Conflict of Laws
On the contrary, the very essence of a
PART ONE: INTRODUCTION
The division of the world into many territorial units, each imposing its own set of
laws, religion, culture, customs, and occurrence of events that contain elements significant
to more than one system give rise to problems that conflict of laws or private international
law seeks to solve.
Conflict of Laws occurs, According to Justice of Arkansas Prof. Robert A. Lefar:
Any case which involves facts occurring in more than one state or nation, so that in
deciding the case, it is necessary to make a choice between the laws of the different states
and countries, is a conflict of law case
CONFLICT OF LAWS (OR PRIVATE INTERNATIONAL LAW)
Is that part of the municipal law of the 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.
Elements of the Definition:
1) Conflict of Laws is part of municipal law of a state;
Since every state has its own municipal law, it follows quite naturally that
each state has also its own conflict of laws.
2) The Direction to courts and administrative agencies;
It is the judicial tribunals of a country that ultimately are called upon to
decide or resolve conflicts problems. Various administrative agencies of the state,
such as the DFA, Bureau of Immigration, SEC and the like also decide PRELIMINARY a
given controversy involving a foreign factor.
3) A legal problem involving a foreign element; and
A foreign element has to be present before the matter can be considered a
conflict problem. Eliminate the foreign element and the problem is obviously
NOT a question calling for Private International Law.
4) Application or Non-application of Foreign law or laws.
When our courts are confronted with a conflicts problem over which they
may have jurisdiction (and are willing to assume jurisdiction), the solution will have
to be found in the application of either the LOCAL law or Foreign law.
According to Prof. Raleigh C. Minor, it is to be observed that the rules of
Private International Law do not derive force from a power superior to sovereign
states which recognize and enforce them.
sovereign stat is that it has no superior. It is one of the fundamental principles of
this branch of the law that each sovereign state is supreme within its own limits. It
is, therefore, within the power of such state at any time ti exclude any or all foreign
laws from operating within its borders. To the extent that if it cannot do this, it is
not sovereign. Hence, when the effect is given to a foreign law in any territory, it is
only because the municipal law of that state temporarily abdicates its supreme
authority in favor of the foregin law, which for the time being, with reference to
that particular matter, becomes itself, by will of the state, its municipal law.
Importance:
1) To adjust conflicting rights in international, mercantile and corporate transactions;
and
2) To solve personal, family, propeperty and successional contractual problems,
possessed of facts or elements operating in 2 or more states.
Basic Cause:
Conflict problems come into being through variance in the municipal laws of the
countries involved
Nature:
Municipal Law or private law of each state which regulates relations of individuals
among themselves or with their state
It is the law of the forum that furnishes the yardstick for the presence or absence of
jurisdiction
Objective:
Is to provide rational and valid rules or guidelines in deciding cases not only by courts but
also by administrative agencies and public officers who are called upon to act on a given
situation where either or all the parties, event or transaction are linked to more than one
jurisdiction
Functions:
According to Paras
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
According to Coquia
1. to proscribe the conditions under which a court or agency is competent to entertain a suit Forcible remedies include severance
or proceeding involving facts containing a foreign element; of dimplomatic relations, retorsions,
2. to determine the extent, validity and enforceability of foreign judgment; reprisals, embargo, boycott, non-
3. to determine for each class of cases the particular system if law by reference to which the intercourse, pacific blockades,
rights of the parties must be ascertained collective measures under the UN
Charter and finally, war.
Conflict of Laws (Private International Law) vis--vis The Laws of Nations (Public
International Law) BRIEF HISTORY AND DEVELOPMENT OF CONFLICT OF LAWS (25)
According to the Monist School of Thought, Private and Public International Law are In Ancient Rome, it presented a fertile place for the development of conflict rules
in essence identical for both of them manifest a single concept of law, ultimately addressed because two legal systems were in vogue: Roman citizens were governed by the civil law of
to the same individual. States, the adherents of this school maintain, can act only through Rome; all others were under the jurisdiction of their own provincial legislation -- how easily,
individuals: what can bind individuals must necessarily bind also the respective states to therefore, conflict theories could have arisen. But the theories did not come for only one
which they belong. [On several topics, it cannot be denied that the two subject overlap each law prevailed whenever a Roman citizen was involved, namely, Roman civil law. However,
other] there were two incidental developments the concept of domicile and the concept of lex
According to the Dualist School of Thought, the two subject are world apart: situs ( where the immovable were concerned. )
Basis Private International Law Public International Law In 212 A.D., the Edict of Caracalla conferred Roman citizenship on all the people
Nature Municipal in character International in character living within the Roman Empire: consequently only one law remained the civil law of Rome
Persons Dealt by private individuals The parties involved are sovereign for any and all acts, events, and transactions within the Empire. Law was, thus, placed on
Involved states and other entities possessed territorial without personal or racial discrimination.
of an international personality such In the 5th century, the Roman Empire was overthrown by the so called barbarian
as UN tribe: personal law replaced territorial law. This simply means that every person, regardless
Transactions Transactions are private ones Transactions are entered into which of residence, was considered subject to the law of his original nation or tribe. If the parties
Involved between private individuals generally affect the public interest; to a contract came from different nations, the law of the debtor prevailed for it was then
those which in general are of believed that his interest was paramount.
interest only to sovereign states
Remedies or The remedy here is to resort to The remedies may be peaceful or Sources of Conflict of Laws
Sanctions municipal tribunals forcible. INDIRECT SOURCES
1) Natural Moral Law; and
Peaceful remedies include 2) Works of Writers
diplomatic negotiation, tender and DIRECT SOURCES
exercise of good offices, mediation, 1) Constitutions;
inquiry and conciliation, arbitration, 2) Codifications;
judicial settlement by the 3) Special Laws;
International Court of Justice, 4) Treaties and Conventions;
reference to regional agencies such 5) Judicial Decisions; and
as the Organization of American 6) International Customs
States, reference to the UN itself.
PART TWO: JURISDICTION
IV: Jurisdiction
- Authority of a tribunal to hear and decide a case and possible enforceability in
foreign states, subject to the rights of said states (Paras)
- In international law, it is often defined as the right of a State to exercise authority
over persons and things within its boundaries, subject to certain exceptions
- Judicial Jurisdiction is the power or authority of a court or administrative tribunal to
try a case, render judgment and execute it in accordance with law while
- Legislative Jurisdiction which is the power of the state to promulgate laws and
regulations and enforce them on all persons and property within its territory
FOUR MAJOR QUESTIONS TO BE CONSIDERED IN CONFLICT OF LAWS PROBLEM -
1. Has the court jurisdiction over the person of the defendant or over his property?;
2. Has the court jurisdiction over the subject matter, usually referred to as
competency?;
3. Has the suit been brought in the proper venue in cases where a foreign element is
involved?; and
4. Is there a statute or doctrine under which a court otherwise qualified to try the case
may or may not refuse to entertain it?
A. Basis of Exercise of Jurisdiction
I. JURISDICTION OVER THE PERSON
- is the power of the court to render judgment that will be binding on the
parties involved: the plaintiff and defendant (Paras)
- acquired by the voluntary appearance of a party and his submission to
authority
- Jurisdiction over the person of the plaintiff is acquired from the moment he
invokes the aid of the court and voluntarily submits himself by institution of
the suit through proper pleadings [institution of action by proper pleading]
- Jurisdiction over the person of the defendant is acquired through voluntary
appearance or personal or substituted service of summons (Coquia) [
voluntary appearance or by the coercive power of legal process exerted
over the person (Paras)].
o When the defendant and his lawyer appears in court, he gives
consent to the forums exercise of jurisdiction over him except if he
appears for the purpose of protesting the jurisdiction of the court
o May be had thru personal or substituted service of summons
II. JURISDICTION OVER THE PROPERTY
- is the subject matter of litigation results either from the seizure of the
property under a legal process or from the institution of legal proceedings
wherein the courts power over the property is recognized and made
effective
- this kind of jurisdiction is referred to as in rem jurisdiction in contrast to in
personam jurisdiction. Another form of jurisdiction is quasi in rem
jurisdiction which affects only the interests of particular persons in the thing
NOTE: Summons of publication is effective in the following cases
if the action is in rem
quasi in rem
involves personal status of plaintiff
MINIMUM CONTACTS TEST AND FUNDAMENTAL FAIRNESS TEST
Due process requires only that in order to subject a defendant to a judgment in
personam, if he is not present within the territory of the forum, he should have
certain minimum contacts with it such that the maintenance of the suit does not
offend traditional notions of fair play and substantial justice
In both in rem and quasi-in rem actions, all that due process required is that
defendant be given adequate notice and opportunity to be heard which are met by
service of summons by publication
LONG-ARM STATUTES
The requirement that a state must show that there are minimum contacts between the non-
resident defendant and the forum to justify its exercise of jurisdiction has led to many states
to legislate long-arm statutes. These statutes specify the contacts which jurisdiction will be
asserted over a defendant outside of state territory
CLASSIFICATION OF ACTIONS (as to object)
1. Action in personam any judgment that the court will render in that case binds only the
parties to the action and their privies or their successors-in-interest;
2. Action in rem any judgment that the court will render in the case binds not only the
parties to the case but the whole world
3. Quasi in rem action quasi in rem is actually in personam because it is directed only
against a particular individual but the purpose of the proceeding is to subject his property to
the obligation of lien burdening it. The object of the case is the sale or other disposition of
property of the defendant which one may have a right or lien over the property
 Example: an action to subject certain property of the defendant to payment of a
claim. An action between parties where the direct object is to reach and dispose of
property owned by them or of some interest therein
III. JURISDICTION OVER THE SUBJECT MATTER/ COMPETENCE
is conferred by law and defined as the authority of a court to hear and decide cases
of the general class to which the proceedings in question belong
acquire through the allegations in the petition or complaint, read together with the
proper jurisdictional law, that will confer jurisdiction on the court
It is not enough that a court has a power in abstract to try and decide the class of
litigation to which a case belongs; it is necessary that said power be properly
invoked by filing a petition
Cannot be conferred by consent of the parties and a decision is void and may be
set aside either directly or indirectly, where the courts exceeds it jurisdiction and
power in rendering it.
B. WAYS OF DEALING WITH A CONFLICT PROBLEM OR WAYS OF DISPOSING CONFLICT
CASES
1. DISMISS THE CASE FOR LACK OF JURISDICRION
When a court is without jurisdiction, it has no alternative except to dismiss the case
for being null and void due to lack of due process
2. IF IT HAS JURISDICTION, IT MAY:
a. DISMISS THE CASE ON THE GROUND OF FORUM NON-CONVENIENS
Refusal of assume jurisdiction because it would prove inconvenient
for the forum
a forum may resist imposition upon its jurisdiction even when
jurisdiction is authorized by law on the ground that:
the forum is inconvenient or
the ends of justice would be best served by trial in another
forum or
the controversy may be more suitably tried elsewhere
(Doctrine of Forum Non- Conveniens)
ELEMENTS:
(a) the forum state is one to which the parties may
conveniently resort to;
(b) it is in a position to make an intelligent decision as to the
law and the facts; and
(c) it has or is likely to have power to enforce its decision
MANIFESTATIONS: (WDFIO)
(a) the Witnesses and evidence may not be readily available
(b) the court Dockets of the forum may already be clogged; to
permit additional cases would inevitably hamper the speedy
administration of justice
(c) the evils of Forum-shopping ought to be curbed
(d) the forum has no particular Interest in the case
(e) other courts are Open: certainly the case may be better
tried in said courts
b. ASSUME JURISDICTION, IT MAY:
General Rule: No rule of Private International Law would be violated if the
courts should decide to dispose cases, according to the internal law of the
forum
EXCEPT: where a foreign, sovereign, diplomatic, official or public vessel or
property of another state is involved, or where a state has by treaty,
accepted limitations upon its jurisdiction over certain persons of things
1. APPLY LEX FORI (INTERNAL LAW OF THE FORUM)
INSTANCES WHEN INTERNAL / DOMESTIC LAW SHOULD BE APPLIED:
1. When a specific law of the forum expressly provides or decrees in
its conflict rules that internal law should apply
Examples:
I. Article 16 of the Civil Code real and personal
property subject to the law of the country where
they are situated and testamentary succession
governed by lex nationalii
II. Article 829 of the Civil Code makes revocation
done outside the Philippines valid according the law
of the place where will was made or lex domicilii
III. Article 819 of the Civil Code prohibits Filipinos
from making joint wills even if valid in foreign
country
2. When the proper foreign law has not been properly pleaded and
proved
NOTE: General Rule: courts do not take judicial notice of foreign
laws must be pleaded and proved
 The following actions may be resorted in case of failure to prove
and plead the proper foreign law:
i. Dismiss the case for inability to establish cause of
action
ii. Assume that the foreign law of the same as the law
of the forum ( Doctrine of Processual presumption,
i.e apply the foreign law, it is presumed to be the
same as the forum law)
iii. Apply the law of the forum
3. when the case involves any of the exceptions to the application of
the proper foreign law as when the foreign law is (PGPPFIRE)
1. contrary to an important Public policy of the forum
2. contrary to Good morals
3. Penal in nature
4. Procedural in nature
5. purely Fiscal and administrative in nature
6. application of the foreign law may work undeniable
Injustice to the citizens of the forum
7. the case involves Real or personal property situated in the
forum
8. application might Endanger the vital interest of the state
2. APPLY LEX CAUSAE (PROPER FOREIGN LAW)
- If the foreign law was not properly pleaded and proved
Proof of Foreign Law:
1. If it is written law (statute/ constitution)
a. Official publication
b. Copy of official publication attested by the officer having
legal custody of the record
2. If it is unwritten (customs/ traditions)
a. Oral testimony of expert witness
b. Printed and published books of reports of decision of the
country involved
V. PROBLEM OF CHARACTERIZATION
CHARACTERIZATION
- the process by which a court at the beginning of the choice-of-law process assigns a
disputed question to an area in substantive law, such as torts, contracts, family law
of property (Coquia)
- the process of determining under what category a certain set of facts or rules fall,
the ultimate purpose of which is enable the forum to select the proper law (Paras)
- Factors which give rise to the problem of characterization:
Different legal systems
o attach to the same legal term with different meanings, that is, an identity of
names covers a difference of nature or content of legal idea;
o may contain ideas or conceptions completely unknown to one another;
o apply difference principles for the solution of problems, which, in general
terms, are of common nature
2 types of Characterization:
1. Subject-matter characterization
- Calls for classification by a court of a factual situation into a legal catergory
- It is of appreciable significance in a single aspect method because the legal category
to which an issue is assigned determines the governing law.
2. Substance-procedure characterization
- Directs the court to the extent it will apply foregin law.
- If the issue is substantive, the court may apply foregin law but if it procedural, it
supposed to follow the law of the forum [why procedural issues governed by lex
fori? So as to not unduly burden or complicate the task of the court with uncommon
peculiarities and refinements of another legal system]
Steps in Characterization
1. Determination of the Facts Involved;
2. Characterization of the Factual Situation;
3. Determination of the Conflict Rule which is to be applied;
4. The characterization of the Point of Contact or the connecting factor;
5. The characterization of the Problem as Procedural/ Substantive;
6. The pleading and proving of the Proper Foreign Law; and
7. Application of the proper foreign law to the Problem
1. The Determination of the facts involved
- determine whether or not foreign element is involved
- law of the forum must be guided by its own rules of pleading and proof
2. The Characterization of the factual situation
- process of assigning facts into their particular category
- do the facts constitute a problem of
Suggested Solution
1. in the absence of an express conflicts rule on the matter, it is suggested that the
characterization of the forum should be adhered to unless there would result a
clear case of injustice
2. apply Philippine express conflict rules
3. The Determination of the conflicts rule which is to be applied
- what conflicts rule must be followed?
- our own conflicts rule should be followed for the following reasons
(a) purpose of conflict rules
(b) we still have to identify or definitely ascertain the precise foreign country
that has the nearest or the most intimate connection with the facts that
have been brought out
4. The Characterization of the point of contact or the connecting factor
Whose characterization of the point of contact should be adhered to?
In case of doubt, the characterization of the forum (lex fori) must certainly prevail
Exceptions
a. If problem deals with real or personal property, if the question deals with the
validity of their disposition or alienation, or the capacity of the contracting
parties lex situs govern. If property is situated at the boundary of two
states, lex situs of the portion of the land directly involved
b. If the forum is merely an incidental place of trial, the characterization of the
forum has to give way to any common characterization that may exist in the
foreign countries involved.
If, upon the other hand, there is no common characterization, we are of the belief
that we may avail ourselves of the characterization that will uphold the efficacy of
the contract. If this may be attained by making use of our own characterization, by
all means, we must do.
5. The Characterization of the problem as substantive or procedural
- procedural matters are governed by the law of the forum (exception to the
application of the proper foreign law)
- a law on prescription of actions is sui generic in the sense that it may be viewed
either as procedural or substantive, depending on the characterization given to such
law
- characterization as to substantive or procedural is irrelevant when the country of
the forum has borrowing statute, which has the effect of treating the foreign statute
of limitation as one substance
- Solution: consider prescriptive period or the statute of frauds that the parties had in
mind at the time the transaction took place.
- Totality approach:
(a) first get the law intended by the parties to govern the contract;
(b) then, proceed to apply that intended law in its totality including its periods of
prescription and its statute of frauds, except if subject matter governs property
located in the Philippines, our own law on prescription and our own statute of
frauds must apply
Sec. 48, Rules of Civil Procedure if barred at the place where the cause of
action arose, it is also barred here
STATUTE OF FRAUDS
Substantive if the words of the law relate to forbidding the obligation
Procedural if the law forbids the enforcement of the obligation
STATUTE OF LIMITATIONS
Substantive when the limitation was directed to the newly created liability specifically to
warrant a qualification of the right
Procedural if it operates to bar the legal remedy without impairing the substantive right
involved
BORROWING STATUTE
Directs the state of the forum to apply the foreign statute of limitations to the pending
claims based on a foreign law (treats the statute of limitations as a substantive law)
6. The pleading and proving of the proper foreign law
 If a duly proved foreign law has already been given a judicial interpretation in the
country of origin, it must generally be given an identical interpretation in the Philippines,
unless, we already have similar or identical internal law and said internal law has received a
diametrically opposite construction before our own tribunals
7. The application of the proper foreign law to the problem
VI. THE PROBLEM OF RENVOI
RENVOI
- procedure whereby a jural matter is presented which the conflict of laws rules of
the forum refer to a foreign law, the conflict of law of which in turn, refers the
matter back to the law of the forum (remission) or a third state (transmission)
- literally means referring back : problem arises when there is doubt as to whether a
reference to a foreign law
(a) is a reference to the internal law of said foreign law; or
(b) is a reference to the whole of the foreign, including its conflicts rule
- When usually employed? Where domiciliary and nationality laws are applied to the
same individual in issues involving:
o succession
o domestic relations
o real properties
VARIOUS WAYS OF DEALING WITH THE PROBLEM OF RENVOI/ SOLUTIONS TO RENVOI
1. REJECT RENVOI: FORUM COURT REFER TO THE "INTERNAL LAW" OF ANOTHER
STATE [apply intenal law]
- Internal law - law that would be applied to a domestic case that has no conflict-of-
laws complications
- forum: conflicts of law refer to foreign forum's INTERNAL LAW - so it would itself
resolve the conflict, just apply substantial internal law of the other country without
referring the case to another forum
- meaning, we do not want the problem to be sent back to us; that we do not want
the matter to be referred back to us (Paras)
- If the conflicts rules of the forum refer the case to the law of another state, it is
deemed to mean only the internal law of the state. Thus, the court will apply the
foreign law (Coquia)
2. ACCEPT RENVOI: FORUM COURT REFER TO THE "WHOLE LAW" OF ANOTHER STATE
[apply foreign law]
- apply or accept it by reference to the whole law, including the conflicts rule of the
foreign law (Paras)
- if the conflicts rules of the forum refer the case to the law of another state, it is
deemed to include the totality of the foreign law (internal law and conflicts of laws
rule). Thus, the court will recognize the referral back and apply local law. (Coquia)
3. FOLLOW THE DESISTMENT THEORU (ALSO REFERED TO AS THE MUTUAL
DISCLAIMER OF JURISDICTION THEORY) [apply internal law]
- Forum court refers to foreign court's law
- Foreign law does not have a conflict of law rule which apply to non-nationals so still
apply forum law
- same as accepting renvoi, but since foreign law not applicable when outside the
foreign state, forum court desists in applying foreign law
- meaning, we desist or refrain from applying the foreign law because it is inadequate
as it is founded on a different basis
- the reason for the desistance is that the forum court upon reference to another
states law sees that such law is limited in application to its own national and has no
provision for application to a non-national(Paras)
- the forum court upon reference to another states law sees that such law is limited
in application to its own nationals domiciled in its territory and has no provision for
application to nationals domiciled outside of the territory. Hence, the local court will
apply local law. This has the same result as the acceptance of the renvoi but the
process used by the forum court is to desist applying the foreign law. (Coquia)
4. USE FOREIGN COURT THEORY
- Forum court would assume position of the foreign court, i.e. forum court would
apply the law that the foreign court would apply if it had assumed jurisdiction.
- meaning, the local forum, in deciding the case, will put itself in the position of the
foreign court and whatever it does respecting the case, the Philippine court will
likewise do. (Paras)
- foreign court assumes the same position that the foreign court would take if the
case is litigated in the foreign state: Hence
(a) if the foreign court would accept the renvoi, the local court shall apply the
foreign law.
(b) if the foreign law would reject the renvoi, the local court shall apply lex fori
(c) if the foreign court would apply the desistment theory, the local court shall
apply the foreign law
(d) if the foreign court would use the foreign court theory, then international
pingpong would ensue (Coquia)
Note: In all the explanation given in the book, it appears that in Renvoi, there is no actual
transfer of the case to another court. The forum court still exercises jurisdiction over the
dispute but just use renvoi to use other law or to desist from using foreign law.
DOUBLE RENVOI
It is that which occurs when the local court, in adopting the foreign court theory, discovers
that the foreign court accepts the renvoi
TRANSMISSION
The process of applying the law of a foreign state thru the law of a second foreign state
DOUBLE RENVOI versus TRANSMISSION
Double renvoi deals with 2 countries while transmission deals with three or more countries
Double renvoi deals with referring back while transmission with a transmitting
SUGGESTED CONCLUSION
The theory to be adopted must consider the circumstances of a given situation that will best
result in fairness, equity and justice
C. USEFULLNESS OF RENVOI
to avoid unjust results
Disadvantages of Renvoi
If both courts follow the same renvoi theory, no end to the case
(Resembles revolving doors, a game of lawn tennis, logical cabinet of mirrors, or circulus
inextricabilis)
OBJECTIONS TO RENVOI
CON: place the court in a perpetually enclosed circle from which it would never emerge and
that it would never find a suitable body of substantive rules to apply to a particular case -
only workable if 2 states does not have same renvoi theory and if only 1 rejects renvoi
PRO: Dean Griswold
>False premise: the "chain" would stop if remission is to the state's INTERNAL LAW ALONE
>Allowed for necessity and expediency
CON: Courts may be unnecessarily burdened w/ the task of identifying the choice-of-law
rules of another state
PRO: forum court would not use renvoi if it cannot ascertain what the conflict-of-law rules
of the foreign state in the first place
INAPPLICABILITY OF RENVOI IN A FALSE CONFLICT
False conflict: where only 1 state is interested in applying its law, the other state has no
issue in its law not being applied
-Renvoi was held inappropriate in Pfau v. Trent Aluminum Co.: NJ and Connecticut have
identical substantive laws, Iowa has no interest in ensuring that its law be applied -so false
conflict, no need to resort to renvoi as the application of NJ law is like applying also
Connecticut law
VII. NOTICE AND PROOF OF FOREGIN LAW (RULE 132 & 130, RULES OF COURT)
A. EXTENT OF JUDICIAL NOTICE
When the court is called upon to decide a case based on a foreign law the common
law practice, which has been adopted in the Philippines, is that the party whose cause of
action or defense depended upon the foreign law has the burden of proving the foreign law.
[Foreign law is treated as QUESTION OF FACT to be properly pleaded and proved]
[Rationale: Judge is not authorized to take judicial notice of a foregin law and is presumed to
know only domestic law]
In Delgado vs Republic, the court held that judicial notice may be taken of a foreign
law with which the court is eveidently familiar. Familiarity with foregin law may be
because the law is generally known such as a Spanish or American Law from which the
Philippine law was derived or the judge had previously ruled upon it in other cases.
Rule 129
Section 1. A court shall take judicial notice with the introduction of evidence:
(a) of the existence and territorial extent of nationality;
(b) their political history;
(c) forms of government and symbols of nationality;
(d) laws of nations;
(e) admiralty and maritime courts of the world and their seals;
(f) the political constitution and history of the Philippines;
(g) official acts of the legislative, executive and judicial departments of the Philippines;
(h) laws of nature;
(i) measure of time; and
(j) geographical divisions
Section 2. A court may takejudicial notice of matters:
- which are of public knowledge, or
- are capable of unquestionable demonstration, or
- ought to be known to judges because of their judicial functions
B. PROOF OF FOREGIN LAW 3. the judgment must be valid according to the court that delivered it;
1. Written Law (Constitution, Statute) 4. judgment must be final and executory to constitute res judicata in another action
- Official publication thereof or Elements of res judicata:
- By a copy attested by the officer having the legal custody of the record, or by his a. Final
deputy and accompanied with a certificate that such officer has custody (with seal) b. Rendered by a competent court
2. Unwritten Law (Constitution, Statute) c. On the merits
- Oral testimony of expert witnesses or d. Involve the same parties, subject matter and cause of action
- By printed and published books of reports of decisions of the country involved, if 5. foreign judgment must not be contrary to the public policy or the good morals of
proved to be commonly admitted in such courts; the state where it is to be enforced
6. judgment must not have been obtained by fraud, collusion, mistake of fact or
If actionable document executed abroad comprise the COA: mistake of law
(a) public document: duly authenticated by Philippine consul attaching his consular seal 7. the foreign judgment must not be barred by prescription under the law of the state
to be admissible before RP Courts in which it was promulgated or under the law of the state in which its
(b) depositions (R23.11): list of persons before whom depositions may be taken in recognition/enforcement is sought
foreign countries
(a) On NOTICE: DISTINCTION BETWEEN RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENT
secretary of embassy/legation RECOGNITION OF FOREIGN JUDGMENT ENFORCEMENT OF FOREIGN JUDGMENT
consul general Courts will allow the foreign judgment Plaintiff wants courts to positively carry out
consul to be presented as a defense to a local and make effective in the state a foreign
vice consul litigation judgment
consular agent of RP Involves merely the sense of justice Virtually implies a direct act of sovereignty
(b) Person/officer appointed by COMMISSION or under letters rogatory; Does not require either an action of a Necessitates a separate action or
(c) Person which parties have stipulated IN WRITING special proceeding proceeding brought precisely to make the
foreign judgment effective
RECOGNITION AND ENFORCEMENT OF FOREIGN JUDMENTS May exist without enforcement Necessarily carries with it recognition
- a foreign judgment is recognized when it is given the same effect that it has in the For both recognition and enforcement, proof of the foreign judgment has to be presented.
state where it was rendered with respect to the parties, the subject matter of the Moreover, the requisites or conditions for the recognition or enforcement of foreign
action and the issued involved. Where the foreign judgment is being presented as a judgments must be present.
defense to the claim of the plaintiff, what is involved is the recognition of a foreign
judgment EFFECTS OF FOREIGN JUDGMENTS
- a foreign judgment is enforced when, in addition to being recognized, a party is - Under the Rules of Court, in case of judgment against a specific thing, the judgment
given affirmative relief to which the judgment entitles him. When a plaintiff asks the is conclusive upon the title of the thing.
court of one state to carry out and make effective a judgment obtained by him in - In case of judgment against a person, the judgment is presumptive evidence of a
another state, what is involved is the enforcement of a foreign judgment. right as between the parties and their successors-in-interest by a subsequent title;
Requisites: but the judgment may be repelled by evidence of want of jurisdiction, want of
1. foreign judgment was rendered by a judicial or a quasi-judicial tribunal which had notice to the party, collusion or clear mistake of law of fact
competent jurisdiction over the parties and the case in the proper judicial
proceedings in which the defendant shall have been given reasonable notice and
the opportunity to be heard;
2. it must be a judgment on civil and commercial matters;
EFFECTS OF FAILURE TO PLEAD AND PROVE FOREIGN LAW:
Forums have 3 alternatives:
1. To dismiss the case for inability to establish a cause of action [failure to prove its
content results results in failure to establish prima facie case];
2. To assume that the foreign law is the same as the law of the forum (presume-
identity approach); or
3. To apply the law of the forum [the basic law is the law of the forum and when the
claimed applicable foregin law is not proved]

FACTORS TO CONSIDER IN DECIDING EITHER TO APPLY DOMESTIC LAW OR TO DECIDE CASE

AGAINST PARTY WHO FAILED TO PROVE FOREIGN LAW FROM WHICH HIS CLAIM ARISES:
(a) Degree of public interest involved in the dispute
(b) Accessibility of foreign law materials to the parties
(c) Possibility that plaintiff is merely forum shopping
(d) Similarities between forum laws and foreign law on the issue in point
(usually forum law only applied when issue involves marriage and family relations)

C. PHILIPPINE COURTS NOT AUTHORIZED TO TAKE JUDICIAL NOTICE OF FOREGIN LAWS

Under the principleas of comity and reciprocity, the court or administrative agency
should look into the application of foreign law and apply it

EXCEPTIONS to the application of the proper foreign law

3 main categories:
a. When the local law expressly so provides;
b. When there is failure to plead and prove the foreign law or judgment;
and
c. When the case falls under any of the exception of the rule of comity.

Some exceptions under Article 17 Par 3 NCC

1. The foreign law is contrary to an important policy of the forum
2. The foreign law is procedural in nature
3. Issues are related to Property (Lex Situs)
4. The issue involved in the enforecement of foregin claim is fiscal or
administrative
5. The foreign law or judgment is contrary to Good morals
6. The application of foreign law will work undeniably injustice to the
citizens of the forum
7. The foreign law is penal in nature
8. The application of the foreign law might endager the vital interests of
the State.
PART THREE: PERSONAL LAW
Importance of Personal Law:
An individuals nationality or domicile serves as permanent connection between the
individual and the state. His personal law follows him wherever he is and governs those
transactions which affect him most closely such as marriage, divorce, legitimacy and
capacity to contract.
VIII. NATIONALITY
Refers to membership in a political community.
The Philippines adheres to the nationality law theory
Nationality Law Theory
is a conflict of law theory by virtue of which jurisdiction over the particular subject
matter affecting a person such as status of a natural person, is determined by the
latters nationality (Coquia)
it is national law of the individual that regulates his civil status, capacity, condition,
his family rights and duties, laws on succession and capacity to succeed
NATIONALITY CONFLICT RULE
Article 15. Laws relating to family rights and duties, or to the status, condition and
legal capacity of persons are binding upon citizens of the Philippines, even though
living abroad. (9a)
ADVANTAGE:
Good if you are domiciled in the Philippines
Easy to define who are the citizen
Protected regardless if you are abroad binding upon citizens of the Phils
DISADVANTAGE:
Bad if you are living in another country
It is not confined with domiciled or residence, it is hard for the State to protect its
nationals - when its nationals went abroad, beyond its territory hands of Phil law
are holding law
A. DETERMINATION OF NATIONALITY
o Each State has the prerogative and authority to determine by its own
municipal law who are its nationals or citizens
o The Hague Convention on Conflict of National Laws provides it is for each
state to determine who are its nationals. This law shall be recognized by
other states insofar as it is consistent with international convention,
international customs, and the principles of law generally recognized with
regard to nationality.
NOTE: Nationality may be acquired by birth or by naturalization
The three kinds of citizens of the Philippines are
1. Natural Born Citizens
2. Naturalized Citizens or Citizens by Naturalization
3. Citizens by election
1. NATURAL BORN CITIZEN
o Those who are citizens of the Philippines from birth without having to
perform any act to acquire or perfect their Philippine citizenship. Native
born citizen is one born in the country of which he is a citizen, hence, a child
born to a Filipino mother in Germany is a natural born, but not native born
citizen.
Article IV of the Philippine Constitution (1987), The following are
citizens of the Philippines
(a) Those who are citizens of the Philippines at the time of the
adoption of the Constitution;
(b) Those whose fathers and mothers are citizens of the
Philippines;
(c) Those born before January 17. 1973 of Filipino mothers, who
elect Philppine citizenship upon reaching the age of majority
(within three years)
(d) Those who are naturalized in accordance with law
TWO THEORIES on whether place or ancestry determines citizenship
1. JUS SOLI PRINCIPLE the law of the place of ones birth determine ones
nationality
2. JUS SANGUINIS PRINCIPLE one follows the citizenship of his parents; this
is citizenship by blood
The Philippine Constitution applies the Jus Sanguinis principle which means the rule
of descent or blood.
2. CITIZENS BY NATURALIZATION
those who are not natural-born citizens; those who become such through
judicial proceedings
 NATURALIZATION is the process of acquiring citizenship of another country;
(a) In the strict sense, it is a judicial process, where formalities of the law
have to be complied with including a judicial hearing and approval of
the petition
(b) In the loose and broad sense, it may mean not only the judicial process
but also the acquisition of another citizenship by such acts as marriage
to a citizen, and the exercise of the option to elect a particular
citizenship (Paras)
NATURALIZATION confers to an alien a nationality after birth by any means
provided by the law. In the Philippines, naturalization is by judicial method
under Commonwealth Act No. 473 as amended by republic Act 530.
(Coquia)
QUALIFICATIONS OF NATURALIZATION
(a) The petitioner must not be less than 21 years of age on the date of the
hearing of the petition;
(b) He must have, as a rule resided in the Philippines for a continuous
period of not less than 10 years;
Note: The minimum ten-year residence requirement is to enable the
government to observe the applicants conduct and to ensure that he
has imbibed the principles and spirit of our Constitution.
However, this period may be reduced to five years in any of the
following cases:
(1) If the applicant has honorably held office under the Government of
the Philippines or under any of the provinces, cities, municipalities, or
political subdivisions thereof;
(2) If he has established a new industry or introduced a useful invention
in the Philippines;
(3) If he is married to a Filipino woman
(4) If he had been engaged as a teacher in a public or recognized private
school not established for the exclusive instruction of children of
persons of a particular nationality or race in any of the branches of
education or industry for a period of two years;
(5) If he was born in the Philippines.
(c) He must be of good moral character, and believe in the principles
underlying the Philippine Constitution, and 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;
(d) He mush own real estate in the Philippines worth not less that Php
5,000.00, or must have some lucrative trade, profession, or lawful
occupation;
(e) He must be able to speak and write English or Spanish and any one of
the principal Philippine languages
(f) He must have enrolled his minor children of school age in any of the
public schools or private schools where Philippine 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 his petition for naturalization as citizen (Paras)
3. CITIZENS BY ELECTION citizens by virtue of certain legal provisions,
become such by choosing (or electing) Philippine citizenship after attaining
the age of majority or within a reasonable time (within 3 years)
B. PROCEDURE FOR NATURALIZATION
The following are the steps for naturalization
1. A declaration of intention to become a Filipino citizen must first be filed, with the Office
of the Solicitor General, unless the applicant is exempted from this requirement;
Exemptions to the filing of Declaration of Intention
Persons born in the Philippines and who have received their primary and secondary
education in public schools or private schools recognized by the government, and
not limited to any race or nationality
Those who have resided continuously in the Philippines for a period of thirty years
or more before filing their application
The widow and minor children of an alien who declared his intention to become a
citizen of the Philippines and dies before he is actually naturalized
2. The petition for naturalization must then be filed
3. After publication in the official gazette or newspaper of general publication the petition
will be heard
4. If the petition is approved, there will be a rehearing two years after the promulgation of
the judgment awarding naturalization
5. Taking of the oath of allegiance to support and defend the constitution and the laws of
the Philippines (Coquia)
NOTE: The law provides for exemptions to the filing of declaration of intention. They are the
following:
 (1) Persons born in the Philippines and who have received their primary and
secondary education in public schools or private schools recognized by the
Government, and not limited to any race or nationality;
(2) Those who have resided continuously in the Philippines for a period of thirty
years or more before filing their application;
(3) The widow and minor children of an alien who declared his intention to become
a citizen of the Philippines and dies before he is actually naturalized.
C. LOSS OF PHILIPPINE CITIZENSHIP
Filipino citizen may lose his citizenship in any of the following ways (Pursuant to
Commonwealth Act No. 63, as amended by Republic Act No 106) by
1. Naturalization in foreign countries
2. Express renunciation of citizenship
3. Subscribing to an oath of allegiance to support the constitution or laws of a
foreign country upon attaining 21 years old or more: provided, however,
that a Filipino may not divest himself of Philippine citizenship in any manner
while the Republic of the Philippines is at war with any country;
4. Rendering service to, or accepting commission in, the armed forces of a
foreign country:
5. Cancellation of the Certificate of Naturalization;
6. Having been declared by competent authority, a deserter of the Philippine
armed forces in time of war, unless subsequently, a plenary pardon of
amnesty has been granted and;
7. In the case of a woman, upon her marriage to a foreigner, if by virtue of the
laws in force of her husbands country, she acquires his nationality
Sec 18 of the Naturalization Law (CA 473 as amended) provides that upon motion
made in the proper proceedings by the Solicitor General, the Judge may cancel that
naturalization certificate issued and its registration in the Civil Registry for any of the
following reasons:
a) If it is shown that said naturalization certificate was obtained
fraudulently or illegally;
b) If the person naturalizaed shall, within the 5 years next following the
issuance of said naturalization certificate, return to his native country or
to some foreign country and establish his permanent residence therein;
c) If the petition was made on an invalid declaration of intention;
d) If is shown that the minor children of the person naturalized failed to
graduate from public or private high school recognized by the Bureau of
Private Schools, where Philippine history, government, and civics are
taught or prescribed as part of the school curriculum, through the fault
of their parents either by neglecting to support them or by transferring
them to another school or schools.
e) If it is shown that the naturalized citizen has allowed himself to be used
as a dummy in violation of the Constitution or legal provisions requiring
Philippine citenzenship as a requiresite for the exercise, use or
enjoyment of a right, franchise or privilege.
*a judgment directing the issuance of certificate of naturalization is a mere grant of political
privilege, and that neither estopel nor res judicata may be invoked to bar the State from
initiating an action for the cancellation or nullification of the certificate of naturalization
thus issued
D. DUAL ALLEGIANCE AND DUAL CITIZENSHIP
Through the application of the jus soli and jus sanguinis principles a child
born of parents who are nationals of a country applying the principle of jus
sanguinis, in a country applying the jus soli principle has dual nationality.
REPUBLIC ACT NO. 9225 Citizenship Retention and Re-acquisition Act of 2003."
Amending Commonwealth Act No 23 Begun held in Manila: July 28, 2003
Approved: Aug 29, 2003
Section 2. Declaration of Policy - It is hereby declared the policy of the State that all
Philippine citizens of another country shall be deemed not to have lost their Philippine
citizenship under the conditions of this Act.
Section 3. Retention of Philippine Citizenship - Any provision of law to the contrary
notwithstanding, natural-born citizenship by reason of their naturalization as citizens of a
foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking
the following oath of allegiance to the Republic:
"I _____________________, solemny swear (or affrim) that I will support and
defend the Constitution of the Republic of the Philippines and obey the laws and
legal orders promulgated by the duly constituted authorities of the Philippines; and I
hereby declare that I recognize and accept the supreme authority of the Philippines
and will maintain true faith and allegiance thereto; and that I imposed this
obligation upon myself voluntarily without mental reservation or purpose of
evasion."
Natural born citizens of the Philippines who, after the effectivity of this Act, become
citizens of a foreign country shall retain their Philippine citizenship upon taking the
aforesaid oath.
Section 4. Derivative Citizenship - The unmarried child, whether legitimate, illegitimate or
adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship
upon effectivity of this Act shall be deemed citizenship of the Philippines.
Section 5. Civil and Political Rights and Liabilities - Those who retain or re-acquire
Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to
all attendant liabilities and responsibilities under existing laws of the Philippines and the
following conditions:
1. Those intending to exercise their right of suffrage must Meet the requirements
under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise
known as "The Overseas Absentee Voting Act of 2003" and other existing laws;
2. Those seeking elective public in the Philippines shall meet the qualification for
holding such public office as required by the Constitution and existing laws and, at
the time of the filing of the certificate of candidacy, make a personal and sworn
renunciation of any and all foreign citizenship before any public officer authorized to
administer an oath;
3. Those appointed to any public office shall subscribe and swear to an oath of
allegiance to the Republic of the Philippines and its duly constituted authorities
prior to their assumption of office: Provided, That they renounce their oath of
allegiance to the country where they took that oath;
4. Those intending to practice their profession in the Philippines shall apply with the
proper authority for a license or permit to engage in such practice; and
5. That right to vote or be elected or appointed to any public office in the Philippines
cannot be exercised by, or extended to, those who:
(a) are candidates for or are occupying any public office in the country of which
they are naturalized citizens; and/or
(b) are in active service as commissioned or non-commissioned officers in the
armed forces of the country which they are naturalized citizens.
E. PROBLEMS IN APPLYING THE NATIONALITY PRINCIPLE
1. DUAL OR MULTIPLE CITIZENSHIP
In matters of status, he is usually considered by the forum as exclusively his own
national, his additional foreign nationality is disregarded
In case the litigation arises in a third country, the law most consistently applied is at
that of the country of which the person is not only a national but where he has his
domicile or habitual residence, or in the absence thereof, his residence
In view of the rule set in the Hague Convention on Conflict of National Laws, each
state determines who its own nationals are. Article 5 thereof provides a third state
shall, of the nationalities which such a person possesses, recognized exclusively in its
territory either the nationality of the country of which he is habitually and
principally resident, or the nationality of the county with which in the circumstances
he appears to be closely connected. Any question as to whether or not a person
possesses the nationality of a particular state shall be determined in accordance
with the states internal law. Hence it is possible that an individual can be claimed
as a national of two or more states.
Application of the jus soli and jus sanguinis A child born of parents who are
nationals of a country applying the principle of jus sanguinis, in a country applying
the jus soli has dual nationality. Thus: A Filipino citizen who marries an alien may
acquire the citizenship of his or her spouse if the spouses national law so allows. A
Filipino citizen however, who marries an alien shall retain Philippine citizenship,
unless by his act or omission, he is deemed under the law, to have renounced it by
taking an oath of allegiance to the spouses country or by express renunciation.
Another instance of dual or multiple nationalities is the case of an individual who is
naturalized citizen of another state but has not effectively renounced his former
nationality.
In the determination of the rights of an individual who may claim multiple
nationalities in the third state, the International Court of Justice applied the
principle of effective nationality.
MULTIPLE CITIZENSHIP ARISES DUE TO:
(a) through a naturalized citizens failure to comply with certain legal
requirements in the country of origin
(b) from a combined application of jus soli and jus sanguinis principle
(c) by the legislative act of states
(d) by the voluntary act of individual concerned
2. STATELESSNESS
refers to an individual who has been stripped of his nationality by his own
former government without having an opportunity to acquire another.
Stateless persons are generally subject to the law of their domicile or
habitual residence, or in default thereof, to the law of their temporary
residence
STATELESSNESS ARISES DUE TO:
1. Deprivation of his citizenship for any cause such as commission of a crime;
2. Renunciation of ones nationality by certain acts, express or implied;
3. Voluntary release from his original state;
 4. He may have been born in a country which recognizes only the principle of jus
sanguinis -- or citizenship by blood, of parents whose law recognizes only the
principle of jus soli -- citizenship by birth in a certain place. Thus he is neither a
citizen of the country of his parents.
However, the Hague Conference of 1928 on International Private Law suggested
that personal law of stateless individuals shall be the law of the domicile or the law
of the place of temporary residence.
NOTE: The Convention on the Adoption on the Reduction of Statelessness (1961)
mandates that the jus sanguinis country grants its nationality to person born within
its territory if he would be otherwise stateless, and the jus soli country to extend its
nationality to a person who would otherwise be considered stateless when any of
his parents is a citizen of the contracting state.
IX. DOMICILE
Municipal Law concept is stated in the Civil Code :
Article 50. For the exercise of civil rights and the fulfillment of civil
obligations, the domicile of natural persons is the place of their habitual residence.
For juridical persons, domicile is determined by the law creating or recognizing it
A. DOMICILE - DEFINITION
Ones true, fixed permanent home and principal establishment, and to which,
whenever he is absent, he has the intention of returning
To acquire a domicile, there must be concurrence of intention to make it ones
domicile and physical presence, while residence simply requires bodily presence
of an inhabitant in a given place (Coquia)
That place where a person has settled, fixed and legal relations
That place with which a person has settled connection for certain legal purposes,
either because his home is there or because that place is assigned to him by law.
Distinctions between residence and domicile
1. Residence is an act; while domicile is an act coupled with an intent;
2. Residence involves the intent to leave when the purpose for which he has taken up
his abode ceases; while domicile has no such intent, the abiding is animo manendi.
Domiciliary Theory
Is the theory that in general the status, condition, rights, obligations and capacity of
a person should be governed by the law of his domicile (Paras)
Domicile vs. Citizenship or Nationality
Domicile speaks of ones permanent place of abode, in general: while , citizenship
and nationality indicate ties of allegiance and loyalty. A person may be a citizen or
national of one state, without being a domiciliary thereof; conversely, one may
possess his domicile in one state without necessarily being a citizen or national
thereof
B. MERITS AND DEMERITS OF DOMICILE
MERITS
1. In cases where the individual who belongs to a country following the domiciliary
theory is involved in a case before the Philippine courts, his personal status,
capacity, condition, and family rights will be governed by the law of his domicile;
2. In cases of stateless persons who may claim dual or multiple nationality, in which
case the court will have to refer to their domicile;
3. When an alien domiciled in the Philippines executes a will abroad
DEMERITS
1. Ones domicile is not ascertainable without first resorting to the courts to establish
whether or not there is animo manendi
2. The notion of domicile differs widely with some states distinguishing between
residence and domicile or attributing different meanings of domicile for different
purposes;
3. If the law of the domicile of origin is given utmost significance, then it will give rise
to the same problem as in nationality
4. In cases where the individual who belongs to a country following the
Defects of Domiciliary Theory:
1. Various countries have various concept of the real meaning of domicile
2. Domicile is comparatively easier to change than nationality
3. Persons may pretend to be domiciliaries of one state when in truth they are not
C. GENERAL RULES ON DOMICILE
1. No person shall be without a domicile;
2. A person cannot have two simultaneous domicile since the very purpose for
identifying ones domicile is to establish a connection between the person and a
definite legal system;
3. Domicile establishes a connection between a person and a particular territorial unit.
4. Once acquired, it remains the domicile unless a new one is obtained:
a. by capacitated persons
b. with freedom of choice
c. with actual physical presence
 d. and provable intent that it should be ones fixed and permanent place of X. PRINCIPLES ON PERSONAL STATUS AND CAPACITY
abode, there should be animus manendi (intent to remain) or animus A. DEFINITION
nonrevertendi (intent not to remain) STATUS
5. The presumption is in favor of the continuance of domicile. The burden of proving a Status, is the place of an individual in a society and consists of personal
change of domicile is upon whoever alleges that a change has been secured. qualities and relationships, more or less permanent, with which the state
and the community are concerned
D. KINDS OF DOMICILE Personal status is the general term that includes both condition and
1. Domicile of origin refers to a persons domicile at birth. capacity, and more specifically embraces such matters as the beginning and
Acquired at birth end of human personality, capacity to have rights in general, capacity to
Applies only to infants engage in legal transactions, protection of personal interests, family
It never changes relations, particularly the relations between husband and wife, parent and
Legitimate child choice of the father child, guardian and ward, also transactions of family law, especially
Illegitimate child choice of the mother marriage, divorce, separation, adoption, legitimation and emancipation, and
Legitimated child domicile of father (effect of legitimation: retroact to the finally succession both testate and intestate.
child birth) CHARACTERISTICS OF STATUS
Adopted child domicile of real parents or parents by consanguinities 1. Status is conferred principally by the state not by the individual;
Foundling country where it was found 2. Status is a matter of public or social interest
2. Domicile of choice, which is also called voluntary domicile, is the place freely chosen 3. Status being a concept of social order, it cannot easily be terminated at the
by a person sui juris. mere will of desire of the parties concerned;
Is a result of the voluntary will + action of the person concerned 4. Status is generally supposed to have a universal character, when a certain
It may change from time to time status is created by law of one country, it is generally judicially recognized
That we whenever he is absent, he intends to return all over the world.
3. Constructive domicile or domicile by operation of law - that which is assigned to a
person after birth on account of legal disability caused for instance by minority, CAPACITY
insanity or marriage in the case of a woman Capacity more often referred as Juridical capacity, is the fitness of a man to
Legitimate choice of either father or mother be the subject of legal relations while capacity to act is the power to do acts
Illegitimate mother with juridical effects.
Adopter choice of adopter Capacity is merely a part of status and may be defined as the sum total of
Ward - guardian his rights and obligations:
2 kinds:
a) Capacity to act active capacity power to do acts with legal
effects
b) Judicial capacity passive capacity fitness to be subject of
legal relations

B. LEGISLATIVE JURISDICTION VS JUDICIAL JURISDICTION

Judicial Jurisdiction is the power or authority of a court or administrative tribunal to
try a case, render judgment and execute it in accordance with law while Legislative
Jurisdiction which is the power of the state to promulgate laws and regulations and enforce
them on all persons and property within its territory (Coquia)
 D. ABSENCE
C. BEGINNING AND END OF PERSONALITY
The determination of the exact moment personality begins is referred to the
individuals personal law. Articles 40 and 41 of our Civil Code give our
internal rules on the beginning of human personality.
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. (29a)
Article 41. For civil purposes, the foetus is considered born if it is
alive at the time it is completely delivered from the mother's womb.
However, if the foetus had an intra-uterine life of less than seven months, it
is not deemed born if it dies within twenty-four hours after its complete
delivery from the maternal womb.
As civil personality is commenced at birth, it is extinguished by death. Under
the principle of personal law, a declaration of death issued by a competent
court is considered valid for all purposes. Upon the death of a person, some
of his rights and obligations are totally extinguished while others are passed
on to his successors.
Article 42 CC. Civil personality is extinguished by Death. The effect of death
upon the rights and obligations of the deceased is determined by law, by
contract and by will.
Civil death civil interdiction restricts the capacity to act
The domestic law of different countries do not treat absentees alike and this
has given rise to difficult problems in conflict of laws. There are three
suggested ways of dealing with the problem: first, there is a rebuttable
presumption that a person is dead when he has been absent for a number
of years; second, a persons unexplained absence is judicially investigated
and established which results in legal effects similar to those of death; and
third, a judicial decree shall have to be issued declaring the person dead
before legal effects of death take place.
Philippine laws follow the rebuttable presumption of the common law. Our
Civil Code states:
Article 390. After an absence of seven 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 ten years. If he
disappeared after the age of seventy-five years, an absence of five
years shall be sufficient in order that his succession may be opened.
[ordinary absence death presumed at the last day of period]
Article 391. The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:
i. A person on board a vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been heard of for
four years since the loss of the vessel or aeroplane;
ii. A person in the armed forces who has taken part in war,
and has been missing for four years;
iii. A person who has been in danger of death under other
circumstances and his existence has not been known for
four years.
[Qualified or extraordinary absence death presumed at the
beginning of the period]
However, for specific purposes, our laws require that a declaration of death
be issued before certain legal effects of death arise. For instance, article 41
of the Family Code requires that for the purpose of contracting a
subsequent marriage, the spouse presnt must first institute a summary
proceeding for the declaration of presumptive death of the absentee spouse
without which the subsequent marriage is void ab initio.
 Article 348 of CC: 2 years having elapsed without any news about the Article 234 of FC, as amended by RA 6809: Emancipation takes place by the
absentee or since the receipt of the last news and 5 years in case the attainment of majority. Unless otherwise provided, majority commences at
absence has left a person in charge of administration of his property, his the age of 18 years.
absence may be declared
Article 386 of CC: the judicial declaration of absence shall not take effect G. CAPACITY
until 6 months after its publication in a newspaper of general circulations A persons ability to act with legal effects is governed by his personal law.
Ones personal law is viewed as best qualified to decide what restrictions
E. NAME should be imposed on the individual. Rules on capacity of an individual to
The law expressly states that no person can change his name or surname bind himself
without judicial authority. Case law shows the courts have allowed
petitions on grounds that the name
1) is ridiculous or tainted with dishonour or extremely difficult to
pronounce; or
2) when the change is necessary to avoid confusion;
3) when the right to a new name is a consequence of a change in
status;
4) a sincere desire to adopt a Filipino name to erase signs of a
former alien nationality which unduly hamper social and business
life.
Article 176 FC: A married woman may use (womans exclusive choice):
a) Maiden 1st name + surname + husbands surname
b) Maiden 1st name + husbands surname
c) Mrs husbands full name
Fathers surname: Legitimate Child, legitimated Child, children before
annulment
Adopters surname adopted child
Mothers surname illegitimate children (unless recognized by father)

F. AGE OF MAJORITY
The legal disability attached to minority and rights recognized upn
attainment of the age of majority are aspects of personal status. It is the
individuals personal law which determines whether he has reached the age
of majority. Once emancipated, parental authority over the person and
property of the child is terminated and he is qualified and responsible all
acts of civil life save the exceptions established by existing laws in special
cases, such as the parents continued observance of their responsibilities
under article 46 of P.D. 603.
Likewise, although Republic Act No. 6809 lowered the age of majority to 18
years from 21 years, it expressly stated that parental consent for contracting
marriage is required until the age of twenty-one.
PART FOUR: CHOICE OF LAW PROBLEMS
XI. CHOICE OF LAW IN FAMILY RELATIONS
A. MARRIAGE
1. EXTRINSIC VALIDITY OF MARRIAGE
2. INTRINSIC VALIDITY OF MARRIAGE
3. EFFECTS OF MARRIAGE
i. PERSONAL RELATIONS BETWEEN THE SPOUSES
ii. PROPERTY RELATIONS OF SPOUSES
B. DIVORCE AND ANNULMENT
1. DIVORCE DECREES OBTAINED BY FILIPINOS
2. VALIDITY OF FOREGIN DIVORCE BETWEEN FOREIGNERS
C. ANNULMENT AND DECLARATION OF NULLITY
D. PARENTAL RELATIONS
1. DETERMINATION OF LEGITIMACY OF A CHILD
2. COMMON LAW PRINCIPLES OF LEGITIMACY
3. PARENTAL AUTHORITY OVER THE CHILD
E. ADOPTION
XII. CHOICE OF LAW IN PROPERTY
A. THE CONTROLLING LAW
B. CAPACITY TO TRANSFER OR ACQUIRE PROPERTY
C. EXTRINSIC AND INTRISIC VALIDITY OF CONVEYANCE
D. EXCEPTIONS TO LEX SITUS RULE
E. SITUS OF CERTAIN PROPERTIES
i. PERSONAL PROPERTY FOR TAX PURPOSES
ii. MONEY
iii. DEBTS
iv. CORPORATE SHARES OF STOCKS
F. PATENTS, TRADEMARKS, TRADE NAME, COPYRIGHT
XIII. CHOICE OF LAW IN CONTRACTS
SYNOPSIS OF CONFLICT OF RULES
FACTUAL SITUATION
1) Formal or extrinsic validity
Exceptions:
(a) Alienation and encumbrance of
property
(b) Consular contracts
2) Capacity of contracting parties
Exceptions
Alienation and encumbrance of the
property
3) Intrinsic Validity (including
interpretation of instruments, and
amount of damages for breach
POINT OF CONTACT
Lex loci celebrationis (Art `7, par 1,NCC)
Lex situs (Art 16, NCC)
Law of the Philippines
National law (Art 15 NCC) without prejudice
to the case of Insular Government vs Frank,
13 Phil 236, where the SC adhered to the
theory of lex loci celebrationis
Lex situs (Art 16, NCC)
the proper law of the contract lex
contractus meaning the lex loci
voluntatis or the lex loci intentionis
Other theories:
(a) lex loci celebrationis defect: this
makes possible the invasion of the
national law
(b) lex nationalii defect: this may
impede commercial transactions
(c) lex loci solutionis law of the place
of performance defect: there may be
several places of performance
(d) Prof. Minors solution:
1) perfection lex loci celebrationis
2) cause or consideration lex loci
considerations
3) performance lex loci solutionis
(this theory combines the defects of
the others)
 FACTUAL SITUATION POINT OF CONTACT 7) Commodatum (Real Property)
1) Sales and Barter (a) Extrinsic validity Lex situs
(a) Extrinsic validity Lex situs (b) Capacity of Parties Lex Situs
(b) Capacity of Parties Lex situs (c) Intrinsic Validity Lex Situs
(c) Intrinsic Validity Lex situs 8) Pledge, Chattel Mortgage, Real
2) Lease of Property Mortgage, and Antichresis
(a) Extrinsic validity Lex situs (a) Extrinsic validity Lex situs
(b) Capacity of Parties Lex situs (b) Capacity of Parties Lex situs
(c) Intrinsic Validity Lex situs (c) Intrinsic Validity Lex situs
3) Lease of Services Note: These are accessory contracts only,
(a) Extrinsic validity Lex loci celebrationis therefore, if the principal contract
(b) Capacity of Parties National law (generally the contract of loan) is
(c) Intrinsic Validity Loci volutatis or lex loci intentionis defective, the accessory contract
4) Contract of Common Carriage of must also be deemed defective
Goods 9) Gurantee and Suretyship
(a) Extrinsic validity Fixed situs of the carrier (depot/ resting (a) Extrinsic validity Lex loci celebrationis
place) (b) Capacity of Parties National law
(b) Capacity of Parties Fixed situs of the carrier (c) Intrinsic Validity Lex loci voluntatis or lex loci intentionis
(c) Intrinsic Validity Fixed situs of the carrier Note:These are also accessory contracts;
(d) Liability for loss, destruction Law of Destination(Art 1753 NCC) if the principal contract is defective,
or deterioration of goods in the accessory contract is also generally
transitu defective.
5) Contract of Agency
(a) Extrinsic validity Lex loci celebrationis (unless the agency *money deposit laws of the place where the bank instituted is located
deals with conveyance or encumbering of *Air transportation destination
property - lex situs of property applies)
(b) Capacity of Parties to be National law of the parties (Unless the Obligation
principal or agent agency deals with conveyance or - Is a juridical relation whereby a person (creditor) may demand from another
encumbering of property - lex situs of (debtor) the observance of a determined conduct (the giving, doing and not doing)
property applies) and in case of breach, may demand satisfaction from the assets of the latter.
(c) Intrinsic Validity Lex loci voluntatis or lex loci intentionis - Art 1156: as juridical necessity to give, to do or not to do.
(Unless the agency deals with conveyance or
encumbering of property - lex situs of Contract
property applies) - A contract is a meeting of minds between 2 persons whereby one binds himself,
6) Simple Loan (Mutuum) with respect of the other, to give something or to render some service
(a) Extrinsic validity Lex loci celebrationis - Perfected by mere consent and from that moment the parties are bound not only yo
(b) Capacity of Parties National law the fulfillment of what has been expressly stipulated but also to all the
(c) Intrinsic Validity Lex loci voluntatis or lex loxi intentionis consequences which, according to nature, may be in keeping with good faith, usage
of law
- Generally, a contract is obligatory in whatever form it may have been entered into
provided that all the essential requisites for its validity is present
A. CONTRACTS INVOLVING A FOREIGN ELEMENT
By reason of these differing rules, the forum court presented with a
contracts case involving a foreign element must be aware that the parties may have
entered into a contract with a particular state law in mind, expecting it to govern
questions that may arise from the contract. To do otherwise would defeat the
parties reasonable expectations.
B. EXTRINSIC VALIDITY OF CONTRACT
Lex loci celebrationis governs the formal or extrinsic validity of contracts.
Art. 17 The forms and solemnties of contracts, wills, and other public instruments
shall be governed by the laws of the country in which they are executed. These
principles are derived from a broader proposition that the place governs the act
(locus regit actum).
Query: How about contracts entered into by cablegram, telex or fax
messages between persons from different countries? What is deemed to be the
place of execution of the contract?
Answer: Art. 1319 of the civil code states that Acceptance made by letter
or telegram does not bind the offeror except from the time it came to his
knowledge. The contract in such case is presumed to have been entered into the
place where the offer was made.
Example: A Chinese sold in Chile to a Filipino a parcel of land in the Phils.
The Philippine formalities of such a sale should be followed. (Art. 16 par 1 of the civil
code)
Bar Q: Suppose our law provides that certain instrument shall be void and
unenforceable unless they beat documentary stamps, and a written contract is
enters into in the Phils. to be performed in France. The contract was not stamped in
the Philippines as required by its law. The placing of stamp on written contract is not
however required by the laws of France. In an action brought on the contract in
France, may the defendant avail himself of the invalidity of contract?
AnSwer: Since the forum of the problem is France, the answer will depend
not on Philippine Conflict of laws but on French conflict of laws. On the assumption
that the French conflicts rule on the matter is identical with ours, it is believed that
the contract should be considered valid, and the defense of invalidity cannot be
sustained. The rule to apply is evidently lex loci voluntatis or the lex loci intentionis
that which was voluntarily agreed upon or intended by the parties.
C. INTRINSIC VALIDITY OF CONTRACT
The intrinsic validity of contracts including the considerations or cause
thereof, the interpretation of the instruments, and the nature or amount of
damages for breach or non-performance must be governed by the proper law of the
contract (lex contractus). This is the law voluntarily agreed upon by the parties (lex
loci voluntatis) or the law intended by them expressly or implicitly (lex lcoci
intentionis)
1. LEX LOCI CONTRACTUS
The law of the place of the making or lex loci contractus refers to the
place where the contract is made.
2. LEX LOCI SOLUTIONIS
The law of the place of performance calls for the reference to a law other
than the place where the acts of offer and acceptance took place. All
matters relating to the time, place and manner of performance, sufficiency
of performance and valid excuses for non-performance are determined by
lex loci solutionis which is useful because it is undoubtedly always
connected to the contract in a significant way.
*where the contractual obligation is performed
3. LEX LOCI INTENTIONIS
The intrinsic validity of contracts should be governed by the law intended by
the parties or lex loci intentionis. This intention may be expressed in the
choice-of-law provision in the contract
Art. 1306 of the civil code The contracting parties may establish
such stipulations, clauses, terms and conditions as they may deem
convenient provided they are not contrary to law, morals, good customs,
public order or public policy
D. CAPACITY TO ENTER INTO CONTRACTS
The capacity of the parties to enter into contract is generally governed by
the national law (Art. 15, civil code) Except in the case of alienation or encumbering
of properties, both real and personal, for here the capacity is governed by the lex
situs (Art, 16 par 1)
Another exception. is that case of Insular Govt v. Frank which disregarded
the nationality law principle. Frank had the capacity to enter into a contract whether
in the US or in the Phils. since he was of majority age as determined by his national
law. The SC held that in a case not involving property that instead of national law,
what should determine capacity to enter into a contract is the lex loci celebrationis.
 Bar Q: X and Y entered into a contract in Madrid, Spain wherein it was agreed that X
would construct for Y an apartment in Manila, in consideration being Ys house and
lot in San Francisco California. The laws of what country would govern the:
(a)validity of the contract;
(b) its performance and
(c) its consideration?
Answer:
(a) The validity of the contract would depend on the lex situs namely the
Philippine law since the contract deals with a building to be constructed in
Manila. Philippine law should govern everything about the contract. (Art.
16, par 1 civil code)
(b)Prof. Minor however would say that the validity of the contract would be
governed by the lex loci celebrationis Spanish law; performance and damages in
case of breach would depend on the lex loci intentionis Philippine law; and the
sufficiency of consideration would depend on lex loci considerationis California
law.
E. CHOICE OF LAW ISSUES IN CONFLICT CONTRACTS CASES
Under the principle of freedom of contract, the parties may stipulate on the
law to govern their contract agreement.
Contracts with Arbitration Clause
A multinational contract that contains an arbitration clause gives rise to the issue of
whether one of the parties may compel the other to submit to arbitration.
CONTRACTS OF ADHESION
It is one that is not negotiated by the parties, having been drafted by the dominant
party and usually embodied in a standardized form. It is called a contract of
adhesion because the only participation of the other party is in affixing her signature
or adhering thereto. Likewise known as a take it or leave it contract
PAN AM WORLD AIRWAYS v. RAPADAS
209 SCRA 567
FACTS : Jose Rapadas while standing in line to board the flight from Guam to Manila
was ordered by a Pan Am Control agent to check in his samsonite attach case. He
instead went to the tail end of the line trying to get through without having to
cheack in his attache case. He was again spotted and for fear that he would miss the
plane, he checked it in without declaring its contents or value. Unfortunately, it
never arrived in Manila and Pan Am offered to settle the claim for $160.00. Rapadas
refused and filed a case placing the value of the lost attache case and its contents at
$42,403.90. In its answer, Pan Am acknowledged responsibility for the loss but
asserted that the claim was subject to the Notice of Baggage Liability Limitations
forming part of the passengers ticket.
ISSUE : Whether or not the said notice (a contract of adhesion) be considered
adequate under the circumstances of the case.
HELD : Yes. There is no dispute that there was such a Notice appearing on page 2 of
the airline ticket stating that the Warsaw Convention governs in case of death or
injury to passenger of the loss, damage or destruction to passengers luggage. The
plane ticket is what is known as a contract of adhesion and these contracts are not
entirely prohibited. The Court, finds the provisions in the plane ticket sufficient to
govern the limitations of liabilities of the airline for loss of luggage. If the passenger
fails to adhere evidence to oversome the stipulaions, he cannot avoid that
application of the liability limitations.
Contracts for International Air-Transportation
Convention for the Unification of Certain Rules Relating to International
Transportation by Air or known as Warsaw Convention. The Convention which
applies to all international transportation of persons, baggage or goods performed
by aircraft for hire, enumerate instances when the carrier is liable, fixing the
maximum amount of damages to be included in each case.
However, the limits of liability shall not apply if it is proved that the damage
resulted from an act or omission of the carrier, his servants or agents done with
intent to cause damage or recklessly and with knowledge that damage would
probably result provided in such case, it is proved that the servant or agent was
acting within the scope of his employment.