conflicts property

7/28/2019 Conflicts Property

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CHOICE OF LAW IN PROPERTY


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CONTROLLING LAW IN PROPERTY

Movable

or

Immovable?


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IMMOVABLE PROPERTY

Lex situs (where the property is situated)

character of immovable property as an

isolated object (law of the place where theland is situated)

Immovable property as the factor not theparties


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MOVABLE PROPERTY

Lex domicilii (owners domicile)

Lex situs (where the property is situated)

Lex loci actus (place where the transactionwas completed and the proper law of the

forum)

Proper law of transfer (state which has themost real connection with the transfer)


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Article 16 of the Civil Code

Realproperty as well as personal

property is subject to the law of

the place where it is situated


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CAPACITY TO TRANSFER OR ACQUIRE

Law of the place where

the property is located


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EXTRINSIC AND INTRINSIC VALIDITY

The formalities of a contract to convey

property are governed by the lex situs.

Lex situs also applies to the essentialvalidity of the transfer unless the lex

intentionis is clearly established.

The lex situs also governs the effects ofthe conveyance of properties.


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EXCEPTIONS TO LEX SITUS RULE

Where the transaction does not

affect transfer of title to or

ownership of the land. In this casethe proper law of the transfer which

is the lex intentionis or lex voluntatis

is the governing law.


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In contracts where real property isoffered by way of security for the

performance of an obligation such as

loan, the principal contract is the loanwhile the mortgage of the land is only an

accessory. The mortgage of the land is

governed by the rule of lex situs but theloan contract is governed by the rules on

ordinary contracts.


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Testate and intestate succession and

capacity to succeed are governed by

the national law of the decedent.(Article 16, par. 2, Civil Code)


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SITUS OF CERTAIN PROPERTIES

Personal property for tax purposes

- Mobilia sequuntur personam (rights

over movables are governed by the lawof the owners domicile)

Situs of Money

- Place were the money was endorsed

under a contract


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Situs of Debts

- Debt though intangible is subject to seizurelike tangible

- Debt is located where the debtor is because

it is where he can be sued and the debtcollected

Situs of corporate share of stocks

- The country or state where the corporationwhich issues them is registered and

organized


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CHOICE OF LAW IN

TORTS AND DAMAGES


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TORT

- torque or to twist

- Act or omission producing an injury to another

without any previous existing relation of which theact or omission may be said to be a naturaloutgrowth or incident

TORTFEASOR

- one, who contrary to law, by his act or omissionwilfully or negligently causes damage to anotherand shall indemnify the latter for the same.


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Law Governing Torts

Action is brought in one jurisdiction for a tort

committed in another

- General Rule: lex loci delicti(law of the place

of the wrong)

- the case which is the cause of the injury and

the foundation of the action must be at least

actionable by the law of the place in which the

wrong is done


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- Not only must a legally maintainable right be

created by the lex loci delicti, but the conduct

complained of must be actionable by the lawof the forum as well, to maintain an action.

- Where an action is brought in one state

based on facts occurring in another which donot constitute a common-law right of action,

plaintiff must plead and prove that in such

other state there is a statute permitting

recovery, otherwise, not actionable.


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Wrongful act or omission took place and the

law of the place where the injury or harm

was sustained:

General Rule: law of the tort within the

contemplation of the rule that the law of the

place of the tort or wrong governs liability andother substantive matters, is the place of the

injury or harm.


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Choice between the law of the place in which

a fatal injury was inflicted and the law of the

place in which the resulting death took place

General Rule: the place of the tort, within the

contemplation of the rule that the situs of the

tort governs matters of substance, is the place

where the fatal injury was inflicted, and notthe place where the resulting death occurred.


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- Cause of action depends upon a statute,

there must be a statute at the forum similar to

that of the place where the cause of action

arose, or else jurisdiction will be refused.


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Wrongful Death

- Lex loci delicti commissi (place where the actscausing death was committed)

Philippine courts cannot blindly apply conflict oflaws rules enunciated in another country. It mayapply the traditional rule of lex loci delicti, wherethe wrong done is in the Philippines or is doing

business or domiciled in the country and assumejurisdiction over the case. It may apply any of theother theories, which is just and fair.


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MODERN THEORIES ON

FOREIGN TORT LIABILITY State of the most significant relationship

Center of gravity

Grouping of contracts

SAUDI ARABIAN AIRLINES VS. C.A.

297 SCRA 469 (1998)


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AGREEMENT OF THE PARTIES AS TO

APPLICABLE LAW

The parties to an agreement may stipulate as

to the law which will govern in case of dispute

arising therefrom. Such stipulation will be

respected EXCEPT when prohibited law orpublic policy prohibits its application.

NORSE MANAGEMENT CO. VS. NATIONAL SEAMENS BOARD

117 SCRA 487


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OVERSEAS EMPLOYMENT OF FILIPINO

WORKERS, INCLUDING SEAMEN

Traditional Rule: law of the country where

injury or death occurred governs liability

(including amount of compensation)

If injury or death is based on tort:

Lex loci actus (law of the place where the act was

done)

Lex loci delicti (place where the injury occurred orthe liabilities of the parties are fixed)


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If the claim for injury or death is based on

contracts:

Lex loci solutionis (law of the place of performance )

Kilberg Doctrine

A rule to the effect that the forum is not bound by

the law of the place of death as to the limitation on

damages for wrongful deaths because such rule isprocedural and hence the law of the forum governs

on this issue.

Law of the Flag

- Law of the country where the vessel is registered orwhose flag it flies governs the terms and conditions of

employment of its crew.


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Carriage of Goods by Sea Act

Liability of the carrier or ship

MITSUI O.S.K. Lines Ltd vs. C.A

287 SCRA 366 (1998)

The suit is not for loss or damage to good, thequestion of prescription of action is governed

not by COGSA but by Art 114 of the Civil Code


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Law of Country of Registry of Vessel

Article 2, Revised Penal Code


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CHOICE OF LAW IN FAMILY RELATIONS


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MARRIAGE

Philippine Policy on Marriage

Sec 2, Article XV, 1987 Constitution

Article 220 of the Civil Code


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Extrinsic Validity of Marriage

Lex loci celebrationis (law of the place of

celebration) External conduct required of the parties or third

persons especially of public officers, necessary tothe formation of a legally valid marriage

Article 2, Hague Convention on Celebrationand Recognition of the Validity of Marriages

Formal Requirement of Marriage

Article 3, Family Code Article 26, Family Code


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Intrinsic Validity of Marriage

Capacity or general ability of a person to

marry, for instances defined by

requirements of age and parental consent,

but it does not refer clearly to an

individuals being permitted to marry aspecific person or a person of determinate

class.

Article 38, Family Code


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Effects of Marriage

Personal elations between the spouses

National law of the parties. If different nationalities,national law of the husband as long as not contrary to

law, customs and good morals of the forum

Property relations of spouses

Internal law designated by the spouses before themarriage or in absence thereof the internal law of the

state in which both spouses fix their first habitual

residence is the governing law on matrimonial property

regimes

Article 80, Family Code

Lex rei sitae


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DIVORCE AND SEPARATION

The Hague Convention Relating to

Divorce and Separation of 1902 provides

that the granting of divorce orseparation must comply with the national

law of the spouses and the law of the

place where the application for divorce ismade.


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Divorce decrees obtained by Filipinos

If obtained by Filipinos abroad not valid

If obtained by alien spouse Filipino spouseis capacitated to remarry (Article 26, Family

Code)


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Validity of foreign divorce between foreigners

Hague Convention on the Recognition of Divorce

and Legal Separation

A foreign divorce will be recognized in all

contracting states if at the date of the institution

of the proceedings:

The respondent or petitioner had his habitual residence

there

Both spouses were nationals of that state

If only the petitioner was a national, he should have hishabitual residence there.


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Annulment and Declaration of Nullity

Grounds/Jurisdiction

Lex loci celebrationis (traditional choice-of-law

approach)

Law of the state of marital domicile (policy-

centered approach)


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Parental Relations

Legitimacy of the child

personal law of the parents domicile/nationality

Personal law of the father

Law of the head of the family or husband or the mother

(Germany)

Paternity (civil status of the father/mother with

respect to the child begotten by him/her)

Filiation (status of the child in relation to his parents)

Philippines

Legitimacy of the child is governed by the national law of theparents. If the parents of the child belong to different

nationalities, the legitimacy of the child is determined by the

national law of the father (Art. 15, Civil Code)


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- end-

Thank you!

conflicts property

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