Download - 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!