San Beda College of Law Mendiola, Manila
CONFLICT OF LAWS
Atty. Marciano Delson
ANO ANG MASUSUNOD?A Review on Development of Philippine Private
International Law on the Matter of Wills, Property, Torts and Crime
By: EVAN E. DOMASIAN, 4S This paper is a humble undertaking to
present elementary points of conflict of laws on wills, property,
torts and crime as applied in this jurisdiction. Thus, discussion
would be composed of four parts. I. WILLS Our Civil Code through
Art. 783 defines a will as an act whereby a person is permitted,
with the formalities prescribed by law, to control to a certain
degree the disposition of his estate, to take effect after his
death. From a conflict-of-laws perspective, a will is an
involuntary transfer of property because although the act of
executing ones last will and testament is a voluntary act, that in
itself, does not transfer title. It is only upon the death of the
owner that the will comes into effect and since death is an
involuntary act the making of a will becomes an involuntary
transfer of property. (Minor, Chapter I note 4, at 332) There are
two theories or systems in determining the proper law for the
transmission of successional rights; the unitary or single system
and the split or scission system. Under the unitary or single
system, only one law determines transmission of real as well as
personal properties. x x x However, under the split or
Page 2 of 17 scission system, which England and the United
States adopt, succession to real property is governed by the lex
situs, while succession to movable or personal property is governed
by the law of the domicile of the deceased at the time of his
death. In the Philippines, we follow the unitary system, in that
Art. 16 of the New Civil Code applies the national law of the
deceased, whatever may be the nature of the property and regardless
of the country where the property is found. (p. 105, Sempio-Diy,
Handbook on Conflict of Laws, 2004) a. Extrinsic Validity of Wills
Extrinsic Validity of a will deals with the forms and solemnities
in the making of wills (including the age and capacity of the
testator to make the will; the number of witnesses; the form of the
will- oral, private instrument, public instrument; and so forth).
(p.347, Paras, Phil. Conflict of Laws, 1996) The following are our
conflicts rules on the extrinsic validity of wills: 1. If the will
is made by an alien abroad, he must comply with the formalities of
the lex nationalii OR lex domicilii OR Philippine law. (Art. 17
par. 1, Civil Code) 2. If the Filipino makes a will abroad, he may
comply with the formalities of the lex nationalii or the lex
celebrationis. (Art. 815, Civil Code) 3. If an alien makes a will
in the Philippines he is allowed to comply with the formalities of
his own country (lex nationalii) or the law of the Philippines.
(Art. 817, Civil Code) a.1. Extrinsic Validity of Joint Wills Joint
wills are those executed in the same instrument by two or more
testators. They are considered by our Civil Code as null and void.
x x x The following are our conflicts rules on the matter:
Page 3 of 17 1. If the joint wills were made by Filipinos
abroad, the same shall be considered void in the Philippines, even
if they are valid in the place where they were executed. 2. Joint
wills made by aliens abroad shall be considered as valid in the
Philippines if valid according to the lex nationalii or lex
domicilii or lex celebrationis. Be it noted that the prohibition
referred to in Art. 819 applies only to Filipinos. 3. Joint wills
made by aliens in the Philippines, even if valid in accordance with
their national law, will not be countenanced because otherwise our
public policy may be militated against. (p. 348, Ibid.) b.
Intrinsic Validity of Wills Intrinsic validity concerns itself with
the order of succession, the amount of successional rights each
heir gets, and such other matter that fall under the term substance
as distinguished from forms and solemnities of wills. Sempio-Diy)
Under the unitary system adopted from Roman Law, the intrinsic
validity of wills is governed by the national law of the decedent.
(p. 482, Coquia) Therefore, Art. 16, par. 2 of the Civil Code
states: However, intestate and testamentary (p. 106,
succession, both with respect to the order of succession and the
amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of
the person whose succession is under consideration, whatever may be
the nature of the property and regardless of the country wherein
said property may be found. We must not forget, however, that in
case of conflict between the nationality theory and the domiciliary
theory, we can treat the case as one of renvoi x x x so that we
Page 4 of 17 can apply Philippine Law even if the deceased was a
citizen of another country. (p. 107, Sempio-Diy) c. Revocation of
Wills Being a unilateral and purely personal act, wills are
revocable at any time before the death of the testator. Any waiver
or restriction of this right is void. (Art. 828, Civil Code) Under
Art. 829 of the Civil Code a revocation done outside the
Philippines, by a person who does not have a domicile in this
country in this country, is valid when it is done according to (1)
the law of the place where the will was made or (2) the law of the
place where the testator had his domicile at that time. If the
revocation is done outside the Philippines by one domiciled in the
Philippines, the law of the domicile, which is the Philippines or
the law of the place of the revocation controls. If the revocation
takes place in this country it is valid when it is in accordance
with the provisions of our Civil Code. (p. 488, Coquia) d.
Interpretation of the Wills The words of a will should be
interpreted by the rules on construction specifically referred to
in the will; in default of their express mention in the will, the
rules of interpretation are those under the national law of the
deceased, since we may reasonably presume that this was the
testators intent. (Minor, Conflict of Laws, p. 339) Thus, if the
testator is a Japanese national, the term compulsory heirs in his
will must be construed to refer to the compulsory heirs under the
Japanese law, unless the testator had expressly made mention of
some other law as applicable. (Stumberg, Principles of Conflict of
Laws, p. 386) The provisions of a will shall be interpreted in
accordance with the testators intention. If the terms are clear and
unambiguous, the literal meaning of the stipulations shall control.
Otherwise, the evident intention of the testator must
Page 5 of 17 prevail by not only referring to the context of the
will but also taking into account the contemporaneous and
subsequent acts of the testator. (Arts. 1370 to 1378, Civil Code)
Every effort should be made to prevent intestacy in keeping with
the policy of respecting the will of the testator, provided that
this can be ascertained. (p. 109, Sempio-Diy) e. The Concept of
Caduciary Rights Caduciary rights refer to the right of the state
to claim thru escheat proceedings the properties of decedents who
are not survived by any heirs. Dean Graveson calls them the claims
of the sovereign or other public authority of a country in which
the deceaseds property is situated on failure of all persons
entitled to claim under the appropriate law. (Graveson, Conflict of
Laws, p. 324) In the Philippines and some civil law countries, the
theory adopted is that the State is the last heir of the deceased
person. Hence, the State succeeds to the properties left by said
deceased as an heir. (p. 112, Sempio-Diy) f. Probate Probate is the
act of proving before a competent court the due execution of a will
possessed of testamentary capacity, as well as approval thereof by
the said court. Probate has also been referred to as probation,
legalization, protocolization, authentication. (Manahan v. Manahan,
58 Phil. 448) A probate is essential because under the law no will
shall pass real or personal property unless it is proved and
allowed in accordance with the Rules of Court. (Art. 838, par. 1,
Civil Code) The allowance or disallowance of will is essentially
procedural, so that the law of the forum applies to all procedural
matters. If a will executed abroad has not yet been probated in a
foreign country, the ordinary Philippine probate procedure is
required.
Page 6 of 17 Likewise, Rule 77 of the Rules of Court is followed
whenever a will probated abroad is allowed here in the Philippines.
II. PROPERTY Art. 414 of the Civil Code of the Philippines defines
property as follows: All things which are or may be the object of
appropriation are considered either: 1. Immovable or real property;
or 2. Movable or personal peoperty. The rule in Conflict of Laws
governing property has been simplified under the Philippine Civil
Code applying the lex situs rule for both real and personal
property. a. Real Property The rule of lex situs or lex rei sitae
to real properties is universally recognized. Real property as well
as personal property is subject to the law of the country where it
is situated. (Art. 16, par. 1, Civil Code.) Its immovability makes
it logical that it shall be subject to the laws of the State where
it is found; contrary rules in foreign States cannot certainly be
given effect unless the situs so allows. (Beale, Conflict of Laws,
Vol. II, p. 938) The reason for the rule is clear and logical.As
the place where a thing is situated is the natural center of rights
over it, everybody concerned with the thing may be expected to
reckon with the law of such place. (Wolff, Private International
Law, p. 564) The theory of lex sitae governs the following things
connected with real property: the extrinsic validity of
alienations, transfers, mortgages, capacity of the parties,
interpretation of documents, effects of ownership, co-ownership,
accession, usufruct, lease, easement, police power, eminent domain,
taxation, quieting of title, registration and prescription. (p.
322, Paras)
Page 7 of 17
There are at least four (4) exceptions to the rule that the lex
rei sitae governs real property: 1. In the case of succession
rights to real property, what should control is the national law of
the deceased. (Art. 16, par. 2, Civil Code) 2. Capacity to succeed
(in inheritance problems) is also governed by the national law of
deceased. (Art. 1093, Civil Code) 3. Contracts involving real
property but which do not deal with the title to such real property
shall not necessarily be concerned by the lex rei sitae. The proper
law of the contract-which is the lex loci voluntatis or the lex
loci intentionis is should be regarded as controlling. (Goodrich,
Conflict of Laws, p. 548) b. Personal Property The old rule of
mobilia sequuntur personam grew up in the middle ages when movable
property could easily be carried from place to place. (Pullmans
Palace Car Co. v. Comm. Of Pennsylvania, 141 U.S. 1822) Therefore
since said properties does not have a fixed situs, an artificial
situs was given to them; namely, the personal law of the owner.
Recently in many countries, the lex situs has also been adopted
with respect to personal properties, the chief reason for the
change being that the situs is easily ascertainable, making it
convenient for the parties and third persons who may be affected by
rights in rem created over personal properties to have those rights
enforced and made effective. (Wolff, Id)As the place where the
properties are located has the legal and coercive power to enforce
said rights, the lex situs or lex rei sitae applies to said
properties. (Goodrich, Conflict of Laws, p. 470) As abovementioned,
lex situs now also governs personal property. Several reasons were
set up to justify the doctrine of personal law of the property:
Page 8 of 17 1. Firstly, since personal property has no fixed
situs, an artificial one must be created: this artificial situs
should be the personal law of the owner; 2. Secondly, the rule is
simple, and would apply wherever the location of personal property;
and 3. Thirdly, the rule is more stable, since the rule would
remain in despite the change location of the movable. (Story
Commentaries on the Conflict of Laws, p. 376) In the words of
Senator Lorenzo Tanada, now that there has been great increase in
the amount and variety of personal property not immediately
connected with the person of the owner (Wharton, Conflict of Laws,
Secs. 297-311). It was deemed advisable by Congress of the
Philippines to adopt the doctrine of lex rei sitae also to
movables. (Report of Senator Tanada, Chairman, Special Committee on
the New Civil Code) Personal property may be tangible or
intangible. The tangibles are more appropriately referred to as
choses in possession and the intangible are more accurately known
as choses in action (such as shares of stock, franchises, and
copyrights). With reference to choses in possession, the doctrine
of lex rei sitae presents no difficulty except perhaps in the case
of usually moving objects (such as ships and goods in transit).
Choses in action, however, sometimes present complicated problems.
(p. 329, Paras) The term chose is a thing, an article of personal
property. A chose is a chattel personal, and is either in action or
in possession. (Blacks Law Dictionary, abridged fifth ed., p. 125)
Cheshire comments that this way of classifying objects is not only
a linguistic solecism, since it is scarcely possible to move a
thing that cannot be touched, but it provokes an unfortunate
tendency to ascribe to a disembodied thing, such as a debt, the
physical attributes of a corporeal object as, for instance, a
definite status. (Cheshire, note 1, p. 486)
Page 9 of 17 b.1. Choses in Possession Choses in possession that
usually move (like means of transportation and goods in transitu)
naturally have a changing situs. Vessels, in view if their inherent
movability, are governed by the law of the flag in many States; in
others the law of the place or registry takes the place of the lex
rei sitae. Said law of the flag or the registry- as the case may
be- is deemed controlling in case for instance of the sale and
mortgage of the vessel if the vessel at the time of the transaction
is on the high seas. If the vessel, however, is docked at a foreign
port, said port is usually regarded as the temporary lex situs by
both the owner and third parties. (p. 529530, Wolff) Regarding
goods in transit, the following rules generally should be regarded
as applicable: 1. Liability for loss, destruction, or deterioration
of goods in transit is governed by the law of the destination. Art.
1753 of the Civil Code says: 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 or deterioration. 2. The
validity and effect of the seizure of goods in transit is generally
governed by the law of the place where they were seized (locus
regit actum) because this place was their temporary situs. 3. The
disposition or alienation of the goods in transit is generally
governed by the law of the place voluntarily agreed upon (lex loci
voluntatis), or the law of the place intended (lex loci
intentionis). The reason is evident: the disposition or alienation
is effected thru a contractual obligation. In some states, however,
the transfer of title to chattels is governed by the law of the
place of the chattels at the time of the transfer; and his title
once accrued will ordinarily be recognized in any state into which
the chattels are brought. (Emery v. Clough, 63 New Hampshire 552)
b.2. Choses in Action
Page 10 of 17 The following rules govern intangible personal
property: 1. For the recovery of debts or for the involuntary
assignment of debts (garnishment) the proper point of contract is
the place where the debtor may be effectively served with summons
(usually, but not always, this is the domicile of the debtor).
2.The validity of the effectiveness of a voluntary assignment of a
debt depends on the lex loci voluntatis or the lex loci
intentionis; in other words, the proper law of the contract
controls. (p. 599, Cheshire) 3. The situs of a debt for purposes of
taxation is the domicile of the creditor, and accordingly, the
collectible credit may be taxed therein. (p. 281, Minor) 4. For the
purposes of administering debts, the situs is the place where the
assets of the debtor are actually situated. (p. 283, Minor) 5. The
negotiability or the non-negotiablity of an instrument is
determined by the right embodied in the instrument. (p. 561, Wolff)
6. The validity of the transfer, delivery, or negotiation of the
instrument is, in general, governed by the law of the situs of the
instrument at the time of transfer, delivery, or negotiation. (p.
622, Cheshire) 7. The effect on a corporation of the sale of
corporate shares is governed by the law of the place of
incorporation. The reason is simple: to bind the corporation, the
transfer must be recorded in its books. (Beale, Foreign
Corporations, Sec. 376) 8. The effect between the parties of the
sale of corporate shares is governed by the lex loci voluntatis or
the lex loci intentionis (the proper law of the contract) because
this sale or transfer is really a contract. In many cases, the
proper law of the contract is the place where the certificate is
delivered. (p. 624, Cheshire)
Page 11 of 17 9. Taxation on the dividends of corporate shares
is governed by the law of the place of incorporation. (Art. 417,
no. 2, Civil Code) 10. Franchises are subject to the law of the
place that granted them. 11. The goodwill of a business, as well as
taxation thereon, is governed by the law of the place where the
business is carried on. 12. Patents, copyrights, trademarks, and
trade names are in the absence of a treaty protected only by the
states that granted or recognized them. (p. 558, Wolff) Sec. 3 of
R.A. 8293 otherwise known as the The Intellectual Property Code
(IPC) provides that any foreign corporation, being a national or
domiciliary of a country which is a party to a convention, treaty,
or agreement relating to intellectual property rights to which the
Philippines is also a party or which extends reciprocal rights to
our nationals by law, shall be entitled to benefits to the extent
necessary to give effect to any provision of such convention xxx.
Noteworthy is the fact that the Philippines is a party as of 1965
to the Union Convention for the Protection of Industrial Property.
Also, the IPC is partly the result of the mandate of the Agreement
establishing the World Trade Organization (WTO) and the WTOs
Agreement on the Trade Related Aspects of the Intellectual Property
Rights or TRIPS (Mirpuri v. Court of Appeals, 318 SCRA 516
[1999])
III. TORTS (QUASI-DELICTS) Tort is derived from the French word
torquere or to twist. (p. 498, Coquia) Our concept of tort under
the New Civil Code is a blending of the Spanish culpa aquiliana and
the American tort, which may be committed not only through fault or
negligence, but also with malice and willful intent. (p. 130,
Sempio-Diy)
Page 12 of 17 Art. 2176 of the Civil Code however retains the
Spanish concept of quasi-delict and defines the term as: Whoever by
act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no preexisting contractual relation between
the parties, is called a quasi-delict and is governed by the
provisions of this chapter. There are two important policies
underlying substantive tort law: to deter socially undesirable or
wrongful conduct thereby raising the standard of conduct and
rectifying the consequences of the tortuous act by distributing the
losses that result from accident and products liability. (Coquia,
Ibid) Liability and damages for torts, in general, are governed by
the lex loci delicti commissi (the law of the place where the
delict or wrong or tort was committed). (p. 376, Cheshire) The
common law concept of place of wrong looks to the place where the
last event necessary to make an actor liable for an alleged tort
occurs. (Symeonides, Problems and Dilemmas, p. 441) a. The
Following are the Special Conflicts Rules in Torts: 1. If the tort
is committed aboard a public vessel, whether on the high seas or in
foreign territorial waters, the country to which the vessel belongs
is the locus delicti; the law of the flag is thus the lex loci
delicti commissii. 2. If the tort takes place aboard a private or
merchant vessel on the high seas, the law of the flag is likewise
the lex loci delicti commissii. 3. If the tort concerns property,
whether real or personal, the lex situs is usually also the lex
loci delicti commissii. (p. 475, Minor)
Page 13 of 17
4. Maritime torts a. If the colliding vessels are of the same
state, or carry the same flag, said law is the lex loci delicti
commissii. b. If the vessels come from the different states, whose
laws however, on the matter are identical, said laws constitute the
lex loci delicti commissii. c. If the vessels come from different
states with different laws, the lex loci delicti commissii is the
general maritime law as understood and applied by the forum where
the case is tried. (The Belgenland, 114 U.S. 355; The Scotland, 105
U.S. 24) b. Modern Theories on Foreign Tort Liability: 1. The State
of the Most Significant Relationship The most significant
relationship approach considers the states contacts with the
occurrence and the parties. Contacts such as the place where the
tortious conduct occurred, place where the injuries were sustained,
the domicile, residence or nationality of the victim and tortfeasor
and the place where the relationship of the parties are centered
serve a two-fold purpose of identifying the interested state and
then evaluating the relevance of these contacts to the issue in
question. (p. 505, Coquia) 2. The interest-analysis approach This
approach considers the relevant concerns that two or more states
may have in the case and their respective interests in applying
their laws to it. (p. 133, SempioDiy) The first task of a court
before which a conflict torts case is filed, is to determine
whether the case involves a false or true conflict. x x x If only
one state has a real interest in the case and the other states
interest is insubstantial then
Page 14 of 17 there is a false conflict. However, if both states
have a real interest in applying their law then the apparent
conflict becomes a true conflict. (p. 511, Coquia) In short, the
State which has the more relevant and weighty interests in the case
should be considered the locus delicti. (p. 133-134, Sempio-Diy) 3.
Cavers (Qavers) Principle of Preference Under this theory, a higher
standard of conduct and financial protection given to the injured
party by one State is applied by the State where the injury
happened, if the latter State adopts a lower standard of conduct
and financial protection to the injured. (p.134, Ibid) c. Claims
for Foreign Tort A tortious liability is transitory which means
that the liability resulting from the conduct is deemed personal to
the perpetrator of the wrong, following him withersoever he may go,
so that compensations may be exacted from him in any proper
tribunal which may obtain jurisdiction of the defendants person,
the right to sue not being confined to the place where the cause of
action arises. (p. 475, Minor) Generally claims for damages arising
from torts committed abroad may be given due course of the forum
if: 1. The foreign tort must not be penal in character; 2. The
enforcement of the tortious liability should not contravene our
public policy; and 3. Our judicial machinery must be adequate for
such enforcement. (p. 479-485, Ibid) IV. CRIMES
Page 15 of 17 In general, a crime is an act or omission
punishable by law. If the transgression is against our Revised
Penal Code, it is referred to as a felony; if against a special
law, it is more particularly designated as an offense; and if
against a local or municipal ordinance, it is known as an
infraction. State punish crimes not necessarily to protect private
interest but to vindicate public justice. (p. 401, Paras) a.
Distinguishing Between Torts and Crime 1. Crimes are offenses
against the state; torts violate private rights. (p. 498, Minor) 2.
Crimes are prosecuted in the name of the state; require criminal
proceedings; and insist on proof of guilt beyond reasonable doubt.
Upon the other hand, tort actions are instituted in the name of the
aggrieved party; the proceedings are civil in character; and mere
preponderance of evidence would suffice to obtain judgment for the
plaintiff. (Prosser, Torts, p. 10) 3. Punishment, reformation,
exemplarity, and deterrence are the avowed purposes of the law on
crimes; torts demand civil indemnification and reparation. 4. Torts
are transitory in character, so that the tortfeasor can be made
liable for his wrongful act in any jurisdiction where he may be
found. Crimes, on the other hand, are local and can be prosecuted
only in the places or states where the crime is committed. Whether
an act is a tort or a crime depends on the characterization
accorded the actuation in the state where it was committed. (Beale,
Conflict of Laws, Vol. II, p. 1290) In the Philippines, certain
acts may be both torts and crimes. Under Art. 33 of the Civil Code
of the Philippines, in case of defamation, fraud, and physical
injuries, a civil action for damages, entirely separate and
distinct from the; criminal action, may be brought by the injured
party. Such civil action shall proceed independently of the
criminal prosecution, and shall require only a preponderance of
evidence.
Page 16 of 17 Further in the Philippines, we follow as a general
rule the territorial theory, and by way of exception, the
protective theory (Art 2, Revised Penal Code). In other words, we
cannot prosecute a crime committed abroad (like bigamy, rape, or
murder) in the Philippines, because it is committed outside our
territorial jurisdiction. We also follow the rule of generality in
criminal law; ie., all persons, whether Filipinos or aliens, are
subject to our penal law and can be prosecuted for their violations
(Art. 14, Civil Code) b. Crimes Committed Aboard Public Vessels
Whether the crime committed aboard a public vessel (such as
battleship) took place on the high seas or within our territorial
waters (or maritime zone), the country whose flag the vessel
carries has jurisdiction on the theory that the vessel is an
extension of the territory of the said state. (U.S. v. Fowler, 1
Phil. 14)
c. Crimes Committed Aboard Private or Merchant Vessels 1. If the
crime committed aboard a private or merchant vessel occurred on the
high seas, the country of the flag of the vessel has jurisdiction.
2. If the crime aboard a private or merchant vessel of a foreign
state took place inside Philippine territorial waters- two theories
have generally been used to determine the question of jurisdiction.
The two theories are: a. The English Rule- here the territory where
the crime was committed (Philippines) will have jurisdiction
except: 1. in matters relating to internal order and discipline in
the vessel; and 2. those which affect solely the ship and its
occupants such as minor or pretty criminal offenses committed by
members of the crew. (Hyde, International Law, Vol. I, p. 739)
Page 17 of 17 b. The French Rule- Under this rule, founded on
the opinion of the French Council of State in 1806, the state whose
flag is flown by the vessel, would have jurisdiction except if the
crime affects the peace, order, security, and safety of the
territory. (Brierly, The Law of Nations, p. 180) Justice Paras has
something to say on the matter. He opined that the difference
between the two rules is largely academic and theoretical, the two
rules being essentially the same. x x x Whether we follow therefore
the English or the French rule on the matter is not significant:
the effect is the same. (p. 410-411, Paras) This is correct. Since
a perusal of the two rules will show that the exceptions to the
general rule under the English theory (which emphasizes
territoriality principle) constitute the general rule under the
French theory (which emphasizes nationality principle) and vice-
versa. A final note is submitted however that under Art. 27 of the
United Nations Convention on the Law of the Sea which the
Philippines is a signatory, partly provides: 1. The criminal
jurisdiction of the coastal State should not be exercised on board
a foreign ship passing through the territorial sea to arrest any
person or to conduct any investigation in connection with a crime
committed on board the ship during its passage, save only in the
following cases: a. If the consequences of the crime extend to the
coastal State; b. If the crime is of a kind to disturb the peace of
the country or the good order of the territorial sea; x x x This is
similar to the French Rule. (p. 142, Sempio-Diy)
That in all things, God may be glorified.