CONFLICT OF LAWS

Midterm Reviewer

IN GENERAL 2. Determine whether to apply the INTERNAL or

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

JURISDICTION & CHOICE OF LAW SUMMONS [when in Rem]

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

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1 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
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 CONFLICT OF LAWS
Midterm Reviewer

i. By Personal Service (extraterritorial service).

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

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

2 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
 CONFLICT OF LAWS
Midterm Reviewer
WHEN FOREIGN LAW CANNOT BE APPLIED
a. It runs counter to sound and established public policy
of the forum.
b. Foreign law is contrary to the almost universally
conceded principles of morality.
c. Foreign law involves procedural matters
d. It is penal in character
e. It is purely fiscal/administrative in nature
f. Will work undeniable injustice to the citizens or
residents of the forum
g. Application would endanger the vital interests of the
State.
h. Case involves real or personal property located in our
country.
PAT:
THREE STEPS IN DEALING WITH CASES WITH
FOREIGN ELEMENT
1. DETERMINE JURISDICTION (refer to discussion
above).
Take Note: in the Rules of Court, while we have specific
rules on serving of summons insofar as foreign private
juridical entity is concerned officers, these only apply
when foreign private entity is doing business in the
Philippines. The service of summons maybe effected
upon the resident agent designated by the foreign
corporation, or in the absence of such resident agent, by
appropriate government officer designated for that
purpose, or by any of the corporations officers or agents
within the Philippines. Who are these officers authorized
to receive summon for foreign private juridical entity. It
depends on the nature of the business that a foreign
corporation is engaged in.
Banking summons should be served to superintendent
of the bank
Insurance service is effected upon insurance
commissioner
Other business - through SEC
Take Note: Theres no provision in our rules which
provides for service of summons insofar as foreign private
juridical corporations not doing business in the
Philippines. But doesnt follow that jurisdiction over them
cannot be acquired. How? Reserved when we discuss
foreign corporations later. Only jurisprudence.
2. ADEQUACY OF JUDICIAL MACHINERY [FORUM
NON CONVENIENS]
The court is not compulsorily obliged to assume
jurisdiction, proceed to trial and decide the case. In cases
involving foreign element, the Court is given discretion
to desist from assuming jurisdiction when it finds that
local judicial machineries are not adequate to decide the
case.
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3 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
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For the forum court to proceed, try and decide the case
involving foreign element, is asked to satisfy itself that local
judicial machineries are adequate.
Requisites:
a. Phil court is the CONVENIENT FORUM where the
parties to the case will resort
b. Phil court is in the position to INTELLIGENTLY
DECIDE on the facts and laws involve in the case
c. Phil court has the POWER or likely to have the power to
ENFORCE ITS DECISION.
Before these requisites are complied with, the forum may
proceed to assume jurisdiction, try the case and render
judgment. Otherwise, the forum court may decide to dismiss
the case on ground of forum non-convenience.
MANILA HOTEL V. NLRC
QF: Filipino works in the State of Oman as a printer. While in
Oman, the Filipino got an employment offer from a Chinese
Palace Hotel based on Beijing, China. Attracted of the offer,
the Filipino resigned from his employment in Oman and
accepted the employment and eventually worked in Beijing.
Before the expiration of his term, the Filipino was terminated
on the ground retrenchment. He went home and filed an action
against the ER as well as another corporation before the
NLRC.
HELD: SC ruled against Filipino and cited the ff:
1. Phil court is NOT THE CONVENIENT FORUM. Why?
All the essential components of the contract, negotiation,
perfection, termination, place of employment, employer
being a foreign corporation, main witnesses are non-
residents of the Philippines, all these pertains to foreign
countries , either Oman or China. The only link there is
that the complainant is a Filipino.
2. Phil court is NOT IN THE POSITION TO
INTELLIGENTLY DECIDE ON THE FACTS AND
LAWS OF THE CASE. It also considered that the
contract was executed abroad. And under the law on lex
loci celebracionis should be determined by the laws
where the contract was entered into. Similarly, the Phil
court not in the position to intelligently decide on the facts
of the case because the alleged termination of the contract
and the circumstances surrounding and leading to
termination, all of them took place abroad. All these
factual issues are to be decided on the basis of evidence
available outside.
3. Phil court has NO AUTHORITY TO ENFORCE THE
JUDGMENT. Even if were to be assumed that the court is
in the position to decide on the factual and legal issues of
the case, nevertheless there has doubts if it can enforce
the judgment. Why? Principal employer was not even
impleaded and served summons. The requisites for the
 CONFLICT OF LAWS
Midterm Reviewer
Phil courts, the forum court, to assume jurisdiction are not
present, therefore, Phil court is not the convenient forum.
PHIL SEC INVESTMENT V. CA
QF: The defendant in the case filed in the Philippines filed a
motion to dismiss in a civil case pending in the Philippine
courts on the ground of forum non-convenience, because the
transaction happened there and most of the parties are in the
States.
HELD: The propriety of dismissing a case on the ground of
forum non-convenience REQUIRES FACTUAL
DETERMINATION. Forum non-convenience is more
properly a matter of defense. WHILE COURT MAY
DISMISS ON BASIS OF FORUM NON-CONVENIENCE,
IT MAY DO SO ONLY AFTER VITAL FACTS ARE
ESTABLISHED WHERE SPECIAL CIRCUMSTANCES
ARE SHOWN TO JUSTIFY THE COURTS DESISTANCE
FROM ASSUMING JURISDICTION. Forum non-
convenience cannot be used as a ground for a motion to
dismiss. It is improper for a party to file MTD only on the
ground of forum non-convenience implying that you go to
trial, prove the facts, only then that the court can determine if
forum non-convenience warrants the dismissal.
RAYTHEON V. ROZY
QF: Defendant alleged forum non convenience by way of
affirmative defense in an answer. And, to go around the
PhilSec Investment ruling, the defendant in Raytheon filed a
motion for hearing of affirmative defenses on forum non-
convenience. No MTD since it was prohibited so he moved for
a motion for hearing of affirmative defenses instead.
HELD: Still Not allowed! FACTUAL determination is
required. Although the SC did not categorically say that you
go to trial [no other inference can be made].
3. CHOICE OF LAW - essentially, COL is a choice of law
problem.
Guidelines available designed to aid the court in making the
proper choice of law in deciding cases involving foreign
element:
FIRST GUIDELINE: Not all cases involving foreign
element requires the choice of law. There are instances which
although involving facts, occurrence or transactions affected
by foreign laws, there are instances when the forum court has
no other choice but to apply the internal law.
Instances:
FIRST INSTANCE: WHEN THE APPROPRIATE FOREIGN
LAW HAS NOT BEEN ALLEGED AND PROVED OR HAS
BEEN ALLEGED BUT NOT PROVED, this situation calls
for the application of the internal law. Even if the foreign law
is the law applicable, therefore should have been applied in the
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
4 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
case, the forum court is helpless but to apply Philippine law.
The Principle of Processual Presumption takes place.
Processual Presumption foreign laws courts cannot take
judicial notice of foreign laws; should be proved as a fact.
Failure to prove the foreign law obliges the court to
presume that the foreign law is the same as our laws.
YAO KEE V. GONZALES
QF: Case involving a dispute over the estate of Mr. Sy Kiat
(decedent). After his death Aida Gonzales, et al filed an action
to settle the estate of Sy Kiat and Aida prays that she be
appointed as administratix of her father. This petition was
opposed by Yao Kee claiming that she is the lawful wife of Sy
Kiat. During trial, her effort to prove that indeed she is the
lawful wife unfortunately, Yao kee failed to prove the Chinese
laws and customs on marriage.
HELD: From these facts, SC applied the processual
presumption. It is now presumed that Chinese laws on
marriage are the same as our laws on marriage. And in our
laws, one of the formal requisites on marriage is a valid
marriage ceremony which requires the presence of
solemnizing officer. Since there was no solemnizing officer in
the marriage of Yao Kee and Sy Kiat, there was no valid
marriage to speak of.
SECOND INSTANCE: When the case falls under any of the
EXCEPTIONS to the application of a foreign law. The forum
court is helpless or has no other choice but to apply the
Philippine law instead.
1. CONTRARY TO UNIVERSALLY RECOGNIZED
PRINCIPLE OF MORALITY. E.g. law legalizes
prostitution, law legalizes corruption or incestuous
marriage. Even if valid there, cannot be applied in the
Philippines. Basis: Art. 17 (3) Prohibitive laws
concerning persons, their acts or property, and those
which have for their object public order, public policy
and good customs shall not be rendered ineffective by
laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country.
2. FOREIGN LAW INVOLVES PROCEDURAL
MATTERS. Governed by lex fori or where the court sits.
E.g. ROC of the US cannot be applied in the Phils.
3. WHEN THE FOREIGN IS PENAL IN NATURE.
Cannot be applied here because we adhere to the
principle of territoriality; crimes are governed by the
place where crime is committed.
4. FOREIGN LAW IS PURELY FISCAL OR
ADMINISTRATIVE IN NATURE. Refers to revenue
laws or tax laws. E.g. tax laws in the US cannot be
enforced in the Phils. Same also with administrative laws
or internal laws cannot be applied in the Phils.
5. WHEN THE FOREIGN LAW MIGHT WORK
UNDENIABLE INJUSTICE TO THE CITIZENS OR
 CONFLICT OF LAWS
Midterm Reviewer

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

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

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6 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
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 CONFLICT OF LAWS
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2 KINDS
1. ONE-SIDED RULE indicates when Philippine law may
apply.
i.e.
Art. 818. Two or more persons cannot make
a will jointly, or in the same instrument,
either for their reciprocal benefit or for the
benefit of a third person. (669)
2. ALL-SIDED/MULTILATERAL RULE indicates whether to
apply local law or the proper foreign law.
i.e.
Art. 17. The forms and solemnities of
contracts, wills, and other public
instruments shall be governed by the laws of
the country in which they are executed.
PARTS OF EVERY CONFLICTS RULE
1. FACTUAL SITUATION
2. POINT OF CONTACT OR CONNECTING FACTOR
The 1st states certain operative facts, the legal
consequences of which are determined in the 2nd part
(the 1st part raises while the 2nd part answers).
Characterization process of assigning a certain set of
facts or factual situation to its proper or correct legal
category.
- By categorizing the legal problem (i.e. tort,
contract, succession, etc.) the court or the
parties involved reach the proper solution
whether to apply the local law or the proper
foreign law.
- a.k.a. classification or qualification
LEX FORI determines the problems characterization [on
the ground of necessity and convenience].
*unless the result would be a clear injustice.
PERSONAL LAW- THEORIES ON
DETERMINING PERSONAL LAW
PERSONS PERSONAL LAW that which attaches to him
wherever he may go; the law that generally governs his
status, capacity, condition, family relations and the
consequences of his action.
STATUS CAPACITY
Consists of personal Only part of ones status.
qualities and relationships,
more or less permanent,
with which the state and
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7 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
the community are
concerned. i.e.: Civil status
of a person, paternity and
filiation
DIFFERENT THEORIES ON HOW THE PERSONAL LAW OF AN
INDIVIDUAL IS DETERMINED:
a. The NATIONALITY THEORY(aka personal theory)
status and capacity of a person is determined by
the law of his nationality or his national law
b. The DOMICILIARY THEORY (aka territorial theory)
status and capacity of a person is determined
by the law of his domicile
c. The SITUS or ECLECTIC THEORY the law of the
particular place or situs of an event or
transaction as generally the controlling law.
*In the Philippines, we follow the NATIONALITY
THEORY.
THE NATIONALITY THEORY
The NATIONALITY THEORY (aka personal theory) status
and capacity of a person is determined by the LAW OF
HIS NATIONALITY OR HIS NATIONAL LAW.
In the field of conflict of laws, nationality and citizenship
are the same [nationality=citizenship].
DIFFERENT KINDS OF CITIZENS IN THE PHILIPPINES:
1. NATURAL-BORN CITIZENS who are citizens from
birth without having to perform any act to
acquire or perfect their Philippine citizenship
2. Citizens BY NATURALIZATION formerly aliens but
by judicial, legislative or administrative process,
they have become Filipino citizens.
Each country or state has the sole power and authority to
determine under its internal or municipal law who are its
citizens or nationals (Art. 2 of the Hague Convention on
Conflict of Nationality Laws).
Therefore, as long as he is a Filipino citizen, our
country is not concerned if he has any other
citizenship.
In case of a STATELESS PERSON he has NO NATIONAL
LAW!
Therefore the nationality theory cannot be
applied. In this case, the court shall apply the law
of his domicile or if he has none, the law of the
country of his temporary domicile.
CITIZENSHIP OF A FILIPINO WOMAN WHO MARRIES A
FOREIGNER
 CONFLICT OF LAWS
Midterm Reviewer
Under the 1987 Constitution, citizens of the Philippines
who marry aliens shall retain their citizenship, unless by
their act or omission, they are deemed, under the law, to
have renounced their Philippine citizenship. (This provision
now applies to both males and females who marry aliens)
CITIZENSHIP OF AN ALIEN WOMAN WHO MARRIES A
FILIPINO HUSBAND
An alien woman marrying a Filipino, native-born or
naturalized, becomes ipso fact a Filipino provided that
she is not disqualified to be a citizen of the Philippines
under Sec. 4 of the same law. Note: an alien woman
married to an alien husband who (the husband)
subsequently naturalized also follows the Philippine
citizenship of her husband provided that she does not
suffer any of the disqualifications.
PAT:
This is the theory adhered to by the Phils.
Art. 15 of the CC laws relating to family rights and
duties.shall be binding upon citizens of the Phils, although
living abroad. It is clear that it makes reference only to
Filipino citizens. Theres no doubt as to a Filipino citizen
because he is to be governed by Phil. Law. But what about
foreigners? If a case is filed in our court, and the issue
involves status, legal capacity of the individual who is a
foreigner. How is the court supposed to determine his personal
law? This was settled in the case of:
RECTO V. HARDEN
QF: Mrs. Harden is applying for divorce abroad. Recto was
engaged by Mss. Harden to protect her interest here. In the
retainership agreement, Harden obliged to pay Recto-
stipulated attorneys fees. However, Harden refused to pay.
According to Harden agreement is void-since divorce is
against public policy in the Philippines therefore it is void. A
void contract creates no right. Therefore, Atty. Recto cannot
enforce the contract.
HELD: It is not true that the professional services were in
connection to divorce; while related, the real purpose is to
protect Mrs. Hardens rights in the conjugal partnership. it
should be noted both Spouses Harden are Americans. Hence,
they are governed by their national law---under US laws,
divorce is valid. Hence, contract is valid even if assumed that
contract is predicated on divorce.
So in short, Article 15 equally applies to foreigners.
THE DOMICILIARY THEORY
DOMICILIARY THEORY
It is the theory whereby the status, condition, family
rights and obligations, and capacity of a person are
governed by the law of his domicile.
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
8 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
DOMICILE defined
It is the place where a person has his true, fixed,
permanent home and principal establishment, and to
which, whenever he is absent, he has the intention of
returning (Story, Conflict of Laws, Sec. 41)
For the exercise of civil rights and fulfillment of civil
obligation, the domicile of natural persons is the place if
their habitual residence (Art. 50, NCC)
No person can ever be without a domicile
A person cannot have two simultaneous domiciles
A natural person, free, and one of age and under no
disability can change his domicile at pleasure
DOMICILE RESIDENCE
Relatively more permanent Temporary stay of a person
abode of a person in a given place
Fixed, permanent A place of abode, whether
residence to which, when permanent or temporary
absent, one has the
intention of returning
*Residence is not domicile but domicile is residence
DOMICILE CITIZENSHIP
Ones permanent place of Ties of allegiance and
abode loyalty
IMPORTANCE OF KNOWING THE DOMICILIARY THEORY
(although our country follows the nationality theory)
a. In some cases, our own law makes the law of the
domicile of a person the controlling factor in the
solution of conflict cases
b. Sometimes, our law makes either the law of ones
nationality or that of his domicile as the
controlling factor
c. In cases of stateless individuals, or those with dual
or multiple nationalities, the domiciliary theory
runs to the rescue of the nationality theory
d. Citizens of countries like the US or Great Britain,
which follow the domiciliary theory, may
become involved in litigation in our country
which follows the nationality theory.
DIFFERENT KINDS OF DOMICILE
a. Domicile of ORIGIN domicile assigned by law to
a person at the moment of his birth. This never
changes for a person is born only once.
b. CONSTRUCTIVE Domicile/Domicile by operation
of Law the domicile assigned by law to a
person after birth on account of a legal disability,
like minority, insanity, imprisonment, etc. This may
change from time to time.
c. Domicile of CHOICE domicile of a person sui
juris because he has his home there and to
which, whenever absent, he intends to return.
 CONFLICT OF LAWS
Midterm Reviewer
RULES IN DETERMINING ONES DOMICILE OF ORIGIN
A. LEGITIMATE CHILD
His domicile of origin is that of his parents at
the time of this birth
If parents are separated, the domicile of the
custodial parents
B. ILLEGITIMATE CHILD
The domicile of origin is that of the mother at
the time of his birth
C. LEGITIMATED
The domicile of his father at the time of his birth
D. ADOPTED CHILD
The domicile of his real parents at the time of
his birth
E. FOUNDLING
His domicile of origin is the country where he
was found.
RULES ON DETERMINING ONES CONSTRUCTIVE DOMICILE
1. MINORS
a. Legitimate- domicile of both parents. In
case of disagreement, that of the father
unless there is judicial order to the
contrary.
b. Illegitimate- domicile of the mother
c. In case of absence or death of either
parent, the domicile of the present
parent.
d. Adopted- domicile of choice of the
adopter.
2. INSANE, IDIOTS, IMBECILE
They cannot select their own domicile, the law
assigns their domicile to them.
a. If they are below the age of majority, the
rules on minors apply to them
b. If they are of age and have guardians,
they follow the domicile of choice of
their guardians. If they have no
guardians, their constructive domicile is
their domicile of choice before they
became insane.
3. MARRIED WOMEN
A. VALID MARRIAGE
i. The constructive domicile of the
wife is the domicile of both
spouses unless the law allows the
wife to have a separate
domicile.
ii. If there is legal separation
between the spouses, the wife
can have her own domicile of
choice
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
9 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
iii.
If there is a separation de facto,
the wife can also have a
separate domicile.
B. VOIDABLE MARRIAGE
Apply the same rules as when the
marriage was valid
After annulment, the wife can freely
select her own domicile of choice
C. VOID MARRIAGE
Wife can have a domicile separate
from the husband.
4. OTHER PERSONS
a. CONVICT OR PRISONER his domicile is
the one he had possessed prior to his
incarceration.
b. SOLDIERS domicile before their
enlistment
c. PUBLIC OFFICIALS OR EMPLOYEES
ABROAD like diplomats, consular officials,
etc. domicile is the one they had
before they were assigned elsewhere,
unless they voluntarily adopt their place
of employment as their permanent
residence.
THE SITUS OR ECLECTIC THEORY
The capacity, condition, status and family relations of a
person are governed not necessarily by the law of his
nationality, or the law of his domicile, but by the law of
the place where an important element of the problem
occurs or situated.
2 KINDS OF PARTICIPATION OF INDIVIDUAL CONCERNED
A. Active Participation
when the act is done voluntarily, the governing law
is the actual situs of the transaction or event.
i.e.: in the act of getting married is voluntarily, the
validity of the marriage is governed by its actual
situs or lex loci celebrationis
B. Passive Participation
the effects of the act are set forth or determined
by law, the governing law is the law of the legal situs;
i.e., the domicile of the individual concerned.
i.e.: with respect to the rights and obligations, and
property relations, of the Filipino couple, however,
they are governed by the national law of the
spouses, which regulates or fixes such matters
between them.
 CONFLICT OF LAWS
Midterm Reviewer
*If the transaction involves property, real or personal, the
law that determines the validity of transaction is lex situs
or lex rei sitae (law of the country where it is situated)
THE PROBLEM OF THE RENVOI
RENVOI means refer back
RENVOI PROBLEM arises when there is doubt as to
whether the reference by the lex fori to the foreign law
involves a reference to the INTERNAL LAW of the foreign
law or a reference to the ENTIRETY of the foreign law
[including its conflicts rules].
Note: 2 PARTS OF EVERY MUNICIPAL LAW
1. Purely internal or DOMESTIC LAW
2. Rules in CONFLICT OF LAWS
PAT:
The problem of renvoi arises when theres doubt as to whether
a reference by the forum to a foreign law is a reference to the
internal law of a foreign state or whether it is a reference to the
entire body of laws including conflict of law rules. Lets say
our own conflict of law rule in succession particularly Article
16 2nd paragraph of the Civil code which says that intestate
and testamentary succession, both with respect to the order of
succession and to the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall be regulated
by the national law of the person whose succession is under
consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be
found. meaning the national law of the decedent.
You will realize that Article 16 makes reference to a foreign
law which is the national law of the decedent. But you will
realize that 16 does not specify whether that law being
referred to as the law of the decedent refers to the internal law
of the state of which the decedent is a citizen or whether that
law being referred to is the entire body of laws including its
own conflict rules. Art. 16 simply states the national law of the
decedent. Hence it is couched in general terms. So how does a
problem of renvoi arise?
This is illustrated in the case of INTESTATE ESTATE OF
CHRISTENSEN V. AZNAR.
Christensen is an American citizen but domiciled in the
Philippines. Before he died he executed a will and left an
estate located in the Philippines. In his will, he bequeathed the
bulk of his estate to his legit daughter while leaving a portion
to a Filipino, a certain Helen who turned out to be his
illegitimate child. Helen objected because her legitime is
impaired.
Under phil. Laws the internal law involving succession
particularly in this case is about share of the illegitimate
daughter. On the other hand, the conflict of laws rule of
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
10 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
Succession is Art. 16 2nd par. So we have here a situation of an
internal law on succession particularly on the amount of
successional rights of an illegitimate child and conflict law
rule Art. 16. In making now the choice of law, the forum court
naturally apply Art. 16. There is now an issue whether or not
to apply the internal law of the US or the internal law of the
Philippines. In the US there is no system of legitime, every
person has the right to dispose of his estate in any manner as
he wishes. No legitime. So thats the internal law of the US
particularly on the distribution of the estate. So the forum
court was confronted with this whether or not to apply the
internal law of the US or the internal law of the Phils. xxx
Art. 16 refers to the NATIONAL LAW of the decedent. Since
Christensen is an American Citizen, the law referred to by the
Court is the law of the US in so far as succession is concerned.
But as I said earlier, that law did not specify whether it refers
to the internal law or the entire laws including the conflict law
rules. What is the conflict law rule on Succession in US?
According to a case, it is the law of the place where the
decedent is DOMICILED. So while in the Phils, our conflict
law rule is National Law. In the US, the conflict law rule is
law of decedents Domicile at the time of death. Should the
court interpret the law being referred to in 16 as the internal
law of the US or is it national law of the decedent- including
the conflict of law rules which adheres to the domiciliary
theory ? So thats the renvoi now.
4 SOLUTIONS COURT CAN ADOPT WHEN CONFRONTED
WITH RENVOI
1. REJECT the court does not want the case to be
sent back to us.
PAT: Forum court will consider the law being referred to
as internal law of the foreign country and therefore
applying it in the case of Aznar, the opposition of Helen
is w/o basis.
2. ACCEPT accepts the referral back of the case
[Philippine law will therefore be applied].
*single renvoi/transmission
PAT: This is the solution in the Philippines. So far, we
have the case of Christensen v. Aznarthe forum court
should accept the referral of the issue and ultimately
apply the internal law of the Philippines.
Rule in the case of Aznar that foreign law being referred
to should be understood as the entire body of laws
including the conflict of laws rule
3. THEORY OF DESISTMENT i.e. we refrain from
applying national law if said law follows the
domiciliary theory [in the end, we still apply
Philippine law].
4. FOREIGN COURT THEORY simply do what the
foreign court would do if confronted with the same
problem (gaya-gaya, puto maya).
 CONFLICT OF LAWS
Midterm Reviewer
DOUBLE RENVOI when the local court, in adopting the
foreign court theory, discovers that the foreign court
accepts the renvoi. But since the foreign law remits the
case to Philippine law, being the law of the deceaseds
domicile, the foreign court may discover that Philippine
law does not accept the remission, so the foreign court,
sitting as a Philippine court, would still apply its own
internal law. This is then what our court will apply.
TRANSMISSION process of applying the law of a foreign
state thru the law ofr a second foreign state.
i.e. chinese citizen domiciled in the Philippines but died
with properties in England.
English law [following domiciliary thoey] will refer
to Philippine law.
Philippine law [following National theory] will refer
to Chinese law.
Chinese law will then be ultimately applied.
Fairness, equity, and justice are to be considered in
determining the course of action with renvoi problems.
CONFLICT RULES ON STATUS AND
CAPACITY
BIRTH determines PERSONALITY.
BUT, it may be considered to begin at CONCEPTION.
Subject to the following conditions:
For purposes favorable to the fetus [i.e. given donation,
acknowledged by the father, etc.]
If it is born alive in accordance with Art. 41.
ORDINARY if intra-uterine life of 7 MOS. OR
MORE it is alive at the time it is completely
delivered from the mother's womb; OR
EXTRAORDINARY if the fetus had an intra-uterine
life of less than 7 mos., it should live for AT LEAST
twenty-four hours after its complete delivery from
the maternal womb.
BEGINNING OF PERSONALITY governed by PERSONAL
LAW [Nationality or Domiciliary Theory].
DEATH extinguishes personality [physical death is
contemplated here].
ABSENCE status of a person who has disappeared from
his domicile, his whereabouts being unknown, without
leaving an agent to administer his property, or evn if he
had left an agent, the power conferred on the agent has
expired.
Governed by PERSONAL LAW
Art. 381. When a person disappears from his
domicile, his whereabouts being unknown, and
without leaving an agent to administer his property,
the judge, at the instance of an interested party, a
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
11 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
relative, or a friend, may appoint a person to
represent him in all that may be necessary.
This same rule shall be observed when under similar
circumstances the power conferred by the absentee
has expired. (181a)
Art. 384. Two years having elapsed without any
news about the absentee or since the receipt of the
last news, and five years in case the absentee has
left a person in charge of the administration of his
property, his absence may be declared. (184)
Art. 385. The following may ask for the declaration
of absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may present
an authentic copy of the same;
(3) The relatives who may succeed by the law of
intestacy;
(4) Those who may have over the property of the
absentee some right subordinated to the condition
of his death. (185)
PRESUMPTION OF ABSENTEES DEATH
REMARRIAGE 4 YRS of absence (ordinary)
2 YRS if disappearance is with
danger of death**
Declaration of Presumptive Death is
necessary to remarry (FC).
ALL OTHER
PURPOSES
7 YRS of absence
EXCEPT
SUCCESSION
SUCCESSION 10 YRS of absence
5 YRS if absentee disappeared
after the age of 75.
BUT TAKE NOTE OF. . .
Art. 391. The following shall be presumed dead
for all purposes, including the division of the
estate among the heirs:
(1) A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who
has not been heard of for four years since the
loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken
part in war, and has been missing for four years;
(3) A person who has been in danger of death
under other circumstances and his existence has
not been known for four years. (n)
**Note: For Remarriage, 2 years only.
AGE OF MAJORITY determined by PERSONAL LAW.
CAPACITY TO CONTRACT determined by PERSONAL
LAW.
EXC: when real or personal property is involved [lex
rei sitae]
TITLE OF NOBILITY determined by NATIONAL LAW.
 CONFLICT OF LAWS
Midterm Reviewer
Persons with titles may continue using them in our
country. BUT, our Constitution does not allow titles of
nobility, so if theyre naturalized must be renounced.
LEGISLATIVE JURISDICTION power of personal law to
govern ones status wherever he goes.
JUDICIAL JURISDICTION power of the courts to decide
questions or controversies concerning ones status.
i.e. our courts decide the status and capacity of a
person [if it has jurisdiction or if it has the power to do
so] BUT using his/her personal law [because of the
jurisdiction of his personal law/legislative jurisdiction].
PAT: TRANSGENDERS: Theoretically, its possible that
some countries recognized sex transplant as a mode of
changing gender. Suppose a country recognizes this, a man
becoming woman, and under his law he is legally a woman.
Married to man, husband and wife according to their laws.
Visited the Philippines, who are we to say they are not
husband and wife? The condition of whether married or not is
a question of STATUS. Art. 15 Status is governed by national
law. Exceptions as to recognition of foreign law: when it is
contrary to the sound and established policy of the forum.
Thats you fallback position there.
CONFLICT RULES ON MARRIAGE
Arise due to the different public policies, cultures, or
codes of morality of countries thereby leading to different
laws in determining the validity of marriage as a contract.
To deny validity to marriages that do not conform to our
idea or concept of marriage would create a very serious
problem in, among other things:
a. Status of children
b. Property relations bet. spouses
c. Parental authority
d. Rights of succession bet. spouses and members
of their family
PHILIPPINE INTERNAL LAW ON VALIDITY OF MARRIAGES
Art. 2. No marriage shall be valid, unless these
essential requisites are present:
(1) Legal capacity of the contracting parties who
must be a male and a female; and
(2) Consent freely given in the presence of the
solemnizing officer. (53a)
Art. 3. The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases
provided for in Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with the
appearance of the contracting parties before the
solemnizing officer and their personal declaration
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
12 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
that they take each other as husband and wife in
the presence of not less than two witnesses of legal
age. (53a, 55a)
Absence of any formal or essential requisite will render
the marriage VOID AB INITIO.
EXC: Art. 35 (2) Those solemnized by any person not
legally authorized to perform marriages unless such
marriages were contracted with either or both parties
believing in good faith that the solemnizing officer
had the legal authority to do so.
BUT an irregularity in the formal requisite shall not affect
the validity of the marriage (only party liable for
irregularity will be liable).
Art. 2 and 3 also applies to FOREIGNERS who get married
in the Phils.
*if one or both of the parties are FOREIGNERS
Certificate of Legal Capacity to Contract Marriage
must be issued by the diplomatic or consular officials
of her country in the Phils.
**if STATELESS person only an Affidavit stating
capacity to marry (capacity is based on law of
domicile).
COMMON LAW MARRIAGES IN THE PHILS.
Between Filipinos VOID
Between Foreigners who came to the country as
husband and wife as a result of such a union VALID.
*but must not be contra bonus mores or universally
considered incestuous.
WHEN 2 FILIPINOS MARRY EACH OTHER ABROAD
Art. 26. All marriages solemnized outside the
Philippines, in accordance with the laws in force in
the country where they were solemnized, and valid
there as such, shall also be valid in this country,
except those prohibited under Articles 35 (1), (4),
(5) and (6), 36, 37 and 38. (17a)
We follow LEX LOCI CELEBRATIONIS valid there, valid
here!
EXC: 1 or both did not have CAPACITY
BIGAMOUS or POLYGAMOUS
No CONSENT (Mistaken Identity)
PSYCHOLOGICAL INCAPACITY
INCESTUOUS
Void by reason of PUBLIC POLICY
Marriage by 2 Filipinos abroad may be conducted by a
COUNSUL-GENERAL, CONSUL or VICE-CONSUL (Consular
official performs the duties of the civil registrar and the
solemnizing officer).
WHEN 2 FOREIGNERS MARRY EACH OTHER ABROAD
 CONFLICT OF LAWS
Midterm Reviewer
We still apply LEX LOCI CELEBRATIONIS BUT, we do not
apply ALL the exceptions in Art. 26 INCESTUOS
marriages are the only EXCEPTION.
*or those marriages highly immoral i.e. bigamous or
polygamous in Christian countries.
WHEN FILIPINO & FOREIGNER MARRY EACH OTHER
ABROAD (Mixed Marriage Abroad)
If the marriage is VOID AS TO ONE AND VALID AS TO THE
OTHER VALID!
EXCEPT: universally incestuous or highly immoral.
WHEN FILIPINO & FOREIGNER MARRY EACH OTHER IN THE
PHILS. (Mixed Marriage Here)
Our LAW should be followed otherwise, our public
policy would be violated (both as to the intrinsic and
extrinsic).
MARRIAGE AS A STATUS
2 ASPECTS
1. Personal Rights and Obligations of the Spouses
(Personal Relations) purely personal to the
spouses.
2. Property Relations law lays down rules and
judicial sanctions.
PERSONAL RELATIONS
1. BOTH FILIPINOS Philippine Law (Nationality Theory)
2. SAME NATIONALITIES (Other than Filipino) Depends
if they are governed by the Nationality Theory or
Domiciliary Theory.
3. SPOUSES OF DIFFERENT NATIONALITIES Depends on
the national law of the husband (w.o.n. it adheres to
Nationality or Domiciliary Theory).
EXC: National Law of the husband violates the
public policy of the forum or the national law of
the wife happens to be the law of the forum.
*Filipina who Marries a Foreigner she shall
retain her Filipino citizenship unless by her
acts she is deemed to have renounced her
citizenship this means she is still protected
by her national law (Philippine Law) and their
personal relations will be governed by it.
WHEN THERE IS ACQUISITION OF NEW NATIONALITY
1. IF BOTH ACQUIRE NEW ONE BY THEIR COMMON ACT
new national law will govern
2. IF HUSBAND ALONE CHANGES last common
nationality of the spouses (to avoid prejudice to the
wife who would suffer a change in her rights without
any free exercise of choice on her part).
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
13 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
PERSONAL RIGHTS AND DUTIES OF HUSBAND AND WIFE
UNDER PHILIPPINE LAW
a. To live together, observe mutual love, respect, and
fidelity, and render mutual help and support.
b. To fix together the family domicile (in case of
disagreement the court shall decide).
c. Jointly responsible for support of the family
d. Management of the household
e. Aggrieved spouse may apply to the court for relief in
case one spouse neglects his or her duties, etc.
f. To exercise a legitimate profession without consent of
the other (EXC when objections are raised on valid,
serious, and moral grounds).
PROPERTY RELATIONS
BOTH FILIPINOS Philippine Law.
SAME NATIONALITIES (Both Foreigners) Depends if they
are governed by the Nationality Theory or the
Domiciliary Theory.
DIFFERENT NATIONALITIES (Filipino and Foreigner)
*Filipina who Marries a Foreigner she shall retain her
Filipino citizenship unless by her acts she is deemed to
have renounced her citizenship this means she is
still protected by her national law (PHILIPPINE LAW)
and their property relations will be governed by it as
well.
DIFFERENT NATIONALITIES (Both Foreigners) law of the
husband.
**with respect to the EXTRINSIC VALIDITY of contracts
affecting real property LEX SITUS governs.
WHEN THERE IS ACQUISITION OF NEW NATIONALITY
Apply the DOCTRINE OF IMMUTABILITY OF MATRIMONIAL
REGIME
Regardless of the change of nationality of the
husband or the wife or both, the original property
regime that prevailed at the start of their
marriage prevails.
Reasons for the Rule:
a. Marital Peace
b. Avoid Prejudice to Creditors
c. For spouses to protect themselves from
each other
**Immutability of Property Regime is different from
Immutability of the law governing said regime.
ANNULMENT AND DECLARATION OF NULLITY OF
MARRIAGE
PRELIMINARY MATTERS
 CONFLICT OF LAWS
Midterm Reviewer

ANNULMENT remedy if the marriage is voidable or EXC: that which is validly obtained by a Foreigner
annullable. from his or her Filipino spouse capacitating him or her
DECLARATION OF NULLITY remedy if the marriage is void to remarry.
ab initio. Art. 26, par. 2. Where a marriage between a
Filipino citizen and a foreigner is validly
VOIDABLE MARRIAGE VOID MARRIAGE celebrated and a divorce is thereafter validly
Can be validated either by Cannot be convalidated. obtained abroad by the alien spouse
capacitating him or her to remarry, the Filipino
free cohabitation or
spouse shall have capacity to remarry under
prescription. The only property
Philippine law.
relationship between the
Same property regime as in parties is a co-ownership This is meant to avoid the absurd situation where
a valid marriage. (Art. 147-148). a Filipino is still married to his or her alien spouse
although the latter is no longer married to the
Children are legitimate if Children are illegitimate former and may already have another spouse.
conceived before the (EXC those children of void *This does not apply when the divorce was obtained
decree of annulment. marriages under Art. 36 abroad by a Filipino spouse because they are
and 53). governed by Phil. laws and our laws do not allow
Marriage cannot be divorce.
attacked collaterally Marriage may be attacked **BUT, Divorce obtained by Filipino citizens after they
attacked. directly or collaterally. have been naturalized is recognized.
Dissent of Sempio-Diy:
Marriage can no longer be Marriage can still be Divorce obtained by Filipinos who have been
impugned after the death impugned even after the naturalized are recognized not under Art. 26, par. 2
of the spouses. death of the spouses. which should apply only to mixed marriages but by
applying the rules on Conflict of Laws (p. 119).
*JUDICIAL DECLARATION OF NULLITY MUST BE SOUGHT
The absolute nullity of a previous marriage may be In the Phils., a Decree of DIVORCE obtained abroad by
invoked for purposes of remarriage on the basis solely alien spouses is recognized IF VALID UNDER THEIR
of a final judgment declaring such previous marriage NATIONAL LAW.
void (in other words, you cannot assume!).
Otherwise, the subsequent marriage will be LEGAL SEPARATION OR RELATIVE DIVORCE
considered BIGAMOUS and VOID!
CONFLICT RULES ABSOLUTE DIVORCE dissolves the marriage and the
parties can marry again.
GR: The LEX LOCI CELEBRATIONIS is applied. LEGAL SEPARATION only separation from bed and
The law that determines validity should also be board but the parties remain married.
the law that determines invalidity.
LEGAL SEPARATION ANNULMENT
EXCEPTIONS: Marriage is not defective. Marriage is defective.
1. When 2 FILIPINOS marry abroad the grounds are the
exceptions to in Art. 26, namely: Grounds arise after the Grounds must exist at the
a. 1 or both did not have CAPACITY marriage. time or before the
b. BIGAMOUS or POLYGAMOUS celebration of the
c. No CONSENT (Mistaken Identity) marriage.
d. PSYCHOLOGICAL INCAPACITY
E. INCESTUOUS Parties are still married to Marriage is set aside and
f. Void by reason of PUBLIC POLICY each other and cannot the parties can marry
remarry. again.
2. As to FOREIGNERS who marry abroad exceptions are:
a. Highly immoral marriages Grounds are those given Grounds for annulment are
b. Universally incestuous marriages by the national law or the those given by the lex loci
domiciliary law of the celebrationis (subj. to
ABSOLUTE DIVORCE parties concerned certain execptions).
(question is one of status).
GR: Family Code does not allow DIVORCE.
CONFLICT RULES
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
14 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
 CONFLICT OF LAWS
Midterm Reviewer
1. SAME NATIONALITY grounds are those given by
their personal law (whether national or domiciliary).
2. DIFFERENT NATIONALITIES personal law of the
husband and the wife are both available (Hague
Convention).
JURISDICTION
In case of aliens, we do not assume jurisdiction unless the
national law of the parties is willing to recognize its
jurisdiction.
Foreigners may ask for legal separation here even if they
did not get married in this country what is important is
jurisdiction over both parties (and the procedural
requirements are complied with).
*it is enough that the petitioner foreigner has resided in
the Phils. for 6 mos.
Art. 55. A petition for legal separation may be filed
on any of the following grounds:
(1) Repeated physical violence or grossly abusive
conduct directed against the petitioner, a common
child, or a child of the petitioner;
(2) Physical violence or moral pressure to compel
the petitioner to change religious or political
affiliation;
(3) Attempt of respondent to corrupt or induce the
petitioner, a common child, or a child of the
petitioner, to engage in prostitution, or connivance
in such corruption or inducement;
(4) Final judgment sentencing the respondent to
imprisonment of more than six years, even if
pardoned;
(5) Drug addiction or habitual alcoholism of the
respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent
bigamous marriage, whether in the Philippines or
abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of
the petitioner; or
(10) Abandonment of petitioner by respondent
without justifiable cause for more than one year.
For purposes of this Article, the term "child" shall
include a child by nature or by adoption. (9a)
Art. 56. The petition for legal separation shall be
denied on any of the following grounds:
(1) Where the aggrieved party has condoned the
offense or act complained of;
(2) Where the aggrieved party has consented to the
commission of the offense or act complained of;
(3) Where there is connivance between the parties
in the commission of the offense or act constituting
the ground for legal separation;
(4) Where both parties have given ground for legal
separation;
(5) Where there is collusion between the parties to
obtain decree of legal separation; or
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
15 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
(6) Where the action is barred by
prescription. (100a)
Prescriptive period is 5 years from the time of the
occurrence of the cause.
Wife cannot drop the name of the husband, whether she
is the guilty party or not.
PAT: Our Conflict of Law rules in marriage is spell out in Art.
26 of FC all marriages solemnized outside the Philippines, in
accordance with the laws in force in the country where they
were solemnized, and valid there as such, shall also be valid in
this country except those prohibited under Article 35(1), (4),
(5) and (6), 36, 37 and 38.
General Rule: valid there abroad, valid in the Philippines.
Application of Art. 26 depend on various circumstances. It
contemplates different situations.
SITUATION 1. Marriage between foreigners celebrated
abroad.
Both parties are aliens and solemnized abroad. By virtue of
Art. 26, if valid at the place of solemnization, it should be
valid in the Philippines. Exception: if marriage is considered
as universally incestuous (parent-child; brother-sister).
The exceptions provided in Art. 26(1) does not apply insofar
as marriages between foreigners abroad. Why? 35, 36, 37, 38
all pertains to status. And status is governed by nationality
under Art. 15.
SITUATION 2. Marriage between Filipinos abroad.
Art. 26 if valid at the place of solemnization, valid in the
Philippines except:
Art. 35(1), (4), (5) and (6)
Cases falling under Art. 35(1), (4), (5) and (6) are void even if
valid in the country where the marriage was solemnized.
Art. 36 psychological incapacity
Art. 37 incestuous (parent-child; brother-sister)
Art. 38 void marriages by reason of public policy
The exceptions provided under Art. 26(1) applies in this case
because the parties are Filipinos.
SITUATION 3. Marriage between foreigners in the
Philippines.
It is valid if it complies with Philippine laws but their capacity
to contract marriage is determine by their own national law
pursuant to Art. 21 of the FC. What is required is for the
applicant should submit to LCR a duly authenticated
certificate of legal capacity to contract marriage issued by
their respective consular office. This is enough for the LCR to
issue the marriage license; once issued, he can now contract
marriage anywhere in the Philippines. Valid if it should
comply with Philippines laws on marriage but their capacity is
determined by their own national law.
 CONFLICT OF LAWS
Midterm Reviewer
SITUATION 4. Marriage between Filipinos in the Philippines.
Obviously, everything should be governed by Philippine laws.
SITUATION 5. Marriage between a Filipino and a foreigner
in the Philippines.
Mixed marriage but solemnized in the Philippines. Rule: it is
valid if it complies with Philippine laws on marriage but the
legal capacity of the foreigner is determined by his own
national law.
SITUATION 6. Mixed marriage between a Filipino and a
foreigner solemnized abroad.
Rule: if valid there, valid here but if that marriage falls under
any of the exceptions enumerated in Art 26(1), the marriage is
VOID insofar as the Filipino spouse is concerned. Result here
is a hybrid marriage. VALID insofar as the foreigner; VOID
insofar as the Filipino.
Theoretically, this is possible. This is now the dilemma. No
provision in the FC or any existing law which specifically
addresses this concerned.
Opinion of Paras: In a situation like this, we should consider
the marriage if valid there and falls under any of the
exceptions insofar as Filipino spouse is concerned, should be
considered valid to be consistent with our policy that every
doubt should be resolved in favor of validity marriage. We are
pro-marriage. No specific provision on this issue but theres
legal sense and logic in the opinion of Paras.
Question: What happens if a foreign spouse who is married to
a Filipino obtains a divorce decree abroad?
This is addressed in Art. 26(2) Where a marriage between a
Filipino citizen and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the Filipino spouse
is likewise have capacity to remarry under the Philippine law.
Art. 26(2) is the only positive law in our jurisdiction which
clearly acknowledges the validity of divorce insofar as
Filipino is concerned by declaring that the Filipino spouse is
likewise capacitated to remarry, the law in effect
acknowledges the validity of divorce, although as a matter of
policy we do not recognize divorce.
Rationale: To remedy the unfair situation where a Filipino
spouse remains married to an alien spouse who is no longer
married to the Filipino spouse. To promote fairness on the part
of Filipino spouse, Art. 26(2) which expressly afford the
Filipino spouse to remarry as well.
Take note that this capacity to remarry is not automatic. While
the law recognizes the capacity of the Filipino spouse to
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
16 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
remarry, this is only a consuelo de bobo. Why? Theres still
something to do. The law still wants her/him to engage the
services of a lawyer which comes with handsome fees and go
to the rigors of trial with the risk of case be dismissed before
he/she can remarry.
REPUBLIC. V. ORBECIDO
SC made this provision applicable to a situation where the
marriage is between two Filipinos but subsequently one of
them became a citizen of a foreign country and while being a
foreign national, obtained a divorce decree. SC said the
requirement of mixed marriage is determined not at the time
of marriage but at the time the divorce decree is obtained. It
doesnt matter that if at the time of marriage both are Filipinos
so long at the time the divorce decree is obtained one is
already a foreigner.
But insofar as the Filipino spouse is concerned, contracting a
subsequent marriage does not come easy. Still required the
filing of a petition for declaratory relief for him/her to
remarry.
What must be proved in the Petition for Declaratory Relief
proceedings?
Orbecido Case. SC said the Filipino spouse should prove:
(1) the EXISTENCE OF THE DIVORCE DECREE
OBTAINED ABROAD. How? Sec. 24, 25 of Rule 132 on
Rules of Evidence. A certified true copy of the divorce decree,
certified by the custodian, accompanied by a certification of
the consular office that the custodian has the legal custody of
the document. Authenticated copy of divorce decree should be
submitted in court.
(2) that the DIVORCE IS IN ACCORDANCE WITH LAWS
ALLOWING IT. The laws of the place where the divorce
decree was obtained should be proved, take note our courts do
not take judicial notice, these foreign laws should be prove as
a fact.
(3) that the DIVORCE DECREE OBTAINED ABROAD
CAPACITATES THE FOREIGN SPOUSE TO REMARRY.
Divorce is of two kinds: absolute and relative. Absolute
capacitates one to remarry; relative/restricted does not. Its
relevant to prove the kind of divorce obtained. If absolute,
capacitates the foreign spouse to remarry. IMPORTANT
(4) Recio v. Recio. A divorce decree obtained abroad by an
alien may be recognized valid here IF VALID IN
ACCORDANCE WITH NATIONAL LAW OF THE ANY
SPOUSE. It is not enough to prove the law of the place where
the divorce decree was obtained, but just as important it is to
prove that the divorce decree is valid in accordance with the
national law of the party who obtained the divorce. It is
possible that an alien spouse is a citizen of another country
and obtained the divorce in another country.
(see also Recio Case)
 CONFLICT OF LAWS
Midterm Reviewer

AS TO REQUIREMENT TO BE ABLE TO REMARRY

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

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

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

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

17 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
 CONFLICT OF LAWS
Midterm Reviewer
Personal law of the MOTHER.
BUT, personal law of the father applies if the child is
subsequently recognized.
DOCTRINE OF IMMUTABILITY OF STATUS
Status of a child is not affected by a subsequent
change of nationality of the parents.
BUT, the rights and duties of parent and child
would, after the parents change of nationality,
be governed by the new national law of the
parents.
LEGITIMATION
Legitimization a process whereby children who in fact
were born in lawful wedlock and should therefore be
ordinarily considered illegitimate children are regarded
as legitimate.
*Legitimated children have the same rights as
legitimate children (Art. 179, FC).
The common national law of the parents governs.
IF the parents have different nationalities, the national
law of the father governs.
*in countries following the domiciliary theory, the law
of the domicile of the parents govern or the law of
the domicile of the father.
REQUISITES IN ORDER FOR A CHILD TO BE LEGITIMATED:
Art. 177. Only children conceived and born outside
of wedlock of parents who, at the time of the
conception of the former, were not disqualified by
any impediment to marry each other may be
legitimated. (269a)
DOCTRINE OF IMMUTABILITY OF STATUS applies.
Therefore, despite the change of citizenship/personal
laws of the parents/father status as legitimated child
remains.
**this is the same as in a legitimate child because. . .
Art. 180. The effects of legitimation shall retroact
to the time of the child's birth. (273a)
ADOPTION
Current Applicable Laws
1. RA 8043 Inter-Country Adoption
2. RA 8552 Domestic Adoption
LAW THAT DETERMINES RELATIONSHIP CREATED
The childs personal law (to protect his well-being).
BUT, if the child does not reside in the country of his
citizenship personal law of the adopter OR
personal law of the child and the adopter
concurrently.
LAW THAT DETERMINES THE LEGAL EFFECTS
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
18 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
Determined by the same law that created the
relationship of adoption.
LEGAL EFFECTS OF ADOPTION (GENERAL)
1. Successional rights of the adopted child
2. Parental authority
3. Use of the surname of the adopter
WHO MAY ADOPT
Sec. 7, RA 8552 (this is the one discussed by Sempio-Diy)
a. FILIPINO CITIZEN of legal age, in possession of full civil
capacity and legal rights, of good moral character,
has not been convicted of any crime involving moral
turpitude, emotionally and psychologically capable
of caring for children, at least sixteen (16) years older
than the adoptee, and who is in a position to support
and care for his/her children in keeping with the
means of the family.
*sixteen (16) year difference between the age of
the adopter and adoptee may be waived when:
i. adopter is the biological parent of the
adoptee
ii. Adopter is the spouse of
the adoptee's parent.
b. ALIEN possessing the same qualifications as above
stated for Filipino nationals.
Provided:
his/her country has diplomatic relations with the
Philippines
he/she has been living in the Philippines for at least
three (3) continuous years prior to the filing of the
application and maintains such residence until the
adoption decree is entered
he/she has been certified by his/her diplomatic or
consular office or any appropriate government
agency that he/she has the legal capacity to adopt
in his/her country
that his/her government allows the adoptee to enter
his/her country as his/her adopted son/daughter.
Provided, Further, That the requirements on residency
and certification of the alien's qualification to adopt
in his/her country may be waived for the following:
i. a former Filipino citizen who seeks to adopt a
relative within the fourth (4th) degree of
consanguinity or affinity; or
ii. one who seeks to adopt the legitimate
son/daughter of his/her Filipino spouse; or
iii. one who is married to a Filipino citizen and
seeks to adopt jointly with his/her spouse a
relative within the fourth (4th) degree of
consanguinity or affinity of the Filipino
spouse.
c. GUARDIAN with respect to the ward after the
termination of the guardianship and clearance of
his/her financial accountabilities.
 CONFLICT OF LAWS
Midterm Reviewer
RA 8552 requires HUSBAND and WIFE to adopt jointly.
EXC:
a. When one spouse seeks to adopt his/her own
illegitimate child
b. When one spouse seeks to adopt the
illegitimate child of the other
c. Where spouses are legally separated other
spouse can adopt alone without the consent
of the other.
LEGAL EFFECTS OF ADOPTION (UNDER PHILIPPINE LAW)
1. All legal ties between the biological parent/s and the
adopted child are severed and the same shall be
vested in the adopter/s (EXC where the biological
parent is the spouse of the adopter).
2. The adopted child shall be considered for all intents
and purposes to be the legitimate child of the
adopter/s (same rights as legitimate child).
3. Adopter/s and the adopted child shall have
reciprocal rights of succession.
Adoption proceedings are IN REM (Publication is
required).
Mere agreement of adoption is not a valid adoption
COURT DECREE is required.
Mere registration of the child in the civil registry as the
child of the adopter is not a valid adoption.
Capacity and right of the adopter is determined by the
law enforced at the time petition is filed.
RECOGNITION OF FOREIGN DECREE OF ADOPTION
Under Sec. 48 of Rule 39 we can recognize the foreign
decree of adoption provided the foreign court had
jurisdiction to render the said decree.
Also there should not have been:
a. Want of notice
b. Collusion
c. Extrinsic Fraud
d. Clear mistake of law and fact
CONFLICT RULES ON WILLS,
SUCCESSION, and ADMINISTRATION OF
THE ESTATE OF DECEASED PERSONS
2 THEORIES IN DETERMINING PROPER LAW FOR
TRANSMISSION OF SUCCESSIONAL RIGHTS
1. UNITARY OR SINGLE SYSTEM only one law
determines transmission of real as well as personal
properties.
2. SPLIT OR SCISSION SYSTEM succession to real
property is governed by lex situs while succession to
movable or personal property is governed by law of
the domicile of the deceased at the time of his
death.
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
19 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
VALIDITY OF WILLS
1. EXTRINSIC VALIDITY
a. FILIPINO Abroad he may comply with the
formalities of Philippine law or the lex loci
celebrationis.
B. ALIEN Abroad lex nationalii, lex domicilii, lex
loci celebrationis.
c. ALIEN in the Phils. lex nationalii or lex loci
celebrationis (Phil. law).
d. For HOLOGRAPHIC Wills only requirements are:
it must be entirely written, dated, and signed by
the hand of the testator himself (no other req.).
2. INTRINSIC VALIDITY
GR: Determined by LEX NATIONALII or LEX DOMICILII.
Philippines applies lex nationalii.
*JOINT WILLS
Filipinos cannot make joint wills whether here or
abroad notwithstanding lex loci celebrationis.
Joint wills made by aliens abroad shall be considered
valid in the Phils. if valid according to lex nationalii,
lex domicilii, or lex loci celebrationis.
Joint wills made by an alien and a Filipino are valid
only as to the alien if his lex nationalii, lex domicilii, or
lex loci celebrationis allows it.
Joint wills made by aliens in the Philippines are void
as a matter of public policy.
INTESTATE SUCCESSION
Law of the country where one is a citizen or law of the
country where he is domiciled.
In the Phils., we apply lex nationalii.
REVOCATION OF WILLS
Art. 829. A revocation done outside the Philippines,
by a person who does not have his domicile in this
country, is valid when it is done according to the
law of the place where the will was made, or
according to the law of the place in which the
testator had his domicile at the time; and if the
revocation takes place in this country, when it is in
accordance with the provisions of this Code. (n)
If the REVOCATION is done outside the Philippines by a
person who is domiciled here VALID if made in
accordance with our law or the place where the
revocation was made (lex loci actus).
PAT: Revocation of Wills depends where it was revoked:
Revocation is made outside by someone who is not domicile
of the Philippines. Two governing laws:
 CONFLICT OF LAWS
Midterm Reviewer
Revocation is valid if it was made in accordance with the law
of the place where the will was executed; or if made in
accordance with the law of the domicile at the time of
revocation.
N.B. law of the domicile or law of the place of the person who
revokes the will is domiciled at the time of revocation.
Because a person may change his domicile form time to time.
DOMICILE AT THE TIME OF REVOCATION.
Revocation made outside of the Philippines by a person who is
a domicile in the Philippines. Note: DOMICILE not citizen.
He may be a foreigner. He can make revoke a will abroad.
How do you determine the validity of that revocation? Two
governing laws:
PHILIPPINE LAW the one who revokes the will is a
domicile of the Philippines; or if it complies or observes the
LAWS OF THE PLACE WHERE THE REVOCATION WAS
MADE.
Either of these two laws, revocation done outside by a person
domiciled in the Philippines is valid.
REVOCATION DONE IN THE PHILIPPINES should be
done in accordance with Philippine laws
INTERPRETATION OF WILLS
a. Literal meaning shall control if the terms are clear and
unambiguous.
*Contemporaneous and subsequent acts of the
testator may also be considered.
b. If testators intention cannot be ascertained by the
preceding rules ambiguous words are to be
interpreted in accordance with the law which was
most probably in the mind of testator when he used
those words and with which he is presumed to be
most familiar.
c. If the will admits of different interpretations that
which will make the disposition operative shall be
preferred.
d. Every effort should be made to prevent intestacy.
PROBATE
Probate process of providing before a competent
court the:
Due execution of a will
That testator was possessed of testamentary capacity
The approval by said court of the will
Allowance/disallowance essentially procedural in
nature law of the forum applies.
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
20 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
Wills proved and allowed in a foreign country according
to the laws of such country may be allowed, filed, and
recorded by the proper court in the Phils.
BUT, it still has to be REPROBATED in the Phils. in
accordance with out procedural law.
Evidence necessary for the probate of will probated
outside the Phils.
a. Due execution of the will in accordance with foreign
law.
b. Testator had his domicile in the foreign country where
the will was probated
c. The will had been admitted to probate in said
country
d. The foreign tribunal is a probate court.
e. Laws of the foreign country on procedure and
allowance of wills were followed.
PAT: Question: Will probated abroad maybe re-probated here
in the Philippines. How to re-probate?
Probate proceedings concern with genuineness and due
execution of the will. The facts sought to be established in the
probate proceeding is the will genuine and duly executed by
the testator. In proving the genuineness and due execution of
the will, requirement you present witnesses to establish that
the testator is of sound and disposing mind at the time the
execution, that he executed the will on his own free will free
form any vices of consent, etc. A tedious process because you
have to prove all the formal requirements and the fact that it
was genuinely executed.
In case of a will already probated abroad and brought to the
Philippines for re-probate, the rule is you dont need to prove
all over again the genuineness and due execution of the will.
No need to bring in witnesses from abroad and testify before
the court where the re-probate is pending. Only requirement is
to submit to the Philippine court a copy of the judgment of the
court approving the will and a copy of the will itself duly
authenticated by the consular office in the place where these
documents are kept. Only a summary proceeding; no need to
re-try it all over unlike in a first probate where proceeding is
extensive
ADMINISTRATION OF ESTATE OF DECEASED PERSONS
ADMINISTRATION the process of determining and
realizing the assets of a deceased person, the payment
of the debts of the estate and the actual distribution of
the residue to the heirs.
Procedural in nature therefore lex fori governs.
EXECUTOR appointed in a will and qualified by the
court to be in charge of the distribution.
ADMINISTRATOR appointed by the court to take
charge of the distribution (there is no will).
 CONFLICT OF LAWS
Midterm Reviewer
*Appointed by the court where the deceased was
domiciled at the time of his death or where his properties
are found.
The rights, powers, and duties of the executor or
administrator are coextensive with the territorial
jurisdiction of the court that qualified or appointed him.
PRINCIPAL DOMICILIAR ADMINISTRATION administration
granted in the country of the deceaseds last domicile.
ANCILLARY ADMINISTRATION administration in other
countries where the deceased also left properties.
*the domiciliary administrator has no power over and
is not entitled to the possession of properties of the
deceased in another country which must be
delivered to the ancillary administrator of the
deceaseds estate in that country to be administered
by the latter.
CADUCIARY RIGHTS in cases where the deceased left
no heirs, the State shall have the right to consider his
properties as bona vacantia and seize all property of the
deceased lying within its borders.
*it may also mean that a State is considered as the
last heir of the deceased person and therefore
succeeds to his properties as such.
CONFLICT RULES ON PROPERTY
Art. 15. Real property as well as personal property
is subject to the law of the country where it is
situated.
LEX REI SITAE/LEX SITUS is therefore adopted for both real
property and even personal property.
*due to the growing complexity and variety of
personal property no longer making them immediately
connected with the person of the owner.
LEX SITUS AS TO REAL PROPERTY
Covers the extrinsic and intrinsic validity of transactions
over real property (alienations, transfers, mortgages,
capacity of the parties, effects of ownership, etc.)
EXC (when lex situs does not apply):
SUCCESSION national law of the decedent is
followed.
CONTRACTS proper law of the contract is followed:
Lex loci voluntatis; or
Lex loci intentionis
PAT: The rule is LEX RAE SITAE---the law of the place
where the property is located.
These matters may include the following:
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
21 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
a. Disposition, conveyance or encumbrance of property
b. Forms and solemnities of contracts involving
properties their conveyance, encumbrance disposition
c. Ownership
d. Co-ownership
e. Lease
f. Mortgage
g. Registration
h. Easement
i. Prescription
j. Capacity of the contracting parties
In other words, if it involves personal or real property, all
three components of a contract are governed by lex rae sitae.
Unlike in ordinary contract where each component is
governed by different rules.
LIMITATIONS:
1. PROPERTY IS INVOLVED IN SUCCESSION
Succession is a mode of acquisition of ownership. It involves
transfer of ownership from the decedent to the heir. While
these may involve transfer of ownership, title to property, this
is not however governed by lex rae sitae because the factual
situation now is no longer a matter of property. Strictly, the
factual situation now is on succession, whether intestate or
testamentary succession because under second paragraph of
Article 16 [National Law of the decedent].
2. THE PROPERTY IS ONLY INCIDENTAL TO THE
MAIN CONTRACT.
The main contract being the rights and obligations of the
parties. In other words, lex rae sitae, does not apply in an
ordinary contract although that ordinary contract may involve
a property incidentally.
A typical example of this case is a contract of design.
Example Mr. Tibon is an architect. His expertise is engaged
by Miss Corollo to design a multi-million residential house
that Mr. Tibon offers to Miss Corollo as a consideration for
future marriage. This is a contract which involves property
but if you look at it, its an ordinary contract of service
involving the services of Mr. Tibon. The presence of the
property there is only incidental. If the contract partakes of
this nature where the property is only incidental to the main
contract, you dont apply lex rae sitae but the law on ordinary
contract.
Now, as pointed out earlier, all aspects pertaining to property
are governed by lex rae sitae. But the question is, to what
extent?
LAUREL VS. GARCIA
 CONFLICT OF LAWS
Midterm Reviewer
QF: Involves the planned sale of the Roponggi property in
Japan which the Philippine government acquired from Japan
by virtue of a certain treaty because of the war there was that
Reparation Agreement where the government of Japan
conveyed to the Philippines, by way of damage that Japan
caused during the World War. This was opposed and one of
the arguments put forward by those who oppose the
disposition of the Roponggi property was that Roponggi
property is a property of public dominion defined under
Article 420 of the Civil Code as a property intended for some
public service. And therefore being a property of public
dominion, its beyond the commerce of man, beyond
appropriation by any individual even the government.
For those who advocated for the disposition of Roponggi
argued that its not proper to invoke Article 420 of the Civil
Code because the property is located in Japan and therefore it
is governed by the law of Japan although they did not prove
the exact law of Japan for that matter but they said that Japan
law allows disposition of the property.
HELD: The Supreme Court said there was no conflict of laws
in this case. While lex rae sitae provides that real or personal
property is governed by the law of the place where they are
situated, this principle of lex rae sitae applies only when there
is issue as to the title of the property involved. In this case of
Roponggi, according to the Supreme Court, there is no issue at
all insofar as the title of the property because all along all
parties to the case are one that the property belongs to the
government of the Philippines. There are no conflicting
claims over the ownership of the property.
With this the Supreme Court said you dont apply lex rae
sitae. Its not even relevant for purposes of resolving the issue
of whether or not the property may be disposed. If you look at
the decision it would appear that lex rae sitae is limited only in
a situation where the ownership of the property is disputed.
I have serious reservation on this ruling because if you read
the literature on conflict of laws, you have the Salonga, you
have the Agpalo, you have the book of Sempio-Diy, all of
them are saying that all aspects---the conveyance, formality,
the capacity of the contracting parties, all these matters are
governed by lex rae sitae. Now the issue of whether or not the
property may be sold is obviously an issue which pertains to
the intrinsic aspect of the contract whether the subject matter
may be the subject of a sale transaction. Or the issue on
whether or not there is authority to sell that relates to capacity
of the contracting parties which, according to the writers, is
one of the matters which are governed by lex rae sitae.
For the Supreme Court to say that the lex rae sitae does not
apply because the problem does not involve an issue of title
over the property, I really have a serious reservation with that
ruling because as I said, you look at all the literatures of
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
22 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
conflict of laws, lex rae sitae does not only cover a situation
where there is a dispute over title of a property involved.
Instead, all aspects---conveyance, encumbrance, forms and
solemnities, intrinsic aspect, capacity of the parties, all these.
(For intangible and movables, see rules below from Sempio-
Dy discussed in passing only).
LEX SITUS AS TO PERSONAL PROPERTY
There is no problem when the movable is tangible and
has a fixed situs.
Problem arises when the movable is mobile or usually in
motion.
CONSTRUCTIVE SITUS is therefore given to these movables.
VESSELS
3. Law of the Flag if a public vessel.
4. Law of the Country or Place of Registry private
or commercial vessel.
*if vessel is temporarily docked at a foreign port
said port is considered its temporary situs.
GOODS IN TRANSIT
1. Liability for LOSS DESTINATION.
2. Validity and Effect of Seizure place where the
goods were seized.
3. Disposition or Alienation proper law of
contract between the parties.
INTANGIBLE PERSONAL PROPERTIES
A. CREDITS
Involuntary Transfer/Assignment of Debt place
where the debtor may be served with summons
(usually his domicile).
Voluntary proper law of the contract.
B. NEGOTIABLE INSTRUMENTS
Negotiability LAW GOVERNING THE RIGHTS
EMBODIED IN THE INSTRUMENT.
Transferability law at the TIME of transfer,
delivery, or negotiation.
C. SHARES OF STOCK
Corporation + Another Person law of the place
of INCORPORATION.
Between Parties PROPER LAW OF THE
CONTRACT.
D. FRANCHISES
Law of the STATE GRANTING THE FRANCHISE.
E. GOODWILL
Law of the place WHERE THE BUSINESS IS CARRIED
ON.
 CONFLICT OF LAWS
Midterm Reviewer
*Goodwill the patronage of any established
trade or business; the benefit acquired by an
establishment beyond the value of its capital
stocks, funds, or property in consequence of the
general public patronage and encouragement
that it receives from its customers.
F. INTELLECTUAL PROPERTY RIGHTS
GR: protected by the State that granted or
recognized them.
But, according to RA 8293
Section 3. International Conventions and
Reciprocity. - Any person who is a national
or who is domiciled or has a real and
effective industrial establishment in a
country which is a party to any convention,
treaty or agreement relating to intellectual
property rights or the repression of unfair
competition, to which the Philippines is also
a party, or extends reciprocal rights to
nationals of the Philippines by law, shall be
entitled to benefits to the extent necessary
to give effect to any provision of such
convention, treaty or reciprocal law, in
addition to the rights to which any owner of
an intellectual property right is otherwise
entitled by this Act. (n)
In other words, Philippines must be a co-party in a
treaty/convention of the country where the
foreigner is domiciled or is a national AND there
must be reciprocity of rights.
CONFLICT RULES ON CONTRACTS
CONTRACT a meeting of the minds between two
persons whereby one binds himself, with respect to the
other to give something or to render some service.
EXTRINSIC VALIDITY
GR: governed by LEX LOCI CELEBRATIONIS
If via LETTER/TELEGRAM
Acceptance made by letter or telegram does not
bind the offerer except from the time it came to his
knowledge. The contract, in such a case, is
presumed to have been entered into in the place
where the offer was made. (1262a)
EXC to lex loci celebrationis
a. When place of execution is merely
casual/incidental apply MOST SIGNIFICANT
RELATIONSHIP (the law of the place with the MSR
to the transaction).
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
23 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
b. When lex loci celebrationis contravenes an
established policy in the forum
c. Applying it would result to gross injustice to the
people of the forum
d. Transaction is contra bonos mores
PAT: Our Conflic of Laws on the matter is Article 17 of the
Civil Code which says that: forms and solemnities of
contracts, wills and other public instruments shall be governed
by the law of the place where these contracts are executed.
By the way the extrinsic aspect of contracts refers to forms
and solemnities---only the extrinsic, the outside, the form, the
physical requirements of a contract. So these matters may
include whether a contract is oral, whether a contract is in
writing, whether the contract requires notarization, whether
the contract requires instrumental witnesses and if so, how
many instrumental witnesses are required.
So the governing law is the place of execution. There is no
problem if the contract is executed in one place because that
place is the governing law, the law of that place is the
governing law. The problem arises when the contract, as you
will know- a contract may undergo several stages. The
problem arises when a part, an important aspect of the contract
took place in one state and the other important aspect or
component of the contract took place in another state as when
the offer was made in one state, the acceptance of the offer
was made in another state. So in this case, what should be the
place of execution, for purposes of conflict of laws rule?
We have Article 1319 of the Civil Code which says that
contract is perfected by the meeting between the offer and the
acceptance of the offer. But if the offer was made through
writing or through telegram or similar means, the acceptance
shall not be binding unless it is communicated to the offeror in
which case the contract is presumed to have been perfected in
the place where the offer was made.
So perfection, the contract is perfected the moment the
acceptance is made known to the offeror. So thats the last
stage of the contract, that is the last step that perfects the
contract, the moment the acceptance is known by the offeror.
And since the offeror is presumed to be in the place where the
offer is made, for purposes of lex loci celebrationis, the place
where the offer was made is deemed to be the place of
execution.
Take note however that lex loci celebrationis, insofar as the
extrinsic aspect of a contract is concerned, has its limitation.
This does not apply when the place of execution is obviously
casual or incidental only to the contract as when all the
important components of the contract took place in or pertain
to one state and the contract was executed in another state.
 CONFLICT OF LAWS
Midterm Reviewer
Casually and incidentally, in which case, you dont consider
that place of execution as the lex loci celebrationis for
purposes of the conflict rules.
What is the governing law insofar as the extrinsic aspect of the
contract if the place of execution appears only as incidental to
the contract?
When this happens, you now apply the appropriate law of the
contract. Meaning to say, you have to determine the law of
the contract impliedly or presumed to have been impliedly
agreed upon by the parties using the most significant
relationship principle.
So you will now determine the law of the contract by
determining the various aspects or components of the
contracts. If most of the important components of the contract
take place or pertain to a particular state and that state claims
to have the most significant relationship insofar as the contract
is concerned, that state is deemed to be the place where the
contract has been executed although in reality the contract
may have been executed somewhere else. So you apply now
the most significant relationship principle.
You review the case of Saudi Arabian Airlines, where the
Supreme Court applied this principle although in relation to a
tort case but the principle is exactly the same.
CAPACITY TO ENTER INTO CONTRACTS
GR: governed by PERSONAL LAW of the parties (National
Law or Domiciliary Law).
EXC: contracts involving alienation or encumberance
of properties (real and personal) LEX SITUS
i.e. a Filipino (18 y.o.) who enters into a contract in a
country where age of majority is 21 cannot later on plead
his incapacity HE IS GOVERNED BY PHIL. LAW (Art. 15,
NCC).
BUT, if an alien (18 y.o.) enters into a contract in the
Philippines, he cannot later on plead his incapacity
just bec. age of majority based on his national law is
21 it would greatly IMPEDE BUSINESS
TRANSACTIONS.
To Reconcile:
Nationality Theory should be limited to family and
domestic relations.
Proper Law of the Contract business/commercial
transactions
PAT: Capacity of the contracting parties is a matter of
personal law and therefore we apply the nationality theory
under Article 15.
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
24 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
So issues pertaining to the validity of the contract insofar as
the capacity of the contracting parties is concerned, you refer
to Article 15---the national law of the parties involved.
Limitation is when again the contract involves property, real
or personal because if it does capacity of the contracting
parties should now be determined again by lex rae sitae. In
short, capacity of the contracting parties is governed by
nationality theory only if the contract is an ordinary contract
that does not involve property.
So you have to distinguish these three different components.
The contract may be extrinsically valid but may not be valid
intrinsically. Or it may be intrinsically valid but not valid
insofar as the capacities of the contracting parties because
these components are governed by different rules.
INTRINSIC VALIDITY
GR: proper law of the contract (i.e. lex loci
VOLUNTATIS/INTENTIONIS).
In the Phils.
There is no specific provision of law, BUT our policy is to
give effect to the intention of the parties (the expressed
intention or the implied intention). *aka Choice of Law
*as determined by many factors i.e. law with the
most substantial connection with the transaction or
the law that may be presumed to be intended by
the parties to bind their transactions.
Some Limitations to Choice of Law
a. Law must have connection with the transaction.
b. If the law selected should change, the new law shall
be applied (EXC where the change is so
revolutionary that it could not have been foreseen
by the parties).
c. Cannot stipulate on jurisdiction of courts or oust the
courts of their jurisdiction.
d. Cannot contract away applicable provisions of law
that are impressed with public interest or involve
public policy (i.e. labor)
e. Several laws may be selected (each of which may
govern certain elements of the transaction).
Intrinsic validity refers to the essence or the substantive aspect
of the contract, specifically this refers to the nature of the
contract, whether the contract by its very nature is valid like a
contract of lingam massage service. Is it valid by its nature?
So this question as to the validity of the contract by its very
nature concerns the intrinsic aspect of the contract.
Other matters falling under intrinsic may refer to the terms and
conditions of the contract, whether the terms stipulated or
embodied in the contract are valid or not. Or the subject
matter of the contract. Anything which relates to the
 CONFLICT OF LAWS
Midterm Reviewer
substance as contradistinguished from form falls under
intrinsic validity.
You will know that there is no specific provision in our laws
which govern the intrinsic aspect of the contract insofar as
conflict of laws rule is concerned.
However, most writers suggest that for this purpose, the forum
court should be consistent with the policy adopted in our
jurisdiction that parties are free to stipulate. The contracting
parties to a contract are free to stipulate anything in the
contract. This is the so-called liberality of contract principle
consistent with Article 1306 of the Civil Code which says that
parties to the contract may establish such stipulations, clauses,
terms and conditions as they may deem convenient provided
these do not or these are not contrary to law, public policy or
good morals or customs. So this espouses the liberality of
contract principle. Having said this, most writers suggest that
for purposes of conflict of laws rule insofar as intrinsic
validity of contract is concerned, what matters is the intention
of the parties.
So the governing law that determines the intrinsic validity of a
contract, according to most writers are the following:
Lex loci voluntatis or the law expressly agreed upon by the
parties.
So you see the intention, the express avowed intention of the
parties. Now how do you determine the lex voluntatis or the
law expressly agreed upon by the parties?
This is commonly manifested by the so-called choice of law
clause in a contract, this is a standard clause or provision in a
contract especially foreign contracts; the stipulation on the
choice of law where the parties expressly agree that any
dispute arising from the contract shall be governed by the law
of that particular state.
There is however a limitation to this rule because (1) the
parties may not stipulate on a particular law which has nothing
to do at all with the contract. So this is governed by the rule
on reasonable connection.
While the parties are free to stipulate on a specific law that
they want their contract to be governed, this should be
analyzed with the reasonable connection with the contract so
the parties cannot stipulate on the law of Pakistan for example
if all the other important components of the contract are to be
performed or take place or pertain to other states. So while the
parties may stipulate as to specific law, make sure that this law
is reasonably connected to the contract, otherwise that choice
of law clause can never be enforced.
What happens if a contract does not contain a choice of law
clause? Meaning, there is nothing in that contract where the
intention of the parties can be ascertained as to the specific
law that governs their contract insofar as intrinsic aspect of the
contract.
RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW
25 TRANSCRIPTS c/o JIZZA, CHARITY, AND GRACE.
Based on Sempio-Diy Book
Apply the lex loci intentionis or the law impliedly or
presumed to have been agreed upon by the parties.
So not expressly stipulated upon by the parties, but under the
circumstances, it can be reasonably inferred that the parties
agree that this particular law should govern their contract
insofar as the intrinsic aspect.
To determine this, use the most significant relationship
principle.
How? By determining the various components of the
contracts: the place of negotiation, the place where the
contract was actually executed by the parties, the place where
the subject matter may be found, the place of performance, so
all these various components of the contract should be taken
into consideration to determine if these or most of these
components pertain to one state. If it does, then that state, the
law of that state should be deemed to be the lex intentionis and
apply that law accordingly.
Apply the law of the country or he state where the validity of
the contract is likely to be sustained.
If under the circumstances it cannot be reasonably inferred
that one state claims to have the most significant relationship
because all the important components of the contract took
place or pertain to various states evenly distributed, in other
words, no single state can claim most significant relationship
the forum court, to resolve the issue, will now apply the law of
the country or the state where the validity of the contract is
likely to be sustained.
Again this is consistent with the policy in our jurisdiction that
the intention of the parties as much as possible should be
observed.
THERE IS HOWEVER LIMITATION TO ALL THESE
PRINCIPLES.
The principle of lex loci celebrationis and these principles we
discussed in relation thereto, do not apply when the contract
involves property. Take note! Lex loci celebrationis applies
only in ordinary contracts. The moment a contract involves a
property whether real or personal, lex loci celebrationis is
taken out of the equation, what applies now is lex rae sitae
under Article 16, first paragraph, it says: real property as well
as personal shall be governed by the law of the place where
they are located.
SPECIAL CONTRACTS
1. BARTER, SALE, DONATIONS
Extrinsic lex situs
Intrinsic- lex situs
Capacity of Parties lex situs
2. LEASE OF PROPERTY
If it creates REAL rights (period of 1 yr or
more/registered) lex situs
If month-to-month, week-to-week, etc.
 CONFLICT OF LAWS
Midterm Reviewer

Extrinsic lex loci celebrationis

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

3. PLEDGE, CHATTEL MORT., REM, ANTICHRESIS

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

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

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

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

IN SUMMARY (More or Less)

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

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

The good of the people is the greatest law.

- Marcus Tullius Cicero

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

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