I.

Choice of Law Problems

A. Provisions (*Memorize)

1. *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)

Article 16. Real property as well as personal property is subject to the law of the country where it is
stipulated.

However, intestate and testamentary successions, both with respect to the order of succession and
to 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.
(10a)

Article 37. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in
every natural person and is lost only through death. Capacity to act, which is the power to do acts
with legal effect, is acquired and may be lost. (n)

Article 38. Minority, insanity or imbecility, the state of being a deaf-mute, prodigality and civil
interdiction are mere restrictions on capacity to act, and do not exempt the incapacitated person
from certain obligations, as when the latter arise from his acts or from property relations, such as
easements. (32a)

Article 39. The following circumstances, among others, modify or limit capacity to act: age, insanity,
imbecility, the state of being a deaf-mute, penalty, prodigality, family relations, alienage, absence,
insolvency and trusteeship. The consequences of these circumstances are governed in this Code,
other codes, the Rules of Court, and in special laws. Capacity to act is not limited on account of
religious belief or political opinion.

A married woman, twenty-one years of age or over, is qualified for all acts of civil life, except in cases
specified by law. (n)

CHAPTER 2
Natural Persons

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. (30a)

Article 42. 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. (32a)

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. (40a)

Article 51. When the law creating or recognizing them, or any other provision does not fix the
domicile of juridical persons, the same shall be understood to be the place where their legal
representation is established or where they exercise their principal functions. (41a)

2. *Article 1489. All persons who are authorized in this Code to obligate themselves, may enter into
a contract of sale, saving the modifications contained in the following articles.

Where necessaries are those sold and delivered to a minor or other person without capacity to act,
he must pay a reasonable price therefor. Necessaries are those referred to in article 290. (1457a)

Article 1490. The husband and the wife cannot sell property to each other, except:

(1) When a separation of property was agreed upon in the marriage settlements; or

(2) When there has been a judicial separation of property under article 191. (1458a)

Article 1491. The following persons cannot acquire by purchase, even at a public or judicial auction,
either in person or through the mediation of another:

(1) The guardian, the property of the person or persons who may be under his guardianship;

(2) Agents, the property whose administration or sale may have been intrusted to them, unless the
consent of the principal has been given;

(3) Executors and administrators, the property of the estate under administration;

(4) Public officers and employees, the property of the State or of any subdivision thereof, or of any
government-owned or controlled corporation, or institution, the administration of which has been
intrusted to them; this provision shall apply to judges and government experts who, in any manner
whatsoever, take part in the sale;

(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers
and employees connected with the administration of justice, the property and rights in litigation or
levied upon an execution before the court within whose jurisdiction or territory they exercise their
respective functions; this prohibition includes the act of acquiring by assignment and shall apply to
lawyers, with respect to the property and rights which may be the object of any litigation in which
they may take part by virtue of their profession;

(6) Any others specially disqualified by law. (1459a)

3. *CHAPTER 4
Presumption of Death
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. (n)

Article 391. The following shall be presumed dead for all purposes, including the division of the
estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has
not been heard of for four years since the loss of the vessel or aeroplane;

(2) A person in the armed forces who has taken part in war, and has been missing for four years;

(3) A person who has been in danger of death under other circumstances and his existence has not
been known for four years. (n)

4. *TITLE XIII
Use of Surnames (n)

Article 364. Legitimate and legitimated children shall principally use the surname of the father.

Article 365. An adopted child shall bear the surname of the adopter.

Article 366. A natural child acknowledged by both parents shall principally use the surname of the
father. If recognized by only one of the parents, a natural child shall employ the surname of the
recognizing parent.

5. *Article 376. No person can change his name or surname without judicial authority.

Article 377. Usurpation of a name and surname may be the subject of an action for damages and
other relief.

Article 378. The unauthorized or unlawful use of another person's surname gives a right of action to
the latter.

6. Sec. 146 of the Revised Corporation Code. Law Applicable. – A foreign corporation lawfully doing
business in the Philippines shall be bound by all laws, rules, and regulations applicable to domestic
corporations of the same class, except those which provide for the creation, formation, organization
or dissolution of corporations or those which fix relations, liabilities, responsibilities, or duties of
stockholders, members, or officers of corporations to each other or to the corporation.
B. Renvoi

1. Concept

The Renvoi Doctrine is a legal doctrine which applies when a court is faced with a conflict of law and
must consider the law of another state, referred to as private international law rules. This can apply
when considering foreign issues arising in succession planning and in administering estates. The
word “Renvoi” comes from the French “send back” or “return unopened”.

2. Definition

The “Doctrine of Renvoi” is the process by which the court adopts the rules of a foreign jurisdiction
with respect to any conflict of law that arises. The idea behind the doctrine is that it prevents forum
shopping and the same law is applied to achieve the same outcome regardless of where the case is
actually dealt with. The system of Renvoi attempts to achieve that end.

3. Cases

a. Aznar v. Garcia, G.R. No. L-16749, 31 January 1963

b. Llorente v. CA, G.R. No. 124371, 23 November 2000

C. Notice and Proof of Foreign Law


1. Rule 132, Secs. 24 and 25 of the Revised Rules of Court

Section 19. Classes of Documents. — For the purpose of their presentation evidence, documents
are either public or private.

Public documents are:

(a) The written official acts, or records of the official acts of the sovereign authority, official bodies
and tribunals, and public officers, whether of the Philippines, or of a foreign country;

(b) Documents acknowledge before a notary public except last wills and testaments; and

(c) Public records, kept in the Philippines, of private documents required by law to the entered
therein.

All other writings are private. (20a)

Section 24. Proof of official record. — The record of public documents referred to in paragraph (a) of
Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or
by a copy attested by the officer having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the
custody. If the office in which the record is kept is in foreign country, the certificate may be made
by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or
by any officer in the foreign service of the Philippines stationed in the foreign country in which the
record is kept, and authenticated by the seal of his office. (25a)
Section 25. What attestation of copy must state. — Whenever a copy of a document or record is
attested for the purpose of evidence, the attestation must state, in substance, that the copy is a
correct copy of the original, or a specific part thereof, as the case may be. The attestation must be
under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a
seal, under the seal of such court. (26a)

2. Rule 130, Section 46 of the Revised Rules of Court

Section 46. Learned treatises. — A published treatise, periodical or pamphlet on a subject of history,
law, science, or art is admissible as tending to prove the truth of a matter stated therein if the court
takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in
the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject.
(40a)

D. Theories on Personal Law

E. Nationality Theory (relate to Art. 15 and 16 of Civil Code)

Nationality Theory – by virtue of which the status and capacity of an individual are generally
governed by the law of his nationality.

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)

Article 16. Real property as well as personal property is subject to the law of the country where it is
stipulated.

However, intestate and testamentary successions, both with respect to the order of succession and
to 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.
(10a)

F. Domiciliary Theory

Domiciliary Theory – in general, the status, condition, rights, obligations, & capacity of a person
should be governed by the law of his domicile.

1. Articles 50 and 51 of 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. (40a)

Article 51. When the law creating or recognizing them, or any other provision does not fix the
domicile of juridical persons, the same shall be understood to be the place where their legal
representation is established or where they exercise their principal functions. (41a)
2. Romualdez-Marcos v. Commission on Elections, G.R. No. 119976, 18 September 1995

G. Personal Status and Capacity

1. Definition

a. Government of the Philippine Islands v. Frank, G.R. No. L-2935, 23 March 1909

2. Juridical Capacity v. Capacity to Act 


Juridical capacity is the fitness to be the subject of legal relations; it is inherent in every natural
person.

Capacity to act is the power to do acts with legal effect; it may be acquired and it may also be lost; it
is acquired upon the attainment of the age of majority.

3. Beginning and End of Capacity

a. Geluz v. Court of Appeals, G.R. No. L-16439, 20 July 1961

4. Absence

a. 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. (n)

Article 391. The following shall be presumed dead for all purposes, including the division of the
estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has
not been heard of for four years since the loss of the vessel or aeroplane;

(2) A person in the armed forces who has taken part in war, and has been missing for four years;

(3) A person who has been in danger of death under other circumstances and his existence has not
been known for four years. (n)

5. Name

a. Article 364. Legitimate and legitimated children shall principally use the surname of the father.

Article 365. An adopted child shall bear the surname of the adopter.
Article 366. A natural child acknowledged by both parents shall principally use the surname of the
father. If recognized by only one of the parents, a natural child shall employ the surname of the
recognizing parent.

b. Article 376. No person can change his name or surname without judicial authority.

Article 377. Usurpation of a name and surname may be the subject of an action for damages and
other relief.

Article 378. The unauthorized or unlawful use of another person's surname gives a right of action to
the latter.