (Art.

1734, CC)

The validity and effectof seizure of goods intransit

Law of the place wherethe goods were seized(temporary situs)

Disposition oralienation of goods intransit

Proper law of the contract(lex loci voluntatis or lexloci intentionis)

Rules in giving constructive situs to intangiblepersonal properties or choses in action

CREDITS OR DEBTS

Involuntary transfer of assignment of a debt

(garnishment)

The situs of the placewhere the debtor may be

served (usually hisdomicile)

Voluntary assignmentor transfer of credit

The proper law of thecontract (the proper lawof the original transactionout of which the chose inaction or credit arose)

Other theories:1. The law of the

place where theassignment isexecuted

2. The law of theplace whereperformance or

payment isnormallyexpected

3. The national lawof the parties

Situs of a debt fortaxation purposes

Domicile of creditor

Administering debts Situs is the place wherethe assets of the debtorare situated

NEGOTIABLE INSTRUMENTS

The law that Law governing rights





determines whetherthe instrument isnegotiable or not

embodied in theinstrument

Note: AmericanRestatement claims thatthe situs is the placewhere the instrument wasexecuted

The law that

determines the validityof the transfer,delivery, or negotiationof the negotiableinstrument

The law of the situs of the

instrument at the time of transfer, delivery, ornegotiation

SHARES OF STOCKS OF CORPORATIONS

Sale of shares of stocks Law of the place of incorporation sincetransfer is recorded in thebooks of the corporation

Sale of corporateshares as between theparties

Governed by the properlaw of the contract (lexloci voluntatis or lex lociintentionis)

Taxation on dividendsreceived by corporate

shares

Law of the place of incorporation

FRANCHISES

Franchises- special privilegesconferred by thegovernment on anindividual or corporation

Law of the state thatgranted them

Goodwill of a business

Goodwill of business

-Art. 521, NCC: propertyand may be transferredtogether with the right touse the name under whichthe business is conducted

“Goodwill”-The patronage of anyestablished trade orbusiness

Good will of business andtaxation thereon aregoverned by the law of the place where thebusiness is carried on

Patents, copyrights, trademarks, trade names,and service marks

Patents, copyrights,trade marks, tradenames

GR : in the absence of atreaty, protected only bythe state that granted orrecognized them

Art. 520, NCC: a trademark or a trade nameduly registered in theproper government

bureau or office is ownedby and pertains to theperson, corporation, orfirm registering the same,subject to the provisionsof special laws

Intellectual propertyCode: Any foreigncorporation being anational or domiciliary o acountry which is a party toa convention, treaty, or

agreement related tointellectual property rightsto which the Philippines isalso a party or whichextends reciprocal rightsto our nationals by law,

“shall be entitled to thebenefits to the extentnecessary to give effect to

any provision of suchconvention.”

- Foreign corporation evenif not engaged in businessin the Philippines maynevertheless bring a civilor administrative action,for opposition,cancellation, infringement,or unfair competition.

Chapter 16CONTRACTS

Contract, definedArt. 1305, NCC: Meeting of minds between two personswhereby one binds himself, with respect to the other, togive something or to render some service.

The specific subject of contract in Conflict of Lawsis limited to purely civil or commercial transactions.

Conflicts rules in determining extrinsic validity of contractsGR : the extrinsic validity of contracts is governed by the lexloci celebrationis/ lex loci contractus

Variations to the rule of lex loci intentions indetermining extrinsic validity of contracts

1. A contract entered into by parties in two different

countries by cablegram, telex, or fax Art. 1319 par. 2: Acceptance made by

letter or telegram does not bind theofferor except from the time it came to hisknowledge. The contract in such a case ispresumed to have been entered in theplace where the offer was made

American law: contract is deemedentered into in the place where theacceptance of the offer is posted or mailed

2. Place of execution was merely casual or accidental The law which has the most significant

relationship to the transaction should beapplied

3. (EX) When the lex loci contractus/lex locicelebrationis contravenes an established and

important policy of the forum, or to apply it wouldwork gross injustice to the people of the forum, orif the transaction is contra bonos mores

Conflict rules in determining capacity of parties to acontractGR : Capacity to enter into contracts is generally governedby the personal law of the parties

In Phil., Art. 15 NCC: Capacity of a Filipino isgoverned by Philippine law (nationality theory)





EX: Contracts involving alienation or encumbrance of property both real and personal capacity is governed bythe lex situs

Conflict rules in determining intrinsic validity of contracts

1. GR : Intrinsic Validity of contracts is governed bythe proper law of the contract – lex loci voluntatisor lex loci intentionis

2. American Law (Second Restatement):(1) law to be applied should be the lawchosen by the parties

(2) If none, the law of the state which has themost significant relationship to the partiesor to the transaction

3. Prof. Raleigh Minor – advocates application of different laws:

(1) As to the perfection of contract: lex locicelebrationis

(2) As to the validity of the consideration –lex loci considerationis

(3) As to questions of performance – lex locisolutionis

Philippine conflict rules on intrinsic validity of

contracts1. We have no specific provision of law applicable to

conflict rules on the intrinsic validity of contracts However the policy of our law is to give

effect to the intention of the parties2. We should apply the proper law of the contract (lex

loci voluntatis (express) or lex loci intentionis(implied)

Limitations to the court’s choice of law in determiningthe intrinsic validity of contracts

1. Generally, the parties cannot select a law that hasno connection at all with the transaction

2. If the law selected should change, it is the new lawthat should be applied

EX: Change of new law is so revolutionary

that it could never have beencontemplated by parties

3. Several laws may be selected, each of which willgovern the different elements of the transaction

4. If under the selected law, the contract is legal butin the place of performance, it is illegal, theselected law should prevail (valid contract)

5. Questions of substantial and essential validity(void, valid, voidable) of the contracts should begoverned by the proper law of the contracts

Minor details: time of payment, etc.should be governed by the law of performance

6. Parties cannot stipulate on the jurisdiction of thecourts our oust or court’s jurisdiction

7. The parties cannot contract away applicableprovisions of law8. American law recognizes cognovit clauses if the

parties were of equal bargaining power and debtorand the debtor voluntarily agreed to said clause

Cognovit clauses: specify which courtswould have jurisdiction in case of breachor default in payment, or it may waivedebtor’s right to notice (confession of

judgment)

Extrinsicvalidity

Capacityof

parties

Intrinsicvalidity

Barter, sale,donation

Lex situs Lex situs Lex situs

Lease of property:creates realrights


Lease of property:does notcreate realrights

Lex locicelebrationis

Personallaw of theparties

Lexvoluntatisor lex lociintentionis

Pledge,chattelmortgage,real estatemortgage,antichresis


Contract of loan: mutuum


Personallaw of theparties

Lex locivoluntatisor lex lociintentionis

Contract of loan:commodatum

Lex situs Lex stius Lex situs

Lease of service,agency,guaranty,suretyship

Note: Agencyto alienate orencumber realproperty isgoverned by lexsitus


Personallaw of parties

Lex locivolntatisor lex lociintentionis

Contract of transportationor carriage(renderservices)

Lex loci

celebrationis

Personal

law of parties

Lex loci

voluntatis

Liability for loss, destruction,deterioration of goods in transit: lawof destination of goods (Art. 1753,NCC)

If COGSA applies, limiation onliability applies, unless the shipperdeclares value of goods and insertssuch declaration in the bill of lading

Contract for air transportation(Warsaw Convention)

1. The liability of the airline in case

of death, injury to passengers,

or loss or damage to cargo isgoverned by WarsawConvention

2. If there was malice, grossnegligence, or bad faith, orimproper discrimination, carrieris liable for damages beyondthose limited by WarsawConvention

Note: if contracts involve encumbrances of property,real or personal, apply lex situs. If personal contracts,law on contracts will apply





Chapter 17

TORTS

Tort, definedLegal wrong committed upon person or propertyindependent of contract

Spanish law: quasi delict/culpa aquiliana fault or

negligence American law: broader fault or negligence and

also those committed with malice or willful intent

Concept of tort in the PhilippinesBlending of both Spanish and American laws

Art. 20 NCC: Every person who, contrary to law,willfully or negligently causes damage to another,shall indemnify the latter for the same.

Art. 2176 NCC: Whoever by act or omissioncauses damage to another, there being fault ornegligence, is obliged to pay for the damage done.Such fault or negligence, if there is no pre-existingcontractual relation between the parties, is called aquasi-delict and is governed by the provisions of this Chapter.

Law governing liability for torts in Conflict of LawsLiability for torts in general is governed by the lex loci delicticommissi (law of the place where the delict or wrong wascommitted)

State where the social disturbance occurred hasthe primary duty to redress the wrong anddetermine the effects of the injury; and

To compensate victim for the damage or injurysuffered

Three theories in determining locus delicti1. Civil law theory – The locus delicti is the place

where the act began2. Common law theory – The locus delicti is the

place where the wrongful act became effective

3. Theory of Dr. Rabel – The locus delicti is theplace which has the most substantial connectionwith the wrongful act

Modern theories in determining liability for torts1. State of the most significant relationship – the

rights and obligations of parties in a case of tort isdetermined by the local law of the state which,with respect to the particular issue, has the most

significant relationship to the occurrence and theparties

2. The interest-analysis approach – This approachconsiders the relevant concerns that two or morestates may have in the case and their respectiveinterests in applying their laws to it

If however, the case poses a real conflictbetween two or more States, if theinterested forum finds that he other Statehas a greater claim in the application of itslaw to a given case, the forum shouldyield and apply the law of the other state.

If the forum is disinterested in the case, itcan dismiss the same on the ground of forum non conveniens

In short, the state which has the morerelevant and weighty interests in the caseshould be considered the locus delicti

3. Qavers principle of preference – Under thistheory, a higher standard of conduct and financialprotection given to the injured party by one state isapplied by the State where the injury happened, if the latter state adopts a lower standard of conductand financial protection to the injured

Conflict rules on maritime torts1. If the tort is committed abroad a public vessel,

whether on the high seas or in foreign territorialwaters, the law of the flag is the lex loci delicticommissii

2. If the tort is committed aboard a private ormerchant vessel on the high seas, the law of theregistry is the lex loci delicti commissii

3. If two vessels collide and are from the same state,the law of registry is the lex loci delicti commissii

4. If the vessels come from different states withidentical laws, apply said identical laws

5. If the vessels come from different states withdifferent laws, the lex loci delicti commissii is thegeneral maritime law as understood and applied bythe forum where the cas eis filed

Foreign tort to be actionable/subject of an action for

damages in the Philippines – Requisites/Conditions1. Must acquire jurisdiction over the defendant (action

for damages is action in personam)2. Foreign tort must not be penal in character3. The enforcement of the tortuous liability should not

contravene our public policy4. Our judicial machinery must be adequate for such

enforcement Note: all procedural matters are governed

by the lex fori Phil law). Substantive matters are governed by the

lex loci delicti commissii, thus:(1) Period of prescription of the

action is governed by lex locidelecti commissii because inPhilippine law, prescription is

substantive not procedural(2) Proper parties, measure of

damages, and the questionwhether the acts complained of is considered the proximatecause of the injury aregoverned by the lex loci delicticommissii

(3) The burden of proof anddefenses that may beinterposed by defendant arealso governed by lex loci delicticommissii

Chapter 18CRIMES

Tort v. Crime

Tort Crime

Both are wrongs

Violates private rights Committed against state

Instituted by injured personagainst wrongdoer in civilcase, the purpose of whichis indemnification fordamages suffered

Prosecuted in the name of the State against theoffender in criminal actionsfor the purpose which areprotection and vindication of





interests of the public as awhole, punishment of theoffender, the reformation of offender, or to deter othersfrom committing the sameact

Transitory in character –tortfeasor can be madeliable for his wrongful act in

any jurisdiction where hemay be found

Local in character and canbe prosecuted only in theplace or states where the

crimes are committed

Note: The determination of whether a wrongful act is a tortor crime depends on the characterization of the act in thestate where said act is committed

Different theories that determine whether a state or alegal system has jurisdiction to take cognizance of criminal cases

Territorial theory

Under this theory, the statewhere the crime wascommitted has jurisdictionto try the case, and its penalcode and the penaltiesdescribed therein will apply

Subjective territorialprincipleThe state where the crimewas begun may prosecutethe same, even if it wascompleted in another state

Objective territorialprincipleThe state can prosecutecrimes began abroad butcompleted within its territory

Nationality or personaltheory

The country of which thecriminal is a citizen orsubject has jurisdiction totry him for crimes allegedlycommitted by him, whetherinside or outside itsterritory, provided it is acrime under said country’spenal law

Protective theory Any state whose nationalinterests may be

jeopardized has jurisdictionover criminal offenses, evenif it is committed outside itsterritory and even if committed by an alien

Real or eclectic theory Any state whose penal codehas been transgressed upon

has jurisdiction, whether thecrime was committed insideor outside its own territory

Cosmopolitan oruniversality theory

Any state where the criminalis found or which hasobtained custody over himcan try him, unlessextradition applies

Passive personality orpassive nationality theory

The state of which the victimis a victim or subject has

jurisdiction to prosecute theoffense

Note: In the Philippines, we follow as a GENERAL RULE theterritorial theory, and by way of EXCEPTION, the protectivetheory

Cases where we follow the protective theoryArt. 2, RPC: Except as provided in the treaties and laws of preferential application, the provisions of this Code shall beenforced not only within the Philippine Archipelago,including its atmosphere, its interior waters and maritime

zone, but also outside of its jurisdiction, against those who:1. Should commit an offense while on a Philippineship or airship;

2. Should forge or counterfeit any coin or currencynote of the Philippine Islands or obligations andsecurities issued by the Government of thePhilippine Islands;

3. Should be liable for acts connected with theintroduction into these islands of the obligationsand securities mentioned in the preceding number;

4. While being public officers or employees, shouldcommit an offense in the exercise of theirfunctions; or

5. Should commit any of the crimes against nationalsecurity and the law of nations

Jurisdiction over crimes committed on board a foreignvessel if said vessel is within territorial waters

English Rule French Rule

Emphasizes territorialprinciple

Emphasizes nationalitytheory

The territory where thecrime was committed willhave jurisdiction EXCEPT:

1. In matters relatingto internal orderand disciple of thevessel and

2. Those which affectsolely the ship andits occupants suchas minor or pettycriminal offensescommitted

The State whose flag isflown by the vessel has

jurisdiction EXCEPT if the crime affects thepeace, order, security, andsafety of the territory

Note: Under Art. 27 of UNCLOS, Philippine courts do notacquire jurisdiction over crimes committed on board avessel even if it is within our territorial waters as long as theeffect of such crime does not disturb our peace and order.This is similar to the French rule.

Chapter 19BUSINESS ASSOCIATIONS

Corporation, definedSec. 2 of Corporation Code: An artificial being created by

operation of law, having the right of succession and thepowers, attributes, and properties expressly authorized bylaw or incident to its existence

Foreign corporation, definedSec. 123 of Corporation Code: One formed, organized, orexisting under any laws other than those of the Philippinesand whose laws allow Filipino citizens and corporations to dobusiness in its own country or state





Theories in determining the personal law orgoverning law of a corporation

1. The theory that the personal law is the law of theplace of incorporation

2. The theory of the place or center of management3. The theory of the place of exploitation

Note: In the Philippines, we follow the theory of the place of incorporation

Domicile of a corporationArt. 51 of NCC: When the law creating or recognizing them,or any other provision does not fix the domicile of judicialpersons, the same shall be understood to be the placewhere their legal representation is established or wherethey exercise their legal functions

Under Corporation Code, the place of incorporationof a Philippine corporation is also its domicile

As for a foreign corporation that has been granteda license to operate or to do business in thePhilippines, it acquires domicile in this country byvirtue of said license

Exceptions to the theory that the personal law or thenationality of a corporation follows the place of its

incorporation1. For constitutional purposes – even if a corporation

was incorporated in the Philippines, it cannotexploit or develop our natural resources noroperate public utilities unless 60% of the capital isFilipino owned (Constitution)

2. For wartime purposes – We adopt the control test we pierce the veil of corporate identity and go

into the nationality of the controlling stockholdersto determine whether a corporation is an enemycorporation

Matters that are governed by the personal law of thecorporation

1. Requisites for the formation of the corporation2. Required number of incorporators and the

members of the board of directors3. The kinds of shares of stock allowed4. The transfer of stocks5. The issuance, amount, and legality of dividends6. The powers and duties of the officers, stockholders,

and members

Law that determines the validity of corporate acts andcontractsDetermined by the place of incorporation AND by the law of the place of performance

May a foreign corporation sue and be sued in thePhilippines?Yes, if it has the necessary license to do business in the

Philippines. The license is required not to forbid the foreigncorporation from performing single acts but to prevent itfrom acquiring a domicile for purposes of business withouttaking the steps necessary to render it amenable to suit inthe local courts

Jurisdiction over foreign corporations doing businessin the Philippines, how acquiredBy service of summons on:

1. Its resident agent2. If no such agent, on the government official

designated by law to that effect; or

3. On any of its officers or agents within thePhilippines (Rules of Court)

Status of a contract of a foreign corporation whotransacts business here without the necessary licenseUnenforceable, but the person who contracted with thecorporation may be in estoppel if he had received benefitsfrom contract

Instances when a foreign corporation not doingbusiness in the Philippines can sue in Philippinecourts

1. Isolated transactions2. To protect its reputation, corporate name, and

goodwill3. For infringement of trademark or trade name

Law that applies to multinational or transnationalcorporationsThese are actual branches of big mother corporations. Thebranches having incorporated in the states where they areestablished are governed by the internal law of said states,and their personal laws are the local laws of host states

PartnershipA partnership exists when two or more persons bindthemselves to contribute to money, property, or industry toa common fund, with the intention of dividing the profitsamong themselves (Art. 1767, NCC)

A partnership, like a corporation, has a juridicalpersonality separate and distinct from that of eachof the partners

Personal or governing law of a partnershipLaw of the country where it is created

Domicile of a partnershipArt. 51 of NCC: The place where their legal representation isestablished or where they exercise their principal functions

Chapter 20RECOGNITION AND ENFORCEMENT OF FOREIGN

JUDGMENTS

Enforcement v. recognition

Enforcement of foreign judgment

Recognition of foreign judgment

Means that the plaintiff orpetitioner wants the court topositively carry out andmake effective the foreign

judgment

Means that eh defendant orrespondent is presenting theforeign judgment on thebasis of res judicata

Implies an act of sovereignty

Involves merely a sense of justice

Requires separate action orproceeding brought preciselyto make foreign judgmenteffective

Being a matter of defense,recognition needs no actionor proceeding but impliesthat an action or proceedinghas already been filedagainst the defendant who isinvoking the foreign

judgment

Enforcement cannot existwithout recognition

Recognition does not needor does not requireenforcement




Reasons why a local court in the Philippines mayrefuse to recognize or enforce a foreign judgment

1. The requisite proof of the foreign judgment maynot have been presented

The manner of proving a foreign judgmentis the same as proving a foreign law

2. The foreign judgment may contravene a recognizedand established policy in our country

3. The administration of justice in the country where

the judgment came from may be shockinglycorrupt or not beyond reproach

Conditions or requirements before a local court in thePhilippines can enforce or recognize a foreign judgment

1. There must be adequate proof of the foreign judgment

2. The judgment must be on a civil or commercialmatter, not on a criminal, revenue, oradministrative matter

3. There must be NO:(1) Lack of jurisdiction(2) Want of notice(3) Collusion(4) Clear mistake of law or fact

4. The foreign judgment must not contravene a soundand established public policy of the forum

5. The judgment must be res judicata:(1) The judgment must be final(2) Foreign court must have jurisdiction over

subject matter and parties(3) The judgment must be on the merits; and(4) There was identity of parties, subject

matter, and cause of action

Effects of foreign judgments in the Philippines underRules of CourtSec. 48, Rule 39, 1997 Rules on Civil Procedure provides:The effect of foreign judgment or final order of a foreigncountry, having jurisdiction to render the judgment or finalorder is as follows:

(a) In case of a judgment or final order upon aspecific thing, the judgment or final order isconclusive upon the title to the thing and

(b) In case of a judgment or final order against aperson, the judgment or final order ispresumptive evidence of a right as between theparties and their successors in interest by asubsequent title

In either case, the judgment or final order may be repelledby evidence of a want of jurisdiction, want of notice to theparty, collusion, fraud, or clear mistake of law or fact.

conflict - sempio-diy book reviewer

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