Col Reviewer

8/20/2019 Col Reviewer

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Conflict of LawsComprehensive reviewer of Sempio-Diy book

Chapter 1

In 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 !"T 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# $y municipal law in Conflict

of Laws is meant the internal or local law of each state#

Conflict of laws vs. public international law

PublicInternationalLaw

Conflict of laws

As to personsinvolved

%overnssovereign statesand entities thatare internationally

recogni&ed orpossessed ofinternationalpersonality

%overns privateindividuals orcorporations

As to nature 'nternational incharacter

(unicipal incharacter

As totransactionsinvolved

Applies only totransactions inwhich only

sovereign statesor entities withinternationalpersonality areconcerned andwhich generallyaffect public

interest

Deals withtransactionsstrictly private in

nature in whichthe country assuch has generallyno interest

As to remediesapplied

The concernedstates may firstresort to peaceful

remedies# 'f theseremedies fail, thestates concernedmay resort toforcible remedies

)ecourse is had to *udicial oradministrative

tribunals inaccordance withthe rules ofprocedure of thecountry wherethey sit

Sources of Conflict of Laws+# Direct sources

Treaties

'nternational conventions

Constitutions

Codifications and statutes

udicial decisions

'nternational customs

# 'ndirect sources !atural moral law

.ritings and treaties of thinkers and

famous writers

Chapter 2

urisdiction and choice of law

!ow one deals with a problem in Conflict of Laws

+# /irst, determine whether the court has *urisdictionover the case# 'f it has no *urisdiction, the case should be

dismissed 'f it has *urisdiction, the court will

determine whether it should assume *urisdiction over the case or dismiss it on

the ground of forum non conveniens 't is the law of the forum that determines

whether the court has *urisdiction over thecase

# 't will ne0t determine whether to apply the internallaw of the forum or the proper foreign law

"hree #inds of $urisdiction+# urisdiction over the sub*ect matter

# urisdiction over the person1# urisdiction over the res

urisdiction over the sub$ect matter Conferred by law

Defined as the power to hear and determine cases

of the general class to which the proceedings in2uestion belong

Cannot be conferred by consent of the parties or

by their voluntary submission (ust be invoked by filing the proper complaint or

petition with the court#

Note 'n the realm of Conflict of Laws, however, thereis another element which the court must consider in

determining the matter of *urisdiction the possibleenforceability of its decision in foreign states, sub*ect tothe rights of said states#

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

*udgment that will bind the parties involved urisdiction over the plaintiff Ac2uired the

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

urisdiction over the defendant Ac2uired when

he enters his appearance or by the coercive powerof legal process e0erted by the court over him

personal or substituted service of summonso %& 'f appearance is for the sole purpose

of 2uestioning the *urisdiction of the court#

Note 3uestion of erroneous service of summons mustbe raised before *udgment 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 e0istence of the case

urisdiction over the 'es urisdiction over the particular sub*ect matter in

controversy, regardless of the persons who may beinterested therein

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The basis of the e0ercise of this *urisdiction is the

presence of the property within the territorial *urisdiction of the forum even though the courtmay not have personal *urisdiction over thepersons whose interests in the property areaffected

The purpose of the suit is not to impose a persona

liability on anyone but it is to affect the interests of

all persons in a thing#

urisdiction in personam urisdiction over the res

$inds only the parties andtheir successors in interest

$inds the whole world

Actions (uasi 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 the

plaintiff is also classified as an action 2uasi in rem

Service of summons) how effected

+# 'n actions in personam4+6 7ersonal service46 Substituted service

Note Service by publication would !"T besufficient

# Service by publication4+6 Action in rem

46 Action 2uasi in rem416 Action involves the personal status of

plaintiff

1# 80traterritorial service of summons4+6 .hen the defendant does not reside and

is not found in the 7hilippines, and the

action affects the personal status of theplaintiff

46 .hen the defendant does not reside andis not found in the 7hilippines, and theaction relates to or the sub*ect of which is,property within the 7hilippines 4real orpersonal6, in which the defendant has a

claim, a lien or interest, actual orcontingent

416 .hen the defendant is a non-resident butthe sub*ect of the action is propertylocated in the 7hilippines in which therelief demanded consists in e0cluding the

defendant from any interest therein496 .hen the property of a non-resident

defendant has been attached in the

7hilippines .hile a writ of attachment may

be issued by the court, said

writ cannot be implementeduntil the court has ac2uired

*urisdiction over the non-resident defendant

%*traterritorial service) how effected$y leave of court

+# $y personal service

# $y publication, but copy of the summons and theorder of the court must be sent by registered mail

to the defendant:s last known address1# 'n any other manner that the court may deem

sufficient, e#g#, by registered mail

Instances when court ma+ refuse to e*ercise

$urisdiction over a case on the basis of forum nonconveniens+# The evidence and the witnesses may not be readily

available in the forum# The court dockets of the forum may already be

clogged so that to permit additional cases wouldhamper the speedy administration of *ustice

1# The belief that the matter can be better tried anddecided in another *urisdiction, either because themain aspects of the case transpired there or thematerial witnesses have their residence there

9# 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

=# The forum has no particular interest in the case

the parties not being citi&ens of the forum or areresidents elsewhere, or the sub*ect matter of thecase evolved somewhere else

># "ther courts are open and the case may be bettertried in said courts

?# The inade2uacy of the local *udicial machinery foreffectuating the right sought to be enforced by theplaintiff

@# The difficulty of ascertaining the foreign lawapplicable

Note The doctrine should generally apply only if thedefendant is a corporation# /or if the defendant is anindividual, the proper forum may not be able to ac2uire

*urisdiction over him, thus leaving the plaintiff without

any remedy#

"hree instances when the forum has to appl+ theinternal or domestic law ,le* fori- in decidin a casein conflicts of law

+# .hen the law of the forum e0pressly so provides inits conflicts rules

# .hen the proper foreign law has not been properlypleaded and proved

1# .hen the case involves any of the e0ceptions tothe application of the proper foreign law 4i#e#e0ceptions to comity6

/h+ forein law cannot be applied if it has not beenpleaded and proved

"ur courts cannot take *udicial notice of foreign laws

!ow a forein law is proved under our 'ules of Court1. /ritten law

4+6 An official publication thereof46 A copy of the law attested by the officer

having legal custody of the record or byhis deputy, accompanied by a certificate of any 7hilippine embassy, consular, orforeign service officer in the foreigncountry where the record is kept, andauthenticated by the seal of his office

2. 0nwritten law4+6 The oral testimony of e0pert witnesses

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46 $y 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

%*ceptions to the applications of a forein law+# .hen the application of the foreign law would run

counter to a sound and established public policy ofthe forum

# .hen the foreign law is contrary to the almostuniversally conceded principles of morality 4contrabonos mores6

1# .hen the foreign law involves procedural matters %& .hen the law is both procedural and

substantive9# .hen the foreign law is penal in character

%& A penal clause in a contract may

however be enforced here because such

clause is not criminal in nature butprovides only for li2uidated damages

=# .hen the law is purely fiscal 4i#e#, revenueproducing6 or administrative in nature

># .hen the foreign law might work undeniablein*ustice to the citi&ens or residents of the forum

?# .hen the application of the foreign law wouldendanger the vital interests of the State

@# .hen the case involves real or personal propertylocated in our country

Chapter

"heories that $ustif+ the application of the forein law

"heories that $ustif+ the application of the forein law

instead of domestic or internal law+# Theory of comity# ested right theory

1# Theory of local law9# Theory of harmony of laws=# Theory of *ustice

"heor+ of comit+According to this theory, no foreign law would be allowed tooperate in another state e0cept by the comity of nations

Comit+The recognition which one state allows within itsterritory, to the legislative, e0ecutive, or *udicial acts ofanother nation

"wo principles upon which the theor+ of comit+

rests+# The comity based on reciprocity# The comity based on the persuasiveness of a

foreign *udgment "ur Civil 7rocedure still follows the

principle of reciprocity because in

Sec# 9@, )ule 1B, a foreign final *udgment or order ;is presumptiveevidence of a right as between theparties and their successors ininterest

"he vestedrihts theor+

nder this theory, our courts enforce not the foreign law orforeign *udgment but the right or rights that have beenvested under such law or *udgment#

)ights once ac2uired should be enforced regardless

of where the suit for its enforcement was filed#

"heor+ of local lawnder this theory, we apply a foreign law not because it isforeign, but because our own law by applying a similar rulere2uires us to do so, hence it is as if the foreign law has

become part of our own internal or domestic law#

"heor+ of harmon+ of lawsnder this theory, identical or similar problems should begiven identical or similar solutions thus resulting in harmonyof laws

"heor+ of $usticeSince the purpose of all laws, including Conflict of Laws, isthe dispensation of *ustice, the proper foreign law should be

applied in order to attain this ob*ective The defect of this theory, however, is that different

persons may have different ideas of what is *ust

!ote !o single theory contains the whole truth no oneapproach is completely valid# All of the theories havevalidity# This suggests that they are not entirely e0clusive#

Chapter 3

Nature and composition of conflicts rules

Purel+ internal provision of law vs. conflicts rule

Purel+ internal provisionof law

Conflicts rule4 Aprovision in conflict oflaws

%overns a domesticproblem, i#e#, one without aforeign element

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

80ample Art# ?B> All

persons who are note0pressly prohibited by lawmay make a will

80ample Art# +> )eal

property as well as personalproperty is sub*ect to thelaw of the country where itis situated

"wo #inds of conflicts rules1. 5nesided rule

'ndicates when 7hilippine law will apply

80ample Article += of the CC Laws

relating to family rights and duties, or to

the status, condition, and legal capacity of persons, are binding upon citi&ens of the7hilippines even though living abroad

2. Allsided or multilateral rule 'ndicates whether to apply the local law or

the proper foreign law 80ample Art# +> )eal property as well

as personal property is sub*ect to the lawof the country where it is situated

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Parts of ever+ conflicts rule

+# "he factual situation E the set of facts or

situation presenting a conflicts problem becausethere is a foreign element involved

# "he point of contact or connectin factor EThe law of the country with which the factualsituation is most intimately connected

Note6 The first part raises while the second partanswers a legal 2uestion

Chapter 7

Characteri8ation of conflict rules

Characteri8ation"therwise known as ;classification< or ;2ualification< is theprocess of assigning a certain set of facts or factualsituation to its proper or correct legal category# $ycharacteri&ing the legal problem, the court of the parties

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

(ost writers hold that on the grounds of practical

necessity and convenience, it is the forum or thele0 fori that should determine the problem:scharacteri&ation unless the result would be a clearin*ustice

Note (odern trend is to consider prescriptive periodsor Statute of /rauds that the parties had in mind at thetime the transaction took place

Chapter 9

Persona law : "heories in determinin 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 conse2uences of his actuations# 't may

be+# !ational law# Law of his domicile1# Law of the situs

Status vs. capacit+

Status Capacit+

7lace of an individual insociety and consists ofpersonal 2ualities and

relationships more or lesspermanent, with which thestate and the community areconcerned

"nly part of one:s status andmay be defined as the sumtotal of his rights and

obligations

"wo #inds of capacit++# uridical capacity

7assive capacity

The fitness to be the sub*ect of legal

relations

# Capacity to act Active capacity

The power to do acts with legal effects

Characteristics of status+# 't is conferred principally by the State, not by the

individual# 't is a matter of public interest or social interest1# $eing a concept of social order, it cannot easily be

terminated at the mere will or desire of the parties

concerned9# 't is generally supposed to have a universal

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us soli v. $us sanuinis

us soli us sanuinis

A person is a citi&en of thecountry where he was born

or of the country of his birth

't is citi&enship by blood

This is the rule that we

follow in the 7hilippines

Note 8ach country or state has the sole power and

authority to determine under its internal or municipal lawwho are its citi&ens or nationals

ilipino woman who marries aforeiner

Citi&ens of the 7hilippines who marry aliens shall retain theirciti&enship unless by their act or omission they are deemed,

under the law, to have renounced their 7hilippine citi&enship4Article 9, Sec# 9, +B@? Constitution6

Citi8enship of an alien woman who marries a >ilipinohusbandnder Sec# += of the )evised !aturali&ation Law 4Com# Act

!o# 9?=6, an alien woman marrying a /ilipino, native-born

or naturali&ed, becomes ipso facto a /ilipino, provided she isnot dis2ualified to be a citi&en of the 7hilippines under Sec#9 of the same law#

't is enough that an alien wife proves that she is

not dis2ualified to be a /ilipino citi&en not

necessarily in court but even before an agency likethe 'mmigration Commission

Note An alien woman married to an alien husbandwho 4the husband6 is subse2uently naturali&ed alsofollows the 7hilippine citi&enship of her husband,provided she does not suffer from any of thedis2ualifications under Sec# 9 of the same )evised

!aturali&ation Law# This is a case of derivativenaturali&ation 4similar to the minor children of a

naturali&ed /ilipino citi&en6

Naturali8ationThe process of conferring on an alien the citi&enship ofanother country by any of the means provided by law#

Bodes of ac(uirin Philippine citi8enship b+naturali8ation+# udicial process

Com# Act !o# 9?= as amended by )A =15

# Legislative process .hen 7hilippine citi&enship is conferred by

a special act of Congress on deservingaliens

1# Administrative process )A B+1B or the Administrative

!aturali&ation Law of 555 nder this law, a Special Committee on

!aturali&ation is created, with the powerto approve, deny, or re*ect applications fornaturali&ation filed with said Committee


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Naturali8ation

udicial naturali8ation under Com. Act. 3=7)as amended

Administrative naturali8ation under 'A @1@ orthe Administrative Naturali8ation Law of 2

Dualifications +# The petitioner must not e less than + yearsof age on the date of the hearing of thepetition

# Fe must have, as a rule, resided in the

7hilippines for a continuous period of not lessthan +5 years

1# Fe must be of good moral character, andbelieve in the principles underlying the7hilippine Constitution, and must haveconducted himself in a proper andirreproachable manner during the entireperiod of his residence in the 7hilippines in his

relation with the constituted government aswell as with the community in which he isliving

9# Fe must own real estate in the 7hilippinesworth not less than =,555, 7hilippinecurrency, or must have some lucrative trade,

profession, or occupation=# Fe must be able to speak and write 8nglish or

Spanish and any one of the principallanguages and

># Fe must have enrolled his minor children ofschool in any of the public or private schoolsrecogni&ed by the $ureau of 7rivate Schoolswhere 7hilippine history, government, andcivics are taught or prescribed as part of theschool curriculum during the entire period ofthe residence re2uired of him, prior to thehearing of his petition for naturali&ation asciti&en

+# The applicant must be born in the 7hilippinesand residing therein since birth

# The applicant must not be less than +@ years ofage, at the time of filing of hisGher petition

1# The applicant must be of good moral characterand believes in the underlying principles of theConstitution and must have conductedhimselfGherself in a proper and irreproachablemanner during hisGher entire period ofresidence in the 7hilippines in relation with theduly constituted government as well as with thecommunity in which heGshe is living

9# The applicant must have received hisGherprimary and secondary education in any publicschool or private education institution dulyrecogni&ed by the D8CS, where 7hilippinehistory, government, and civics are taught andprescribed as part of the school curriculum and

where enrollment is not limited to any race ornationality 7rovided, that should heGshe have

minor children of school age, heGshe must haveenrolled them in similar schools#

=# The applicant must have a known trade,business, profession, or lawful occupation, fromwhich heGshe derives income sufficient forhisGher support and if heGshe is married andGorhas dependents, also that of hisGher family7rovided, however, that this shall not apply toapplicants who are college degree holders butare unable to practice their profession becausethey are dis2ualified to do so by reason of theirciti&enship

># The applicant must be able to read, write, andspeak /ilipino or any of the dialects of the7hilippines, and

?# The applicant must have mingled with the/ilipinos and evinced a sincere desire to learnand embrace the customs, traditions, and ideals

of the /ilipino people

# Those who, during the period of their residence in the 7hilippines, have not mingled socially with

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

?# Citi&ens or sub*ects of nations with whom the 7hilippines is at war

@# Citi&ens or sub*ects of a foreign country whose laws do not grant /ilipinos the right to be naturali&ed

citi&ens or sub*ects thereof

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Loss of citi8enshipnder Com# Act >1, as amended, a /ilipino citi&en may lose

his citi&enship in any of the following ways+# $y naturali&ation in a foreign country# $y e0press renunciation of citi&enship1# $y subscribing an oath of allegiance to support the

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

9# $y accepting commission in the military, naval, orair service of a foreign country=# $y cancellation of the certificate of naturali&ation># $y having been declared by competent authority, a

deserter of the 7hilippine armed forces in time ofwar, unless subse2uently a plenary pardon oramnesty has been granted and

?# 'n case of a woman, upon her marriage to aforeigner, if, by virtue of the laws in force in herhusband:s country, she ac2uires his nationality

nder the +B@? Constitution, however, the

woman retains her 7hilippine citi&enshipunless by her act or omission she isdeemed under the law to have renouncedher 7hilippine citi&enship

Philippine citi8enship) how reac(uirednder C#A# >1, as amended, 7hilippine citi&enship may bereac2uired as follows

+# $y naturali&ation, provided the applicant possesses

none of the dis2ualifications# $y repatriation of deserters of the Army, !avy, or

Air Corps, 7rovided, that a woman who lost herciti&enship by reason of her marriage to an alienmay be repatriated in accordance with theprovisions of this Act after the termination of the

marital status1# $y direct act of Congress

'A @227 : Citi8enship 'etention and 'eac(uisitionAct of 2 nder this law, natural born /ilipino citi&ens who had beennaturali&ed in foreign countries are deemed to havereac2uired 7hilippine citi&enship by taking an oath ofallegiance to the 7hilippine Constitution and laws# Thosewho become naturali&ed in foreign countries after theeffectivity of the Act retain their 7hilippine citi&enship upontaking the same oath

Chapter


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If the child is adopted The domicile of origin is thedomicile of his real parentsat the time of his birth, !"Tthe domicile of the adopters

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

'ules determinin one;s constructive domicile

BIN5'S+# 'f legitimate, the domicile of both parents

'n case of disagreement, that of the

father, unless there is a *udicial order tothe contrary

# 'f illegitimate, the domicile of the mother1# 'n case of absence or death of either parent, the

domicile of the present parent# 8ven in case of remarriage of the

surviving parent, still hisGher domiciledetermines the constructive domicile ofthe minor child

9# 'f the child is adopted, the domicile of choice of theadopter is the child:s constructive domicile

INSAN%S) I


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'f said law follows the domiciliary theory

and directs that we apply the law of thedomicile of the deceased, so in the end,we still apply 7hilippine law

9# Apply the foreign court theory .e would simply do what the foreign

court would do if confronted with the

same case Advantage of this theory is that regardless

of the forum, the applicable law will be thesame

Can also result in international ping pong


10/22


$ut an alien whose citi&enship is either

controverted or doubtful cannot ask for a change of name

Leislative $urisdiction vs. $udicial $urisdiction overone;s status

Leislative $urisdiction udicial $urisdiction

Legislative *urisdiction over

one:s status is the power ofhis personal law to govern

his status wherever he goes

udicial *urisdiction over

one:s status is the power ofthe courts to decide

2uestions or controversiesconcerning one:s status

Note Thus, our courts can decide cases involving the

status 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 hisciti&enship follows#

%*ample 8ven if the personal law of the foreigner

allows divorce, he cannot apply for divorce from hisspouse before a 7hilippine court because we do notrecogni&e divorce and our courts have no

*urisdiction to grant divorces# Fowever, a foreignerwho applies for legal separation in our country on aground available under his national law but notunder our law, may obtain a favorable *udgmentfrom our courts, because it is his national law on

legal separation that our courts will apply, butsub*ect to our procedural law#

Chapter 12Conflicts rules on marriae

Philippine internal law on the formal validit+ ofmarriaes or the validit+ of marriae as a contract

+# 8ssential re2uisites4+6 Legal capacity of the contracting parties

who must be male and female

46 Consent freely given in the presence of asolemni&ing officer

# /ormal re2uisites4+6 Authority of the solemni&ing officer46 A valid marriage license416 A marriage ceremony takes place with the

appearance of the contracting parties

before the solemni&ing officer and theirpersonal declaration that they take eachother as husband and wife in the presenceof not less than two witnesses of legal age

Note The above formal re2uisites apply to foreigners whoget married in the 7hilippines# 'f 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 hisGher country in the 7hilippinesbefore heGshe can be issued a marriage license# Statelesspersons or refugees need only to submit an affidavit statingthe circumstances showing such capacity to contractmarriage

Common law marriaes of foreinersAs to common law marriages of foreigners who come to the7hilippines as husband and wife, it would seem that weshould consider the marriage valid if valid under theirnational law or the law of the place where the relationship

began# $ut the marriage must not be contra bonos mores oruniversally considered incestuous

>orein marriaes of >ilipinosG' nder Art# > of the /amily Code, all marriages outsidethe 7hilippines in accordance with the laws in force in thecountry where they were solemni&ed and valid there assuch, shall also be valid in this country, e0cept those

prohibited under Articles 1=4+6, 496, 4=6, and 4>6, 1>, 1?,and 1@# 'n other words, we follow the rule of le0 loci

celebrationis%& A foreign marriage of /ilipinos in a foreign country willstill be void in the 7hilippines if

+# 8ither or both parties did not have legal capacity toget married 4Art# 1= 4+66

# The marriage is immoral for being bigamous orpolygamous 4Art# 1= 4966

1# Consent of one party is lacking, because of mistakeas to the identity of the other 4Art# 1= 4=66

9# "ne of the parties was psychologicallyincapacitated at the time of the marriage to complywith the essential marital obligations 4Art# 1>6

=# The marriage is incestuous 4Art# 1?6

># The marriage is void by reason of public policy4Art# 1@6

Note Consular marriages of /ilipinos abroad are valid 4Art#

+5, /amily Code6

Conflicts rules on marriaes between foreinerssolemni8ed abroad

+# .e still apply the rule of le0 loci celebrationis, butnot the e0ceptions in the first par# of Art# > of the

/amily Code which apply only to /ilipinos $ut universally considered incestuous

marriages and marriages that are highlyimmoral are e0cepted

# 7ro0y marriages E !ot allowed under 7hilippine

internal law )ule in the S E if permitted by the law of

the place where the pro0y participates inthe marriage ceremony, pro0y marriagesare entitled to recognition insofar as theformal validity of the marriage isconcerned

1# (arriages on board a vessel on the high seas ESince the country whose flag the ship is flying has

*urisdiction over the ship, the rule is thatcompliance with the law of the said country isre2uired for the marriage to be valid

9# 'f the parties or at least the husband is a (uslim Eit is believed that we would recogni&e up to fourmarriages of the same husband 47hilippine (uslimCode on 7ersonal Laws6

Bi*ed Barriaes

Barriae between a

>ilipino and foreinerAE'5A<

'f the marriage is valid

under the law of one of thespouses while void under thelaw of the other, we shoulduphold the validity of themarriage, unless themarriage is universally

incestuous or highly immoral4the same rule as toforeigners who get marriedabroad6

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Barriae between a>ilipino and a foreiner inthe P!ILIPPIN%S

The national law of the/ilipino E 7hilippine lawshould be followed Eotherwise our public policywould be violated

"wo aspects of marriae as a status+# Aspect of personal rights and obligations of the

spouses 7urely personal and are not ordinarily

interfered with by the courts

# Aspect of their property relations The law lays down rules and *udicial

sanctions as they may affect public

interest

Law overnin personal relations of spouses inConflict of Laws

+# Countries that follow the nationality theory 4e#g#7hilippines6 E apply the spouses: national law indetermining their personal relations with eachother

# Countries that follow the domiciliary theory E thepersonal relations of the spouses are governed bythe law of their domicile

Spouses of different nationalities6 law overnin theirpersonal relations

G' The personal relations of the spouses are governed bythe national law of the husband

Alien woman who

marries a >ilipinohusband

'pso facto becomes a /ilipino

citi&en if she does not sufferunder any dis2ualification fornaturali&ation as a /ilipinociti&en

Personal relationsnational law of the husbandshall govern 4%)6

A >ilipina who marries analien husband

Constitution provides thatshe ;shall retain her7hilippine citi&enship, unlessby her act or omission, she

is deemed, under our law, tohave renounced herciti&enship<

Personal relations Art# @5of the /amily Code provides

that the national law of thewife or 7hilippine law wouldgovern the spouses:

personal relations 4rule wasintended to protect the/ilipino wife6

Conflict rules on the law overnin personal relationsof spouses who change nationalities

General 'ules+# 'f the spouses have the same nationality but they

ac2uire a new nationality by their common act Etheir new national law will govern their personalrelations

# 'f the husband alone changes his nationality afterthe marriage E the law of the last common

nationality of the spouses would govern1# 'f the spouses retain their different nationalities

after the marriage E !ational law of both spousesshould govern

'%6 Eetter solution apply the national

law of the husband at the time of the

marriage%&C%P"I5NS

+# 'f the national law of the husband violates publicpolicy of the forum

# The national law of the wife happens to be the lawof the forum

Conflicts rules on the propert+ relations of husbandand wifeG' 7roperty relations of the spouses are governed by7hilippine law, regardless of the place of the celebration ofmarriage and their residence 4nationality theory6

'f one spouse is a /ilipino 4wife or husband6 and

the other is an alien, 7hilippine law would stillgovern

%&6+# 'f both spouses are aliens E general rule in Conflict

of Laws will apply# .ith respect to e0trinsic validity of contracts

affecting real property E the le0 situs will governthe formalities to be observed for the contract:svalidity


12/22


of annulment marriages under Art# 1> and=1 of /C

Art# 1> E children bornunder marriage that is voidon the ground of psy#

'ncapacity

Art# =1 E children born ofthe 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 longer

be impugned after the deathof the spouses

The marriage can still be

impugned even after thedeath of the spouses

Conflicts rules on annulment and declaration of nullit+

of marriae+# 'n 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 le0 loci celebrationis or the

law of the place where the marriage was celebrated 'eason Considering that it is the le0 loci

celebrationis that is usually applied todetermine whether a marriage is valid ornot, it is the same law that alsodetermines whether a marriage is voidableor void

# As for declaration of nullity of marriage between

two /ilipinos abroad, the grounds are thee0ceptions to the le0 loci celebrationis in Article >of the /amily Code

4+6 8ither or both parties did not have legalcapacity to get married 4Art# 1= 4+66

46 The marriage is immoral for beingbigamous or polygamous 4Art# 1= 4966

416 Consent of one party is lacking, becauseof mistake as to the identity of the other4Art# 1= 4=66

496 "ne of the parties was psychologicallyincapacitated at the time of the marriageto comply with the essential marital

obligations 4Art# 1>64=6 The marriage is incestuous 4Art# 1?64>6 The marriage is void by reason of public

policy 4Art# 1@61# As to foreigners who get married abroad E the

e0ceptions to the le0 loci celebrationis would be the

same as those in marriages as a contract4+6 (arriages that are highly immoral46 niversally incestuous marriages

9# Consular marriages E either the national law or thelaw of the domicile of the parties applies

Courts that have $urisdiction over cases forannulment or declaration of nullit+ of marriae

+# 'n the 7hilippines E since we follow the nationalitytheory, our courts have *urisdiction

Citi&ens and domiciliaries can file in the

7hilippines, even if the defendant is a non-resident

# 'n other countries E it is usually the courts of the parties’ domicile who have *urisdiction over suchcases since that is the place which has the greatestinterest in the domestic relations of the spouses

'ules on the validit+ of forein divorces b+ foreinersabroad

+# Fague Convention states that a foreign divorce willbe recogni&ed in the contracting states if, at thedate of the filing of the proceedings

4+6 The petitioner or respondent had his or

her habitual residence in the state wherethe divorce was obtained

46 'f both spouses were nationals of saidstate

416 Although the petitioner was a national ofanother country, he or she had his or herresidence in the place where the divorcewas obtained

# 'n the S, a state has a duty to recogni&e a divorceobtained in a sister state if the spouses were

domiciled in the latter state1# A divorce obtained in a foreign country would be

recogni&ed under the same circumstances that adivorce obtained from a sister state is given

recognition9# in the 7hilippines, if both spouses are aliens, we

recogni&e a decree of divorce obtained by themabroad if valid under their national law

=# 'f one of the spouses is a /ilipino and the other analien, we also recogni&e the divorce obtained by

the alien spouse abroad

Leal separation v. divorce

Leal separation


13/22


+# urisdiction in the case of aliens is not assumed by

the forum unless the national law of the parties is

willing to recogni&e its *urisdiction# 'n the 7hilippines, foreigners may ask for legal

separation here, even if they did not get married inthis country# .hat is important is that the courthas *urisdiction over both parties

1# (ost countries assume *urisdiction over case for

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

Note 't is !"T necessary that the cause for legalseparation take place in the country for our courts tohave *urisdiction over the case#

Grounds for leal separation under Philippine internallaw ,Article 77) >C-

+# )epeated physical violence or grossly abusiveconduct against the petitioner, a common child, ora child of the petitioner

# 7hysical violence or moral pressure to compel thepetitioner to change religious or political affiliation

1# Attempt to corrupt or induce the petitioner, acommon child, or a child of the petitioner, to

engage in prostitution, or connivance in suchcorruption or inducement

9# /inal *udgment sentencing the respondent toimprisonment of more than > years, even if

pardoned=# Drug addiction or habitual alcoholism of the

respondent># Contracting by the respondent of a subse2uent

bigamous marriage, whether in the 7hilippines orabroad

?# Lesbianism or homose0uality of the respondent@# Se0ual infidelity or perversionB# Attempt by the respondent against the life of the

petitioner+5# Abandonment of petitioner by respondent without

*ustifiable cause for more than one year

C-+# Condonation of the offense or the act complained

of# Consent of the aggrieved party to the commission

of the act or offense complained of1# Connivance between the parties in the commission

of the offense or act constituting the ground forlegal separation

9# .here both parties have given ground for legalseparation

=# Collusion between the parties to obtain legalseparation

># 7rescription

Note The prescriptive period for filing of an action for legalseparation in the 7hilippines is = years from the time of theoccurrence of the case 4Art# =?, /C6

Chapter 1Status of Children

Conflict rules in determinin leitimac+ of children+# 'f the parents are of the same nationality E their

common personal law 4national law or law ofdomicile6 will be applied

# 'f the parents are of different nationalities Epersonal law of the father governs

Leitimate and illeitimate children under Philippineinternal law

+# Legitimate children E children conceived or bornduring the marriage of the parents

# 'llegitimate children E children conceived and born

outside a valid marriage %& Children born of void marriages under

Article 1> 4psychological incapacity6 andArticle =1 4those born of the first marriageof parties before said first marriage hadbeen annulled or declared void, and who

marry a second time without deliveringthe presumptive legitime of the children of their first marriage are consideredL8%'T'(AT8 CF'LD)8!

Law overnin the rihts and duties between parentand child

+# 'f the child is legitimate E either the commonpersonal law of the parents or the personal law ofthe father if the parents are of differentnationalities governs

# 'f the child is illegitimate E The personal law of themother is decisive, !L8SS the child issubse2uently recogni&ed by the father, in whichcase the rules on legitimate children will be applied


14/22


Note Legitimation creates a permanent 4immutable6 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 ofadoption has been created or not+# The child:s personal law# 'f the child does not reside in the country of his

citi&enship E 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 leal effects of adoptionThe legal effects of adoption are determined by the samelaw that created the relationship of adoption

Adoption b+ aliens in the Philippinesnder )A @== or the Domestic Adoption Act of +BB@, aliens4who are not even former /ilipino citi&ens6 can adopt in ourcountry, provided

+# The have the same 2ualifications as those re2uiredof /ilipino citi&ens

# Their countries have diplomatic relations with ourcountry

1# They have been living in the 7hilippines for at least1 years prior to the filing of the petition foradoption, and maintain such residence until theadoption decree is entered

9# 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

=# Their government allows the adopted child to entertheir own country as their adopted child

Special aliens who can adopt under 'A 772+# A former /ilipino citi&en who seeks to adopt a

relative within the 9th degree of consanguinity oraffinity

# "ne who seeks to adopt the legitimate son or

daughter of his or her /ilipino spouse1# "ne who is married to a /ilipino citi&en and seeks

to adopt *ointly with his or her spouse a relativewithin the 9th degree of consanguinity or affinity ofthe /ilipino spouse

These aliens need not comply with the residency in the

7hilippines and they also need not submit a certification that

they have the capacity to adopt from the diplomatic orconsular office of their country in the 7hilippines or anyother government agency

Note )A @== still re2uires that the 4alien6 husband andwife must *ointly adopt# Fowever 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 law+# Adoption proceedings are always *udicial an din

rem, i#e#, publication is re2uired

# A mere agreement of adoption between theadopters and the parents of the child is not a valid

adoption, nor the fact that the child had beenadopted de facto 4ampon6 by the alleged adoptingparents

1# !either 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 birth9# 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 beimpaired by a new law dis2ualifying him or her foradoption

'econition of a forein decree of adoption.hile there is no provision of law nor *urisprudencee0pressly re2uiring the 7hilippines to recogni&e a foreigndecree of adoption, it is believed that under Sec# 9@ of )ule1B of the )ules on Civil 7rocedure, we can recogni&e suchforeign decree of adoption provided the foreign court had

*urisdiction to render said decree, and that there is no want

of notice, collusion, e0trinsic fraud, or clear mistake of lawor fact leading to the foreign decree of adoption


15/22


Conflicts rules in the Philippines on e*trinsic validit+

of wills+# 'f a /ilipino makes a will abroad - he may comply

with the formalities of 7hilippine law 4le0 nationalii6or the le0 loci celebrationis 4the law of the placewhere he was at the time of the e0ecution of thewill6 E Art# @+=, !CC

# 'f an alien makes a will abroad - he may complywith the formalities of his le0 nationalii 4law of thecountry of which he is a citi&en, the le0 domicilii4law of his domicile5, or the le0 loci celebrationis

1# 'f an alien makes a will in the 7hilippines E he maycomply with the formalities of his own country 4le0nationalii6 or of 7hilippine law 4le0 locicelebrationis6

9# Folographic wills E must be entirely written, dated,and signed by the hand of the testator# 't is sub*ectto no other form and may be made in or out of the7hilippines and need not be witnessed 4Art# @+5,!CC6

Conflicts rules on $oint wills+# /ilipinos cannot make *oint wills whether he or

abroad# oint wills made by aliens shall be considered valid

in the 7hilippines if valid according to their le0nationalii or le0 domicilii or if valid under le0 loci

celebrationis1# oint wills made by aliens in the 7hilippines are

void even if valid under their le0 nationalii or le0domicilii in order that our public policy on *oint willsmay not be militated against

9# A *oint will e0ecuted by an alien and a /ilipinociti&en abroad will be valid even as to the alien 4ifhis national law or law of his domicile or le0 locicelebrationis allows it6 but void as to the /ilipino

Conflicts rules on intrinsic validit+ of wills+# le0 nationalii E in countries that follow the

nationality theory# le0 domicilii E in countries that follow the

domiciliary theory

/hat overns the intrinsic validit+ of wills in thePhilippinesThe !CC applies the le0 nationalii of the decedent

!ote in case of conflict between the nationality

theory and the domiciliary theory, we can treat thecase as one of ;renvoi< so that we can still apply7hilippine law even if the deceased was a citi&en ofanother country

Conflicts rules if a person dies intestate

+# 'n civil law countries E the national law of thedecased applies

# 'n common law countries E the le0 domicilii of thedeceased at the time of death applies with respectto personalty, while the le0 situs applies withrespect to real property

Conflicts rules on revocation of wills+# nder Art# @B of the !CC, a revocation done

outside the 7hilippines by a person who does nothave his domicile here is valid if done according to

4+6 The law of the place where the will wasmade 4le0 loci celecbrationis6 or

46 The law of his domicile at the time ofrevocation 4le0 domicilii6

!ote ignores the law of the place ofrevocation

# 'f the revocation is done in the 7hilippines, it isvalid if made in accordance with the provisions ofour CC

1# 'f the revocation is done outside the 7hilippines by

a person who is domiciled here, it is valid if madein accordance with our law 4le0 domicilii6 or le0 lociactus of the revocation 4the place where therevocation was made6

Probate) defined7robate is the process of proving before a competent courtthe due e0ecution of a will, that the testator was possessedof testamentary capacity, and the approval by said court ofthe will

Conflict rules on probate of wills+# The allowance of disallowance of a will is

essentially procedural, so that the law of the forum

applies to all procedural matters# Art. ) 1st par ;now will shall pass either real

or personal property unless it is proved andallowed in accordance with the )ules of Court# The evidence necessary for the probate or

allowance of wills which have been probatedoutside the 7hilippines are

4+6 The due e0ecution of the will inaccordance with the foreign law becausewe cannot take *udicial notice of foreignlaws

46 The testator had his domicile in theforeign country where the will wasprobated

416 The will had been admitted to probate in

said country496 The foreign tribunal is a probate court4=6 The laws of the foreign country on

procedure and allowance of wills werefollowed

Administration of estate of deceased persons

Administration is the process of determining and reali&ingthe 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 ofdeceased b+ persons

+# Administration is procedural in nature# 't is the le0fori that governs not the law that determines howthe estate of the deceased is to be distributed

# 'n charge of the administration is the e0ecutor oran administrator with a will anne0ed or anadministrator

Lesley Claudio 4A 5+6 7age += of


16/22


%*ecutor Administratorwith a willanne*ed

Administrator

Appointed bytestator inhis will

Appointed bythe court ifthere is a willbut no e0ecuted

is designatedtherein

Appointed bythe court ifthere is no will

1# The e0ecutor is 2ualified, and the administrator ofthe estate is appointed, by the court of the countrywhere the deceased was domiciled at the time ofhis death, or if he was a non-domiciliary, thecountry where his properties are found

9# The rights, powers, and duties of the e0ecutor oradministrator are coe0tensive with the territorial

*urisdiction of the court that 2ualified or appointedhim

=# 7rincipal domiciliary administration v# ancillaryadministration

Principal domiciliar+

administration

Ancillar+

administrationAdministration grantedin the country of thedeceased:s last domicile

Administration in othercountries where thedeceased also leftproperties

># The domiciliary administrator of the estate of adeceased American citi&en in the S has no powerover and is not entitled to the possession of thestock certificates of shares of stock by thedeceased in a 7hilippine corporation, whichcertificates must be delivered to the ancillary

administrator

Caduciar+ rihts of state in Conflict of Laws

There are two theories adopted by different states so thatthey may claim the properties left by a deceased who leftno heirs and no will

+# Some countries adopt the theory that suchproperties have become ownerless 4bona vacantia6hence they should revert to the State where theyare situated by escheat properties pass to the State as an incident of

sovereignty, not as an heir

# 'n the 7hilippines and some civil law countries Ethe theory adopted is that the State is the last heirof a deceased person# Fence, the State succeedsto the properties left by said deceased as an heir#

Chapter 17P'5P%'"

Conflict rules on real propert+ and personal propert+G' le0 situsG le0 re sitae law of the place where the

property is located

5ld rule on law on personal propert+4movables Bobilia se(uuntur personam7ersonal effects or belongings of owner carried with himwherever he went# %iven artificial status since did not have fi0ed status

E personal law of the owner

Philippine rule on personal properties

Art# += of the CC real property as well as personal

property is sub*ect to the law of the country where it issituated

Batters overned b+ le* situs with respect to realpropert+

+# 80trinsic validity# 'ntrinsic validity1# Capacity of contracting parties9# 'nterpretation of documents=# 8ffects of ownership># Co-ownership

?# Accession@# sufructB# Lease+5# 8asement++# 3uieting of title+# )egistration+1# 7rescription+9# 7olice power+=# 8minent domain+># Ta0ation

%*ceptions to the rule on le* situs with respect to realproperties

+# Succession governed by national law 4in

7hilippines6 not le0 situs# Contracts involving real property but do not deal

with title or real rights over the property, the issuebeing the contractual rights and liabilities of parties governed by the proper law of the contract 4le0

loci voluntatis or le0 loci intentionis61# 'n contracts where real property is given as

security by way of mortgage to secure a principlecontract 4i#e# loan6 loan is governed by the

proper law of the contract which the mortgage isgoverned by the le0 situs

9# .hile the validity of the transfer of land must bedetermined by the le0 situs, the validity of thecontract to transfer is determined by the properlaw of the contract

'ules in ivin constructive situs to choses inpossession that are usuall+ in motion

?%SS%LS

Public vessel Law of the flag

Private or commercialvessel

Law of the country orplace of registry

If vessel is doc#ed at aforein port

Said port is deemed as itstemporary situs

G55


17/22


Involuntar+ transfer ofassinment of a debt,arnishment-

The situs of the placewhere the debtor may beserved 4usually hisdomicile6

?oluntar+ assinmentor transfer of credit

The proper law of thecontract 4the proper law of the original transactionout of which the chose in

action or credit arose6

5ther theories6+# The law of the

place where theassignment ise0ecuted

# The law of theplace whereperformance or

payment isnormallye0pected

1# The national lawof the parties

Situs of a debt for

ta*ation purposes

Domicile of creditor

Administerin debts Situs is the place where

the assets of the debtorare situated

N%G5"IAEL% INS"'0B%N"S

"he law thatdetermines whetherthe instrument isneotiable or not

Law governing rightsembodied in theinstrument

!ote American)estatement claims thatthe situs is the place

where the instrument wase0ecuted

"he law that

determines the validit+of the transfer)deliver+) or neotiationof the neotiableinstrument

The law of the situs of the

instrument at the time oftransfer, delivery, ornegotiation

S!A'%S 5> S"5CJS 5> C5'P5'A"I5NS

Sale of shares of stoc#s Law of the place ofincorporation sincetransfer is recorded in thebooks of the corporation

Sale of corporateshares as between theparties

%overned by the properlaw of the contract 4le0loci voluntatis or le0 lociintentionis6

"a*ation on dividendsreceived b+ corporate

shares

Law of the place ofincorporation

>'ANC!IS%S

>ranchises- special privilegesconferred by thegovernment on anindividual or corporation

Law of the state thatgranted them

Goodwill of a business

Goodwill of business

-Art# =+, !CC propertyand may be transferred

%ood will of business and

ta0ation thereon aregoverned by the law of theplace where the business

together with the right touse the name under whichthe business is conducted

FGoodwill-The patronage of any

established trade orbusiness

is carried on

Patents) cop+rihts) trademar#s) trade names)and service mar#s

Patents) cop+rihts)trade mar#s) tradenames

G' in the absence of atreaty, protected only bythe state that granted orrecogni&ed them

Art. 72) NCC a trade

mark or a trade name dulyregistered in the propergovernment bureau oroffice is owned by andpertains to the person,corporation, or firm

registering the same,sub*ect to the provisions

of special laws

Intellectual propert+Code Any foreigncorporation being anational or domiciliary o acountry which is a party toa convention, treaty, oragreement related tointellectual property rightsto which the 7hilippines isalso a party or which

e0tends reciprocal rightsto our nationals by law,

;shall be entitled to the

benefits to the e0tentnecessary to give effect toany provision of such

convention#<

- /oreign corporation evenif not engaged in businessin the 7hilippines maynevertheless bring a civilor administrative action,for opposition,cancellation, infringement,or unfair competition#

Chapter 19

C5N"'AC"S

Contract) definedArt# +15=, !CC (eeting of minds between two personswhereby one binds himself, with respect to the other, togive something or to render some service#

♥ The specific sub*ect of contract in Conflict of Laws

is limited to purely civil or commercial transactions#

Conflicts rules in determinin e*trinsic validit+ ofcontracts

Lesley Claudio 4A 5+6 7age +? of


18/22


G' the e0trinsic validity of contracts is governed by the le0loci celebrationisG le0 loci contractus

?ariations to the rule of le* loci intentions indeterminin e*trinsic validit+ of contracts

+# A contract entered into by parties in two differentcountries by cablegram, tele0, or fa0

♥ Art. 11@ par. 26 Acceptance made by

letter or telegram does not bind theofferor e0cept from the time it came to his

knowledge# The contract in such a case ispresumed to have been entered in theplace where the offer was made

♥ American law6 contract is deemed

entered into in the place where theacceptance of the offer is posted or mailed

# 7lace of e0ecution was merely casual or accidental♥ The law which has the most significant

relationship to the transaction should beapplied

1# ,%&- .hen the le0 loci contractusGle0 locicelebrationis contravenes an established andimportant policy of the forum, or to apply it wouldwork gross in*ustice to the people of the forum, or

if the transaction is contra bonos mores

Conflict rules in determinin capacit+ of parties to acontractG' Capacity to enter into contracts is generally governedby the personal law of the parties

♥ 'n 7hil#, Art# += !CC Capacity of a /ilipino is

governed by 7hilippine law 4nationality theory6

%& Contracts involving alienation or encumbrance ofproperty both real and personal capacity is governed by

the le0 situs

Conflict rules in determinin intrinsic validit+ of

contracts

+# G' 'ntrinsic alidity of contracts is governed bythe proper law of the contract E le0 loci voluntatisor le0 loci intentionis

# American Law 4Second )estatement64+6 law to be applied should be the law

chosen by the parties46 'f none, the law of the state which has the

most significant relationship to the partiesor to the transaction

1# 7rof# )aleigh (inor E advocates application ofdifferent laws

4+6 As to the perfection of contract le0 locicelebrationis

46 As to the validity of the consideration Ele0 loci considerationis

416 As to 2uestions of performance E le0 loci

solutionis

Philippine conflict rules on intrinsic validit+ of

contracts+# .e have no specific provision of law applicable to

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

effect to the intention of the parties# .e should apply the proper law of the contract 4le0

loci voluntatis 4e0press6 or le0 loci intentionis4implied6

Limitations to the court;s choice of law in determininthe intrinsic validit+ of contracts

+# %enerally, the parties cannot select a law that hasno connection at all with the transaction

# 'f the law selected should change, it is the new lawthat should be applied

♥ %& Change of new law is so revolutionary

that it could never have been

contemplated by parties1# Several laws may be selected, each of which will

govern the different elements of the transaction9# 'f under the selected law, the contract is legal but

in the place of performance, it is illegal, theselected law should prevail 4valid contract6

=# 3uestions of substantial and essential validity4void, valid, voidable6 of the contracts should be

governed by the proper law of the contracts♥ (inor details time of payment, etc#

should be governed by the law ofperformance

># 7arties cannot stipulate on the *urisdiction of thecourts our oust or court:s *urisdiction

?# The parties cannot contract away applicableprovisions of law

@# American law recogni&es cognovit clauses if theparties were of e2ual bargaining power and debtorand the debtor voluntarily agreed to said clause

♥ Conovit clauses specify which courts

would have *urisdiction in case of breachor default in payment, or it may waivedebtor:s right to notice 4confession of

*udgment6

%*trinsic

validit+

Capacit+

of parties

Intrinsic

validit+

Earter) sale)

donation

Le0 situs Le0 situs Le0 situs

Lease ofpropert+6creates realrihts


Lease ofpropert+6does notcreate realrihts

Le0 locicelebrationis

7ersonallaw oftheparties

Le0voluntatisor le0 lociintentionis

Plede)chattelmortae)real estatemortae)

antichresis


Contract ofloan6 mutuum


7ersonallaw oftheparties

Le0 locivoluntatisor le0 lociintentionis

Contract ofloan6commodatum

Le0 situs Le0 stius Le0 situs

Lease ofservice)aenc+)uarant+)suret+ship


7ersonallaw ofparties

Le0 locivolntatisor le0 lociintentionis

Lesley Claudio 4A 5+6 7age +@ of


19/22


Note6 Agencyto alienate orencumber realproperty isgoverned by le0

situs

Contract oftransportationor carriae,renderservices-

Le0 loci

celebrationis

7ersonal

law ofparties

Le0 loci

voluntatis

Liability for loss, destruction,deterioration of goods in transit lawof destination of goods 4Art# +?=1,!CC6

'f C"%SA applies, limiation on liability

applies, unless the shipper declaresvalue of goods and inserts suchdeclaration in the bill of lading

Contract for air transportation,/arsaw Convention-

+# The liability of the airline in caseof death, in*ury to passengers,

or loss or damage to cargo isgoverned by .arsaw Convention

# 'f there was malice, grossnegligence, or bad faith, orimproper discrimination, carrieris liable for damages beyondthose limited by .arsawConvention

!ote if contracts involve encumbrances of property,

real or personal, apply le0 situs# 'f personal contracts,law on contracts will apply

Chapter 1="5'"S

"ort) definedLegal wrong committed upon person or propertyindependent of contract

♥ Spanish law 2uasi delictGculpa a2uiliana fault or

negligence♥ American law broader fault or negligence and

also those committed with malice or willful intent

Concept of tort in the Philippines$lending of both Spanish and American laws

♥ Art. 2 NCC 8very person who, contrary to law,

willfully or negligently causes damage to another,shall indemnify the latter for the same#

♥ Art. 21=9 NCC .hoever by act or omission

causes damage to another, there being fault ornegligence, is obliged to pay for the damage done#Such fault or negligence, if there is no pre-e0istingcontractual relation between the parties, is called a

2uasi-delict and is governed by the provisions ofthis Chapter#

Law overnin liabilit+ for torts in Conflict of LawsLiability for torts in general is governed by the le0 loci delicticommissi 4law of the place where the delict or wrong was

committed6

♥ State where the social disturbance occurred has

the primary duty to redress the wrong and

determine the effects of the in*ury and♥ To compensate victim for the damage or in*ury

suffered

"hree theories in determinin locus delicti+# Civil law theor+ E The locus delicti is the place

where the act began# Common law theor+ E The locus delicti is the

place where the wrongful act became effective1# "heor+ of


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# /oreign tort must not be penal in character1# The enforcement of the tortuous liability should not

contravene our public policy9# "ur *udicial machinery must be ade2uate for such

enforcement♥ !ote all procedural matters are governed

by the le0 fori 7hil law6#♥ Substantive matters are governed by the

le0 loci delicti commissii, thus4+6 7eriod of prescription of the

action is governed by le0 locidelecti commissii because in7hilippine law, prescription issubstantive not procedural

46 7roper parties, measure ofdamages, and the 2uestionwhether the acts complained of is considered the pro0imatecause of the in*ury aregoverned by the le0 loci delicticommissii

416 The burden of proof anddefenses that may beinterposed by defendant are

also governed by le0 loci delicticommissii

Chapter 1C'IB%S

"ort v. Crime

"ort Crime

$oth are wrongs

iolates private rights Committed against state

'nstituted by in*ured personagainst wrongdoer in civilcase, the purpose of whichis indemnification for

damages suffered

7rosecuted in the name ofthe State against theoffender in criminal actionsfor the purpose which are

protection and vindication of interests of the public as awhole, punishment of theoffender, the reformation ofoffender, or to deter othersfrom committing the sameact

Transitory in character Etortfeasor can be madeliable for his wrongful act inany *urisdiction where hemay be found

Local in character and canbe prosecuted only in theplace or states where thecrimes are committed

!ote The determination of whether a wrongful act is a tortor crime depends on the characteri&ation of the act in the

state where said act is committed


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%nlish 'ule >rench 'ule

8mphasi&es territorialprinciple

8mphasi&es nationalitytheory

The territory where thecrime was committed willhave *urisdiction 8HC87T

+# 'n matters relatingto internal order

and disciple of thevessel and

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

The State whose flag isflown by the vessel has

*urisdiction 8HC87T if the crime affects the

peace, order, security, and

safety of the territory

!ote nder Art# ? of !CL"S, 7hilippine courts do notac2uire *urisdiction over crimes committed on board avessel even if it is within our territorial waters as long as the

effect of such crime does not disturb our peace and order#This is similar to the /rench rule#

Chapter 1@E0SIN%SS ASS5CIA"I5NS

Corporation) definedSec# of Corporation Code An artificial being created byoperation of law, having the right of succession and thepowers, attributes, and properties e0pressly authori&ed bylaw or incident to its e0istence

>orein corporation) definedSec# +1 of Corporation Code "ne formed, organi&ed, ore0isting under any laws other than those of the 7hilippinesand whose laws allow /ilipino citi&ens and corporations to dobusiness in its own country or state

"heories in determinin the personal law orovernin law of a corporation

+# The theory that the personal law is the law of theplace of incorporation

# The theory of the place or center of management

1# The theory of the place of e0ploitation

!ote 'n the 7hilippines, we follow the theory of the place of incorporation

5I of the capital is/ilipino owned 4Constitution6

# /or wartime purposes E .e adopt the control test we pierce the veil of corporate identity and go

into the nationality of the controlling stockholders

to determine whether a corporation is an enemycorporation

Batters that are overned b+ the personal law of the

corporation+# )e2uisites for the formation of the corporation# )e2uired number of incorporators and the

members of the board of directors1# The kinds of shares of stock allowed9# The transfer of stocks=# The issuance, amount, and legality of dividends># The powers and duties of the officers, stockholders,

and members

Law that determines the validit+ of corporate acts andcontracts

Determined by the place of incorporation A!D by the law ofthe place of performance

Ba+ a forein corporation sue and be sued in thePhilippinesHJes, if it has the necessary license to do business in the7hilippines# The license is re2uired not to forbid the foreigncorporation from performing single acts but to prevent it

from ac2uiring a domicile for purposes of business withouttaking the steps necessary to render it amenable to suit inthe local courts

urisdiction over forein corporations doin businessin the Philippines) how ac(uired$y service of summons on

+# 'ts resident agent

# 'f no such agent, on the government officialdesignated by law to that effect or

1# "n any of its officers or agents within the7hilippines 4)ules of Court6

Status of a contract of a forein corporation who

transacts business here without the necessar+ licensenenforceable, but the person who contracted with thecorporation may be in estoppel if he had received benefitsfrom contract

Instances when a forein corporation not doin

business in the Philippines can sue in Philippinecourts

+# 'solated transactions

# To protect its reputation, corporate name, andgoodwill

1# /or infringement of trademark or trade name

Law that applies to multinational or transnational

corporationsThese 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

Partnership

Lesley Claudio 4A 5+6 7age + of


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A partnership e0ists when two or more persons bindthemselves to contribute to money, property, or industry to

a common fund, with the intention of dividing the profitsamong themselves 4Art# +?>?, !CC6

♥ A partnership, like a corporation, has a *uridical

personality separate and distinct from that of eachof the partners

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

Documents

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