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REVIEWER

IN

CONFLICT OF LAWS
DEFINITION OF TERMS
Conflict of Laws
- or Private International Law
- that part of the municipal law of a state which directs its courts and
administrative agencies, when confronted with a legal problem involving a
foreign element, whether or not they should apply foreign law or foreign laws.
Public International Law
- the body of legal rules which apply between sovereign states and such other
entities as have been granted international personalities.
DISTINCTIONS BETWEEN CONFLICT OF LAWS AND PUBLIC INTERNATIONAL LAW
CONFLICT OF LAW
1.) MUNICIPAL
2.) PRIVATE
INDIVIDUALS

BASIS
Nature
Persons Involved

PRIVATE

Transactions

RESORT TO MUNICIPAL
TRIBUNALS

Remedies/ Sanctions

LAW OF NATIONS
INTERNATIONAL
SOVEREIGN STATES &
ENTITIES POSSESSED
OF AN INTERNATIONAL
PERSONALITY
GENERALLY AFFECTING
PUBLIC INTEREST;
THOSE WHICH IN
GENERAL ARE OF
INTEREST TO
SOVEREIGN STATES
MAY BE FORCIBLE OR
PEACEFUL
Forcible:
1.
severance of
diplomatic relations,
2.
retorsions,
3.
reprisals,
4.
embargo,
5.
boycott,
6.
non-intercourse,
7.
pacific blockades,
8.
collective
measures under the
UN Charter, and
9.
WAR
Peaceful:
1. diplomatic
negotiation,
2. tender & exercise of
good offices,
3. mediation,
4. inquiry and
conciliation,
5. arbitration,
6. judicial settlement by
the ICJ,
7. reference to regional
agencies,

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8. reference to the UN

Theory of Comity
- we apply the foreign law because of its CONVENIENCE, and finally, because
WE WANT TO GIVE PROTECTION to our citizens, residents and transients in
our land.
Theory of Vested Rights
- we SEEK TO ENFORCE not the foreign law itself but THE RIGHTS THAT
HAVE BEEN VESTED under such foreign laws.
Theory of Local Law
- We apply foreign law not because it is foreign, but BECAUSE OUR OWN
LAWS, by applying similar rules, REQUIRE US TO DO SO;
- It is as if the foreign law has become PART AND PARCEL of our own local law.
Theory of Harmony of Laws
- In many cases we have to apply the foreign laws so that WHEREVER A CASE
IS DECIDED, i.e., irrespective of the forum, THE SOLUTION SHOULD BE
APPROXIMATELY THE SAME
- thus, identical or similar solutions anywhere and everywhere. When the goal is
realized, there will be a harmony of laws.
Theory of Justice
- the PURPOSE OF ALL LAWS, including Conflict of Laws, is the DISPENSING
OF JUSTICE;
- if this can be attained in many cases by applying the proper foreign law, we
must do so.
Comity
- the RECOGNITION that 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 the RIGHTS OF
ITS OWN CITIZENS, or other persons who are under the protection of its laws.
Characterization/ DOCTRINE OF QUALIFICATION
- the process of determining under what category a certain set of facts or rules
fall
- the process of deciding whether or not the facts relate to the kind of question
specified in a conflicts rule.
- Also called the doctrine of qualification
- The ultimate purpose is to enable the forum to SELECT THE PROPER LAW.
Status
- the place of an individual in society, and
- consists of personal qualities and relationships, more or less permanent, with
which the state and the community are concerned.
- Among the things which make up the status of a person are the ff.: his being
married or unmarried, widowed or divorced, his being a legitimate or an
illegitimate child of his parents, his being a minor or his having reached the
age of majority; his capacity to enter into various transactions.
Capacity
- merely a part of status, and the sum total of his rights and obligations.
- The Civil Code distinguishes 2 kinds of capacity: CAPACITY TO ACT and
JURIDICAL CAPACITY.
- Capacity to act or ACTIVE CAPACITY is the power to do acts with legal effects
- Juridical capacity or PASSIVE CAPACITY is the fitness to be the subject of legal
relations
Personal Law
- The law that attaches to an individual, wherever he may go-

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a law that generally governs his status, his capacity, his family relations, and
the consequences of his actuations.
This may be the NATIONAL LAW of his DOMICILIARY LAW or the LAW OF
THE SITUS depending upon the theory applied and enforced in the forum.

Nationality Theory
- the theory by virtue of which the status and capacity of an individual are
generally governed by the law of his nationality.
Naturalization
- a judicial process of acquiring citizenship where formalities of the law have to
be complied with, including a JUDICIAL HEARING and APPROVAL OF THE
PETITION
- it may also mean the acquisition of another citizenship by such acts as
marriage to a citizen, and the exercise of the option to elect a particular
citizenship.
Domiciliary Theory
- the theory that in general, the status, condition, rights and obligations, and
capacity (SCROC) of a person should be governed by the law of his domicile.
Situs or Eclectic Theory
- in general, the capacity, legal condition, or status (C.LC.S) of an individual
should be governed by the law of the place where an important element of
the problem occurs or situated.
- If the participation of the individual concerned is active as when he does the
act voluntarily, the governing law is the law of the actual situs of the place of
the transaction or event.
- If the participation is passive, as when the effects of the act are set forth in
the law, the governing law is the law of the legal situs or the legal situs of an
individual is supposed to be his domicile.
RENVOI
- literally means REFERRING BACK;
- the problem arises when there is doubt as to whether a reference to a foreign
law is a reference to the internal law of said foreign law, or is a reference to
the whole of the foreign law, including its conflicts rules.
- renvoi (from the French, meaning "send back" or "to return unopened") is a
subset of the choice of law rules and it may be applied whenever a forum
court is directed to consider the law of another state.
DOUBLE RENVOI
- occurs when the local court, in adopting the foreign court theory, discovers
that the foreign court accepts the renvoi
- Double Renvoi or the Foreign Courts Doctrine which will also ensure parity of
result so long as no other relevant law is using it. In this scenario, the forum
court considers that it is sitting as the foreign court and will decide the matter
as the foreign court would.
Transmission
- the process of applying the law of a foreign state through the law of a second
foreign state.
Marriage as a contract
- ARTICLE 1 FAMILY CODE:
Marriage is a special contract of permanent union between a man and a
woman entered into in accordance with law for the establishment of conjugal
and family life. It is the foundation of the family and an inviolable social
institution whose nature, consequences and incidents are governed by law
and not subject to stipulations except that marriage settlements may fix the
property relations during the marriage within the limits provided by the Family
Code.
- marriage as any other contract has two kinds of requisites: the formal and the
essential requisites.

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Marriage as a Status
- carries with it implications in two fields:
1. the realm of personal rights and obligations of the spouses; and
2. the realm of property relations.
Annulment
- the remedy to a voidable marriage, i.e., a valid marriage until annulled.
Absolute Divorce
- a mode of dissolving the marital ties granted for causes subsequent to the
marriage ceremony. There is no Divorce in the Philippines.
Legal
-

Separation
or divorce a mensa et thoro
or separation from bed and board
or relative divorce
does not sever the marriage bonds
Reconciliation prevents a suit for legal separation or rescinds one already
granted.
- Can be granted for causes subsequent to the celebration of the marriage
- The grounds are those given by the national law of the parties concerned
inasmuch as this is purely a question of status, the validity of the marriage
being presumed or admitted.

Some Grounds for Legal Separation:


Grounds for legal separation
a) Adultery
b) Concubinage

c) attempt by one spouse against


the life of the other

National law of the parties


a) if of the same or common
nationality- the common national law
governs
b) if of different nationalities- the
grounds given by BOTH national laws
should all be considered proper
grounds
NOTE: Residence requirement if suit
is brought in the Philippines:
a) if cause occurred in the
Philippines- NO RESIDENCE
REQUIREMENT
b) if cause occurred outside the
Philippines- ONE YEAR
RESIDENCE is required in our
country

LEGAL SEPARATION DISTINGUISHED FROM ANNULMENT OF MARRIAGE


LEGAL SEPARATION
Can be granted from causes arising
after the celebration of marriage
Grounds are given by the national
parties concerned
Presumes the validity of marriage

ANNULMENT
Can be granted for causes existing
prior to or at the time the wedding
takes place
Grounds are given by the lex loci
celebrationis
Questions the very existence of the
status

GROUNDS FOR LEGAL SEPARATION:


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

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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 or more than 6
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 RP or abroad
8. sexual infidelity (adultery or concubinage) or perversion
9. attempt by the respondent against the life of the petitioner
10.abandonment of petitioner by respondent w/o justifiable cause for more than
one year.
Notes:

Mere preponderance of evidence will suffice to prove the existence of any of


the grounds, although in no.4, previous criminal conviction is essential in view
of the necessity of a final judgment.
Abandonment as used herein is synonymous to criminal desertion, i.e., a
husbands or wifes abandonment or willful failure without just cause to
provide for the care, protection or support of the spouse who is in ill health or
necessitous circumstances. This includes both the INTENTION to ABANDON
and the EXTERNAL ACT by which the intention is carried into effect.

Paternity (or maternity)


- the civil status of the father (or mother) with respect to the child begotten by
him (or her).
Filiation
- the status of the child in relation to the father or mother.
Parental Affection
- the love of the parents for the child
Filial Affection
- the love of the child for the parents
Legitimation
- a remedy or process by means of which those who in fact were not born in
wedlock, and should therefore be ordinarily considered illegitimate children,
are, by fiction and upon compliance with certain requirements, regarded by
the law as legitimate, it being supposed that they were born when their
parents were already validly married.
- The requisites for legitimation are those prescribed by the national
law of the father.
The following constitute the internal requisites for the legitimation of an illegitimate
child:
1) The child must be conceived and born outside wedlock of parents who at the
time of the conception were disqualified by any impediment to marry each
other.
2) There must be subsequent valid marriage
When we mention the relationship between the child and the parents, we
inferentially include also the following matters:
a) presumptions of legitimacy and illegitimacy
b) rights and obligations of parents and children
c) parental authority

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d) reciprocal support
Adoption
- the process of making a child, whether related or not to the adopter, possess
in general the rights accorded to a legitimate child.
CONFLICTS RULES ON ADOPTION
1) Whether or not the status of adoption has been created depends on the
national law of the adopter.
2) If the adoption takes place in the Philippines, our countrys procedural
requisites must be complied with in accordance with the theory of lex fori in
procedural matter.
3) Adoption cannot be allowed without judicial approval.
4) The following are not allowed to adopt:
-

The GUARDIAN WITH RESPECT TO THE WARD prior to the approval of the final
accounts rendered upon the termination of their guardianship relation;
Any person who has been CONVICTED OF A CRIME INVOLVING MORAL
TURPITUDE;
An ALIEN except:

a) a former Filipino citizen who seeks to adopt a relative by consanguinity


b) one who seeks to adopt the legitimate child of his/her Filipino spouse; or
c) one who is married to a Filipino citizen and seeks to adopt jointly with
his/her spouse a relative by consanguinity of the latter.
Note:
An alien with whose government of the RP has no diplomatic relations may not be
adopted.
Adoption of a foreigner does not grant said foreigner Philippine citizenship.
Doctrine of Immutability of Status
- theory that the STATUS OF A CHILD- HIS LEGITIMACY- IS NOT AFFECTED
BY ANY SUBSEQUENT CHANGE IN THE NATIONALITY OF THE PARENTS.
- However, the national law of the parents will be changed should the parents
effect a change of nationality: the rights and obligations of parents and child
will now be determined by the new national law.
Example: A Filipino illegitimate child who becomes a legitimated child of his Filipino
parents by virtue of recognition by both parents and their subsequent valid
marriage, continues to be a legitimate child even if the parents should subsequently
embrace another nationality.
The parental and filial rights and obligations will now be governed the NEW
nationality, but the child is considered still a legitimated child, despite any contrary
rule under the new nationality. Moreover, the new rights and obligations will be
effective only from the moment the new nationality is embraced, not before.
Guardianship
- there are generally 3* kinds of guardians
1. Guardians over the Person*- appointed generally by the courts
where the ward is domiciled. Their powers are coextensive with the
authority of the appointing court. Hence, a guardian as such, is not
permitted to sue in other jurisdictions unless his guardianship is also
recognized in such foreign courts. However, he may litigate in his own
individual or private capacity.
2. Guardians over the Property* - appointed by the court where the
property of the ward may be found; their powers are fixed by the
appointing court, and cannot have extraterritorial application.

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Should the ward have properties in foreign states, ancillary


guardianship proceedings are imperative.
3. General Guardians* (over both the person and the property of the
wards). Can generally be appointed only by the court of the country
where the ward is domiciled and where the properties are located.
Powers are coextensive with those of the court that designated them.
4. Domiciliary Guardians (appointed by the courts of the domicile of the
wards)
5. Ancillary Guardians (those appointed elsewhere)
Real Property
- part of the country where it is located.
- Its immovability makes it logical that it shall be subject to the laws of the
states where it is found (lex situs/lex rei sitae)
Personal Property
- movable property
- governed by the law of the owner (MOBILIA SEQUUNTUR PERSONAM)
- may be tangible or intangible
- TANGIBLES- Choses in possession
- INTANGIBLES- Choses in action (such as shares of stock, franchises, and
copyrights)
REAL AND PERSONAL PROPERTIES
FACTUAL SITUATION
1) Real property
- extrinsic and intrinsic validity
of
alienations,
usufruct,
transfers,
lease,
mortgages,
easement,
capacity of
police power,
parties,
interpretation of eminent
documents,
domain,
effects of
taxation,
ownership,
co-ownership,
quieting of title,
accession,
registration and
prescription
Exceptions:
a) successional rights
b) capacity to succeed
c) contracts involving real
property but which do not
deal with the title thereto
d) contracts where the real
property is given as security

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POINT OF CONTACT
Lex rei sitae (Art. 16, NCC)

national law of the decedent


- national law of the decedent
- lex loci voluntatis/ lex loci
intentionis
- the principal contract (usu. Loan)
is governed by the proper law of
the contract (lex loci voluntatis/
lex loci intentionis
note: the mortgage itself, however,
is governed by the lex rei sitae.
There is a possibility that the
principal contract is valid but the
mortgage is void; or it may be the
other way around. If the principal
contract is void, the mortgage would
also be void (for lack of proper cause
or consideration0, although by itself,
the mortgage could have been valid.

n) LEX REI SITAE

2) Tangible Personal Property


a) in general

Exceptions: same as those for real


property except that in example
concerning the mortgage the same
must be changed to a pledge of
personal property.

EXCEPTIONS: SAME AS THOSE FOR


REAL PROPERTY

b) means of transportation
-

vessels

other means

c) thing in transitu (these things


have a changing status
because they move)
- loss, destruction, deterioration
- validity and effect of the
seizure of the goods
-

law of the flag (or in some


cases of the place of registry)

law of the depot or resting


place

law of the destination

locus regit actum (where


seized) bec. Said place is their
temporary situs
lex loci voluntatis/lex loci
intentionis

disposition of alienation of the


goods

3) Intangible personal property


a) recovery of debts or
involuntary assignment
of debts (garnishment)
b) voluntary assignment
of debts

c) taxation of debts
d) administration of debts

a) where the debtor may be


effectively served with
summons (usu. The domicile)
b) lex loci voluntatis/ lex loci
intentionis (proper law of the
contract)
other theories:
1) NATIONAL LAW OF THE
CREDITOR OR DEBTOR
2) DOMICILE OF THE DEBTOR OR
THE CREDITOR
3) LEX LOCI CELEBRATIONIS
4) LEX LOCI SOLUTIONIS
c) domicile of the creditor
d) lex situs of assets of the
debtor (for these assets can
be held liable for the payment
of the debts)
e) the right embodied in the
instrument

e) negotiability or nonnegotiability of an
instrument
f) validity of transfer,
delivery or negotiation
of the instrument
g) effect on a corporation
of the sale corporate

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f) in general, situs of the


instrument at the time of
transfer, delivery or
negotiation
g) law of the place of
incorporation
h) lex loci voluntatis/lex loci
intentionis

shares
h) effect between the
parties of the sale of
corporate shares

i) law of the place of


incorporation

i) taxation on the
dividends of corporate
shares

j) law of the place where the


sale was consummated

j) taxation on the income


of the sale corporate
shares

k) law of the place that granted


them
l) law of the place where the
business is carried on

k) franchises
l) goodwill of a business
and taxation thereon
m) patents, copyrights,
trademarks, trade
names

m) in the absence of a treaty,


they are protected only by the
state that granted them.
Note: foreigners may sue for
infringement of trademarks and
tradenames in the RP only if Filipinos
are granted reciprocal concessions in
the state of the foreigners.

Chose
- a thing, an article of personal property
- a chattel personal, and is either IN ACTION OR IN POSSESSION
Chose in Action (Intangible Personal Property)
- a thing in action
- the right of bringing an action or
- right to recover a debt or money
Chose in action means any of the following:
1) Right of proceeding in a court of law to procure payment of sum of money, or
right to recover a personal chattel or a sum of money by action;
2) A personal right not reduced into possession, but recoverable by a suit at
law;
3) A right to personal things of which the owner has the possession, but
merely a right of action for their possession;
4) Includes personal chattels which are not in possession, and all property
in action which depends entirely on contracts express or implied;
5) A right to receive or recover a debt, demand, or damages on a cause
of action ex-contractu or for a tort or omission of a duty.
Chose in Possession (Tangible Personal Property)
- Personal thing of which one has possession
Goodwill
- the PATRONAGE of any established trade or business
- the BENEFIT acquired by an establishment BEYOND the mere value of the
capital stocks, funds, or property employed therein IN CONSEQUENCE OF
THE GENERAL PUBLICS PATRONAGE AND ENCOURAGEMENT which it
receives from its customers.
Trademark
- the name or symbol of goods made or manufactured.
Trade name
- the name or symbol of a store or business place

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Service Mark
- the name or symbol of services rendered.
Copyright
- the right of literary property as recognized and sanctioned by positive law.
Will
-

an act whereby a person is permitted, with the formalities prescribed by law,


to control to a certain degree the disposition of his estate, to take effect after
his death.

Succession
- a mode of acquisition by virtue of which the property, rights and obligations,
to the extent of the value of the inheritance, of a person are transmitted
through his death to another or others either by his will or by operation of law.
Theories on the Proper Law for the Transmission of Successional Rights
1) Unitary or Single System- one law governs the transmission of both real and
personal property
2) Split or Scission System- one law governs real property while another
determines successional rights to personal property.
WILLS, SUCCESSION, AND ADMINISTRATION
FACTUAL SITUATION
1) Extrinsic Validity of Wills
a) made by an alien abroad
b) made by a Filipino abroad
c) made by an alien in the RP

POINT OF CONTACT
a) lex nationalii/ lex
domicilii/ RP law/ lex
loci celebrationis
b) lex nationalii/ lex loci
celebrationis
c) lex nationalii/ lex loci
celebrationis

2) Extrinsic validity of JOINT


WILLS (made in the same
instrument)
a) made by Filipinos
abroad
b) made by aliens abroad

c) made by aliens in the


Philippines
3) Intrinsic Validity of wills
(including order of succession,
amount of successional rights,
and intrinsic validity of the
provisions of the will)
4) Capacity to succeed
5) Revocation of wills
a) if done in RP
b) if done outside RP
- by a non-domiciliary
-

by a domiciliary

6) probate of wills made abroad


a) if not yet probated

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a) lex nationalii (void even


if valid where made)
b) valid if accdg. Lex
nationalii/ lex domicilii/
lex loci celebrationis
c) lex loci celebrationis
therefore VOID
Lex nationalii of the deceasedregardless of the location and nature
of the property
Lex nationalii of the deceased
a) lex loci actus (of the
revocation)
b)
- lex loci celebrationis of
the WILL/ lex loci domicilii
- lex domicilii/ lex loci actus
of REVOCATION
a) lex fori

b) if already probated abroad

b) lex fori (must also be


probated in the RP; but
enforcement of the
foreign judgment on
probate is enough)

7) Executors and administrators


a) where appointed

b) powers

a) if domiciled- where
domiciled at death
if not domiciled- where the
assets are found
b) co-extensive with the
qualifying or the
appointing court
note: these rules also apply to
principal, domiciliary or ancilliary
administrators and receivers even in
non-succession cases.

Holographic Wills
- a will which is entirely written, dated and signed by the hand of the testator
himself.
- Subject to no other form and need not be witnessed.
- The disposition of the testator written below his signature must be dated and
signed by him in order to make them valid as testamentary dispositions.
Decedent and Testator
- decedent is the general term applied to the person whose property is
transmitted through succession, whether or not he left a will, if he left a will,
he is also called a testator.
Testamentary Capacity
- the capacity to comprehend the nature of transaction in which the testator is
engaged at the time,
- to recollect the property to be disposed of and the persons who would
naturally be supposed to have claims upon the testator, and
- to comprehend the manner in which the instrument will distribute his property
among the objects of his bounty.
Attestation Clause
- the clause wherein the witnesses certify that the instrument has been
executed before them, and the manner of the execution of the same.
Estate
- the interest which a person has in lands, or any other subject of property

Obligation
- a juridical necessity to, to do or not to do.
- A juridical relation whereby a person (creditor) may demand from another
(debtor) the observance of a determined conduct and in case of breach, may
demand satisfaction from the assets of the latter.
Contract
- a meeting of the minds between 2 persons whereby one binds himself, with
respect to the other, to give something or to render some service.
An agreement which creates an obligation
- Agreement upon sufficient consideration, to do or not to do a particular thing.
- May be express or implied.

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Express Contract
- the agreement is formal and stated verbally or in writing
- the terms of the agreement are declared by the parties in writing or verbally
at the time it is entered into
Implied Contract
- the agreement in fact is presumed or inferred from the acts of the parties
- may also arise from mere consent
- where one party rendered services to another, and these services were
accepted by the latter, in the absence of proof that the services were
rendered gratuitously, an obligation results to pay the reasonable worth of the
services rendered upon the implied contract of hiring, under the principle of
facio ut des, i.e., I do that you may give.
Tort
-

a legal wrong committed upon anothers person or property, independent of a


contract

Crime
- an act or omission punishable by law
Felony
- transgression against the Revised Penal Code
Offense
- transgression against a special law
Infraction
- transgression against a local or municipal or local ordinance
Corporation
- an artificial being created by operation of law, having the right of succession
and the powers, attributes, and properties expressly authorized by law or
incident to its existence.
Natural Moral Law
- rule of human conduct implanted by God in our nature and in our
conscience, urging us to do whatever is right and avoid whatever is evil.
Special Laws
- regulate, for instance, the treatment of foreign insurance companies, the
reciprocal privileges in the matters of patents, the requisites before an alien
may obtain a copyright, the conditions under which alien retail trade may still
continue, and the grant of incentives to foreign investors.
LEX SITUS
- law of the place where the property is situated
- governs almost everything that concerns real property: formalities for their
alienation, the capacity to encumber or otherwise dispose of them, and so
forth.
- In the Philippines, this rule applies to both real and personal property.
LEX LOCI CELEBRATIONIS
- law of the place of the celebration or execution
- governs generally all transactions insofar as FORMALITIES OR
SOLEMNITIES are concerned.
- One important exception to this rule is whenever property is
involved, in which a case it is the lex situs that should control.
Criminal Law Principle of Territoriality
- the place or territory where a crime has been committed has jurisdiction to try
the offense that has been committed.
Criminal Law Principle of Generality

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criminal laws of a country bind both the citizens and the aliens who are in the
said country or territory.
Penal laws and those of public security and safety shall be obligatory upon all
who live or sojourn in Philippine territory, subject to the principles of public
international law and to treaty stipulations.
Aliens come under our territorial jurisdiction because while they are in our
country, they owe some sort of allegiance, even if it be temporary.

JURISDICTION
- from the Latin jus dicere, i.e., the right to speak.
- The authority of a tribunal to hear and decide a case and also the power to
enforce any judgment it may render thereon in foreign states, subject to the
rights of said states.
JURISDICTION OVER THE SUBJECT MATTER
- Conferred by law; the consent or the submission of the parties on this point is
of no consequence; only the law confers it and only the law may change it.
- the authority of a court to hear and decide cases of the general class to which
the proceedings in question belong
- the allegations in the petition or complaint, read together with the proper
jurisdictional law, will confer jurisdiction on the court
JURISDICTION OVER THE PERSON
- the power of the court to render a judgment that will be binding on the
parties involved: the plaintiff and the defendant
- jurisdiction over the person of the plaintiff is acquired from the moment he
institutes the action by the proper pleading
- jurisdiction over the person of the defendant is acquired through the following
means:
1. voluntary appearance
2. personal substituted service of summons
JURISDICTION OVER THE RES
- jurisdiction over the particular subject matter in controversy, REGARDLESS of
persons who may be interested therein.
FORUM-SHOPPING
- the practice of looking over the courts of the world for possible advantages
ought to be curbed
PUBLIC POLICY
- the manifest will of the state
- that which it desires on account of its own fundamental principles of justice,
its own perception of morals, and its deep-rooted traditions for the common
weal.
COMITY BASED ON RECIPROCITY
- if the laws and judgments of the forum are recognized in a foreign state, the
forum in turn will recognize the laws and judgments emanating from said
foreign state.
RECOGNITION OF A FOREIGN JUDGMENT
- our courts will allow said FOREIGN JUDGMENT TO BE PRESENTED AS A
DEFENSE TO A LOCAL LITIGATION
- involves merely the sense of justice
- does not require either action or a special proceeding
- may exist without enforcement
ENFORCEMENT OF FOREIGN JUDGMENTS
- a plaintiff wants the courts to POSITIVELY CARRY OUT AND MAKE
EFFECTIVE IN THE PHILIPPINES A FOREIGN JUDGMENT
- virtually implies a direct act of sovereignty
- necessitates a separate action or proceeding brought precisely to make the
foreign judgment effective

13 | P a g e

necessarily carries with it recognition

Extrinsic Fraud
- fraud based on facts not controverted or resolved in the case where the
judgment was rendered.
Intrinsic Fraud
- fraud which goes to the very existence of the cause of action.
PURELY INTERNAL RULE
- Governs a purely domestic problem, one without any foreign element
- Directly answers a given problem
CONFLICTS RULE
- applies when the factual situation involves a foreign element
- merely indirectly responds by indicating whether internal or foreign law is to
be applied.
FACTUAL SITUATION
- set of facts presenting a conflicts problem
- defines its object certain operatives facts
- raises a legal question
POINT OF CONTACT OR THE CONNECTING FACTOR
- the law of the country with which the factual situation is most intimately
connected.
CAPACITY TO SUCCEED
- The factual situation indicating that a person is dead, and someone alleges a
right or capacity to inherit from the former.
TOTALITY APPROACH
- getting the law intended by the parties to govern the contract then applying
the intended law in its totality including its periods of prescription and its
statute of frauds.
LEX FORI THEORY
- the forum considers its own concepts its own characterization, otherwise there
will be a virtual surrender of sovereignty right in the forums own home.
LEX CAUSAE THEORY
- the exact opposite of the lex situs theory
- the law identified in the choice-of-law stage of the conflict process as the one
to be applied to determine the case
- the characterization of the foreign state, which is the principal point of
contact, is supposed to be followed.
UNIVERSAL ANALYTICAL THEORY/ COMPARATIVE APPROACH THEORY
- common factors both in the LEX FORI and the LEX CAUSAE are taken into
consideration in order to avoid unjust results
- Characterization comes only after a general comparative analytical study
of the jurisprudence of all the states involved.
DUAL THEORY OF LEX FORI AND LEX CAUSAE
- Similar to the Comparative Approach Theory, except that instead of
considering worldwide conceptions, ONLY TWO CONCEPTS ENTER INTO
THE PICTURE: THE CHARACTERIZATION OF THE LEX FORI AND THAT
OF THE LEX CAUSAE.
AUTONOMOUS THEORY (may be related to TRANSMISSION)
- The forum should consider the characterization of the country referred to in
the conflicts rule of the lex causae

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Hence, if the characterization in the forum State A points to State B as the lex
causae, and the conflicts rule in State B refers to State C as the proper point
of contact, it is the characterization in State C which must be used by State A.

NATURAL-BORN CITIZENS
- those who are citizens of the Philippines from birth without having to perform
any act to acquire or perfect their Philippine citizenship.
NATURALIZED CITIZENS
- citizens who are not natural-born citizens and those who become citizens
through judicial proceedings
CITIZENS BY ELECTION
- Citizens who, by virtue of certain legal provisions, become such by choosing
or electing Philippine citizenship at the age of 21 or within a reasonable time
hereafter.
EFFECTIVE NATIONALITY THEORY
- if the deceased is not a citizen of the forum, we must get the law of the nation
of which he was both a national and a domiciliary
DOMICILE
- the place where a person has certain settled, fixed, legal relations because it
is assigned to him by the law at the moment of birth (DOMICILE OF ORIGIN)
- the place assigned to him by law after birth on account of a legal disability
caused for instance by minority, insanity, or marriage in the case of a woman
or because he has home there (CONSTRUCTIVE DOMICILE/DOMICILE BY
OPERATION OF LAW)
- that to which, whenever he is absent, he intends to return (DOMICILE OF
CHOICE)
DOMICILE OF ORIGIN (DOMICILIUM ORIGINS)
- acquired at birth
- applies only to infants
- never changes for a person is born only once.
CONSTRUCTIVE DOMICILE (DOMICILIUM NECESSARIUM)
- given after birth
all those who lack capacity to choose their own domicile (infants, married
women, idiots and insane)
- Legal disabilities prevent their making a choice
- May change from time to time, depending upon circumstances
DOMICILE OF CHOICE
- a result of the voluntary will and action of the person concerned
PRINCIPLE OF ONLY ONE DOMICILE
- No natural person can have more than one domicile at a time while a person
may have more than one residence, the Civil Code recognizes only one
domicile: the place of habitual residence.
RESIDENCE
- a more or less temporary place of abode which may be located in several
places
FOREIGN COURT THEORY
- International PINGPONG/ International Football/ Revolving Doors/ inextricable
circle
- The RP court, in deciding the case, will put itself in the position of the foreign
court and whatever the foreign court will do respecting the case, the RP court
will likewise do.
THEORY OF DESISTMENT

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the RP court desists or refrains from applying a foreign law because of its
inadequacy being founded on a different basis. Hence, the RP court applies
its internal law.

Ordinary Children
- with an intra-uterine life of at least 7 months.
- Mere birth is sufficient
Extraordinary Children
- if the intra-uterine life be less than 7 months
- the child must have lived for at least 24 hrs. after its complete delivery from
the maternal womb
NCC Article 40. Birth determines personality; but the conceived child shall be
considered born for all purposes that are favorable to it, provided it be born later
with the conditions specified in the following article.
NCC Article 41. For civil purposes, the fetus is considered born if its is alive at the
time it is completely delivered from the mothers womb. However, if the fetus had an
intra-uterine life of less than 7 months, it is not deemed born if it dies within 24 hrs.
after its complete delivery from the maternal womb.
Presumptive Personality
- Personality does not begin at birth, it begins at conception. It is essential that
birth should occur later, otherwise the fetus will be considered as never
having possessed legal personality.
Emancipation
- takes place by the attainment of majority. Unless otherwise provided, majority
commences at the age of 18 yrs.
Absence
- the legal status of a person who disappears from his domicile, his
whereabouts being unknown
- Article 384 of the Civil Code:
2 years having elapsed without any news about the absentee or since the
receipt of the last news, and 5 years in case the absentee has left a person in
charge of the administration of his property, his ABSENCE may be declared.
-

Article 386 of the Civil Code:

The judicial declaration of absence shall not take effect until six months
after its publication in a newspaper of general circulation.
PRESUMPTION OF DEATH
Article 390. [ORDINARY ABSENCE] After the absence of 7 years, it being unknown
whether or not the absentee still lives, he shall be presumed dead for all purposes,
except those of succession.
The absentee shall not be presumed DEAD for the purpose of opening his
succession till after an absence of 10 years.
If he disappeared after the age of 75 years, an absence of 5 years shall be sufficient
in order that his succession may be opened.
In ordinary absence- death is presumed to have occurred on the last day of the
period
In extraordinary / qualified absence- death is presumed to have occurred at the
beginning of the period.
SURVIVORSHIP

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The rules on survivorship are found in Article 43 of the Civil Code and in Rule 131 of
the Rules of Court:
Article 43 CC. If there is doubt, as between 2 or more persons who are called to
succeed each other, as to which of them died first, whoever alleges the death
of one prior to the other, shall prove the same;
IN THE ABSENCE OF PROOF, it is presumed that THEY DIED AT THE SAME
TIME AND THERE SHALL BE NO TRANSMISSION OF RIGHTS FROM ONE TO
THE OTHER.
Rule 131, Sec. 3 (jj) Rules of Court:
When 2 or more persons perish in the same calamity, such as wreck, battle, or
conflagration, and it is not shown who died first, and there are no particular
circumstances from which it can be inferred, the survivorship is presumed from the
probabilities resulting from the STRENGTH AND AGE OF THE SEXES, according to
the following rules:
1. if both were under the age of 15, the older is presumed to have survived;
2. if both were above the age of 60, the younger is presumed to have survived;
3. if one is under 15 and the other above 60, the former is presumed to have
survived;
4. if both be over 15 and under 60, and the sexes be different, the male is
presumed to have survived; if the sexes be the same, then the older;
5. if one be under 15 or over 60, and the other between those ages, the latter is
presumed to have survived.
MARRIAGE AS A CONTRACT
FACTUAL SITUATION
1. ) if celebrated abroad
* between Filipinos

* between foreigners

POINT OF CONTACT
1.)
LEX LOCI CELEBRATIONIS (without
prejudice to the exceptions under
bigamous, polygamous, and
incestuous marriages and consular
marriages
LEX LOCI CELEBRATIONIS except if
the marriage is:
a) Highly immoral (like
bigamous and
polygamous marriages)
b) Universally considered
incestuous, ie., bet.
Brothers and sisters
and bet. Ascendants
and descendants.

* mixed

LEX LOCI CELEBRATIONIS except if


the marriage is:
c) Highly immoral (like
bigamous and
polygamous marriages)
d) Universally considered
incestuous, ie., bet.
Brothers and sisters
and bet. Ascendants
and descendants.
- TO UPHOLD THE VALIDITY OF THE
MARRIAGE.

17 | P a g e

If celebrated in the Philippines


between foreigners

mixed

Marriage by proxy (celebrated where


the proxy appears)

NATIONAL LAW provided the


marriage is not highly immoral or
universally considered incestuous
NATIONAL LAW of the Filipino
(otherwise public policy may be
militated against)
LEX LOCI CELEBRATIONIS (with
prejudice to the foregoing rules)

MARRIAGE AS A STATUS
FACTUAL SITUATION
1) Personal Rights and Obligations
between the Husband and the Wife

POINT OF CONTACT
NATIONAL LAW OF THE HUSBAND
Note: Effect of subsequent change of
nationality

2) Property Relations between the


Husband and the Wife

a) if both will have a new


common nationality, THE NEW
ONE;
b) if only one will change, THE
LAST COMMON NATIONALITY
c) if there was never any
common nationality, THE
NATIONAL LAW OF THE
HUSBAND AT THE TIME OF
THE WEDDING
NATIONAL LAW OF THE HUSBAND,
w/o prejudice to Art. 80 of the FC, to
wit:
In the absence of a contrary
stipulation in a marriage settlement,
the property relations of the spouses
shall be governed by RP laws,
regardless of the place of the
celebration of the marriage and their
residence.
This rule shall not apply:
1) Where both spouses are
aliens;
2) With respect to the extrinsic
validity of contracts affecting
property not situated in the RP
and executed in the country
where the property is located.
3) With respect to the extrinsic
validity of contracts entered
into in the RP but affecting
property situated in a foreign
country whose laws require
different formalities for its
extrinsic validity.
Effect of Change of Nationality- No
EFFECT accdg. To the Doctrine of

18 | P a g e

immutability in the matrimonial


property regime.

Article 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 on an airplane
which is missing, who has not been heard for 4 years since the loss of the
vessel or airplane;
2. a person in the armed forces who has taken part in war, and has been
missing for 4 years.
3. a person who has been in danger of death under other circumstances
and his existence has not been known, for 4 years.
Juridical Jurisdiction
- authority to hear and determine a legal controversy.
- The jurisdiction of our tribunals of justice is governed by our own law on the
matter.
Legislative Jurisdiction
- the authority to enact laws
- the competence of a persons national law to govern his status
Compulsory Rule
- it is IMPERATIVE for the parties to follow the formalities of the PLACE OF
CELEBRATION
Optional Rule
- the parties may follow EITHER THE LEX LOCI CELEBRATIONIS OR THEIR
NATIONAL LAW
Ecclesiastical Rule
- the formalities of BOTH THE LEX LOCI CELEBRATIONIS AND THE
NATIONAL LAW of the parties must be complied with
Common-Law Marriage
- the living-in together or the celebration of a man and a woman as husband
and wife without getting married
Marriage by Proxy
- One where one of the parties is merely represented at the ceremony by a
friend or delegate
Absolute Community Regime
- Almost all the properties of the marriage are owned in common by the
husband and the wife
Relative Community Regime/Community Partnership of Gains or the Ganancial
System
- everything earned during the marriage belong to the conjugal partnership
Complete Separation of Property Regimes
- each owns his/her earnings
Dotal or Dowry System
- the wife, before the marriage, delivers a dowry or property to the husband to
help out in the marriage obligations, but later, when the marriage is dissolved,
the property of its value must be returned.
Complete Absorption or Administration by the husband
- the husband owns all the properties of the marriage, but he is liable for all the
debts

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Marital Administration System


- each spouse still owns his/her property, but the husband administers all the
properties.
Immutability of Matrimonial Property Regime Doctrine
- REGARDLESS OF CHANGE OF NATIONALITY on the part of the husband or
the wife or both, THE ORIGINAL PROPERTY REGIME AT THE START OF
THE MARRIAGE REMAINS.
Mutability of Law
- when the law of the original nationality itself changes, the marital regime, the
property relationship, has to change accordingly.
- This cannot be helped for law is essentially a dynamic thing;
- However, vested rights must be duly protected.
Socially grotesque situation
- a situation where a Filipino woman is still married to a man who is no longer
her husband
Abandonment
- Synonymous to CRIMINAL DESERTION
- A husbands or wifes willful failure without just cause to provide for the
care, protection or support of a spouse who is still in ill health or necessitous
circumstances
- Includes both the intention to abandon and the external act by which the
intention is carried into effect.
BIGAMY
- committed by any person who shall contract a second or subsequent marriage
before the former marriage has been legally dissolved, or
- who shall contract a second or subsequent marriage before the absent spouse
has been declared presumptively dead by means of a judgment rendered in
the proper proceedings.
Sexual Infidelity
- Unfaithfulness in marriage
- Adultery and concubinage are encompassed in the term
Sexual perversion
- an abnormality by a person in matters of sex
Pre-marital Sex
- indulging by an unmarried couple in sexual intercourse prior to getting
married.
Adultery
- voluntary sexual intercourse of a married person other than the offenders
husband or wife
- committed by a married woman who shall have sexual intercourse with a man
not her husband; and by a man who has carnal knowledge of her, knowing her
to be married, even if the marriage be subsequently declared void.
OPEN AND NOTORIOUS ADULTERY
- The parties must reside together publicly in the face of society as if conjugal
relations existed between them, and their so living and the fact that they are
not husband and wife must be known in the community
Concubinage
- committed by any husband who (1)shall keep a mistress in the conjugal
dwelling or (2)have sexual intercourse under scandalous circumstances with a
woman not his wife, (3)cohabit with her in any other place.
ILLICIT COHABITATION

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the living together as man and wife of two persons who are not lawfully
married with the implication that they habitually practice fornication (unlawful
sexual intercourse between two unmarried persons).

ATTEMPT BY ONE SPOUSE AGAINST THE LIFE OF THE OTHER


- the attempt must not be justified as in the case of lawful self-defense; nor
must it be one where the attempt was made because the other was caught in
flagrante delicto with a lover. The attempt must be one of attempted or
frustrated parricide, not one caused by negligence for in the latter case, it
cannot be said that there was an attempt.
Note:
Art. 59. FC: No legal separation may be decreed unless the Court has taken steps
toward the reconciliation of the spouses and is fully satisfied, despite such efforts,
that reconciliation is highly improbable.
Defenses in Legal Separation:
a) Condonation- forgiveness, express or implied. Must be free, voluntary, and
not induced by duress or fraud
b) Consent- may be express or implied. Must be unclouded by fraud, duress, or
sometimes even mistake
c) Connivance
d) Recrimination or mutual guilt- a charge made by an accused person
against the accuser; in particular, a countercharge of adultery or concubinage
made by one charged with the same offense in a suit for legal separation,
against the person who has charged him or her.
e) Collusion- Art. 60 of FC: No decree of legal separation shall be promulgated
upon stipulation of facts or a confession of judgment. This is an agreement
whereby one party will pretend to have committed the ground relied upon.
f) Prescription- Art. 57, FC: An action for legal separation shall be filed within 5
years from the time of the occurrence of the cause. Need not be alleged.
Note:
Art. 58 FC: An action for legal separation shall in no case be tried before 6 months
shall have elapsed since the filing of the petition.
The cooling-off period (6 months) is the period of time in which no action may be
taken by either sides.
Purpose: to enable the parties to cool-off.
Art. 61 FC: After the filing of the petition for legal separation, the spouses shall be
entitled to live separately from each other.
The court, in the absence of a written agreement between the spouses, shall
designate either of them or a third person to administer the absolute community or
conjugal partnership property. The administrator appointed by the court shall have
the same powers and duties as those of a guardian under the Rules of Court.
Note: The spouses, while may be entitled to live separately from each other after the
filing of the petition, are not required to do so.
Effects of legal separation:
1) Spouses may live separately
2) Marriage bonds not severed
3) The absolute community or the conjugal partnership shall be dissolved
and liquidated
4) The offending spouse shall have no right to any share of the net
profits earned by the absolute community or the conjugal

21 | P a g e

partnership, which shall be forfeited (in accordance with the provisions


of Art. 43)
5) The custody of the minor children shall be awarded to the innocent
spouse, subject to Art. 213 of FC
6) The offending spouse shall be disqualified from inheriting from the
innocent spouse by intestate succession.
7) The provisions in favor of the offending spouse made in the will
of the innocent one shall be revoked by operation of law. (the provisions
of the will being referred to here are provisions made PRIOR TO and
NOT AFTER the decree of legal separation; otherwise it cannot be said
that the decree revokes any provision, for the will had not yet been
made.)
TWO THINGS THAT MAY BE REVOKED BY THE INNOCENT SPOUSE:
1) Donations made in favor of the offending spouse (must be brought within 5
years from the time the decree of legal separation has become final); and
2) Designation of the offending spouse as beneficiary in the insurance contracts
of the innocent spouse.
Condonation
- forgiveness, express or implied
- to constitute valid defense, it must be free, voluntary, and not induced by
duress or fraud.
RECRIMINATION OR MUTUAL GUILT
- a charge made by an accused person against the accuser
- a counter charge of an adultery or concubinage made by one charged with the
same offense in a suit for legal separation, against the person who has
charged him or her.
COLLUSION
- an agreement whereby one party will pretend to have committed the ground
relied upon.
RECONCILIATION
- a bilateral act, requiring common consent, whether express or implied.
- In law of domestic relations, reconciliation is a voluntary resumption of marital
relations in the fullest sense.
- Shall have the ff. consequences:
a. The legal proceedings, if still pending, shall thereby be
terminated in whatever stage;
b. The final decree of legal separation shall be set aside, but the
separation of property and any for forfeiture of the share of the
guilty spouse already effected shall subsist, unless the spouses
agree to revive their property regime.
CONSANGUINITY
- kinship
- blood relationship
- the connection or relation of persons descended from the same stock or
common ancestor.
AFFINITY
- connection existing in consequence of a marriage, between each of the
married persons and the kindred of the other.
Lineal Consangunity
- subsists between persons of whom one is descended in a direct line from the
other and so upwards in the direct ascending line and so downwards in the
direct descending line.
COLLATERAL CONSANGUINITY

22 | P a g e

Subsists between persons who have the same ancestors, but who do not
descend or ascend one from the other

DIRECT AFFINITY
- subsists between the husbands and his wifes relations by blood, or between
the wife and the husbands relations by blood.
SECONDARY AFFINITY
- subsists between the husbands and his wifes relations by marriage
COLLATERAL AFFINITY
- Subsists between the husband and the relations of his wifes relations
ENUMERATION
Elements of Private International Law:
1.
2.
3.
4.

Conflict of laws is that part of the municipal law of the State


The direction to Courts and Administrative agencies
A legal problem involving a foreign element
The application or non-application of foreign law/foreign laws

Importance of Conflict of Laws

1. To adjust conflicting rights in international mercantile and corporate


transactions
2. To solve personal, family, property and successional contractual problems,
possessed of facts or elements operating in two or more states.
Scope of Functions of Conflict of Laws
1. To prescribe the conditions under which the court is competent to entertain
such a suit
2. To determine for each cases the particular territorial system of law by
reference to which the rights of the parties must be ascertained
3. To specify the circumstances in which a foreign judgment can be
recognized as a decisive of the question in dispute
In other words,
1. The determination of which country has jurisdiction
2. The applicability to a particular case of either the local or the foreign law
3. The determination of the force, validity and effectiveness of a foreign
judgment

Why conflict of law is observed?


1. States must of necessity observe the subject because it is part of their
municipal law. Surely, a government, anywhere and anytime, is duty bound
to enforce and respect its own municipal legislation
2. individuals observe it because of fear of municipal sanctions
SOURCES OF CONFLICT OF LAWS
1. Indirect
- Natural Moral Law
- Work of Writers
2. Direct
- Constitutions
- Codifications

23 | P a g e

Special Laws
Treaties and Conventions
Judicial Decisions
International Customs

Kinds of Jurisdiction
1. Jurisdiction over the subject matter
2. Jurisdiction over the person
3. Jurisdiction over the res
Reasons for Refusal to Assume Jurisdiction: Forum Non Conveniens
1. the evidence and the witnesses may not be readily available
2. the court dockets of the forum may already be clogged; to permit
additional cases would inevitably hamper the speedy administration of
justice
3. the evils of forum shopping
Application of the Internal or Domestic Law
1. when the law of the forum expressly so provides in its conflicts rules
2. when the proper foreign law has not been properly pleaded and proved
3. when the case involves any of the exceptions to the application of the
proper foreign law
Exceptions To The Application Of Foreign Law
1) When the foreign law, judgment or contract is:
- Contrary to almost universally conceded principles of morality
(contra bonos mores)
- Contrary to a sound and established public policy of the forum
- Involves procedural matters
2) When the case involves:
- Penal laws, contracts and judgments
- Purely fiscal or administrative matters
- Real or personal property situated in the forum
3) When the application of the foreign law, judgment, or contract:
- May work undeniable injustice to the citizens or residents of the forum
- May work against the vital interests and national security of the
state of the forum
Proving of a Written Foreign Law
1. By an OFFICIAL PUBLICATION thereof;
2. By a COPY ATTESTED BY THE OFFICER HAVING THE LEGAL CUSTODY OF THE
RECORD, or by his deputy, and accompanied with a CERTIFICATE THAT SUCH
OFFICER HAS CUSTODY
Proving of an Unwritten Law
1. By the ORAL TESTIMONY of expert witnesses
2. By PRINTED AND PUBLISHED BOOKS OF REPORTS OF DECISIONS of the
country involved, if proved to be commonly admitted in such courts
Theories on Why the Foreign Law may in Some Cases Be Given Effect
1. Theory of Comity
2. Theory of Vested Rights
3. Theory of Local Law
4. Theory of Harmony of Laws
5. Theory of Justice
Kinds of Comity
1. Based on Reciprocity
2. Based on the persuasiveness of foreign judgment

24 | P a g e

Reasons why not all foreign judgments can be recognized or enforced in our country
1.
2.
3.
4.

The requisite proof thereof may not be adequate


They may contravene our established public policy
They may contradict one another: one cannot be guided by contradictions
The administration of justice may be shockingly corrupt in some
countries

Conditions and Requisites Before Foreign Judgments may be Recognized and


Enforced in the Philippines
1. Proof of Foreign Judgment (For recognition, there is no necessity for a
separate action or proceeding
2. the judgment must be on civil or commercial matter
3. No lack of jurisdiction, No want of notice, No collusion, No fraud, No
clear mistake of law or fact
4. The judgment must not contravene a sound and established public
policy of the forum
The Requisites for Res Judicata
1. The judgment must be final
2. The court rendering the judgment must have jurisdiction over the subject
matter and the parties
3. The judgment must be on the merits
4. There must be identity of parties, of subject matter, and of cause of action
Kinds of Conflicts Rule
1. One-Sided Rule/ Unilateral Rule
2. All-sided Rule/ Multilateral Rule
Factors Which Give Rise to the Problem of Characterization
1. Different legal systems attach to the same legal term with different
meanings;
2. Different legal systems may contain ideas or conceptions completely
unknown to one another
3. Different legal systems apply different principles for the solution of
problems which, in general terms, are of common nature
Steps
1.
2.
3.

in Characterization (According to Dean Falconbridge)


Characterization of the questions
Selection of the proper law
Application of the proper law

Steps
1.
2.
3.
4.
5.
6.
7.

in Characterization (According to Edgardo Paras)


Determination of the facts involved
Characterization of the factual situation
Determination of the conflicts rule which is to be applied
Characterization of the point of contact or the connecting factor
Characterization of the problem as procedural or substantive
pleading and proving of the proper foreign law
application of the proper foreign law to the problem

Theories in Characterization (DUAL LT)


1.
2.
3.
4.
5.
6.

LEX FORI
LEX CAUSAE
UNIVERSAL ANALYTICAL
DUAL THEORY OF LEX FORI AND LEX CAUSAE
AUTONOMOUS THEORY
TOTALITY THEORY

Two kinds of capacity:


1. capacity to act

25 | P a g e

2. juridical capacity
Characteristics of Status: (CCUPS)
1. conferred principally by the State
2. a matter of public or social interest
3. a concept of social order
4. cannot be easily terminated at the mere will or desire of the parties
concerned
5. generally supposed to have a universal character
THEORIES ON PERSONAL LAW OR THE LAW THAT SHOULD GOVERN STATUS AND
CAPACITY IN GENERAL
1. Nationality Theory- Personal Theory
2. Domiciliary Theory- Territorial Theory
3. Situs Theory- Eclectic Theory
3 Kinds of Citizens of the Philippines
1. Natural-born
2. Naturalized
3. Citizen by election
2 Theories on Whether Place or Ancestry Determines Citizenship
1. Jus Soli
2. Jus Sanguinis
Citizens of the Philippines Under the 1987 Constitution
1. Those who are citizens of the Philippines at the time of the adoption of the
1987 Constitution
2. Those whose fathers or mothers are citizens of the Philippines
3. Those born before 17 January 1973, of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority
4. those who are naturalized in accordance with law.
Qualifications for Naturalization
1. AGE. The petitioner must not be less than 21 years old on the date of the
hearing of the petition
2. RESIDENCE. he must have resided in the Philippines for a continuous period
of not less than 10 years.
3. MORAL. He must be of good moral character and
4. CONSTI. He must believe in the principles underlying the Philippine
Constitution
5. CONDUCT. he must have conducted himself in a proper and irreproachable
manner during the entire period of his residence in the Philippines in his
relation with the constituted government as well as with the community in
which he is living.
6. PROPERTY. he must have a real estate in the Philippines worth not less than
PHP5,000.00 OR must have some lucrative trade, profession, or lawful
occupation.
7. LANGUAGE. he must be able to speak an write English or Spanish and any
one of the principal Philippine languages
8. MINORS. he must have enrolled his minor children of school age in any of the
public schools/private schools recognized by the Bureau of Private Schools
where RP history, government, and civics are taught or prescribed as part of
the school curriculum during the entire period of the residence required of
him, prior to the hearing of the petition.

3 Kinds of Domicile

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1. domicile of origin
2. constructive domicile
3. domicile of choice
Proposed Solution to the Renvoi
1. Reject the Renvoi
2. Accept the Renvoi
3. Follow the Theory of Desistment/ mutual disclaimer of jurisdiction theory, to
wit:
THEORY OF DESISTMENT
- the RP court desists or refrains from applying a foreign law because of its
inadequacy being founded on a different basis. Hence, the RP court applies
its internal law.
4. make use of the foreign court theory, to wit:
FOREIGN COURT THEORY
- International PINGPONG/ International Football/ Revolving Doors/ inextricable
circle
- The RP court, in deciding the case, will put itself in the position of the foreign
court and whatever the foreign court will do respecting the case, the RP court
will likewise do.
Emancipation takes place by:
1.
2.
3.
4.

Marriage of the minor


attainment of the age of majority
parental concession
judicial concession

ASPECTS OF MARRIAGE
1. As a contract
2. As a union, a status, a legal relation
Substantial or Essential Requisites of Marriage of Filipinos
1.
2.
3.
4.
5.

legal capacity of the contracting parties


consent of the contracting parties freely given
marriage license, except in marriage of exceptional cases
authority of the person solemnizing the marriage
marriage ceremony

Personal Rights and Obligations between the husband and the wife
1. Mutual fidelity, cohabitation, and respect
2. Mutual assistance and support
3. Right of the wife to use the husbands name
STATELESSNESS
1.
2.
3.
4.

DEPRIVATION of citizenship for any cause.


RENUNCIATION of nationality by certain acts, express or implied
VOLUNTARY RELEASE from his original state
BORN in a country which recognizes only the principle of jus sanguinis but
whose law of the parents recognizes only the principle of jus soli.

Personal Law of stateless individuals


The Hague Conference of 1928 on International Private Law suggested that the
personal law of stateless individuals shall be:

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1. the law of the domicile (habitual residence)


2. secondarily the law of the place of temporary residence
RULES ON STATUS IN GENERAL
FACTUAL SITUATION
1. Beginning of personality
2. Ways and effects of
emancipation
3. Age of majority
4. Use of names and surnames
5. Use of titles and nobility
6. Absence
7. Presumptions of death and
survivorship

POINT OF CONTACT
National law of the child
National law
National
National
National
National
Lex fori

law
law
law
law

ANNULMENT OF VOIDABLE MARRIAGE AND DECLARATION OF NULLITY OF A VOID


MARRIAGE
FACTUAL SITUATION
1) Grounds for annulment (if the
marriage is voidable merely)
2) Grounds for declaration of
nullity (if marriage is void ab
initio)

POINT OF CONTACT
The law alleged to have been
violated: in other words, it is the law
of the place of celebration (lex loci
celebrationis) subject to certain
exceptions that furnish the grounds)

ARTICLE 26. All marriages solemnized outside the RP is 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), Articles 36, 37, and 38.
Article 35:
The ff. marriages shall be void from the beginning:
*those contracted by any party below 18 years of age even with the consent of
parents or guardians
*those bigamous or polygamous marriages not falling under Art. 41
* those subsequent marriages that are void under Art. 53
Article 36:
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, shall likewise be void even of such incapacity becomes manifest only after
its solemnization.
Article 37:
Marriages between the ff. are incestuous and void from the beginning whether the
relationship between the parties be legitimate or illegitimate:
1. between ascendants and descendants of any degree
2. between brothers and sisters of the full or half blood
Article 38:
The ff. marriages shall be void from the beginning for reasons of public policy:
1. between collateral blood relatives, whether legitimate or illegitimate, up to
the 4th civil degree
2. between step-parents and step-children

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3.
4.
5.
6.
7.
8.

between parents-in-law and children-in-law


between the adopting parent and adopted child
between the surviving spouse of the adopted child and the adopter
between an adopted child and a legitimate child of the adopter
between adopted children of the same adopter
between parties where one, with the intention to marry the other, killed that
persons spouse, or his or her own spouse.

REQUIREMENTS TO PROVE A FOREIGN MARRIAGE:


1. the existence of the pertinent provision of the foreign marriage law
2. the celebration or performance of the marriage in accordance with said
law
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 likewise have the capacity to remarry
under the RP law.
SIMPLY PUT: If valid where celebrated, it is also valid here.
NOTES:

Insofar as the grounds for annulment or nullity are concerned, it is not


the National law that governs, it is the LEX LOCI CELEBRATIONIS,
subject to certain exceptions.
The grounds for LEGAL SEPARATION are those indicated in the national
law of the parties concerned, and not those of the place of celebration
of marriage. Art. 15 will apply because a suit or legal separation
necessarily admits the validity of the marriage.
Two Filipinos are married by the Philippine Ambassador to the US inside
the RP Consulate in Washington D.C. In US, lets say, an Ambassador is
authorized to perform marriages, will such marriage be given
cognizance in the RP? Ans: NO. Having been celebrated in the RP
consulate in Washington, the marriage is considered to have been
performed in the Philippines. Under our law, the ambassador cannot
perform a marriage; ONLY CONSULs-GENERAL, and VICE-CONSULS can
under the Family Code.
Since we follow the NATIONALITY THEORY, our courts have jurisdiction
to take cognizance of annulment and nullity suits where the litigants
are Filipinos, or where they are domiciliaries of the Philippines.
Church annulments of marriages and declarations of their nullity are
only for religious purposes, and are not binding on our civil laws and
courts of our country, unless amendments to our family Code are made.
Art. 36 OF FC: 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, shall likewise be void if such
incapacity becomes manifest only after its solemnization.
Under Church laws, examples of PHYCHOLOGICAL INCAPACITY will
include inter alia:
1.
2.
3.
4.
5.

A wrong concept of marital vows and marital infidelity


Alcoholism
Gambling
Womanizing
Adamant refusal to give support to a degree
incompatible with a mature understanding of responsible
married life

This degree is of course subject to determination by the courts,


particularly the SC. And even if these causes should manifest
themselves long after the wedding, said causes are considered to be

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potentially existing already at the time of the celebration of the


marriage.
ABSOLUTE DIVORCE
FACTUAL SITUATION
1) if sought in the RP (whether by
Filipinos or by foreigners)
2) if obtained abroad:

POINT OF CONTACT
1) lex fori (therefore, will not be
granted)

a) bet. Filipinos

a)

b) bet. Foreigners

c) mixed

national law (therefore, not


valid here even if valid abroad;
and this is true regardless of the
divorce)
b) National law (if valid in the State
granting it and valid according to the
national law of the parties, will also
be valid here)
c) apply (a) and (b) respectively.

ABSOLUTE DIVORCE Distinguished from ANNULMENT


ABSOLUTE DIVORCE
Presupposes a VALIDLY EXISTING
MARRIAGE
Granted for causes SUBSEQUENT
to the marriage ceremony

ANNULMENT
Ends a marriage which though
considered valid in the interim,
nonetheless, is DEFECTIVE
Granted for causes AT THE VERY
TIME THE MARRIAGE IS ENTERED
INTO

KINDS OF DIVORCE:
1) ABSOLUTE DIVORCE (Divorce a vinculo matrimoniee) marital ties are
dissolved.
2) RELATIVE DIVORCE (divorce a mensa et thoro)- separation from bed and
board or legal separation, where parties remain married, although this
time, they are allowed to live separately from each other.
PATERNITY AND FILIATION, ADOPTION, GUARDIANSHIP, AND FUNERALS
FACTUAL SITUATION
- Paternity and filiation
- Including Parental Authority
and
- Reciprocal support
- Legitimacy
- Legitimation
- Recognition
- Presumptions of legitimacy
- Rights and obligations of
parents and children
- Including parental authority
and reciprocal support

Adoption- creation of the


status of adoption; rights and
obligations of adopter and
adopted.

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POINT OF CONTACT
If legitimate, NATIONAL LAW OF THE
FATHER
If illegitimate, NATIONAL LAW OF
THE MOTHER.
If illegitimate but recognized by the
father, the NATIONAL LAW OF THE
FATHER.
Determination of whether legitimate
or illegitimate, NATIONAL LAW OF
THE FATHER, in general.
Doctrine of Immutability of Statuschange of parents nationality does
not affect the status of the child.
In general, NATIONAL LAW OF THE
ADOPTER.
In the Philippines, adoption by a
Filipino does not confer Filipino
citizenship on an adopted alien child.

Guardianship

a) Over the person


- appointing court

powers of guardian

b) Over the property


- appointing court

powers of guardian

c) over the person and over the


property (general guardian)
- appointing court
-

powers of guardian

- Funerals- incidents thereof

court of the domicile of the


ward
coextensive with those of the
appointing court (law of the
appointing state)
court where the property if
found (lex rei sitae)
coextensive with those of the
appointing court

court where the property and


the ward are found
- coextensive with those of the
appointing court
Where the body is buried.

FUNERALS
-

the incidents of funerals are governed by the law of the country where the
body is to be buried.
The duty and the right to make arrangements for the funeral of a relative
devolve on the persons obliged to support the deceased while still alive.
Every funeral shall be in keeping with the social standing of the deceased. The
higher the social standing of the deceased in life, the more dignified and
expensive his funeral be, as a general rue. Prohibited is pompous and
elaborate funeral of a criminal on whom the death penalty has been inflicted.

The "center of gravity" approach, first adopted by the Court of Appeals of New York,
might be characterized as a simplified version of the "most significant relationship"
test of the Second Restatement. This approach authorizes courts to look at all the
existing contacts between the various parties to a suit and various jurisdictions.
Ultimately, the court should choose the law of whatever jurisdiction is most closely
tied to the case.
HOW FOREIGN LAW IS GIVEN APPLICATION IN THE PHILIPPINES:
1.
2.
3.
4.

By statutory directives (consent of the State)


By agreement of the parties
By treaty or convention
By conflict of laws rule

In their absence -A. Principles governing Conflict of Law Cases


1. Substance vs. Procedural Principles
All matters of procedure are governed by the law of the forum where the case is filed, while matters of
substance are governed by the law of the country where the cause of action arose.

PROBLEM: Some laws may be treated by one country as procedural and by another country as
substantive (e.g. statute of limitations)

SOLUTIONS:

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Government Interest Analysis - the law of the country whose interest is most impaired by failure
to apply its statute should be applied
Borrowing Statute - the law of the country has a statute borrowing the prescriptive period
provided in the foreign statute; EXCEPTION: when contrary to public policy or prohibitive laws

2. Center of Gravity Doctrine (Grouping of Contacts Principle or State of the Most Significant
Relationship Theory)
Law of the state which has the most significant relationship with the occurrence and with the parties
determines their rights and liabilities in tort or in contract
3. Renvoi Doctrine (Table Tennis Theory)
The conflict of law rule of the forum resorts to the foreign law, which in turn refers back to the law of the
forum.

RENVOI DOCTRINE APPLIED

Aznar vs. Garcia, G.R. No. L-16749, Jan. 3, 1963

FACTS:
Edward Christensen, who at his death was a US citizen but domiciled in the Philippines, left a will,
devising unto Maria Helen a certain amount of money and giving the rest of his estate to Maria Lucy.
Helen opposed the partition on the ground that she is deprived of her legitime. Her contention is that the
law of California directs that the law of the domicile (Philippines) should govern the will.
ISSUE: Whether or not the national law or the domiciliary law should apply
HELD:
The intrinsic validity of wills is governed by the national law of the decedent. In the present case, the
national law of Edward is the laws of California. However, there were two conflicting California laws
regarding succession. One is enunciated in In Re Kaufman (which does not provide for legitimes) and
another is Art. 946 of the California Civil Code (which provides that the law of the domicile applies). SC
held that the national law is Art. 946, which is the conflict of laws rule of California. The reason is that In
Re Kaufman applies only to residents while Art. 946 is specific to non-residents. Thus, since Art. 946
contains a refer-back to Philippine laws (the law of the domicile), then Maria Helen is entitled to her
legitime.
4. Lex Fori
The law of the forum governs all matters pertaining to procedural or remedial rights.
B. Applicability of Foreign Laws and its Exceptions
WHEN FOREIGN LAW, EVEN THOUGH APPLICABLE, MAY NOT BE GIVEN APPLICATION:
1. Foreign law contravenes prohibitive law or public policy of the forum
2. Relationship of the parties affects public interest
3. Real property is involved (apply lex rei sitae)
4. Foreign law, judgment or contract is contrary to a sound and established public policy of the forum
5. Foreign law is procedural in nature (lex fori governs procedural matters)
6. Foreign law is penal in nature

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EXCEPTION: CONTRARY TO SOUND PUBLIC POLICY

Bank of America, NT vs. American Realty Corporation, .G.R No. 133876, Dec. 29, 1999

FACTS:
Bank of America, duly licensed to do business in the Philippines and existing under the laws of California,
USA, granted US Dollar loans to certain foreign corporate borrowers. These loans were secured by two
real estate mortgages by American Realty, a domestic corporation. When the borrowers defaulted, Bank of
America sued them before English courts. While these cases were pending, Bank of America likewise
judicially foreclosed the real estate mortgages in the Philippines. Thus, American Realty sued for damages
against Bank of America.
ISSUE: Whether or not Bank of America can judicially foreclose the real estate mortgages despite
pendency of the civil suits before English courts
HELD:
English law purportedly allows the filing of judicial foreclosure of mortgage despite pendency of civil suit
for collection. But English law was never properly impleaded and proven. Thus, the doctrine of processual
presumption applies.
SC further held that even assuming arguendo that English laws were proven, said foreign law would still
no find applicability. When the foreign law, judgment or contract is contrary to a sound and established
public policy of the forum, the said foreign law, judgment or order shall not be applied.
Additionally, 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 b laws or judgments
promulgated, or by determinations or conventions agreed upon in a foreign country. The public policy
sought to be protected in the instant case is the principle imbedded in our jurisdiction proscribing the
splitting of a single cause of action.
Moreover, the foreign law should not be applied when its application would work undeniable injustice to
the citizens or residents of the forum.
C. Authentication, Electronic Evidence and Judicial Cognizance of Foreign Judgments
**To be recognized by Philippine courts, foreign laws and judgments must be alleged and proved.
HOW FOREIGN PUBLIC DOCUMENTS ARE PROVED:
1. Official publication
2. Certified true copy or one attested by the officer having the legal custody of the record, or by his
deputy, and accompanied with a certificate that such officer has custody

The certificate must be made by a secretary of the embassy or legation, consul general, consul,
vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed
in the foreign country in which the record is kept
Authenticated by his seal of office

**If the foreign law or judgment does not comply with the above requirements, it will not be recognized
and the Doctrine of Processual Presumption will apply (Philippine courts will assume the foreign law is
the same as Philippine laws).

GENERAL RULE: Philippine courts are not authorized to take judicial notice of foreign laws.

EXCEPTIONS:

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Where there are exceptional circumstances when the foreign laws are already within the actual
knowledge of the court (generally known or actually ruled upon in a prior case)
Where the courts are familiar with the specific foreign laws (e.g. Spanish civil law)
Where the adverse party did not dispute the application of foreign law
Where the tribunal is a quasi-judicial body which is not bound by strict rules of technicality

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