CHAPTER 4: NATURE AND COMPOSITION OF CONFLICT OF RULES

Purely Internal Provision of Law

Conflicts Rule or provision in

- Governs a domestic problem (one

conflict of laws
- is a provision found in our own law

w/o foreign element)

- Authorizes, command and prohibits

which governs factual situation

possessed of a foreign element

a certain act or mode of conduct

- The question of WON a certain act

- usually expressed in the form of an

abstract proposition that a given legal

or mode of conduct is allowed,

commanded or prohibited is

question is governed by the law of

a particular country( w/c may be an

immediately solved

internal law or the proper foreign

law) to be ascertained in the manner

- Example: Art 796: All persons who

indicated by the provision.

- Art 16: Real property, as well as

are not expressly prohibited by law

may make a will.

personal property, is subject to the

law of the country where it is
situated.

2 kinds of conflict rules:

One-sided rule
All-sided or multilateral rule
-Indicates when Philippine law will
-indicates whether to apply the local
apply
law or the proper foreign law.
Examples:
1. Art 15 NCC-Laws relating to
1. Art 16 NCC: Real property, as well
family, rights and obligations, or to
the status, condition or legal capacity

as personal property, is subject to

the law of the country where it is

of persons, are binding upon citizens

of the Phils, even though living

situated.
^-^ this means that Philippine Law is

abroad.

applied if the property is found in

the Philippines; if the property is
found in Japan then Japanese law
shall govern

2. Art 818 NCC: Two or more persons

cannot make a will jointly, or in the

reciprocal benefit or for the benefit

of a 3rd person

2. Art 17 NCC: The forms and

solemnities of the contracts, wills and

Note: above provisions apply only to

other public instruments shall be

governed by the law of the country in

Filipinos

which they are executed.

^-^ meaning if the contract was

executed in the Philippines, its form

and solemnities are governed by
Philippine law; if executed in England
then English Law will govern.
III. Parts of every conflict rule:
a.

The factual situation- set of facts or situations presenting a conflicts

problem because there is a foreign element involved;
- States the operative facts; raises a legal question
b. Point of connection or connecting factor the law of the country to
which the factual situation is most intimately connected
- Determines the legal consequences of the factual
situation; answers or solves the legal question

Example:
1. Art 1763 of NCC: The law of the country to which the goods are to be
transported shall govern the liability of the common carrier for their loss,
destruction and deterioration.
Facts: a ship carrying cargo is travelling on the high seas and for some reasons
the cargo in it is lost, destroyed or deteriorated.
Issue: what law is to be applied for the liability of the ship?
Held: The law of the country to which the cargo is to be transported, or the law
of their destination, and not the law of the country where they are loaded, or
the place of embarkation.

same instruments, either for their

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2. Art 1039 of NCC: The capacity to succeed is governed by the law of the
nation of the decedent
Facts: A person dies whose heirs are citizen of another country.
Issue: What law should apply to determine who will succeed the deceased ?
Answer: it is the law of the country in which the deceased was a citizen, and not
the law of the citizenship of his heirs.
CHAPTER 5: CHARACTERIZATION OF CONFLICTS RULES

Characterization, meaning- also known as classification or qualification

- Defined as the process of assigning a certain set of
facts or factual situation into its proper or correct
legal category ( family relations, torts, property,
contracts, etc)
*** by characterizing the legal problem, the court or the parties
involved reach the proper solution whether to apply the local law or the
proper foreign law.***
Why is characterization difficult?
- A conflicts situation or problem may be
characterized by the lex fori differently from the
characterization of the lex causae
*** lex fori - refer to the laws of the jurisdiction in which a legal action is
brought.

*** lex causae- law of the state with w/c the act or transaction is most closely
connected;is the law or laws chosen by the forum court from
among the relevant legal systems to arrive at its judgment of an
international or interjurisdictional case.
Ex.: in a certain legal action, the lex fori might regard it as tort, while the lex
causae regards it as contract or the lex fori might regard the
problem as crime while the lex causae only as tort
*** In case of difference between lex fori and lex causae , LEX FORI should
determine the problems characterization on the grounds of

practical necessity and convenience-UNLESS THE RESULT

WOULD BE A CLEAR INJUSTICE.
Application to Gibbs vs. Govt of Philippine Island (59 Phil 293):
Facts: A Californian wife dies. Her Californian husband claims the entire
properties acquired by the spouses during their marriage as his
alone by accretion ff. California law on property relations of the
spouses.
Under the Phi law, this is a problem in succession so that
the husband should pay the inheritance tax because the
properties are located in the Phils.
*** SC held that the properties inherited by the husband were
subject to inheritance taxes, categorizing the problem as one of
the succession.
How to solve a characterization problem involving a determination of
whether the matter is substantive or procedural law:
** all procedural matters are governed by lex fori( thus service of summons,
appeal, cause of action, etc are governed by the law of the forum)
Ans.: consider the prescriptive periods or the Statute of Frauds that
the parties had in mind at the time the transaction took place; proceed to apply
the law in its totality
Exception: the subject matter is properly located in the Phils- lex situs
applies
Ex.: A (Englishman) borrowed money from B (Englishman) with a
promissory note. Assuming the period to sue a promissory note in England is 4
years. In the Philippines, period of prescription is 10 years. If the action is filed
after 4 years but w/in 10 years, has the action prescribed?
Ans.: Yes, because the parties evidently intended English law to govern
their transaction.

*** Statute of Frauds (Art 1403 (2))refers to the requirement that certain
kinds of contracts be memorialized in a writing, signed by the party to be
charged, with sufficient content to evidence the contract.( Marriage-YearLease Debt-Goods-Special Promise)
1. An agreement that by its terms is not to be performed within a year from the
making thereof;

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2. A special promise to answer for the debt, default or miscarriage of another

-It includes:
1. civil status of the person

a. juridical capacity (passive

capacity)- the fitness to be the

3. An agreement made in consideration of marriage, other than a mutual promise

to marry;

2. paternity and filiation (legit or not)

3. minor or reached the age of

subject of legal relations; inherent in

every natural person and lost only
through death

4. An agreement for the sale of goods, chattels or things in action, at a price

not lower that 500 pesos, unless the buyer accepts and receives part of such
goods and chattels, or the evidences, or some of them, of such things in action,
or pay at the time some part of the entry is made by the auctioneer in his sales
book, at the time of the sale, of the amount and kind of property sold, terms of
sale, price, names of the purchasers and person on whose account the sale is
made, it is a sufficient memorandum

majority
4. whether he has capacity to enter
into various transactions
5. name, sex and profession

acquired and may be lost

EXAMPLE:
- a baby has juridical capacity,

Restrictions on capacity to act

(Art 38):

but has no capacity to act

-minority
- insanity or imbecility

5. An agreement for the leasing for a longer period than one year, or for the
sale of real property or of an interest therein;

** insanity- unsoundness of mind,

derangement of mind
** imbecile- not a lunatic or idiot but
destitute of strength either of body
or mind, has some intellectual
capacity but inferior in degree
- state of being deaf-mute
- prodigality- for reasons of
extravagant habits, is adjudged to be
incapable of managing his own affairs
- civil interdiction- a decree by w/c a
person is deprived of his civil rights

6. A representation to the credit of a third person

CHAPTET 6: PERSONAL LAW THEORIES IN DETERMINING ONES

PERSONAL LAW
Persons personal law defined as that which attaches to him wherever he may
go; it governs his status, conditions, capacity, family
relations, and the consequences of his actuations.
- Can be his national law, law of his domicile or the law
of the situs or event to which he was involved,
depending on the theory applied and enforced in the
forum.
STATUS
CAPACITY
- the place of an individual in a
- only a part of a persons status
society and consists of personal
- may be defined as the sum total of
qualities and relationships, more or
his rights and obligations
less permanent, with w/c the state
- there are 2 kinds of capacityArt
and the community are concerned
37 NCC)

b. Capacity to act (active capacity)power to do acts with legal effects;

Characteristics of STATUS:

[C M C G ]

a. conferred principally by the state, not by the individual

b. matter of public or social interest
c. concept of social order: cannot be easily terminated at the mere will or desire
of the parties

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d. generally supposed to have a universal character: when a certain status is

created by the law of one country, it is generally recognized all over the world.

Different theories on how personal law of an individual is determined:

a. Nationality Theory (personal theory) by virtue of which the status and
capacity of a person is determined by the law of his nationality or his
national law
b. domiciliary theory (territorial theory) by virtue of which the status and
capacity of a person is determined by the law of his domicile
c. situs or eclectic theory- views the particular place or situs of an event or
transaction as the generally controlling law
*** The Philippines follow the nationality theory while US like other common law
countries follow domiciliary theories
***Common law and equity are systems of law whose sources are the
decisions in cases by judges.
Is Personal law the same with national law?
= the same in countries that follow nationality theory like Philippines
But not in countries that follow domiciliary or eclectic theory
Is a persons NATIONALITY and CITIZENSHIP the same?
**** in Conflicts of Laws, nationality and citizenship are the same (national and
citizen are the same)
^_^ Nationality membership in a political community, one that is personal and
more or less permanent, not temporary
^_^ Citizen- one who owes allegiance to, and is entitled to the protection of the
state
Once a Filipino is naturalized in another country, his national law already
becomes the law of his citizenship. A Filipino, once naturalized American, is now
an American citizen
Why do some countries adopt nationality theory, while others adopt
domiciliary theory?
Civil Law Countries like Phils adopt

Common law countries like US,

nationality theory on practical

considerations of convenience and

Ireland, Australia, India- assumes

that the attributes that make up

expediency.
- People in these countries are

their status and personal relations

are intimately connected with the

considered bound by a spirit of

national unity, common history and

country where they have made their

home.

mores
- so that identity and legal position of

- These countries consist of people of

diff. nationalities with varying

their citizens are guaranteed by the

consistent application of their

traditions, cultures, ideals and whose

unity may be achieved by adopting

national laws on status and family

relations wherever they may go

the law of their domicile

- to attain a certain fusion of their
population and to avoid the need to
apply a different law to practically
every case

CHAPTERN 7: THE NATIONALITY THEORY

Weaknesses of Nationality Theory:
a. offers no solution to the problem of a stateless person or one
with dual or multiple citizenship
b. unfair to consider a person still bound by his national law if he has
lived in another country for most of his life and practically all his
ties are there
c. sometimes difficult for a person to change his national law to be
naturalized in other countries (e.g. refugees from Communist
countries)
d. sometimes difficult to solve problems relating to individuals in
countries where most of the people, coming from other countries,
have different national laws or legal systems.
Kinds of Filipino citizens:
1. natural-born citizens- those who are citizens from birth without having to
perform any act to acquire or perfect their Philippine citizenship
- originally classified as citizens by election were those
born before 1973 Constitution of Filipino mother and

CONFLICT OF LAWS

alien fathers, who reaching 21 years or w/in

reasonable time thereafter, elected Philippine
citizenship
under 1987 Const: those born before Jan. 17,1973 of
Filipino mothers, who elect Philippine citizenship upon
reaching the age of majority- those classified before
as citizens by election are now considered naturalborn citizens.

2. naturalized citizens are those formerly aliens but by judicial,

legislative and administrative process, have become Filipino citizens
** foreign women who married Filipino men can be naturalized through
marriage if there is no disqualifications to become Filipino citizen
** wives and minor children of a naturalized Filipinon also becomes
naturalized by derivative naturalization
JUS SOLI
-principle by which a person is a

JUS SANGUINIS
- rule followed in the Philippines;

citizen of a country where he was

born or of the country of his birth

- citizenship by blood:i.e, those whose

fathers or mothers, or whose both

** a baby of Filipino parents but

born in US is not only a Filipino but

parents are Filipino citizens, is a

Filipino citizen

also an American citizen w/c the US

follows
Who determines whether a person is a citizen of a certain state or
country? Who determines whetehr a person is a Filipino or not?
Ans,: each country or state has the sole power and authority to determine
under its internal or municipal law who are citizens or nationals in accordance w/
Art. 2 of the Hague Convention on Conflict of Nationality Laws
_ Art. IV of the Phil. Constitution determines who Filipino citizens are
May the problem of dual or multiple citizenship of a Filipino arise in
the Phils?
Ans: NO, as long as he is a Filipino citizen, our country is not concerned
if he has any other citizenship

** Art IV, Sec. 5 of Consti pertains to naturalized citizens who still maintain
their allegiance to the countries of origin. For candidates in public office with
dual citizenship, suffice it that upon filing of COC, they elect Philippine
citizenship.
When would a problem of dual citizenship of a Filipino arise?
Ans.: From the point of view of a third state
** Principle of effective nationality (as embodied in Art. 5 of the Hague
Convention on Conflict of Nationality Laws) a natural
person with dual nationality should, for the purpose of the
relevant claim, be considered to have only one nationality,
that is, the nationality of the country with w/c the
individual concerned had stronger factual ties must be held
as prevailing
Ex. A girl born of Filipino parents who lived all her life in
US, applied for s scholarship in French Univ., the French
authorities shall regard her as American citizen
Cases where a Filipino have dual citizenship from the point of view of a
third state:
1. In case where a Filipino(parents are Filipinos) was born in US, he is a Filipino
under jus sanguinis but an American under jus soli
2. A Filipino woman marries a foreigner whose national law allows her to become
a citizen of her husbands country like China, she retains her citizenship under
Art IV of Consti
Stateless person:
= cannot apply nationality theory; domiciliary theory comes in
May a declaration of Philippine Citizenship be made in a petition for
naturalization?
= No, in Comm. On Immigration vs Garcia, SC held that in a petition for
naturalization, one cannot declare that he is already a Fil citizen because in this
jurisdiction, there can be no independent action for the judicial declaration of
ones citizenship

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 May declaration of Phil citp be made in a special proceeding for

correction of entry under Rule 108 (cancellation or correction of entries in
the civil registry)?
Ans: No since Rule 108 contemplates a summary proceeding, substantial error
like citizenship cannot be corrected therein but this was superseded in
subsequent cases to the effect that:1. ) all procedural requirements of Rule 108
are followed, 2) all persons were notified; and 3) a full blown trial was held, the
proceedings are no longer summary but adversarial, and substantial errors like
citizenship can already be corrected under Rule 108

17,
1973
mothers,

of
who

Filipino
elect

Philippine citizenship upon

reaching
the
age
of

Philippine
citizenship
pursuant to the provisions

are
citizens
Philippines

of the
1935

4.Those

Constitution

of

the

of

majority

whose

mothers

are
citizens
of
Philippines
and

the
upon

reaching
the
age
of
majority, elect Philippine

4. Those
naturalized

who

are
in

citizenship

SAME

SAME

accordance with law

RES JUDICATA a matter adjudged or settled by judgment; the principle in
this plea is that a final judgment given between same parties on the same cause
of action by a court of competent jurisdiction, is conclusive between the parties
and their privies.
WHO ARE CTIZENS UNDER 1987 CONSTITUTION?
Art 4, Sec 1 of 1987
Constitution
1. Those who are citizens

Art III. Sec 1(1) 1973

Cons

Art IV 1935
Constitution
1. Those who are citizens

SAME

of the Phils at the time of

adoption of this Consti

of the Phils at the time of

adoption
of
the
Constitution
Philippines

2. Those whose fathers

An alien who from the point of view of Phils has dual citizenship:
- A woman who is a Japanese citizen by blood but Chinese citizen by marriage
dies leaving properties in Philippines.
- Art 16(2) requires application of national law to determine heirs, need to know
what law to apply to her succession

SAME

2.

and mothers are citizens

of the Philippines

Those

of

born

the

in

elected to public office in

the Philippine Islands
3.

Those

who

elect

Meaning:

the

Philippine
Islands
of
foreign
parents
who,
before the adoption of
this Constitution, had been

3. Those born before Jan.

CHAPTER 9: THE SITUS OR ECLECTIC THEORY

3. Those whose fathers

- Distinguishes 2 kinds of participation of the individual concerned:

Participation is ACTIVE- when he does the act voluntarily; the governing law
is the law of the actual situs of the transaction or event.
b. Participation is passive as when the effect of the act is set forth or
determined by law, the governing law is the law of the legal situs
**legal situs domicile of the individual concerned

a.

EXAMPLE: Marriage between two Filipinos in Hongkong

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1.

^^^ Art 80 of FC :In the absence of a contrary

stipulation in marriage settlement, the property relations

Act of marriage is a voluntary act, so the VALIDITY of the marriage is

governed by the actual situs (lex loci celebrationis)
**Art. 26 of the Family Code: All marriages solemnized outside
the Philippines, in accordance with the laws in force in the
country where they are solemnized, and valid there as such, shall
also be valid in this country except those prohibited under:
- Art. 35 (1)Void Marriages (those contracted by any party below
18 years old even with the consent of the parents)
- Art. 35 (4)Void Marriages- bigamous or polygamous marriage
- Art. 35 (5)Void Marriages- those contracted through mistake
of one contracting party as to the identity of the other
- Art. 35 (6)Void Marriages- those subsequent marriage that are
void under Art. 53 (remarriage of annulled spouses w/o delivery
of presumptive legitimes)
- Art. 36- Psychological Incapacity
- Art. 37- Incestuous marriages
- Art. 38- Void ab initio( stepparents/step child, etc)

2. As to the rights and obligations, and property relations of the Filipino

couple- they are governed by the national law of the spouses
(Philippine Law)- in other words, legal situs is the national law of the
spouses (Art 80 of FC)

o the spouses shall be governed by the Phil laws

regardless of the place of the celebration of marriage
3. Act/transaction involving real or personal property- the theory to be
applied in accordance with Art 16 of the NCC: Real property as well
as personal property is subject to the law of the country where it is
situated
-

So if the transaction involves real/personal property, the law that

determines the validity of the transaction is the lex situs or lex rei
sitae

^^^ lex situs law of the place where the property is situated
^^^ Lex rei sitae law of the place where a thing is situated
CHAPTER 8: THE DOMICILIARY THEORY
Meaning: the theory whereby the status, condition, rights, obligations and
capacity of a person is governed by the law of his domicile or the lex domicilii
Domicile:

CONFLICT OF LAWS