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 one’s 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
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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:
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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. (p. 106,
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

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
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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 testator’s 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 testator’s

intention. If the terms are clear and unambiguous, the literal meaning of the
stipulations shall control. Otherwise, the evident intention of the testator must
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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
deceased’s 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.
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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)
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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. (Pullman’s 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:
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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. (Black’s 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)
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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. 529-
530, 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

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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)
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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 WTO’s 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)
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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 pre-
existing 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)
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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 state’s 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, Sempio-
Diy) 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 state’s interest is insubstantial then
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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. Caver’s (Qaver’s) 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 defendant’s 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
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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.”
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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)
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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.”