CIVIL LAW

TIPS BATCH 2

PRIL SUPPLEMENT
Q: What is comity? A: Comity is neither a matter of absolute obligation, on the other hand, nor of mere courtesy and good will, upon the other. But is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws (Hilton v. Guyot, 1895) Q: How is jurisdiction over the person in in personam proceedings acquired? A: The general rule is that jurisdiction over the person could be acquired by personal service of summons or substituted service, PROVIDED, the defendant is within the territorial jurisdiction of the court. Except in a case wherein a non-resident was served with summons through his wife, who was a resident of the Philippines and who was his representative and attorney-in-fact in a prior civil case filed by him and the second case was a mere offshoot of the first case. (Gemperle v Schenker) Q: What are long-arm statutes? A: Statutes that allow the forum state to exercise jurisdiction over a non-resident defendant, provided that the prospective defendant has sufficient minimum contacts with the forum state. Q: What is the doctrine of forum non conveniens? A: This literally means the forum is inconvenient. This doctrine requires the court to dismiss the case on the ground that the controversy may be suitably tried elsewhere. Reasons for applying forum non conveniens: 1. To prevent abuse of courts processes 2. Burdensome on the court or taxpayers 3. Local machinery is inadequate to effectuate a right (no way for the court to secure evidence and attendance of witnesses) 4. Avoid global forum shopping Q: What is the vested rights theory under private international law? A: The vested rights theory provides that an act done in a foreign jurisdiction gives rise to the existence of a right if the law of the state provides so. This right vests in the plaintiff and he carries it with him to be enforced in any forum he chose to bring the suit. The forum refers to the law of the place of occurrence of the last act necessary to complete the cause of action. Hence, if the laws of the state where the last act occurred create no legal right, there is nothing for the forum to recognize and enforce, even if its own law creates such a right. Furthermore, the law of the state of the last act is considered the law applicable to all substantive issues of the case. Q: What is the most significant relationship approach in private international law? A: The most significant relationship approach provides that a plurality of factors or factual contacts must be identified in light of choice of law principles to determine the proper forum of the case. These choice of law principles are: 1. The needs of the interstate and international system 2. Relevant policies of the concerned states 3. The relevant policies of other interested states and the relative interest of those in the determination of the particular issue 4. The protection of justified expectations of the parties 5. The basic policies underlying the particular field of law 6. Certainty, predictability and uniformity of result 7. Ease in the determination and the application of the law to be supplied Q: What is characterization? A: It is the process by which a court at the beginning of the choice of law process assigns a disputed question to an area of substantive law. Q: What is a borrowing statute? A: It is a statute which bars the filing of a suit in the forum if it is already barred by the statute

CIVIL LAW

CIVIL LAW

TIPS BATCH 2

of limitations in the place where the cause of action arose. Q: What is depecage? A: Depecage (to dissect) is the process of cutting up the case issue by issue and applying the pertinent laws to the different aspects Q: What is the doctrine of renvoi? A: Renvoi is a procedure whereby a jural matter presented is referred by the conflict of laws rules of the forum to a foreign state, the conflict of laws rule of which, in turn, refers the matter to the law of the forum or third state. When reference is made back to the law of the forum there is a remission. When reference is made to a third state there is transmission. Q: What is the doctrine of processual presumption? A: Under the doctrine of processual presumption, forum presumes that the foreign law is the same as the forum law. Q: What is the national law theory? A: The national law theory states that it is the nationality or citizenship of the individual, which regulates the civil status, capacity, condition, family rights and duties, laws on succession, capacity to succeed of an individual. Q: What is effective nationality? A: It is the genuine bond of attachment between the individual and the State. ( As provided in the case of Nottebohm, effective nationality may be indicated by presence of economic interests, the individuals activities exercised or to be exercised and intent to return to that country.) Q: What is de jure statelessness? A: A de jure statelessness occurs when a person has been stripped of his nationality by his former government without having an opportunity to acquire another Q: What is de facto statelessness? A: A de facto statelessness occurs when a person possessed of a nationality but whose country does not give him protection outside its own territory (refugees) Q: What is constructive domicile? A: It is the domicile assigned by operation of law to persons legally incapable of choosing their own domicile.

Q: What are the exceptions to lex loci celebrationis? A: a. The following marriages are void even if valid in the country where celebrated [Art. 26, FC]: i. those contracted by any party below 18 years of age even with the consent of parents or guardians [Art. 35(1), FC] ii. bigamous or polygamous marriages not falling under Art. 41, FC [Art. 35 (4), FC] iii. those contracted thru mistake of one contracting party as to the identity of the other [Art. 35(5), FC] iv. those subsequent marriage without recording in the civil registry the judgment of annulment or declaration of nullity, partition and distribution of properties and the delivery of the childrens presumptive legitimes [Art. 35(6), FC] v. a marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, even if such incapacity becomes manifest only after solemnization [Art. 36, FC] vi. incestuous marriages [Art. 37, FC] marriages between ascendants and ascendants of any degree, whether legitimate or illegitimate; and marriages between brothers and sisters, whether of the full or half-blood vii. void marriages for reasons of public policy [Art. 38, FC] marriages between collateral blood relatives, whether legitimate or illegitimate, up to th the 4 civil degree marriages between step-parents and step-children. marriages between the adopting parent and adopted child marriages between the surviving spouse of the adopting parent and the adopted child marriages between the surviving spouse of the adopted child and the adopter marriages between an adopted child and a legitimate child of the adopter

CIVIL LAW

TIPS BATCH 2

marriages between adopted children of the same adopter marriages between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse. Q: In a case where a Filipino was validy married to a foreigner, and the foreign spouse later obtained a valid divorce under his foreign law, may the Filipino spouse remarry? A: 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 shall have capacity to remarry under Philippine law. (Take note that the alien spouse must be capacitated to remarry for the Filipino spouse to be capacitated to remarry). In the case of Republic v Obrecido, G.R. No. 154380 (2005), the Supreme Court interpreted the exception in Art. 26(2), FC as applying to valid marriages between two Filipino citizens, where one party is later naturalized as a foreign citizen and obtains a valid divorce decree capacitating him or her to remarry. Q: When is validity if a foreign divorce between foreigners recognized? A: 1. A foreign divorce will be recognized in all contracting states if, at the date of the institution of the proceedings [Hague Convention on the Recognition of Divorce and Legal Separation]: a. either spouse had his habitual residence there; b. both spouses were nationals of that state; or c. if only the petitioner was a national, he should have his habitual residence there 2. While there is no provision of law requiring Philippine courts to recognize a foreign divorce decree between nonFilipinos such will be recognized under the principle of international comity, provided that it does not violate a strongly held policy of the Philippines. Q: What qualifications must a foreigner meet before he/she could adopt under Philippine Law? A: An alien may adopt, provided he is: a. of legal age

b. in possession of all civil capacity and legal rights c. of good moral character d. no conviction of any crime involving moral turpitude e. emotionally and psychologically capable of caring for children f. at least 16 years older than the adoptee g. in a position to support and care for his children h. his country has diplomatic relations i. residence in the Philippines for at least 3 continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered j. certificate of legal capacity to adopt in his country to be issued by his diplomatic or consular office; and k. his government allows the adoptee to enter his country as his adopted son/daughter Q: What are the three laws which could be applied to determine intrinsic validity of contracts? A: Lex loci contractus- Law of the place where the contract is made Lex loci solutionis - Law of the place of performance governs Lex loci intentionis - Law intended by the parties Q: What are the limitations on choice of law with respect to contracts? A: Cannot be a law which has no connection at all with the transaction or the parties Law as changed will govern EXCEPT if the change is so revolutionary that it was never contemplated by the parties Choice of law should not be interpreted to oust the jurisdiction which the court has already acquired over the parties and the subject matter. Cannot contract away provisions of law especially peremptory provisions heavily impressed with public interest Cognovit clause (confession of judgment) valid only if the parties were of equal bargaining power and the defendant agreed to it voluntarily.

CIVIL LAW

4 Revocation of wills: TESTATOR

Will is revoked in the Philippines

TIPS BATCH 2

PLEASE TAKE NOTE OF THE FOLLOWING: Extrinsic Validity of wills: PLACE OF EXECUTION Philippines
Filipino Testator

APPLICABLE LAW

APPLICABLE LAW Philippine Law 1. law of the place where he may be (lex loci celebrationis) [Art 815, CC] 2. Philippine law [see III Tolentino 117] 1. Philippine Law [Art. 17, CC] 2. law of the country in which he is a citizen or subject [lex nationali] (Art. 817, NCC)

Philippine Domiciliary Philippine Law Non-domiciliary [Art. 829, CC] 1. Philippine Law 2. Law of the place of revocation (lex loci actus) 1. law of the place where the will was made 2. law of the place in which the testator had his domicile at the time of the revocation

Foreign Country

Will is revoked in a Foreign Country

Philippine Domiciliary

Philippines

Non-domiciliary [Art. 829, CC]

Alien Testator

Foreign 1. law of the place in which he resides [lex Country [Arts. domicilii] 816, 17, NCC] 2. law of his country (lex nationali) 3. Philippine law 4. law of the place where they were executed (lex loci celebrationis)

Intrinsic validity of wills: Intestate and testamentary successions shall be regulated by the national law of the decedent, with respect to the following [Art. 16(2); Art. 1039, NCC] 1. Order of succession 2. Amount of successional rights 3. Intrinsic validity of the testamentary provisions 4. Capacity to succeed