conflicts of law - she

7/31/2019 Conflicts of Law - She

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PRIVATE INTERNATIONAL LAWCHAPTER12

RULES ON STATUS IN GENERAL

FACTUAL SITUATION POINT OF CONTACT

1 Beginning of personality of natural person National law of the child (Article 15, CC)

2 Ways & effects of emancipation National law

3 Age of majority National law

4 Use of names and surnames National law

5 Use of titles of nobility National law

6 Absence National law

7 Presumptive death & survivorship Lexfori(Article 43, 390, 391, CC; Rule 131 3 [jj], Rules of

Court)

Art. 15 - Laws relating to family rights and duties, or to legal capacity of persons are binding upon citizens

of the Philippines even though living abroad.

Art. 43- If there is doubt, as between two 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.

Art. 390 After an absence of 7 years, it being unknown whether or not the absentee still lives, he shall be

presumed dead for all purposes, except for 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 for 5 years shall be sufficient in order that

his succession may be opened.


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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 for 4 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 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.

Rule 131 - Rule 131 (Rules of Court), Sec. 5 (Disputable Presumptions)

(jj) When two 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 fifteen years, the older is presumed to have survived;

2. If both were above the age of sixty, the younger is presumed to have survived;

3. If one is under fifteen and the other above sixty, the former is presumed to have survived;

4. If both be over fifteen and under sixty, 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 fifteen or over sixty, and the other between those ages, the latter is

presumed to have survived.


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CHAPTER13

RULES ON MARRIAGE AS A CONTRACT


Celebrated

Abroad

Between Filipinos Lex loci celebrationisEXCEPT bigamous, polygamous & incestuous

marriages) & consular marriages (Articles 26, 35 (1, 4, 5 & 6), 36,

37 & 38, FC)

Between Foreigners Lex loci celebrationisEXCEPTif the marriage is:

a. Highly immoral (like bigamous/ polygamous marriages)

b. Universally considered incestuous (between brother-sister, and

ascendants-descendants)

Mixed Lex loci celebrationis EXCEPT if the marriage is:

a. Highly immoral (like bigamous/ polygamous marriages)

b. Universally considered incestuous (between brother-sister,

and ascendants-descendants)

(to uphold validity of marriage)


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Celeb

rated

in

RP

Between Foreigners National law, (Article 21, FC) PROVIDED the marriage is not highly

immoral or universally considered incestuous)

Mixed National law of Filipino (otherwise public policy may be militated

against)

Marriage by proxy (NOTE: a

marriage by proxy is considered

celebrated where the proxy

appears

Lex loci celebrationis (with prejudice to the foregoing rules)

(in the Phil.,- void, against public policy)

Article 21, FC When either or both of the contracting parties are citizens of a foreign country, it shall be

necessary for them before a marriage license can be obtained, to submit a certificate of legal capacity to

contract marriage, issued by their respective diplomatic or consular officials.

Stateless persons or refugees from other countries shall, in lieu of the certificate of legal capacity herein

required, submit an affidavit stating the circumstances showing such capacity to contract marriage.


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CHAPTER14

RULES ON MARRIAGE AS A STATUS


1 Personal rights & obligations betweenhusband & wife

National law of husband

(Note:Effect of subsequent change of nationality:a. If both will have a new nationality the new oneb. If only one will change the last common nationalityc. If no common nationality nationality of husband at the time

of wedding)2 Property relations bet husband & wife National law of husband without prejudice to what the CC

provides concerning REAL property located in the Philippines.

(NOTE: Change of nationality has NO EFFECT. This is theDOCTRINE OF IMMUTABILITY IN THE MATRIMONIALPROPERTY REGIME) property relations at the time ofmarriage remains


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CHAPTER15

RULES ON ANNULMENT OF A VOIDABLE MARRIAGE ANDTHE DECLARATION OF NULLITY OF A VOID MARRIAGE


grounds for annulment if marriage is voidableand grounds for declaration of nullity if themarriage is void ab initio.

The law alleged to have been violated : LEX LOCICELEBRATIONIS subject to certain exceptions, that furnishesthe ground.

CHAPTER16

RULESFORABSOLUTEDIVORCE


Soughtin

the

Philippines Whether by Filipinos

Or by Foreigners or mixedLexFori (therefore, will not be granted)

Except: MOSLEM DIVORCES

(Courts today have no jurisdiction to grant divorce)

If

obtain

ed

a. Between Filipinos a. National law (therefore, not valid here even if valid abroad; and this istrue regardless of the cause of divorce)


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a. Between Foreigners b. National law (if valid in the state granting it, and valid according to thenational law of the parties, will also be valid here) - Art. 15, CC

b. Mixed Apply (a) and (b) respectively.

Art. 26, 2nd par., FC.

Art. 15 Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding uponcitizens of the Philippines, even though living abroad.

Art. 26, 2ndpar. where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereaftervalidly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have thecapacity to remarry under Philippine law.

CHAPTER17

SOME GROUNDS FOR LEGAL SEPARATION

FACTUAL SITUATION POINT OF CONTACT1. Ground for legal separation

a. Adultery

b. Concubinage

c. Attempt by one spouse againstthe life of the other

1. National law of the parties

a. If of the same or common nationality the common nationallaw governs

b. If of different nationalities the ground given by BOTHnational laws should all be considered proper grounds (Art.8, Hague Convention on Legal Separation)

Residence requirement if suit is brought in the Philippines:


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a. If cause occurred in the Philippines - No residence requirementb. If cause occurred outside Philippines one year residence is

required in the Philippines.

CHAPTER18

RULES ON PATERNITY AND FILIATION, ADOPTION,GUARDIANSHIP, AND FUNERALS

FACTUAL SITUATION POINT OF CONTACTPaternity and Filiation

legitimacy, legitimation, recognition,presumptions of legitimacy, rights and

obligations of parents and childrenincluding parental authority and reciprocalsupport

a. If legitimate national law of the father (Art. 15, CC)

b. If illegitimate national law of the mother unless recognized bythe father, in which case, national law of the father (Art. 15, CC)

c. Determination of whether legitimate or illegitimate national lawof the father as a rule (Art. 15, CC)

Doctrine of immutability as a statuschange of parents nationalitydoes not affect the status of the child.

Adoption creation of the status ofadoption; rights and obligations of adopterand adopted

In general, national law of the adopter

(in the Philippines, adoption by a Filipino does not confer Filipino citizenship


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on an adopted alien child.)

Guardianshipa. Over the person

1. Appointing court2. Powers of guardian

b. Over the property1. Appointing court2. Powers of guardian

c. Over the person and over the

property (general guardian)

a.1. Court of the domicile of ward2. Coextensive with the appointing court (law of the appointing

state)b.

1. Court where the property is found (lexreisitae)2. Coextensive with the appointing court (law of the appointing

court)

c. see (a) and (b)

Funerals incidents thereof where the body is buried.

CHAPTER19

RULES ON PROPERTY


REAL PROPERTY Lexreisitae(Article 16, CC)

Exceptions

Successional rights National law of decedent (Article 16 par. 2, CC)

Capacity to succeed National law of decedent (Article. 1039)

Contracts involving real property which do notdeal with the title thereto

The law intended will be the proper law of the contract (lexloci voluntatisor lex loci intentionis)


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Contracts where the real property is given assecurity

The principal contract (usually loan) is governed by theproper law of the contract (lex loci voluntatis or lex lociintentionis)

NOTE: the mortgage itself is governed by lexreisitae. There is apossibility that the principal contract is valid but the mortgage isvoid; or it may be the other way around. If the principal contract isvoid, the mortgage will also be void (for lack of proper cause orconsideration), although by itself, the mortgage could have beenvalid.

Art. 16 Real property as well as personal property is subject to the law of the country where it is situated. However, intestate andtestamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsicvalidity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration,whatever maybe the nature of the property and regardless of the country wherein said property may be found.


TANGIBLE PERSONAL PROPERTY (CHOSES IN POSSESSION)1 IN GENERAL Lexreisitae (Article. 16, CC)

Exceptions:same as those for real property EXCEPTION: same as those for real property EXCEPT thatin the example concerning mortgage, the same must bechanged to a pledge of personal property)

2 MEANS OF TRANSPORTATIONVessels Law of the flag (or in some cases, place of registry)

Other means Law of the depot (storage place for supplies or restingplace)


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3 THINGS IN TRANSITU (THESE THINGS HAVE A CHANGINGSTATUS BECAUSE THEY MOVE)

Loss, destruction, deterioration Law of the destination (Article. 1753, CC)

Validity & effect of the seizure of the goods Locus regitactum(where seized) because said placeis their temporary situs

Disposition or alienage of the goods Lex loci voluntatisor lex loci intentionis because herethere is a contract

FACTUAL SITUATION POINT OF CONTACTINTANGIBLE PERSONAL PROPERTY (CHOSES INACTION)

1 Recovery of debts or involuntary assignment of debts(garnishment) Where debtor may be effectively served withsummons (usually the domicile)2 Voluntary assignment of debts Lex loci voluntatisor lex loci intentionis(proper law of

the contract)

OTHER THEORIES:a. National law of the debtor or creditorb. Domicile of the debtor or creditorc. Lex loci celebrationis

d. Lex loci solutionis3 Taxation of debts Domicile of creditor


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EXTRINSIC VALIDITY OF JOINT WILLS(MADE IN THE SAME INSTRUMENT)1 Made by Filipinos abroad Lexnationalii(void, even if valid where made) (Article 819)2 Made by aliens abroad Valid if valid according to lexdomiciliior lex loci celebrationis(Article 819)

3 Made by aliens in the RP Lex loci celebrationistherefore void even if apparently allowed by Article817because the prohibition on joint wills is a clear expression of publicpolicy

INTRINSIC VALIDITY OF WILLS(including order of succession, amount ofsuccessional rights, and intrinsic validity ofthe provisions of the will.

Lexnationalii of the deceased regardless of the LOCATION &NATURE of the property (Article 16 (2))

CAPACITY TO SUCCEED Lexnationaliiof the deceased not of the heir (Article 1039)

REVOCATION OF WILLS1 If done in the RP Lex loci actus(of the revocation) (Article. 829)2 If done OUTSIDE the RP

a. By a NON-DOMICILIARY Lex loci celebrationis (of the making of the will, NOT revocation), ORlexdomicilii(Article 829)

b. By a DOMICILIARY of the RP Lexdomicilii(RP law) OR lex loci actus(of the revocation) (Article 17)PROBATE OF WILLS MADE ABROAD1 If not yet probated abroad Lexforiof the RP applies as to the procedural aspects, i.e., the will must

be fully probated here & due execution must be shown

2 If already probated abroad Lexforiof the RP again applies as to the procedural aspects; must alsobe probated here, but instead of proving due execution, generally it isenough to ask for the enforcement here of the foreign judgment on theprobate abroad

EXECUTORS AND ADMINISTRATORS1 Where appointed Place where domiciled at death or incase of non-domiciliary, where

assets are found2 Powers Co-extensive with the qualifying of the appointing court powers may

only be exercised within the territorial jurisdiction of the court concerned

NOTE: these rules also apply to principal, domiciliary, or ancillary


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administrators & receivers even in non-successive cases


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CHAPTER21

RULES ON OBLIGATION AND CONTRACTS


FORMAL OR EXTRINSIC VALIDITY Lex loci celebrationis(Article 17 {1})Exceptions

a. Alienation & encumbrance of property Lexsitus(Article 16 [1])

b. Consular contracts Law of the RP (if made in RP consulates)

CAPACITY OF CONTRACTING PARTIES National law (Article 15) without prejudice to the case of

Insular Government v Frank 13 P 236, where the SCadhered to the theory of lex loci celebrationisException

Alienation & encumbrance of property Lexsitus(Article 16 {1})INTRINSIC VALIDITY (INCLUDING INTERPRETATION OF THEINSTRUMENTS, AND AMT. OF DAMAGES FOR BREACH)

Proper law of the contractlexcontractus(in the broadsense), meaning the lexvoluntatisor lex loci intentionis

OTHER THEORIES ARE:

a. Lex loci celebrationis(defect: this makes possible the evasion of the national law)b. Lexnationalii(defect: this may impede commercial transactions)c. Lex loci solutionis(law of the place of performance) (defect: there may be several places of performanced. Prof Minors solution:

i. Perfectionlex loci celebrationisii. Cause or considerationlex loci considerationsiii. Performancelex loci solutionis(defect: this theory combines the defect of the others)

RULES FOR SPECIFIC CONTRACTS


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FACTUAL SITUATION POINT OF CONTACTSALES AND BARTER

a. Extrinsic validityb. Capacity of the partiesc. Intrinsic validity

a. lexsitusb. national lawc. lexsitus

LEASE OF PROPERTY



LEASE OF SERVICES


a. lexloci celebrationisb. national lawc. lex loci voluntatis or lex loci intentionis

CONTRACT OF COMMON CARRIAGE OF GOODS

a. Extrinsic validity

b. Capacity of the parties

c. Intrinsic validity

d. Liability for loss, destruction, or deterioration ofgoods in transitu

a. fixed situs of the carrier(depot or resting place)

b. national law

c. fixed situs of the carrier

d. law of the destination(Art. 1753, CC)


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CONTRACT OF AGENCY

a. Extrinsic validity

b. Capacity of the parties to be principal agent


a. lex loci celebrationis(unless the agency deals with the conveyance orencumbering of property in which case the

lexsitus of the property applies

b. national law of the parties(unless the agency deals with the conveyance orencumbering of property in which case thelexsitus of the property applies

c. lex loci voluntatis or lex loci intentionis(unless the agency deals with the conveyance orencumbering of property in which case thelexsitus of the property applies

SIMPLE LOANa. Extrinsic validityb. Capacity of the partiesc. Intrinsic validity

a. lex loci celebrationisb. national lawc. lex loci voluntatis or lex loci intentionis

COMMODATUM




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PLEDGE, CHATTEL MORTGAGE, REAL MORTGAGE, ANDANTICHRESIS

a. Extrinsic validityb. Capacity of the parties


a. lexsitusb. national law

c. lexsitus

note: these are accessory contracts only; therefore, if theprincipal contract (generally the contract of loan) is defective,the accessory contract must also be deemed defective.

GUARANTY AND SURETYSHIPa. Extrinsic validityb. Capacity of the partiesc. Intrinsic validity

a. lex loci celebrationisb. national lawc. lex loci voluntatis or lex loci intentionis


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CHAPTER22

RULES ON TORTSFACTUAL SITUATION POINT OF CONTACT

Liability & damages for torts in general

NOTE: The locus delicti(place of commission of torts) isfaced by the problem of characterization. In civil lawcountries, the locus delicti is generally where the actbegan; in common law countries, it is where the act firstbecame effective

Lex loci delicti (law of the place where the delict wascommitted)

NOTE: liability for foreign torts may be enforced in theRP if:a. The tort is not penal in characterb. If the enforcement of the tortious liability wont

contravene our public policyc. If our judicial machinery is adequate for such

enforcement


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CHAPTER23

RULES ON CRIMESFACTUAL SITUATION POINT OF CONTACT

ESSENTIAL ELEMENTS OF A CRIME AND PENALTIES Generallywhere committed (locus regitactum)THEORIES AS TO WHAT COURT HAS JURISDICTION:a. Territoriality theory where the crime was committedb. Nationality theory country which the criminal is citizen or a subjectc. Real theory any state whose penal code has been violated has jurisdiction, where the crime was committed inside or

outside its territoryd. Protective theory any state whose national interests may be jeopardized has jurisdiction so that it may protect itselfe. Cosmopolitan or universality theory state where the criminal is found or which has his custody has jurisdictionf. Passive personality theory the state of which the victim is a citizen or subject has jurisdiction

NOTE: In the RP, we follow the territoriality theory in general; exception: Article 2, RPC, stresses the protective theory

THE LOCUS DELICTIOF CERTAIN CRIMES

1Frustrated and consummated, homicide, murder,infanticide & parricide

Where the victim was injured (not where the aggressor wieldedhis weapon)

2Attempted homicide, etc. Where the intended victim was (not where the aggressor was

situated) so long as the weapon or the bullet either touched himor fell inside the territory where he was

3 Bigamy Where the illegal marriage was performed

4

Theft & robbery Where the property was unlawfully taken from the victim (not the

place to which the criminal went after the commission of thecrime)5 Estafa or swindling thru false representation Where the object of the crime was received (not where the false

representations were made)6 Conspiracy to commit treason, rebellion, or sedition

NOTE:Other conspiracies are NOT penalized by ourlaws

Where the conspiracy was formed (not where the overt act oftreason, rebellion or sedition was committed)

7 Libel Where published or circulated8 Continuing crime Any place where the offense begins, exists or continues9 Complex crime Any place where any of the essential elements of the crime took

place


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CHAPTER24

Rules on Juridical PersonsFACTUAL SITUATION POINT OF CONTACT

CORPORATIONS

Powers and liabilities General rule: the law of the place of incorporation

EXCEPTIONS:a. For constitutional purposes even if the corporation was

incorporated in the RP, it is not deemed a Filipino corporation& therefore cant acquire land, exploit our natural resources,and operate public utilities unless 60% of capital is Filipinoowned (or American owned because of the parityAmendment)

b. For wartime purposeswe pierce the corporation veil & goto the nationality of the controlling stockholders to determine ifthe corporation is an enemy corporation or not (CONTROLTEST)

Formation of the corporation (requisites); kindof stocks, transfer of stocks to bind thecorporation, issuance, amount & legality &dividends, powers & duties of members,stockholders and officers

Law of the place of incorporation

Validity of corporate acts & contracts (including

ultra viresacts)

Law of the place of incorporation & law of the place of

performance (the act or contract must be authorized byBOTH laws)

Right to sue & amenability to court processes &suits against it

Lexfori

Manner & effect of dissolution Law of the place of incorporation provided that the publicpolicy of the forum is not militated against

Domicile If not fixed by the law creating or recognizing the corporation orby any other provision the domicile is where it is legalrepresentation is established or where it exercises its principalfunctions (Art. 15)


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Receivers (appointment & powers) Principal receiver is appointed by the courts of the state ofincorporation; ancillary receivers, by the courts of any statewhere the corporation has assets (authority is CO-EXTENSIVE)w/ the authority of the appointing court

NOTE: Theories on the personal and/or governing law of corporations:a. Law of the place of incorporation (this is generally the RP rule)b. Law of the place or center of management (center for administration or siege social) (center office principle)c. Law of the place of exploitation (exploitation centreor siege d exploitation)

PARTNERSHIPS

The existence or non-existence oflegal personality of the firm; thecapacity to contract; liability of the firm& the partners to 3rd persons

The personal law of the partnership, i.e., the law of the place where it wascreated (Article 15 of the Code of Commerce) (Subject to the exceptions givenabove as in the case of corps.)

Creation of branches in the RP; validity& effect of the branches commercialtransaction; & the jurisdiction of thecourt

RP law (law of the place where branches were created) (Article 15, Code ofCommerce)

Dissolution, winding up, & terminationof branches in the RP

RP law (Article 15, Code of Commerce)

Domicile If not fixed by the law creating or recognizing the partnership or by any otherprovision the domicile is where it is legal representation is established or

where it exercises its principal functions (Article. 15)

Receivers RP law insofar as the assets in the RP are concerned can be exercised assuch only in the RP

FOUNDATIONS (COMBINATION OF CAPITALINDEPENDENT OF INDIVIDUALS, USUALLY NOTFOR PROFIT)

Personal law of the foundation (place of principal center of administration)


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conflicts of law - she

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