CONFLICT OF LAWS SECTION 1.

Suffrage may be exercised by all citizens of the Philippines not

DE LA SALLE UNIVERSITY otherwise disqualified by law, who are at least eighteen years of age, and who shall
COLLEGE OF LAW have resided in the Philippines for at least one year and in the place wherein they
Second Semester, 2017-2018 propose to vote for at least six months immediately preceding the election. No
Ron P. Salo, LLB, LLM literacy, property, or other substantive requirement shall be imposed on the
exercise of suffrage.
References:
1. Laws: SECTION 2. The Congress shall provide a system for securing the secrecy and
sanctity of the ballot as well as a system for absentee voting by qualified Filipinos
 Constitution: Art. IV and Art. V, Section 1 abroad.

ARTICLE IV The Congress shall also design a procedure for the disabled and the illiterates to
vote without the assistance of other persons. Until then, they shall be allowed to
Citizenship vote under existing laws and such rules as the Commission on Elections may
promulgate to protect the secrecy of the ballot.
SECTION 1. The following are citizens of the Philippines:

(1) Those who are citizens of the Philippines at the time of the adoption of this
Constitution;
(2) Those whose fathers or mothers are citizens of the Philippines;
(3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority; and
 Civil Code: Articles 14, 15, 16, 17, 815, 816, 818, 819, 829, 1039, 1319, and
1753
Art. 14. Penal laws and those of public security and safety shall be obligatory upon
all who live or sojourn in the Philippine territory, subject to the principles of public
international law and to treaty stipulations. (8a)

(4) Those who are naturalized in accordance with law.
SECTION 2. Natural-born citizens are those who are citizens of the Philippines from
birth without having to perform any act to acquire or perfect their Philippine
citizenship. Those who elect Philippine citizenship in accordance with paragraph
(3), Section 1 hereof shall be deemed natural-born citizens.
SECTION 3. Philippine citizenship may be lost or reacquired in the manner provided
by law.
SECTION 4. Citizens of the Philippines who marry aliens shall retain their
citizenship, unless by their act or omission they are deemed, under the law, to have
renounced it.
Art. 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)
Art. 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)

SECTION 5. Dual allegiance of citizens is inimical to the national interest and shall be
Art. 17. The forms and solemnities of contracts, wills, and other public instruments
dealt with by law.
shall be governed by the laws of the country in which they are executed.
ARTICLE V

Suffrage

Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM Kirsten DB Habawel-Vega
When the acts referred to are executed before the diplomatic or consular officials of
the Republic of the Philippines in a foreign country, the solemnities established by
Philippine laws shall be observed in their execution.
Prohibitive laws concerning persons, their acts or property, and those which have,
for their object, public order, public policy and good customs shall not be rendered
ineffective by laws or judgments promulgated, or by determinations or conventions
agreed upon in a foreign country. (11a)
Art. 815. When a Filipino is in a foreign country, he is authorized to make a will in
any of the forms established by the law of the country in which he may be. Such will
may be probated in the Philippines. (n)
Art. 816. The will of an alien who is abroad produces effect in the Philippines if
made with the formalities prescribed by the law of the place in which he resides, or
according to the formalities observed in his country, or in conformity with those
which this Code prescribes. (n)
Art. 817. A will made in the Philippines by a citizen or subject of another country,
which is executed in accordance with the law of the country of which he is a citizen
or subject, and which might be proved and allowed by the law of his own country,
shall have the same effect as if executed according to the laws of the Philippines. (n)
Art. 818. Two or more persons cannot make a will jointly, or in the same instrument,
either for their reciprocal benefit or for the benefit of a third person. (669)
Art. 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign
country shall not be valid in the Philippines, even though authorized by the laws of
the country where they may have been executed. (733a)
Art. 829. A revocation done outside the Philippines, by a person who does not have
his domicile in this country, is valid when it is done according to the law of the place
where the will was made, or according to the law of the place in which the testator
had his domicile at the time; and if the revocation takes place in this country, when
it is in accordance with the provisions of this Code. (n)
Art. 1039. Capacity to Succeed is governed by the law of the nation of the decedent.
CHAPTER 2
ESSENTIAL REQUISITES OF CONTRACTS
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
GENERAL PROVISIONS
Art. 1318. There is no contract unless the following requisites concur:
(1) Consent of the contracting parties;
(2) Object certain which is the subject matter of the contract;
(3) Cause of the obligation which is established. (1261)
SECTION 1. - Consent
Art. 1319. Consent is manifested by the meeting of the offer and the acceptance
upon the thing and the cause which are to constitute the contract. The offer must be
certain and the acceptance absolute. A qualified acceptance constitutes a counter-
offer.
Acceptance made by letter or telegram does not bind the offerer except from the
time it came to his knowledge. The contract, in such a case, is presumed to have
been entered into in the place where the offer was made. (1262a)
Art. 1320. An acceptance may be express or implied. (n)
Art. 1321. The person making the offer may fix the time, place, and manner of
acceptance, all of which must be complied with. (n)
Art. 1322. An offer made through an agent is accepted from the time acceptance is
communicated to him. (n)
Art. 1323. An offer becomes ineffective upon the death, civil interdiction, insanity, or
insolvency of either party before acceptance is conveyed. (n)
Art. 1324. When the offerer has allowed the offeree a certain period to accept, the
offer may be withdrawn at any time before acceptance by communicating such
withdrawal, except when the option is founded upon a consideration, as something
paid or promised. (n)
Art. 1325. Unless it appears otherwise, business advertisements of things for sale
are not definite offers, but mere invitations to make an offer. (n)
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Art. 1326. Advertisements for bidders are simply invitations to make proposals, and
the advertiser is not bound to accept the highest or lowest bidder, unless the
contrary appears. (n)
Art. 1327. The following cannot give consent to a contract:
(1) Unemancipated minors;
(2) Insane or demented persons, and deaf-mutes who do not know how to
write. (1263a)
Art. 1328. Contracts entered into during a lucid interval are valid. Contracts agreed
to in a state of drunkenness or during a hypnotic spell are voidable. (n)
Art. 1329. The incapacity declared in Article 1327 is subject to the modifications
determined by law, and is understood to be without prejudice to special
disqualifications established in the laws. (1264)
Art. 1330. A contract where consent is given through mistake, violence, intimidation,
undue influence, or fraud is voidable. (1265a)
Art. 1331. In order that mistake may invalidate consent, it should refer to the
substance of the thing which is the object of the contract, or to those conditions
which have principally moved one or both parties to enter into the contract.
Mistake as to the identity or qualifications of one of the parties will vitiate consent
only when such identity or qualifications have been the principal cause of the
contract.
A simple mistake of account shall give rise to its correction. (1266a)
Art. 1332. When one of the parties is unable to read, or if the contract is in a
language not understood by him, and mistake or fraud is alleged, the person
enforcing the contract must show that the terms thereof have been fully explained
to the former. (n)
Art. 1333. There is no mistake if the party alleging it knew the doubt, contingency or
risk affecting the object of the contract. (n)
Art. 1334. Mutual error as to the legal effect of an agreement when the real purpose
of the parties is frustrated, may vitiate consent. (n)
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
Art. 1335. There is violence when in order to wrest consent, serious or irresistible
force is employed.
There is intimidation when one of the contracting parties is compelled by a
reasonable and well-grounded fear of an imminent and grave evil upon his person
or property, or upon the person or property of his spouse, descendants or
ascendants, to give his consent.
To determine the degree of intimidation, the age, sex and condition of the person
shall be borne in mind.
A threat to enforce one's claim through competent authority, if the claim is just or
legal, does not vitiate consent. (1267a)
Art. 1336. Violence or intimidation shall annul the obligation, although it may have
been employed by a third person who did not take part in the contract. (1268)
Art. 1337. There is undue influence when a person takes improper advantage of his
power over the will of another, depriving the latter of a reasonable freedom of
choice. The following circumstances shall be considered: the confidential, family,
spiritual and other relations between the parties, or the fact that the person alleged
to have been unduly influenced was suffering from mental weakness, or was
ignorant or in financial distress. (n)
Art. 1338. There is fraud when, through insidious words or machinations of one of
the contracting parties, the other is induced to enter into a contract which, without
them, he would not have agreed to. (1269)
Art. 1339. Failure to disclose facts, when there is a duty to reveal them, as when the
parties are bound by confidential relations, constitutes fraud. (n)
Art. 1340. The usual exaggerations in trade, when the other party had an
opportunity to know the facts, are not in themselves fraudulent. (n)
Art. 1341. A mere expression of an opinion does not signify fraud, unless made by an
expert and the other party has relied on the former's special knowledge. (n)
Art. 1342. Misrepresentation by a third person does not vitiate consent, unless such
misrepresentation has created substantial mistake and the same is mutual. (n)
Art. 1343. Misrepresentation made in good faith is not fraudulent but may
constitute error. (n)
Kirsten DB Habawel-Vega
Art. 1344. In order that fraud may make a contract voidable, it should be serious and
should not have been employed by both contracting parties.
Incidental fraud only obliges the person employing it to pay damages. (1270)
Art. 1345. Simulation of a contract may be absolute or relative. The former takes
place when the parties do not intend to be bound at all; the latter, when the parties
conceal their true agreement. (n)
Art. 1346. An absolutely simulated or fictitious contract is void. A relative
simulation, when it does not prejudice a third person and is not intended for any
purpose contrary to law, morals, good customs, public order or public policy binds
the parties to their real agreement. (n)
SECTION 2. - Object of Contracts
Art. 1347. All things which are not outside the commerce of men, including future
things, may be the object of a contract. All rights which are not intransmissible may
also be the object of contracts.
No contract may be entered into upon future inheritance except in cases expressly
authorized by law.
All services which are not contrary to law, morals, good customs, public order or
public policy may likewise be the object of a contract. (1271a)
Art. 1348. Impossible things or services cannot be the object of contracts. (1272)
Art. 1349. The object of every contract must be determinate as to its kind. The fact
that the quantity is not determinate shall not be an obstacle to the existence of the
contract, provided it is possible to determine the same, without the need of a new
contract between the parties. (1273)
SECTION 3. - Cause of Contracts
Art. 1350. In onerous contracts the cause is understood to be, for each contracting
party, the prestation or promise of a thing or service by the other; in remuneratory
ones, the service or benefit which is remunerated; and in contracts of pure
beneficence, the mere liberality of the benefactor. (1274)
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
Art. 1351. The particular motives of the parties in entering into a contract are
different from the cause thereof. (n)
Art. 1352. Contracts without cause, or with unlawful cause, produce no effect
whatever. The cause is unlawful if it is contrary to law, morals, good customs, public
order or public policy. (1275a)
Art. 1353. The statement of a false cause in contracts shall render them void, if it
should not be proved that they were founded upon another cause which is true and
lawful. (1276)
Art. 1354. Although the cause is not stated in the contract, it is presumed that it
exists and is lawful, unless the debtor proves the contrary. (1277)
Art. 1355. Except in cases specified by law, lesion or inadequacy of cause shall not
invalidate a contract, unless there has been fraud, mistake or undue influence. (n)
Art. 1753. 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.
Art. 1754. The provisions of Articles 1733 to 1753 shall apply to the passenger's
baggage which is not in his personal custody or in that of his employee. As to other
baggage, the rules in Articles 1998 and 2000 to 2003 concerning the responsibility
of hotel-keepers shall be applicable.
 Rules of Court: Rule 14 and 39, Section 48, Rule 131, Section 3 (n), 132,
Section 25
RULE 14
Summons
Section 1. Clerk to issue summons. — Upon the filing of the complaint and the
payment of the requisite legal fees, the clerk of court shall forthwith issue the
corresponding summons to the defendants. (1a)
Section 2. Contents. — The summons shall be directed to the defendant, signed by
the clerk of court under seal and contain (a) the name of the court and the names of
the parties to the action; (b) a direction that the defendant answer within the time
Kirsten DB Habawel-Vega
fixed by these Rules; (c) a notice that unless the defendant so answers plaintiff will
take judgment by default and may be granted the relief applied for.
A copy of the complaint and order for appointment of guardian ad litem if any, shall
be attached to the original and each copy of the summons. (3a)
Section 3. By whom served. — The summons may be served by the sheriff, his
deputy, or other proper court officer, or for justifiable reasons by any suitable
person authorized by the court issuing the summons. (5a)
Section 4. Return. — When the service has been completed, the server shall, within
five (5) days therefrom, serve a copy of the return, personally or by registered mail,
to the plaintiff's counsel, and shall return the summons to the clerk, who issued it,
accompanied by proof of service. (6a)
Section 5. Issuance of alias summons. — If a summons is returned without being
served on any or all of the defendants, the server shall also serve a copy of the
return on the plaintiff's counsel, stating the reasons for the failure of service, within
five (5) days therefrom. In such a case, or if the summons has been lost, the clerk, on
demand of the plaintiff, may issue an alias summons. (4a)
Section 6. Service in person on defendant. — Whenever practicable, the summons
shall be served by handling a copy thereof to the defendant in person, or, if he
refuses to receive and sign for it, by tendering it to him. (7a)
Section 7. Substituted service. — If, for justifiable causes, the defendant cannot be
served within a reasonable time as provided in the preceding section, service may
be effected (a) by leaving copies of the summons at the defendant's residence with
some person of suitable age and discretion then residing therein, or (b) by leaving
the copies at defendant's office or regular place of business with some competent
person in charge thereof. (8a)
Section 8. Service upon entity without juridical personality. — When persons
associated in an entity without juridical personality are sued under the name by
which they are generally or commonly known, service may be effected upon all the
defendants by serving upon any one of them, or upon the person in charge of the
office or place of business maintained in such name. But such service shall not bind
individually any person whose connection with the entity has, upon due notice, been
severed before the action was brought. (9a)
Section 9. Service upon prisoners. — When the defendant is a prisoner confined in a
jail or institution, service shall be effected upon him by the officer having the
management of such jail or institution who is deemed deputized as a special sheriff
for said purpose. (12a)
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
Section 10. Service upon minors and incompetents. — When the defendant is a
minor, insane or otherwise an incompetent, service shall be made upon him
personally and on his legal guardian if he has one, or if none his guardian ad
litem whose appointment shall be applied for by the plaintiff. In the case of a minor,
service may also be made on his father or mother. (l0a, 11a)
Section 11. Service upon domestic private juridical entity. — When the defendant is a
corporation, partnership or association organized under the laws of the Philippines
with a juridical personality, service may be made on the president, managing
partner, general manager, corporate secretary, treasurer, or in-house counsel. (13a)
Section 12. Service upon foreign private juridical entities. — When the defendant is a
foreign private juridical entity which has transacted business in the Philippines,
service may be made on its resident agent designated in accordance with law for
that purpose, or, if there be no such agent, on the government official designated by
law to that effect, or on any of its officers or agents within the Philippines. (14a)
Section 13. Service upon public corporations. — When the defendant is the Republic
of the Philippines, service may be effected on the Solicitor General; in case of a
province, city or municipality, or like public corporations, service may be effected on
its executive head, or on such other officer or officers as the law or the court may
direct. (15)
Section 14. Service upon defendant whose identity or whereabouts are unknown. —
In any action where the defendant is designated as an unknown owner, or the like,
or whenever his whereabouts are unknown and cannot be ascertained by diligent
inquiry, service may, by leave of court, be effected upon him by publication in a
newspaper of general circulation and in such places and for such time as the court
may order. (16a)
Section 15. Extraterritorial service. — When the defendant does not reside and is
not found in the Philippines, and the action affects the personal status of the plaintiff
or relates to, or the subject of which is, property within the Philippines, in which the
defendant has or claims a lien or interest, actual or contingent, or in which the relief
demanded consists, wholly or in part, in excluding the defendant from any interest
therein, or the property of the defendant has been attached within the Philippines,
service may, by leave of court, be effected out of the Philippines by personal service
as under section 6; or by publication in a newspaper of general circulation in such
places and for such time as the court may order, in which case a copy of the
summons and order of the court shall be sent by registered mail to the last known
address of the defendant, or in any other manner the court may deem sufficient. Any
order granting such leave shall specify a reasonable time, which shall not be less
than sixty (60) days after notice, within which the defendant must answer. (17a)
Section 16. Residents temporarily out of the Philippines. — When any action is
commenced against a defendant who ordinarily resides within the Philippines, but
Kirsten DB Habawel-Vega
who is temporarily out of it, service may, by leave of court, be also effected out of the
Philippines, as under the preceding section. (18a)
Section 17. Leave of court. — Any application to the court under this Rule for leave
to effect service in any manner for which leave of court is necessary shall be made
by motion in writing, supported by affidavit of the plaintiff or some person on his
behalf, setting forth the grounds for the application. (19)
Section 18. Proof of service. — The proof of service of a summons shall be made in
writing by the server and shall set forth the manner, place, and date of service; shall
specify any papers which have been served with the process and the name of the
person who received the same; and shall be sworn to when made by a person other
than a sheriff or his deputy. (20)
Section 19. Proof of service by publication. — If the service has been made by
publication, service may be proved by the affidavit of the printer, his foreman or
principal clerk, or of the editor, business or advertising manager, to which affidavit a
copy of the publication shall be attached and by an affidavit showing the deposit of a
copy of the summons and order for publication in the post office, postage prepaid,
directed to the defendant by registered mail to his last known address. (21)
Section 20. Voluntary appearance. — The defendant's voluntary appearance in the
action shall be equivalent to service of summons. The inclusion in a motion to
dismiss of other grounds aside from lack of jurisdiction over the person of the
defendant shall not be deemed a voluntary appearance. (23a)
RULE 39
Execution, Satisfaction and Effect of Judgments
Section 48. Effect of foreign judgments or final orders. — The effect of a judgment or
final order of a tribunal of a foreign country, having jurisdiction to render the
judgment or final order is as follows:
(a) In case of a judgment or final order upon a specific thing, the judgment or final
order, is conclusive upon the title to the thing, and
(b) In case of a judgment or final order against a person, the judgment or final order
is presumptive evidence of a right as between the parties and their successors in
interest by a subsequent title.
In either case, the judgment or final order may be repelled by evidence of a want of
jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or
fact. (50a)
RULE 131
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
Burden of Proof and Presumptions
Section 1. Burden of proof. — Burden of proof is the duty of a party to present
evidence on the facts in issue necessary to establish his claim or defense by the
amount of evidence required by law. (1a, 2a)
Section 2. Conclusive presumptions. — The following are instances of conclusive
presumptions:
(a) Whenever a party has, by his own declaration, act, or omission,
intentionally and deliberately led to another to believe a particular thing
true, and to act upon such belief, he cannot, in any litigation arising out of
such declaration, act or omission, be permitted to falsify it:
(b) The tenant is not permitted to deny the title of his landlord at the time
of commencement of the relation of landlord and tenant between them.
(3a)
Section 3. Disputable presumptions. — The following presumptions are satisfactory
if uncontradicted, but may be contradicted and overcome by other evidence:
(a) That a person is innocent of crime or wrong;
(b) That an unlawful act was done with an unlawful intent;
(c) That a person intends the ordinary consequences of his voluntary act;
(d) That a person takes ordinary care of his concerns;
(e) That evidence willfully suppressed would be adverse if produced;
(f) That money paid by one to another was due to the latter;
(g) That a thing delivered by one to another belonged to the latter;
(h) That an obligation delivered up to the debtor has been paid;
(i) That prior rents or installments had been paid when a receipt for the
later one is produced;
(j) That a person found in possession of a thing taken in the doing of a
recent wrongful act is the taker and the doer of the whole act; otherwise,
that things which a person possess, or exercises acts of ownership over,
are owned by him;
Kirsten DB Habawel-Vega
 (k) That a person in possession of an order on himself for the payment of
the money, or the delivery of anything, has paid the money or delivered the
thing accordingly;
(l) That a person acting in a public office was regularly appointed or
elected to it;
(m) That official duty has been regularly performed;
(n) That a court, or judge acting as such, whether in the Philippines or
elsewhere, was acting in the lawful exercise of jurisdiction;
(o) That all the matters within an issue raised in a case were laid before
the court and passed upon by it; and in like manner that all matters within
an issue raised in a dispute submitted for arbitration were laid before the
arbitrators and passed upon by them;
(p) That private transactions have been fair and regular;
(q) That the ordinary course of business has been followed;
(r) That there was a sufficient consideration for a contract;
(s) That a negotiable instrument was given or indorsed for a sufficient
consideration;
(t) That an endorsement of negotiable instrument was made before the
instrument was overdue and at the place where the instrument is dated;
(u) That a writing is truly dated;
(v) That a letter duly directed and mailed was received in the regular
course of the mail;
(w) That after an absence of seven years, it being unknown whether or not
the absentee still lives, he is considered dead for all purposes, except for
those of succession.
The absentee shall not be considered 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.
The following shall be considered dead for all purposes including the division of the
estate among the heirs:
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
(1) A person on board a vessel lost during a sea voyage, or an
aircraft with is missing, who has not been heard of for four years
since the loss of the vessel or aircraft;
(2) A member of the armed forces who has taken part in armed
hostilities, and has been missing for four years;
(3) A person who has been in danger of death under other
circumstances and whose existence has not been known for four
years;
(4) If a married person has been absent for four consecutive
years, the spouse present may contract a subsequent marriage if
he or she has well-founded belief that the absent spouse is
already death. In case of disappearance, where there is a danger
of death the circumstances hereinabove provided, an absence of
only two years shall be sufficient for the purpose of contracting a
subsequent marriage. However, in any case, before marrying
again, the spouse present must institute a summary proceedings
as provided in the Family Code and in the rules for declaration of
presumptive death of the absentee, without prejudice to the
effect of reappearance of the absent spouse.
(x) That acquiescence resulted from a belief that the thing acquiesced in
was conformable to the law or fact;
(y) That things have happened according to the ordinary course of nature
and ordinary nature habits of life;
(z) That persons acting as copartners have entered into a contract of
copartneship;
(aa) That a man and woman deporting themselves as husband and wife
have entered into a lawful contract of marriage;
(bb) That property acquired by a man and a woman who are capacitated to
marry each other and who live exclusively with each other as husband and
wife without the benefit of marriage or under void marriage, has been
obtained by their joint efforts, work or industry.
(cc) That in cases of cohabitation by a man and a woman who are not
capacitated to marry each other and who have acquire properly through
their actual joint contribution of money, property or industry, such
contributions and their corresponding shares including joint deposits of
money and evidences of credit are equal.
Kirsten DB Habawel-Vega
(dd) That if the marriage is terminated and the mother contracted another
marriage within three hundred days after such termination of the former
marriage, these rules shall govern in the absence of proof to the contrary:
(1) A child born before one hundred eighty days after the
solemnization of the subsequent marriage is considered to have
been conceived during such marriage, even though it be born
within the three hundred days after the termination of the former
marriage.
(2) A child born after one hundred eighty days following the
celebration of the subsequent marriage is considered to have
been conceived during such marriage, even though it be born
within the three hundred days after the termination of the former
marriage.
(ee) That a thing once proved to exist continues as long as is usual with
things of the nature;
(ff) That the law has been obeyed;
(gg) That a printed or published book, purporting to be printed or
published by public authority, was so printed or published;
(hh) That a printed or published book, purporting contain reports of cases
adjudged in tribunals of the country where the book is published, contains
correct reports of such cases;
(ii) That a trustee or other person whose duty it was to convey real
property to a particular person has actually conveyed it to him when such
presumption is necessary to perfect the title of such person or his
successor in interest;
(jj) That except for purposes of succession, when two persons perish in the
same calamity, such as wreck, battle, or conflagration, and it is not shown
who died first, and there are no particular circumstances from which it can
be inferred, the survivorship is determined from the probabilities resulting
from the strength and the age of the sexes, according to the following rules:
1. If both were under the age of fifteen years, the older is deemed
to have survived;
2. If both were above the age sixty, the younger is deemed to have
survived;
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
3. If one is under fifteen and the other above sixty, the former is
deemed to have survived;
4. If both be over fifteen and under sixty, and the sex be different,
the male is deemed to have survived, if the sex be the same, the
older;
5. If one be under fifteen or over sixty, and the other between
those ages, the latter is deemed to have survived.
(kk) That if there is a doubt, as between two or more persons who are
called to succeed each other, as to which of them died first, whoever
alleges the death of one prior to the other, shall prove the same; in the
absence of proof, they shall be considered to have died at the same time.
(5a)
Section 4. No presumption of legitimacy or illegitimacy. — There is no presumption
of legitimacy of a child born after three hundred days following the dissolution of
the marriage or the separation of the spouses. Whoever alleges the legitimacy or
illegitimacy of such child must prove his allegation. (6)
RULE 132
Presentation of Evidence
A. EXAMINATION OF WITNESSES
Section 1. Examination to be done in open court. — The examination of witnesses
presented in a trial or hearing shall be done in open court, and under oath or
affirmation. Unless the witness is incapacitated to speak, or the questions calls for a
different mode of answer, the answers of the witness shall be given orally. (1a)
Section 2. Proceedings to be recorded. — The entire proceedings of a trial or
hearing, including the questions propounded to a witness and his answers thereto,
the statements made by the judge or any of the parties, counsel, or witnesses with
reference to the case, shall be recorded by means of shorthand or stenotype or by
other means of recording found suitable by the court.
A transcript of the record of the proceedings made by the official stenographer,
stenotypist or recorder and certified as correct by him shall be deemed prima facie a
correct statement of such proceedings. (2a)
Section 3. Rights and obligations of a witness. — A witness must answer questions,
although his answer may tend to establish a claim against him. However, it is the
right of a witness:
Kirsten DB Habawel-Vega
 (1) To be protected from irrelevant, improper, or insulting questions, and
from harsh or insulting demeanor;
(2) Not to be detained longer than the interests of justice require;
(3) Not to be examined except only as to matters pertinent to the issue;
(4) Not to give an answer which will tend to subject him to a penalty for an
offense unless otherwise provided by law; or
(5) Not to give an answer which will tend to degrade his reputation, unless
it to be the very fact at issue or to a fact from which the fact in issue would
be presumed. But a witness must answer to the fact of his previous final
conviction for an offense. (3a, 19a)
Section 4. Order in the examination of an individual witness. — The order in which
the individual witness may be examined is as follows;
(a) Direct examination by the proponent;
(b) Cross-examination by the opponent;
(c) Re-direct examination by the proponent;
(d) Re-cross-examination by the opponent. (4)
Section 5. Direct examination. — Direct examination is the examination-in-chief of a
witness by the party presenting him on the facts relevant to the issue. (5a)
Section 6. Cross-examination; its purpose and extent. — Upon the termination of the
direct examination, the witness may be cross-examined by the adverse party as to
many matters stated in the direct examination, or connected therewith, with
sufficient fullness and freedom to test his accuracy and truthfulness and freedom
from interest or bias, or the reverse, and to elicit all important facts bearing upon
the issue. (8a)
Section 7. Re-direct examination; its purpose and extent. — After the cross-
examination of the witness has been concluded, he may be re-examined by the party
calling him, to explain or supplement his answers given during the cross-
examination. On re-direct-examination, questions on matters not dealt with during
the cross-examination, may be allowed by the court in its discretion. (12)
Section 8. Re-cross-examination. — Upon the conclusion of the re-direct
examination, the adverse party may re-cross-examine the witness on matters stated
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
in his re-direct examination, and also on such other matters as may be allowed by
the court in its discretion. (13)
Section 9. Recalling witness. — After the examination of a witness by both sides has
been concluded, the witness cannot be recalled without leave of the court. The court
will grant or withhold leave in its discretion, as the interests of justice may require.
(14)
Section 10. Leading and misleading questions. — A question which suggests to the
witness the answer which the examining party desires is a leading question. It is not
allowed, except:
(a) On cross examination;
(b) On preliminary matters;
(c) When there is a difficulty is getting direct and intelligible answers from
a witness who is ignorant, or a child of tender years, or is of feeble mind, or
a deaf-mute;
(d) Of an unwilling or hostile witness; or
(e) Of a witness who is an adverse party or an officer, director, or
managing agent of a public or private corporation or of a partnership or
association which is an adverse party.
A misleading question is one which assumes as true a fact not yet testified to by the
witness, or contrary to that which he has previously stated. It is not allowed. (5a, 6a,
and 8a)
Section 11. Impeachment of adverse party's witness. — A witness may be impeached
by the party against whom he was called, by contradictory evidence, by evidence
that his general reputation for truth, honestly, or integrity is bad, or by evidence that
he has made at other times statements inconsistent with his present, testimony, but
not by evidence of particular wrongful acts, except that it may be shown by the
examination of the witness, or the record of the judgment, that he has been
convicted of an offense. (15)
Section 12. Party may not impeach his own witness. — Except with respect to
witnesses referred to in paragraphs (d) and (e) of Section 10, the party producing a
witness is not allowed to impeach his credibility.
A witness may be considered as unwilling or hostile only if so declared by the court
upon adequate showing of his adverse interest, unjustified reluctance to testify, or
his having misled the party into calling him to the witness stand.
Kirsten DB Habawel-Vega
The unwilling or hostile witness so declared, or the witness who is an adverse party,
may be impeached by the party presenting him in all respects as if he had been
called by the adverse party, except by evidence of his bad character. He may also be
impeached and cross-examined by the adverse party, but such cross-examination
must only be on the subject matter of his examination-in-chief. (6a, 7a)
Section 13. How witness impeached by evidence of inconsistent statements. — Before
a witness can be impeached by evidence that he has made at other times statements
inconsistent with his present testimony, the statements must be related to him, with
the circumstances of the times and places and the persons present, and he must be
asked whether he made such statements, and if so, allowed to explain them. If the
statements be in writing they must be shown to the witness before any question is
put to him concerning them. (16)
Section 14. Evidence of good character of witness. — Evidence of the good character
of a witness is not admissible until such character has been impeached. (17)
Section 15. Exclusion and separation of witnesses. — On any trial or hearing, the
judge may exclude from the court any witness not at the time under examination, so
that he may not hear the testimony of other witnesses. The judge may also cause
witnesses to be kept separate and to be prevented from conversing with one
another until all shall have been examined. (18)
Section 16. When witness may refer to memorandum. — A witness may be allowed
to refresh his memory respecting a fact, by anything written or recorded by himself
or under his direction at the time when the fact occurred, or immediately thereafter,
or at any other time when the fact was fresh in his memory and knew that the same
was correctly written or recorded; but in such case the writing or record must be
produced and may be inspected by the adverse party, who may, if he chooses, cross
examine the witness upon it, and may read it in evidence. So, also, a witness may
testify from such writing or record, though he retain no recollection of the particular
facts, if he is able to swear that the writing or record correctly stated the transaction
when made; but such evidence must be received with caution. (10a)
Section 17. When part of transaction, writing or record given in evidence, the
remainder, the remainder admissible. — When part of an act, declaration,
conversation, writing or record is given in evidence by one party, the whole of the
same subject may be inquired into by the other, and when a detached act,
declaration, conversation, writing or record is given in evidence, any other act,
declaration, conversation, writing or record necessary to its understanding may also
be given in evidence. (11a)
Section 18. Right to respect writing shown to witness. — Whenever a writing is
shown to a witness, it may be inspected by the adverse party. (9a)
B. AUTHENTICATION AND PROOF OF DOCUMENTS
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
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 20. Proof of private document. — Before any private document offered as
authentic is received in evidence, its due execution and authenticity must be proved
either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of the
maker.
Any other private document need only be identified as that which it is claimed to be.
(21a)
Section 21. When evidence of authenticity of private document not necessary. —
Where a private document is more than thirty years old, is produced from the
custody in which it would naturally be found if genuine, and is unblemished by any
alterations or circumstances of suspicion, no other evidence of its authenticity need
be given. (22a)
Section 22. How genuineness of handwriting proved. — The handwriting of a person
may be proved by any witness who believes it to be the handwriting of such person
because he has seen the person write, or has seen writing purporting to be his upon
which the witness has acted or been charged, and has thus acquired knowledge of
the handwriting of such person. Evidence respecting the handwriting may also be
given by a comparison, made by the witness or the court, with writings admitted or
treated as genuine by the party against whom the evidence is offered, or proved to
be genuine to the satisfaction of the judge. (23a)
Section 23. Public documents as evidence. — Documents consisting of entries in
public records made in the performance of a duty by a public officer are prima
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facie evidence of the facts therein stated. All other public documents are evidence,
even against a third person, of the fact which gave rise to their execution and of the
date of the latter. (24a)
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)
Section 26. Irremovability of public record. — Any public record, an official copy of
which is admissible in evidence, must not be removed from the office in which it is
kept, except upon order of a court where the inspection of the record is essential to
the just determination of a pending case. (27a)
Section 27. Public record of a private document. — An authorized public record of a
private document may be proved by the original record, or by a copy thereof,
attested by the legal custodian of the record, with an appropriate certificate that
such officer has the custody. (28a)
Section 28. Proof of lack of record. — A written statement signed by an officer
having the custody of an official record or by his deputy that after diligent search no
record or entry of a specified tenor is found to exist in the records of his office,
accompanied by a certificate as above provided, is admissible as evidence that the
records of his office contain no such record or entry. (29)
Section 29. How judicial record impeached. — Any judicial record may be
impeached by evidence of: (a) want of jurisdiction in the court or judicial officer, (b)
collusion between the parties, or (c) fraud in the party offering the record, in respect
to the proceedings. (30a)
Section 30. Proof of notarial documents. — Every instrument duly acknowledged or
proved and certified as provided by law, may be presented in evidence without
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
further proof, the certificate of acknowledgment being prima facie evidence of the
execution of the instrument or document involved. (31a)
Section 31. Alteration in document, how to explain. — The party producing a
document as genuine which has been altered and appears to have been altered after
its execution, in a part material to the question in dispute, must account for the
alteration. He may show that the alteration was made by another, without his
concurrence, or was made with the consent of the parties affected by it, or was
otherwise properly or innocent made, or that the alteration did not change the
meaning or language of the instrument. If he fails to do that, the document shall not
be admissible in evidence. (32a)
Section 32. Seal. — There shall be no difference between sealed and unsealed
private documents insofar as their admissibility as evidence is concerned. (33a)
Section 33. Documentary evidence in an unofficial language. — Documents written
in an unofficial language shall not be admitted as evidence, unless accompanied with
a translation into English or Filipino. To avoid interruption of proceedings, parties
or their attorneys are directed to have such translation prepared before trial. (34a)
 Family Code: Articles 10, 21, 26, 35, 36, 37, 38, 80, 96, 184, and 187
Art. 10. In case of doubt in the interpretation or application of laws, it is presumed
that the lawmaking body intended right and justice to prevail. (n)
Art. 21. Any person who wilfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.
Art. 26. Every person shall respect the dignity, personality, privacy and peace of
mind of his neighbors and other persons. The following and similar acts, though
they may not constitute a criminal offense, shall produce a cause of action for
damages, prevention and other relief:
(1) Prying into the privacy of another's residence:
(2) Meddling with or disturbing the private life or family relations of
another;
(3) Intriguing to cause another to be alienated from his friends;
Kirsten DB Habawel-Vega
 (4) Vexing or humiliating another on account of his religious beliefs, lowly
station in life, place of birth, physical defect, or other personal condition.
Art. 35. When a person, claiming to be injured by a criminal offense, charges another
with the same, for which no independent civil action is granted in this Code or any
special law, but the justice of the peace finds no reasonable grounds to believe that a
crime has been committed, or the prosecuting attorney refuses or fails to institute
criminal proceedings, the complaint may bring a civil action for damages against the
alleged offender. Such civil action may be supported by a preponderance of
evidence. Upon the defendant's motion, the court may require the plaintiff to file a
bond to indemnify the defendant in case the complaint should be found to be
malicious.
If during the pendency of the civil action, an information should be presented by the
prosecuting attorney, the civil action shall be suspended until the termination of the
criminal proceedings.
Art. 36. Pre-judicial questions which must be decided before any criminal
prosecution may be instituted or may proceed, shall be governed by rules of court
which the Supreme Court shall promulgate and which shall not be in conflict with
the provisions of this Code.
Art. 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)
Art. 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)
CHAPTER 3
VOID AND VOIDABLE MARRIAGES
Art. 80. The following marriages shall be void from the beginning:
(1) Those contracted under the ages of sixteen and fourteen years by the male
and female respectively, even with the consent of the parents;
(2) Those solemnized by any person not legally authorized to perform marriages;
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
(3) Those solemnized without a marriage license, save marriages of exceptional
character;
(4) Bigamous or polygamous marriages not falling under Article 83, Number 2;
(5) Incestuous marriages mentioned in Article 81;
(6) Those where one or both contracting parties have been found guilty of the
killing of the spouse of either of them;
(7) Those between stepbrothers and stepsisters and other marriages specified in
Article 82. (n)
Art 96. The existing laws which punish acts or omissions concerning the marriage
license, solemnization of marriage, authority to solemnize marriages, and other acts
or omissions relative to the celebration of marriage shall remain and continue to be
in force.
Art. 184. The loss or deterioration of the movables belonging to the spouse, although
through fortuitous event, shall be paid fro the conjugal partnership of gains, should
there be any.
Those suffered by real property shall not be reimbursable in any case, except those
on paraphernal property administered by the husband, when the losses were due to
his fault. He shall pay for the same.
Art. 187. With regard to the formation of the inventory, rules for appraisal and sale
of property of the conjugal partnership, and other matters which are not expressly
determined in the present Chapter, the Rules of Court on the administration of
estates of deceased persons shall be observed.
 Revised Penal Code: Article 2
Preliminary Title
DATE OF EFFECTIVENESS AND APPLICATION
OF THE PROVISIONS OF THIS CODE
Kirsten DB Habawel-Vega

Article 1. Time when Act takes effect. — This Code shall take effect on the first day of
January, nineteen hundred and thirty-two.
Art. 2. Application of its provisions. — Except as provided in the treaties and laws of
preferential application, the provisions of this Code shall be enforced not only
within the Philippine Archipelago, including its atmosphere, its interior waters
and maritime zone, but also outside of its jurisdiction, against those who:
1. Should commit an offense while on a Philippine ship or airship
2. Should forge or counterfeit any coin or currency note of the Philippine
Islands or obligations and securities issued by the Government of the Philippine
Islands;
 Corporation Code: Section 133
Sec. 133. Doing business without a license. - No foreign corporation transacting
business in the Philippines without a license, or its successors or assigns, shall be
permitted to maintain or intervene in any action, suit or proceeding in any court or
administrative agency of the Philippines; but such corporation may be sued or
proceeded against before Philippine courts or administrative tribunals on any valid
cause of action recognized under Philippine laws. (69a)
2. Restatement Second: Conflict of Laws, Secs. 187 and 188
Restatement of the Law Second
Conflict of Laws 2d
Chapter 8. Contracts
Topic 1. Validity of Contracts and Rights Created Thereby
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
Title A. General Principles
Copyright (c) 1971 The American Law Institute
s 187. LAW OF THE STATE CHOSEN BY THE PARTIES
TEXT
(1) The law of the state chosen by the parties to govern their contractual rights and
duties will be applied if the particular issue is one which the parties could have
resolved by an explicit provision in their agreement directed to that issue.
(2) The law of the state chosen by the parties to govern their contractual rights and
duties will be applied, even if the particular issue is one which the parties could not
have resolved by an explicit provision in their agreement directed to that issue,
unless either
(a) the chosen state has no substantial relationship to the parties or the transaction
and there is no other reasonable basis for the parties' choice, or
(b) application of the law of the chosen state would be contrary to a fundamental
policy of a state which has a materially greater interest than the chosen state in the
determination of the particular issue and which, under the rule of s 188, would be
the state of the applicable law in the absence of an effective choice of law by the
parties.
(3) In the absence of a contrary indication of intention, the reference is to the local
law of the state of the chosen law.
COMMENTS
Comment:
a. Scope of section. The rule of this Section is applicable only in situations where it is
established to the satisfaction of the forum that the parties have chosen the state of
the applicable law. When the parties have made such a choice, they will usually refer
expressly to the state of the chosen law in their contract, and this is the best way of
insuring that their desires will be given effect. But even when the contract does not
refer to any state, the forum may nevertheless be able to conclude from its
provisions that the parties did wish to have the law of a particular state applied. So
the fact that the contract contains legal expressions, or makes reference to legal
doctrines, that are peculiar to the local law of a particular state may provide
persuasive evidence that the parties wished to have this law applied.
On the other hand, the rule of this Section is inapplicable unless it can be established
that the parties have chosen the state of the applicable law. It does not suffice to
Kirsten DB Habawel-Vega
demonstrate that the parties, if they had thought about the matter, would have
wished to have the law of a particular state applied.
COMMENTS
Illustration:
1. A contract, by its terms to be performed in state Y, is entered into in state X
between A, a domiciliary of X, and B, a domiciliary of Y. The contract recites that the
parties "waive restitution in integrum in case of laesio enormis." These notions are
foreign to X local law. They exist, on the other hand, in Y local law which
furthermore empowers the parties to waive such right of restitution. A court could
properly find on these facts that the parties wished to have Y local law applied.
COMMENTS
Comment:
b. Impropriety or mistake. A choice-of-law provision, like any other contractual
provision, will not be given effect if the consent of one of the parties to its inclusion
in the contract was obtained by improper means, such as by misrepresentation,
duress, or undue influence, or by mistake. Whether such consent was in fact
obtained by improper means or by mistake will be determined by the forum in
accordance with its own legal principles. A factor which the forum may consider is
whether the choice-of-law provision is contained in an "adhesion" contract, namely
one that is drafted unilaterally by the dominant party and then presented on a
"take-it-or-leave-it" basis to the weaker party who has no real opportunity to
bargain about its terms. Such contracts are usually prepared in printed form, and
frequently at least some of their provisions are in extremely small print. Common
examples are tickets of various kinds and insurance policies. Choice-of-law
provisions contained in such contracts are usually respected. Nevertheless, the
forum will scrutinize such contracts with care and will refuse to apply any choice-of-
law provision they may contain if to do so would result in substantial injustice to the
adherent.
COMMENTS
Illustrations:
2. A presents to B for signature a contract which embodies the terms of their prior
agreement but which also provides that the rights of the parties under the contract
shall be governed by the law of state X. A does not wish B to know of the provision
calling for application of X law and therefore says that there is no reason for B to
read the contract since it does no more than set forth their earlier agreement. B
signs the contract without reading it in reliance upon A's word. The forum will not
give effect to the provision calling for application of X law.
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
3. In state X, A buys from the B company a ticket on one of B's steamships for
transportation from X to state Y. The ticket recites that it shall be governed by Y law
and also contains a provision stating that B shall not be liable for injuries resulting
from the negligence of its servants. The latter provision is valid under Y local law,
but invalid under that of X. In the course of the voyage, A is injured through the
negligence of B's servants. A brings suit to recover for his injuries against B in state
Z. In determining whether or not to give effect to the choice-of-law provision, the Z
court will give consideration to the fact that the contract was drafted unilaterally by
B, the dominant party, and then presented to A on a "take-it-or-leave-it" basis.
COMMENTS
Comment on Subsection (1):
c. Issues the parties could have determined by explicit agreement directed to
particular issue. The rule of this Subsection is a rule providing for incorporation by
reference and is not a rule of choice of law. The parties, generally speaking, have
power to determine the terms of their contractual engagements. They may spell out
these terms in the contract. In the alternative, they may incorporate into the
contract by reference extrinsic material which may, among other things, be the
provisions of some foreign law. In such instances, the forum will apply the
applicable provisions of the law of the designated state in order to effectuate the
intentions of the parties. So much has never been doubted. The point deserves
emphasis nevertheless because most rules of contract law are designed to fill gaps
in a contract which the parties could themselves have filled with express provisions.
This is generally true, for example, of rules relating to construction, to conditions
precedent and subsequent, to sufficiency of performance and to excuse for
nonperformance, including questions of frustration and impossibility. As to all such
matters, the forum will apply the provisions of the chosen law.
Whether the parties could have determined a particular issue by explicit agreement
directed to that issue is a question to be determined by the local law of the state
selected by application of the rule of s 188. Usually, however, this will be a question
that would be decided the same way by the relevant local law rules of all the
potentially interested states. On such occasions, there is no need for the forum to
determine the state of the applicable law.
COMMENTS
Illustrations:
4. In State X, A establishes a trust and provides that B, the trustee, shall be paid
commissions at the highest rate permissible under the local law of state Y. A and B
are both domiciled in X, and the trust has no relation to any state but X. In X, the
highest permissible rate of commissions for trustees is 5 per cent. In Y, the highest
Kirsten DB Habawel-Vega
permissible rate is 4 per cent. The choice-of-law provision will be given effect, and B
will be held entitled to commissions at the rate of 4 per cent.
5. Same facts as in Illustration 4 except that the highest permissible rate of
commissions in X is 4 per cent and in Y is 5 per cent. Effect will not be given to the
choice-of-law provision since under X local law the parties lacked power to provide
for a rate of commissions in excess of 4 per cent and Y, the state of the chosen law,
has no relation to the parties or the trust.
COMMENTS
Comment on Subsection (2):
d. Issues the parties could not have determined by explicit agreement directed to
particular issue. The rule of this Subsection applies only when two or more states
have an interest in the determination of the particular issue. The rule does not apply
when all contacts are located in a single state and when, as a consequence, there is
only one interested state. Subject to this qualification, the rule of this Subsection
applies when it is sought to have the chosen law determine issues which the parties
could not have determined by explicit agreement directed to the particular issue.
Examples of such questions are those involving capacity, formalities and substantial
validity. A person cannot vest himself with contractual capacity by stating in the
contract that he has such capacity. He cannot dispense with formal requirements,
such as that of a writing, by agreeing with the other party that the contract shall be
binding without them. Nor can he by a similar device avoid issues of substantial
validity, such as whether the contract is illegal. Usually, however, the local law of the
state chosen by the parties will be applied to regulate matters of this sort. And it will
usually be applied even when to do so would require disregard of some local
provision of the state which would otherwise be the state of the applicable law.
Permitting the parties in the usual case to choose the applicable law is not, of course,
tantamount to giving them complete freedom to contract as they will. Their power
to choose the applicable law is subject to the two qualifications set forth in this
Subsection (see Comments f-g).
e. Rationale. Prime objectives of contract law are to protect the justified
expectations of the parties and to make it possible for them to foretell with accuracy
what will be their rights and liabilities under the contract. These objectives may best
be attained in multistate transactions by letting the parties choose the law to govern
the validity of the contract and the rights created thereby. In this way, certainty and
predictability of result are most likely to be secured. Giving parties this power of
choice is also consistent with the fact that, in contrast to other areas of the law,
persons are free within broad limits to determine the nature of their contractual
obligations.
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
An objection sometimes made in the past was that to give the parties this power of
choice would be tantamount to making legislators of them. It was argued that, since
it is for the law to determine the validity of a contract, the parties may have no
effective voice in the choice of law governing validity unless there has been an actual
delegation to them of legislative power. This view is now obsolete and, in any event,
falls wide of the mark. The forum in each case selects the applicable law by
application of its own choice-of-law rules. There is nothing to prevent the forum
from employing a choice-of-law rule which provides that, subject to stated
exceptions, the law of the state chosen by the parties shall be applied to determine
the validity of a contract and the rights created thereby. The law of the state chosen
by the parties is applied, not because the parties themselves are legislators, but
simply because this is the result demanded by the choice-of-law rule of the forum.
It may likewise be objected that, if given this power of choice, the parties will be
enabled to escape prohibitions prevailing in the state which would otherwise be the
state of theempplicable law. Nevertheless, the demands of certainty, predictability
and convenience dictate that, subject to some limitations, the parties should have
power to choose the applicable law.
On occasion, the parties may choose a law that would declare the contract invalid. In
such situations, the chosen law will not be applied by reason of the parties' choice.
To do so would defeat the expectations of the parties which it is the purpose of the
present rule to protect. The parties can be assumed to have intended that the
provisions of the contract would be binding upon them (cf. s 188, Comment b). If the
parties have chosen a law that would invalidate the contract, it can be assumed that
they did so by mistake. If, however, the chosen law is that of the state of the
otherwise applicable law under the rule of s 188, this law will be applied even when
it invalidates the contract. Such application will be by reason of the rule of s 188,
and not by reason of the fact that this was the law chosen by the parties.
COMMENTS
Illustrations:
6. In state X, P and D initial an agreement which calls for performance in state Y. The
contract states that the rights of the parties thereunder shall be determined by Y
law. In X, P sues D for breach of the contract, and D defends on the ground that the
contract is void under the X statute of frauds, since it was not signed by him. The
contract, however, is valid under Y local law. The X court will find for P.
7. H and W, husband and wife, are domiciled in state X. In state Y, W enters into a
contract with C, who is domiciled and doing business in that state, in which C agrees
to sell goods to H on credit in return for a guaranty from W in the amount of
$1,000.00. The contract recites that it shall be governed by X law. Under the local
law of X, married women have full contractual capacity. Under the local law of Y,
however, they lack capacity to bind themselves as sureties for their husbands. In an
Kirsten DB Habawel-Vega
action by C against W, the contract will not be held invalid for lack of contractual
capacity on the part of W.
8. A executes and delivers to B in state X an instrument in which A agrees to
indemnify B against all losses arising from B's liability on a certain appeal bond on
behalf of C, against whom a judgment has been rendered in state Y. The instrument
recites that it shall be governed by the law of Y. It is valid and enforceable under the
local law of Y but is unenforceable for lack of consideration under the local law of X.
In an action by B against A, the instrument will not be held invalid for lack of
consideration.
COMMENTS
Comment:
f. Requirement of reasonable basis for parties' choice. The forum will not apply the
chosen law to determine issues the parties could not have determined by explicit
agreement directed to the particular issue if the parties had no reasonable basis for
choosing this law. The forum will not, for example, apply a foreign law which has
been chosen by the parties in the spirit of adventure or to provide mental exercise
for the judge. Situations of this sort do not arise in practice. Contracts are entered
into for serious purposes and rarely, if ever, will the parties choose a law without
good reason for doing so.
When the state of the chosen law has some substantial relationship to the parties or
the contract, the parties will be held to have had a reasonable basis for their choice.
This will be the case, for example, when this state is that where performance by one
of the parties is to take place or where one of the parties is domiciled or has his
principal place of business. The same will also be the case when this state is the
place of contracting except, perhaps, in the unusual situation where this place is
wholly fortuitous and bears no real relation either to the contract or to the parties.
These situations are mentioned only for purposes of example. There are
undoubtedly still other situations where the state of the chosen law will have a
sufficiently close relationship to the parties and the contract to make the parties'
choice reasonable.
The parties to a multistate contract may have a reasonable basis for choosing a state
with which the contract has no substantial relationship. For example, when
contracting in countries whose legal systems are strange to them as well as
relatively immature, the parties should be able to choose a law on the ground that
they know it well and that it is sufficiently developed. For only in this way can they
be sure of knowing accurately the extent of their rights and duties under the
contract. So parties to a contract for the transportation of goods by sea between two
countries with relatively undeveloped legal systems should be permitted to submit
their contract to some well-known and highly elaborated commercial law.
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
g. When application of chosen law would be contrary to fundamental policy of state
of otherwise applicable law. Fulfillment of the parties' expectations is not the only
value in contract law; regard must also be had for state interest and for state
regulation. The chosen law should not be applied without regard for the interests of
the state which would be the state of the applicable law with respect to the
particular issue involved in the absence of an effective choice by the parties. The
forum will not refrain from applying the chosen law merely because this would lead
to a different result than would be obtained under the local law of the state of the
otherwise applicable law. Application of the chosen law will be refused only (1) to
protect a fundamental policy of the state which, under the rule of s 188, would be
the state of the otherwise applicable law, provided (2) that this state has a
materially greater interest than the state of the chosen law in the determination of
the particular issue. The forum will apply its own legal principles in determining
whether a given policy is a fundamental one within the meaning of the present rule
and whether the other state has a materially greater interest than the state of the
chosen law in the determination of the particular issue. The parties' power to
choose the applicable law is subject to least restriction in situations where the
significant contacts are so widely dispersed that determination of the state of the
applicable law without regard to the parties' choice would present real difficulties.
No detailed statement can be made of the situations where a "fundamental " policy
of the state of the otherwise applicable law will be found to exist. An important
consideration is the extent to which the significant contacts are grouped in this
state. For the forum will be more inclined to defer to the policy of a state which is
closely related to the contract and the parties than to the policy of a state where few
contacts are grouped but which, because of the wide dispersion of contacts among
several states, would be the state of the applicable law if effect were to be denied the
choice-of-law provision. Another important consideration is the extent to which the
significant contacts are grouped in the state of the chosen law. The more closely this
state is related to the contract and to the parties, the more likely it is that the choice-
of- law provision will be given effect. The more closely the state of the chosen law is
related to the contract and the parties, the more fundamental must be the policy of
the state of the otherwise applicable law to justify denying effect to the choice-of-
law provision.
To be "fundamental," a policy must in any event be a substantial one. Except
perhaps in the case of contracts relating to wills, a policy of this sort will rarely be
found in a requirement, such as the statute of frauds, that relates to formalities (see
Illustration 6). Nor is such policy likely to be represented by a rule tending to
become obsolete, such as a rule concerned with the capacity of married women (see
Illustration 7), or by general rules of contract law, such as those concerned with the
need for consideration (see Illustration 8). On the other hand, a fundamental policy
may be embodied in a statute which makes one or more kinds of contracts illegal or
which is designed to protect a person against the oppressive use of superior
bargaining power. Statutes involving the rights of an individual insured as against
an insurance company are an example of this sort (see ss 192-193). To be
"fundamental " within the meaning of the present rule, a policy need not be as
Kirsten DB Habawel-Vega
strong as would be required to justify the forum in refusing to entertain suit upon a into the contract under the local law of his domicil, they should, subject to the
foreign cause of action under the rule of s 90. conditions stated in the rule of this Section, be able effectively to provide in the
contract that the capacity of each shall be determined by the local law of his domicil.
COMMENTS

Illustrations:
Restatement of the Law Second
9. In state X, A and B, who are both domiciled in that state, negotiate the terms of a
contract which is to be performed in X. The contract provides that it shall be Conflict of Laws 2d
governed by the law of state Y; it is signed first by A in X and then by B in Y. A suit
involving the validity of the contract is brought before a court of state Z. The court Chapter 8. Contracts
will be more inclined to deny effect to the choice-of-law provision in deference to X
policy than it would have been if the elements had not been massed to so great an Topic 1. Validity of Contracts and Rights Created Thereby
extent in X.
Title A. General Principles
10. In state X, the A insurance company issues a life insurance policy insuring the life
of B. A is incorporated and has its "home office" in X while B is domiciled in state Y. Copyright (c) 1971 The American Law Institute
The policy contains a provision stating that the rights of the parties thereunder shall
be determined by X law. In his application for the policy, given by B to A's agent in Y,
s 188. LAW GOVERNING IN ABSENCE OF EFFECTIVE CHOICE BY THE PARTIES
B made a misstatement which under the local law of X would serve as a complete
defense to the insurer in a suit on the policy, but would not have this effect under a
statute of Y. B brings suit on the policy in a court in state Z. Under the rule of s 192, Y TEXT
is the state whose local law would govern the validity of the contract in the absence
of an effective choice of law by the parties. The Z court will deny effect to the choice- (1) The rights and duties of the parties with respect to an issue in contract are
of-law provision. determined by the local law of the state which, with respect to that issue, has the
most significant relationship to the transaction and the parties under the principles
COMMENTS stated in s 6.

Comment on Subsection (3): (2) In the absence of an effective choice of law by the parties (see s 187), the
contacts to be taken into account in applying the principles of s 6 to determine the
law applicable to an issue include:
h. Reference is to "local law" of chosen state. The reference, in the absence of a
contrary indication of intention, is to the "local law" of the chosen state and not to
that state's "law," which means the totality of its law including its choice-of-law (a) the place of contracting,
rules. When they choose the state which is to furnish the law governing the validity
of their contract, the parties almost certainly have the "local law," rather than the (b) the place of negotiation of the contract,
"law," of that state in mind (compare s 186, Comment b). To apply the "law" of the
chosen state would introduce the uncertainties of choice of law into the proceedings (c) the place of performance,
and would serve to defeat the basic objectives, namely those of certainty and
predictability, which the choice-of-law provision was designed to achieve. (d) the location of the subject matter of the contract, and

i. Choice of two laws. The extent to which the parties may choose to have the local
law of two or more states govern matters that do not lie within their contractual
capacity is uncertain. For example, it is uncertain whether the parties may
effectively provide that their capacity to make the contract shall be governed by the
local law of one state and the question of formalities by the local law of another.
When the parties are domiciled in different states and each has capacity to enter
(e) the domicil, residence, nationality, place of incorporation and place of business
of the parties.
These contacts are to be evaluated according to their relative importance with
respect to the particular issue.

Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM Kirsten DB Habawel-Vega
(3) If the place of negotiating the contract and the place of performance are in the
same state, the local law of this state will usually be applied, except as otherwise
provided in ss 189-199 and 203.
COMMENTS
Comment:
a. Scope of section. The rule of this Section applies in all situations where there has
not been an effective choice of the applicable law by the parties (see s 187).
COMMENTS
Comment on Subsection (1):
b. Rationale. The principles stated in s 6 underlie all rules of choice of law and are
used in evaluating the significance of a relationship, with respect to the particular
issue, to the potentially interested states, the transaction and the parties. The factors
listed in Subsection (2) of the rule of s 6 can be divided into five groups. One group
is concerned with the fact that in multistate cases it is essential that the rules of
decision promote mutually harmonious and beneficial relationships in the
interdependent community, federal or international. The second group focuses
upon the purposes, policies, aims and objectives of each of the competing local law
rules urged to govern and upon the concern of the potentially interested states in
having their rules applied. The factors in this second group are at times referred to
as "state interests" or as appertaining to an "interested state." The third group
involves the needs of the parties, namely the protection of their justified
expectations and certainty and predictability of result. The fourth group is directed
to implementation of the basic policy underlying the particular field of law, such as
torts or contracts, and the fifth group is concerned with the needs of judicial
administration, namely with ease in the determination and application of the law to
be applied.
The factors listed in Subsection (2) of the rule of s 6 vary somewhat in importance
from field to field and from issue to issue. Thus, the protection of the justified
expectations of the parties is of considerable importance in contracts whereas it is
of relatively little importance in torts (see s 145, Comment b). In the torts area, it is
the rare case where the parties give advance thought to the law that may be applied
to determine the legal consequences of their actions. On the other hand, parties
enter into contracts with forethought and are likely to consult a lawyer before doing
so. Sometimes, they will intend that their rights and obligations under the contract
should be determined by the local law of a particular state. In this event, the local
law of this state will be applied, subject to the qualifications stated in the rule of s
187. In situations where the parties did not give advance thought to the question of
which should be the state of the applicable law, or where their intentions in this
regard cannot be ascertained, it may at least be said, subject perhaps to rare
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
exceptions, that they expected that the provisions of the contract would be binding
upon them.
The need for protecting the expectations of the parties gives importance in turn to
the values of certainty, predictability and uniformity of result. For unless these
values are attained, the expectations of the parties are likely to be disappointed.
Protection of the justified expectations of the parties by choice-of-law rules in the
field of contracts is supported both by those factors in Subsection (2) of s 6 which
are directed to the furtherance of the needs of the parties and by those factors which
are directed to implementation of the basic policy underlying the particular field of
law. Protection of the justified expectations of the parties is the basic policy
underlying the field of contracts.
Protection of the justified expectations of the parties is a factor which varies
somewhat in importance from issue to issue. As indicated above, this factor is of
considerable importance with respect to issues involving the validity of a contract,
such as capacity, formalities and substantial validity. Parties entering a contract will
expect at the very least, subject perhaps to rare exceptions, that the provisions of
the contract will be binding upon them. Their expectations should not be
disappointed by application of the local law rule of a state which would strike down
the contract or a provision thereof unless the value of protecting the expectations of
the parties is substantially outweighed in the particular case by the interest of the
state with the invalidating rule in having this rule applied. The extent of the interest
of a state in having its rule applied should be determined in the light of the purpose
sought to be achieved by the rule and by the relation of the transaction and the
parties to that state (see Comment c).
Protection of justified expectations plays a less significant role in the choice-of-law
process with respect to issues that involve the nature of the obligations imposed by
a contract upon the parties rather than the validity of the contract or of some
provision thereof. By and large, it is for the parties themselves to determine the
nature of their contractual obligations. They can spell out these obligations in the
contract or, as a short-hand device, they can provide that these obligations shall be
determined by the local law of a given state (see s 187, Comment c). If the parties do
neither of these two things with respect to an issue involving the nature of their
obligations, as, for example, the time of performance, the resulting gap in their
contract must be filled by application of the relevant rule of contract law of a
particular state. All states have gap-filling rules of this sort, and indeed such rules
comprise the major content of contract law. What is important for present purposes
is that a gap in a contract usually results from the fact that the parties never gave
thought to the issue involved. In such a situation, the expectations of the parties
with respect to that issue are unlikely to be disappointed by application of the gap-
filling rule of one state rather than of the rule of another state. Hence with respect to
issues of this sort, protection of the justified expectations of the parties is unlikely to
play so significant a role in the choice-of-law process. As a result, greater emphasis
Kirsten DB Habawel-Vega
in fashioning choice-of-law rules in this area must be given to the other choice-of-
law principles mentioned in the rule of s 6.
c. Purpose of contract rule. The purpose sought to be achieved by the contract rules
of the potentially interested states, and the relation of these states to the transaction
and the parties, are important factors to be considered in determining the state of
most significant relationship. This is because the interest of a state in having its
contract rule applied in the determination of a particular issue will depend upon the
purpose sought to be achieved by that rule and upon the relation of the state to the
transaction and the parties. So the state where a party to the contract is domiciled
has an obvious interest in the application of its contract rule designed to protect that
party against the unfair use of superior bargaining power. And a state where a
contract provides that a given business practice is to be pursued has an obvious
interest in the application of its rule designed to regulate or to deter that business
practice. On the other hand, the purpose of a rule and the relation of a state to the
transaction and the parties may indicate that the state has little or no interest in the
application of that rule in the particular case. So a state may have little interest in
the application of a rule designed to protect a party against the unfair use of
superior bargaining power if the contract is to be performed in another state which
is the domicil of the person seeking the rule's protection. And a state may have little
interest in the application of a statute designed to regulate or to deter a certain
business practice if the conduct complained of is to take place in another state.
Whether an invalidating rule should be applied will depend, among other things,
upon whether the interest of the state in having its rule applied to strike down the
contract outweighs in the particular case the value of protecting the justified
expectations of the parties and upon whether some other state has a greater interest
in the application of its own rule.
Frequently, it will be possible to decide a question of choice of law in contract
without paying deliberate attention to the purpose sought to be achieved by the
relevant contract rules of the interested states. This will be so whenever by reason
of the particular circumstances one state is obviously that of the applicable law.
d. The issue involved. The courts have long recognized that they are not bound to
decide all issues under the local law of a single state. Thus, in an action on a contract
made and to be performed in a foreign state by parties domiciled there, a court
under traditional and prevailing practice applies its own state's rules to issues
involving process, pleadings, joinder of parties, and the administration of the trial
(see Chapter 6), while deciding other issues-- such as whether the defendant had
capacity to bind himself by contract--by reference to the law selected by application
of the rules stated in this Chapter. The rule of this Section makes explicit that
selective approach to choice of the law governing particular issues.
Each issue is to receive separate consideration if it is one which would be resolved
differently under the local law rule of two or more of the potentially interested
states.
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
COMMENTS
Comment on Subsection (2):
e. Important contacts in determining state of most significant relationship. In the
absence of an effective choice of law by the parties (see s 187), the forum, in
applying the principles of s 6 to determine the state of most significant relationship,
should give consideration to the relevant policies of all potentially interested states
and the relative interests of those states in the decision of the particular issue. The
states which are most likely to be interested are those which have one or more of
the following contacts with the transaction or the parties. Some of these contacts
also figure prominently in the formulation of the applicable rules of choice of law.
The place of contracting. As used in the Restatement of this Subject, the place of
contracting is the place where occurred the last act necessary, under the forum's
rules of offer and acceptance, to give the contract binding effect, assuming,
hypothetically, that the local law of the state where the act occurred rendered the
contract binding.
Standing alone, the place of contracting is a relatively insignificant contact. To be
sure, in the absence of an effective choice of law by the parties, issues involving the
validity of a contract will, in perhaps the majority of situations, be determined in
accordance with the local law of the state of contracting. In such situations,
however, this state will be the state of the applicable law for reasons additional to
the fact that it happens to be the place where occurred the last act necessary to give
the contract binding effect. The place of contracting, in other words, rarely stands
alone and, almost invariably, is but one of several contacts in the state. Usually, this
state will be the state where the parties conducted the negotiations which preceded
the making of the contract. Likewise, this state will often be the state of the parties'
common domicil as well. By way of contrast, the place of contracting will have little
significance, if any, when it is purely fortuitous and bears no relation to the parties
and the contract, such as when a letter of acceptance is mailed in a railroad station
in the course of an interstate trip.
The place of negotiation. The place where the parties negotiate and agree on the
terms of their contract is a significant contact. Such a state has an obvious interest in
the conduct of the negotiations and in the agreement reached. This contact is of less
importance when there is no one single place of negotiation and agreement, as, for
example, when the parties do not meet but rather conduct their negotiations from
separate states by mail or telephone.
The place of performance. The state where performance is to occur under a contract
has an obvious interest in the nature of the performance and in the party who is to
perform. So the state where performance is to occur has an obvious interest in the
question whether this performance would be illegal (see s 202). When both parties
are to perform in the state, this state will have so close a relationship to the
Kirsten DB Habawel-Vega
transaction and the parties that it will often be the state of the applicable law even
with respect to issues that do not relate strictly to performance. And this is even
more likely to be so if, in addition, both parties are domiciled in the state.
On the other hand, the place of performance can bear little weight in the choice of
the applicable law when (1) at the time of contracting it is either uncertain or
unknown, or when (2) performance by a party is to be divided more or less equally
among two or more states with different local law rules on the particular issue.
It is clear that the local law of the place of performance will be applied to govern all
questions relating to details of performance see s 206).
Situs of the subject matter of the contract. When the contract deals with a specific
physical thing, such as land or a chattel, or affords protection against a localized risk,
such as the dishonesty of an employee in a fixed place of employment, the location
of the thing or of the risk is significant (see ss 189-193). The state where the thing or
the risk is located will have a natural interest in transactions affecting it. Also the
parties will regard the location of the thing or of the risk as important. Indeed, when
the thing or the risk is the principal subject of the contract, it can often be assumed
that the parties, to the extent that they thought about the matter at all, would expect
that the local law of the state where the thing or risk was located would be applied
to determine many of the issues arising under the contract.
Domicil, residence, nationality, place of incorporation, and place of business of the
parties. These are all places of enduring relationship to the parties. Their
significance depends largely upon the issue involved and upon the extent to which
they are grouped with other contacts. So, for example, when a person has capacity to
bind himself to the particular contract under the local law of the state of his domicil,
there may be little reason to strike down the contract because that person lacked
capacity under the local law of the state of contracting or of performance (see s
198). The fact that one of the parties is domiciled or does business in a particular
state assumes greater importance when combined with other contacts, such as that
this state is the place of contracting or of performance or the place where the other
party to the contract is domiciled or does business. As stated in s 192, the domicil of
the insured is a contact of particular importance in the case of life insurance
contracts. At least with respect to most issues, a corporation's principal place of
business is a more important contact than the place of incorporation, and this is
particularly true in situations where the corporation does little, or no, business in
the latter state.
COMMENTS
Illustrations:
1. A, who is domiciled in state X, is declared a spendthrift by an X court. Thereafter,
A borrows money in state Y from B, a Y domiciliary, who lends the money in
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
ignorance of A's spendthrift status. Under the terms of the loan, the money is to be
repaid in Y. A does not pay, and B brings suit in state Z. A would not be liable under
X local law because he has been declared a spendthrift; he would, however, be liable
under the local law of Y. The first question for the Z court to determine is whether
the interests of both X and Y would be furthered by application of their respective
local law rules. This is a question that can only be determined in the light of the
respective purposes of these rules (see Comment c). The purpose of the X local law
rule is obviously to protect X domiciliaries and their families. Hence the interests of
X would be furthered by application of the X spendthrift rule. On the other hand, Y's
interests would be furthered by the application of its own rule, which presumably
was intended for the protection of Y creditors and also to encourage persons to
enter into contractual relationships in Y. Since the interests of X and Y would each
be furthered by application of their respective rules, the Z court must choose
between them. Among the questions for the Z court to determine are whether the
value of protecting the justified expectations of the parties and the interest of Y in
the application of its rule outweigh X's interest in the application of its invalidating
rule. Factors which would support an affirmative answer to this question, and which
indicate the degree of Y's interest in the application of its rule, are that A sought out
B in Y, that B is domiciled in Y, that the loan was negotiated and made in Y and that
the contract called for repayment in Y (see s 195). If it is found that an X court would
not have applied its rule to the facts of the present case, the argument for applying
the Y rule would be even stronger. For it would then appear that, even in the eyes of
the X court, X interests were not sufficiently involved to require application of the X
rule (see s 8, Comment k).
2. A, a married woman, who is domiciled in state X, comes to state Y and there
borrows money from B. The loan contract provides that the money is to be repaid in
Y. A does not pay, and B brings suit in state Z. A defends on the ground that under Y
local law married women lack capacity to bind themselves by contract; they do have
such capacity, however, under the local law of X. It is questionable in this case
whether the interests of either X or Y would be furthered by application of their
respective rules. Y's rule of incapacity was presumably designed to protect Y
married women. On the other hand, X's rule of capacity was presumably designed, at
least primarily, to protect X transactions. It seems clear in any event that the value
of protecting the justified expectations of the parties is not outweighed in this case
by any interest Y may have in the application of its rule of incapacity. Under the
circumstances, the contract should be upheld on the issue of A's capacity by
application of the X rule.
COMMENTS
Comment on Subsection (3):
f. When place of negotiation and place of performance are in the same state. When
the place of negotiation and the place of performance are in the same state, the local
law of this state will usually be applied to govern issues arising under the contract,
except as stated in ss 189-199 and 203. A state having these contacts will usually be
Kirsten DB Habawel-Vega
the state that has the greatest interest in the determination of issues arising under
the contract. The local law of this state should be applied except when the principles
stated in s 6 require application of some other law. As stated in Comment c, the
extent of a state's interest in having its contract rule applied will depend upon the
purpose sought to be achieved by that rule.
g. For reasons stated in s 186, Comment b, the reference is to the "local law " of the
state of the applicable law and not to that state's "law" which means the totality of
its law including its choice-of-law rules.
h. As to the situation where the local law rule of two or more states is the same, see s
186, Comment c.
3. Convention on the Recognition of Foreign Judgment on Civil and
Commercial Matters
CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN
JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS
(Concluded 1 February 1971)
The States signatory to the present Convention,
Desiring to establish common provisions on mutual recognition and
enforcement of judicial decisions rendered in their respective countries,
Have resolved to conclude a Convention to this effect and have agreed on the
following provisions:
CHAPTER I - SCOPE OF THE CONVENTION
Article 1
This Convention shall apply to decisions rendered in civil or commercial
matters by the courts of Contracting States.
It shall not apply to decisions the main object of which is to determine -
(1) the status or capacity of persons or questions of family law, including
personal or financial rights and obligations between parents and children or
between spouses;
(2) the existence or constitution of legal persons or the powers of their
officers;
(3) maintenance obligations, so far as not included in sub-paragraph (1) of this
Article;
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
(4) questions of succession;
(5) questions of bankruptcy, compositions or analogous proceedings,
including decisions which may result therefrom and which relate to the validity
of the acts of the debtor;
(6) questions of social security;
(7) questions relating to damage or injury in nuclear matters.
This Convention does not apply to decisions for the payment of any customs
duty, tax or penalty.
Article 2
This Convention shall apply to all decisions given by the courts of a Contracting
State, irrespective of the name given by that State to the proceedings which
gave rise to the decision or of the name given to the decision itself such as
judgment, order or writ of execution.
However, it shall apply neither to decisions which order provisional or
protective measures nor to decisions rendered by administrative tribunals.
Article 3
This Convention shall apply irrespective of the nationality of the parties.
CHAPTER II - CONDITIONS OF RECOGNITION AND ENFORCEMENT
Article 4
A decision rendered in one of the Contracting States shall be entitled to
recognition and enforcement in another Contracting State under the terms of
this Convention -
(1) if the decision was given by a court considered to have jurisdiction within
the meaning of this Convention, and
(2) if it is no longer subject to ordinary forms of review in the State of origin.
In addition, to be enforceable in the State addressed, a decision must be
enforceable in the State of origin.
Article 5
Recognition or enforcement of a decision may nevertheless be refused in any of
the following cases -
(1) if recognition or enforcement of the decision is manifestly incompatible
with the public policy of the State addressed or if the decision resulted from
proceedings incompatible with the requirements of due process of law or if, in
the circumstances, either party had no adequate opportunity fairly to present
Kirsten DB Habawel-Vega
his case;
(2) if the decision was obtained by fraud in the procedural sense;
(3) if proceedings between the same parties, based on the same facts and
having the same purpose -
a) are pending before a court of the State addressed and those proceedings
were the first to be instituted, or
b) have resulted in a decision by a court of the State addressed, or
c) have resulted in a decision by a court of another State which would be
entitled to recognition and enforcement under the law of the State addressed.
Article 6
Without prejudice to the provisions of Article 5, a decision rendered by default
shall neither be recognised nor enforced unless the defaulting party received
notice of the institution of the proceedings in accordance with the law of the
State of origin in sufficient time to enable him to defend the proceedings.
Article 7
Recognition or enforcement may not be refused for the sole reason that the
court of the State of origin has applied a law other than that which would have
been applicable according to the rules of private international law of the State
addressed.
Nevertheless, recognition or enforcement may be refused if, to reach its
decision, the court of the State of origin had to decide a question relating either
to the status or the capacity of a party or to his rights in other matters excluded
from this Convention by sub-paragraphs (1)-(4) of the second paragraph of
Article 1, and has reached a result different from that which would have
followed from the application to that question of the rules of private
international law of the State addressed.
Article 8
Without prejudice to such review as is required by the terms of the preceding
Articles, there shall be no review of the merits of the decision rendered by the
court of origin.
Article 9
In questions relating to the jurisdiction of the court of the State of origin, the
authority addressed shall be bound by the findings of fact on which that court
based its jurisdiction, unless the decision was rendered by default.
Article 10
The court of the State of origin shall be considered to have jurisdiction for the
purposes of this Convention -
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
(1) if the defendant had, at the time when the proceedings were instituted, his
habitual residence in the State of origin, or, if the defendant is not a natural
person, its seat, its place of incorporation or its principal place of business in
that State;
(2) if the defendant had, in the State of origin, at the time when the
proceedings were instituted, a commercial, industrial or other business
establishment, or a branch office, and was cited there in proceedings arising
from business transacted by such establishment or branch office;
(3) if the action had as its object the determination of an issue relating to
immovable property situated in the State of origin;
(4) in the case of injuries to the person or damage to tangible property, if the
facts which occasioned the damage occurred in the territory of the State of
origin, and if the author of the injury or damage was present in that territory at
the time when those facts occurred;
(5) if, by a written agreement or by an oral agreement confirmed in writing
within a reasonable time, the parties agreed to submit to the jurisdiction of the
court of origin disputes which have arisen or which may arise in respect of a
specific legal relationship, unless the law of the State addressed would not
permit such an agreement because of the subject-matter of the dispute;
(6) if the defendant has argued the merits without challenging the jurisdiction
of the court or making reservations thereon; nevertheless such jurisdiction
shall not be recognised if the defendant has argued the merits in order to resist
the seisure of property or to obtain its release, or if the recognition of this
jurisdiction would be contrary to the law of the State addressed because of the
subject-matter of the dispute;
(7) if the person against whom recognition or enforcement is sought was the
plaintiff in the proceedings in the court of origin and was unsuccessful in those
proceedings, unless the recognition of this jurisdiction would be contrary to the
law of the State addressed because of the subject-matter of the dispute.
Article 11
The court of the State of origin shall be considered to have jurisdiction for the
purposes of this Convention to try a counterclaim -
(1) if that court would have had jurisdiction to try the action as a principal
claim under sub-paragraphs (1)-(6) of Article 10, or
(2) if that court had jurisdiction under Article 10 to try the principal claim and
if the counterclaim arose out of the contract or out of the facts on which the
principal claim was based.
Article 12
The jurisdiction of the court of the State of origin need not be recognised by the
authority addressed in the following cases -
(1) if the law of the State addressed confers upon its courts exclusive
jurisdiction, either by reason of the subject-matter of the action or by virtue of
an agreement between the parties as to the determination of the claim which
Kirsten DB Habawel-Vega
gave rise to the foreign decision;
(2) if the law of the State addressed recognises a different exclusive
jurisdiction by reason of the subject-matter of the action, or if the authority
addressed considers itself bound to recognise such an exclusive jurisdiction by
reason of an agreement between the parties;
(3) if the authority addressed considers itself bound to recognise an
agreement by which exclusive jurisdiction is conferred upon arbitrators.
CHAPTER III - RECOGNITION AND ENFORCEMENT PROCEDURES
Article 13
The party seeking recognition or applying for enforcement shall furnish -
(1) a complete and authenticated copy of the decision;
(2) if the decision was rendered by default, the originals or certified true
copies of the documents required to establish that the summons was duly
served on the defaulting party;
(3) all documents required to establish that the decision fulfills the conditions
of sub-paragraph (2) of the first paragraph of Article 4, and, where appropriate,
of the second paragraph of Article 4;
(4) unless the authority addressed otherwise requires, translations of the
documents referred to above, certified as correct either by a diplomatic or
consular agent or by a sworn translator or by any other person so authorised in
either State.
If the terms of the decision do not permit the authority addressed to verify
whether the conditions of this Convention have been complied with, that
authority may require the production of any other necessary documents.
No legalisation or other like formality may be required.
Article 14
The procedure for the recognition or enforcement of foreign judgments is
governed by the law of the State addressed so far as this Convention does not
provide otherwise.
If the decision contains provisions which can be dissociated, any one or more of
these may be separately recognised or enforced.
Article 15
Recognition or enforcement of an award of judicial costs or expenses may be
accorded by virtue of this Convention only if this Convention is applicable to
the decision on the merits.
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
This Convention shall apply to decisions relating to judicial costs or expenses
even if such decisions do not proceed from a court, provided that they derive
from a decision which may be recognised or enforced under this Convention
and that the decision relating to costs or expenses could have been subject to
judicial review.
Article 16
A judgment for costs or expenses given in connection with the granting or
refusal of recognition or enforcement of a decision may be enforced under this
Convention only if the applicant in the proceedings for recognition or
enforcement relied on this Convention.
Article 17
No security, bond or deposit, however termed under the law of the State
addressed, shall be required by reason of the nationality or domicile of the
applicant to guarantee the payment of judicial costs or expenses if the
applicant, being a natural person, has his habitual residence in or, not being a
natural person, has a place of business in a State which has concluded with the
State addressed a Supplementary Agreement in accordance with Article 21.
Article 18
A party granted legal aid in the State of origin shall be extended such aid in
accordance with the law of the State addressed in any proceedings for the
recognition or for the enforcement of a foreign decision.
Article 19
Settlements made in court in the course of a pending proceeding which may be
enforced in the State of origin shall be enforceable in the State addressed under
the same conditions as decisions falling within this Convention, so far as those
conditions apply to settlements.
CHAPTER IV - CONCURRENT ACTIONS
Article 20
If two States have concluded a Supplementary Agreement pursuant to Article
21, the judicial authorities of either State may dismiss an action brought before
them or may stay such an action when other proceedings between the same
parties, based on the same facts and having the same purpose, are pending in a
court of another State and these proceedings may result in a decision which the
authorities of the State in which the first mentioned action was brought would
be bound to recognise under the terms of this Convention.
Kirsten DB Habawel-Vega
The authorities of these States may nevertheless order provisional or
protective measures regardless of proceedings elsewhere.
CHAPTER V - SUPPLEMENTARY AGREEMENTS
Article 21
Decisions rendered in a Contracting State shall not be recognised or enforced in
another Contracting State in accordance with the provisions of the preceding
Articles unless the two States, being Parties to this Convention, have concluded
a Supplementary Agreement to this effect.
Article 22
This Convention shall not apply to decisions rendered before the entry into
force of the Supplementary Agreement provided for in Article 21 unless that
Agreement otherwise provides.
The Supplementary Agreement shall continue to be applicable to decisions in
respect of which recognition or enforcement proceedings have been instituted
before any denunciation of that Agreement takes effect.
Article 23
In the Supplementary Agreements referred to in Article 21 the Contracting
States may agree -
(1) to clarify the meaning of the expression "civil and commercial matters", to
determine the courts whose decisions shall be recognised and enforced under
this Convention, to define the expression "social security" and to define the
expression "habitual residence";
(2) to clarify the meaning of the term "law" in States with more than one legal
system;
(3) to include within the scope of this Convention questions relating to
damage or injury in nuclear matters;
(4) to apply this Convention to decisions ordering provisional or protective
measures;
(5) not to apply this Convention to decisions rendered in the course of
criminal proceedings;
(6) to specify the cases under which a decision is no longer subject to ordinary
forms of review;
(7) to recognise and enforce decisions upon which enforcement could be
obtained in the State of origin even if such decisions are still subject to ordinary
forms of review and in such a case to define the conditions under which a stay
of proceedings for recognition or enforcement is possible;
(8) not to apply Article 6 if the decision rendered by default was notified to the
defaulting party and the latter had the opportunity to lodge a timely appeal
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
against such a decision;
(8 bis) that the Authority addressed shall not be bound by the findings of fact
on which the court of the State of origin based its jurisdiction;
(9) to consider the courts of the State in which the defendant has his
"domicile" as having jurisdiction under Article 10:
(10) that the court of origin shall be considered as having jurisdiction under the
terms of this Convention in cases where its jurisdiction is admitted by another
Convention in force between the State of origin and the State addressed if that
other Convention contains no special rules relating to the recognition or
enforcement of foreign judgments;
(11) that the court of origin shall be considered as having jurisdiction under the
terms of this Convention either when its jurisdiction is admitted by the law of
the State addressed relating to the recognition or enforcement of foreign
judgments, or on grounds additional to those in Article 10;
(12) to define, for the purposes of the application of Article 12, the bases of
jurisdiction which are exclusive by reason of the subject-matter of the action;
(13) to exclude, in cases where jurisdiction is based on an agreement between
the parties, the application of sub-paragraph (1) of Article 12 as well as to
exclude that of sub-paragraph (3) of Article 12;
(14) to regulate the procedure for obtaining recognition or enforcement;
(15) to regulate the enforcement of judgments other than those which order
the payment of a sum of money;
(16) that the enforcement of a foreign judgment may be refused when a
specified period has elapsed from its date;
(17) to fix the rate of interest payable from the date of the judgment in the State
of origin;
(18) to adapt to the requirements of their legal systems the list of documents
required by Article 13, but with the sole object of enabling the authority
addressed to verify whether the conditions of this Convention have been
fulfilled;
(19) to subject the documents referred to in Article 13 to legalisation or to a
similar formality;
(20) to depart from the provisions of Article 17 and to depart from the
provisions of Article 18;
(21) to make the provisions of the first paragraph of Article 20 obligatory;
(22) to include within the scope of this Convention "actes authentiques",
including documents upon which immediate enforcement can be obtained, and
to specify those documents.
CHAPTER VI - FINAL CLAUSES
Article 24
This Convention shall not affect other Conventions relating to the recognition
and enforcement of judgments to which the Contracting States are already
Kirsten DB Habawel-Vega
Parties so long as those States have not concluded a Supplementary Agreement
under the terms of Article 21.
Unless it is otherwise agreed, the provisions of a Supplementary Agreement
concluded under Article 21 shall prevail over the terms of any prior
Conventions in force between the Parties relating to the recognition and
enforcement of judgments to the extent that their terms are mutually
inconsistent.
Article 25
Whether or not they have concluded a Supplementary Agreement under Article
21, the Contracting States shall not conclude between themselves other
Conventions relating to the recognition and enforcement of judgments within
the scope of this Convention unless they consider it necessary, in particular,
because of economic ties or of particular aspects of their legal systems.
Article 26
Notwithstanding the provisions of Articles 24 and 25, this Convention and the
Supplementary Agreements made under Article 21 shall not prevail over
Conventions to which the Contracting States are or may become Parties in
special fields and which contain provisions for the recognition and enforcement
of judgments.
Article 27
This Convention shall be open for signature by the States represented at the
Tenth Session of the Hague Conference on Private International Law and
Cyprus, Iceland and Malta.
It shall be ratified and the instruments of ratification shall be deposited with
the Ministry of Foreign Affairs of the Netherlands.
Article 28
This Convention shall enter into force on the sixtieth day after the deposit of
the second instrument of ratification.
This Convention shall enter into force for each State which ratifies it
subsequently on the sixtieth day after the deposit of its instrument of
ratification.
Article 29
Any State not falling within the provisions of the first paragraph of Article 27
may accede to this Convention after it has entered into force in accordance with
the first paragraph of Article 28. The instrument of accession shall be deposited
with the Ministry of Foreign Affairs of the Netherlands.
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
This Convention shall enter into force for such a State in the absence of any
objection from a State which has ratified this Convention before such deposit,
notified to the Ministry of Foreign Affairs of the Netherlands within a period of
six months after the date on which the said Ministry has notified it of such
accession.
In the absence of any such objection, this Convention shall enter into force for
the acceding State on the first day of the month following the expiration of the
last of the periods referred to in the preceding paragraph.
Article 30
Any State may, at the time of signature, ratification or accession, declare that
this Convention shall extend to all the territories for the international relations
of which it is responsible, or to one or more of them. Such a declaration shall
take effect on the date of entry into force of this Convention for the State
concerned.
At any time thereafter, such extensions shall be notified to the Ministry of
Foreign Affairs of the Netherlands.
This Convention shall enter into force for the territories mentioned in such an
extension on the sixtieth day after the notification referred to in the preceding
paragraph.
The Parties to a Supplementary Agreement concluded under Article 21 shall
determine its territorial application.
Article 31
This Convention shall have a duration of five years from the date on which it
enters into force under the first paragraph of Article 28, even in its application
to States which have subsequently ratified or acceded to it.
In the absence of any denunciation, this Convention shall be renewed tacitly
every five years.
Any denunciation shall be notified to the Ministry of Foreign Affairs of the
Netherlands at least six months before the end of the five year period.
Such denunciation may be limited to any one of the territories to which this
Convention applies.
Such denunciation shall affect only the notifying State. This Convention shall
remain in force for the other Contracting States.
Article 32
Each Supplementary Agreement concluded under Article 21 shall take effect
from the date specified in such Agreement; a certified copy and, if necessary, a
Kirsten DB Habawel-Vega
 translation into French or English shall be communicated to the Ministry of
Foreign Affairs of the Netherlands.
Any Contracting State may, without denouncing this Convention, denounce a
Supplementary Agreement either under any provision for denunciation in such
Agreement or, if such Agreement contains no such provision, by giving six
months' notice to the other State. Any State denouncing a Supplementary
Agreement shall so inform the Ministry of Foreign Affairs of the Netherlands.
Notwithstanding the denunciation of this Convention, it shall nevertheless
continue to have effect between the denouncing State and any other State with
which the former has concluded a Supplementary Agreement under Article 21,
unless such Agreement provides otherwise.
Article 33
The Ministry of Foreign Affairs of the Netherlands shall give notice to the States
referred to in Article 27, and to the States which have acceded in accordance
with Article 29, of the following -
a) the signatures and ratifications referred to in Article 27;
b) the date on which the present Convention enters into force in accordance
with the first paragraph of Article 28;
c) the accessions referred to in Article 29 and the dates on which they take
effect;
d) the extensions referred to in Article 30 and the dates on which they take
effect;
e) a translation or a copy of the text in English or French of Supplementary
Agreements concluded under Article 21;
f) the denunciations referred to in the third paragraph of Article 31 and the
second paragraph of Article 32.
In witness whereof the undersigned, being duly authorised thereto, have signed
this Convention.
Done at The Hague, on the first day of February, 1971, in the English and
French languages, both texts being equally authentic, in a single copy which
shall be deposited in the archives of the Government of the Netherlands, and of
which a certified copy shall be sent, through the diplomatic channel, to each of
the States represented at the Tenth Session of the Hague Conference on Private
International Law, and to Cyprus, Iceland and Malta.
SUPPLEMENTARY PROTOCOL TO THE HAGUE CONVENTION ON THE
RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS IN CIVIL AND
COMMERCIAL MATTERS
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
(Concluded 1 February 1971)
The States signatory to the present Protocol,
In the knowledge that certain grounds of jurisdiction, which are not included in
Articles 10 and 11 of the Hague Convention on the Recognition and Enforcement of
Foreign Judgments in Civil and Commercial Matters, can only exceptionally justify
the international recognition and enforcement of judgments,
Convinced that the principles upon which this Protocol is founded shall prevail both
in Supplementary Agreements which will be concluded under Article 21 of the said
Convention and in other Conventions to be concluded in the future,
Have resolved to conclude a Protocol to this end, and agreed on the following
provisions:
(1) This Protocol shall apply to all foreign decisions, regardless of their State of
origin, rendered in matters to which the Convention on the Recognition and
Enforcement of Foreign Judgments in Civil and Commercial Matters extends, and
directed against a person having his domicile or habitual residence in a Contracting
State.
(2) Recognition and enforcement of a decision to which Article 1 applies shall in a
Contracting State be refused at the request of the person against whom recognition
or enforcement is sought, where the decision was based, and in the circumstances
could have been based, only on one or more of the grounds of jurisdiction specified
in Article 4.
Recognition and enforcement need not, however, be refused where the jurisdiction
of the court of the State of origin could in the circumstances also have been based
upon another ground of jurisdiction which, as between the State of origin and the
State of recognition, is sufficient to justify recognition and enforcement.
(3) Contracting States for the purposes of Articles 1 and 2 are States which are
Parties to the Convention, and are linked by a Supplementary Agreement in
accordance with Article 21 thereof.
(4) The grounds of jurisdiction referred to in the first paragraph of Article 2 are the
following -
a) the presence in the territory of the State of origin of property belonging to the
defendant, or the seisure by the plaintiff of property situated there, unless -
- the action is brought to assert proprietary or possessory rights in that property, or
arises from another issue relating to such property,
Kirsten DB Habawel-Vega
- the property constitutes the security for a debt which is the subject-matter of the
action;
b) the nationality of the plaintiff;
c) the domicile, habitual residence or ordinary residence of the plaintiff within the
territory of the State of origin unless the assumption of jurisdiction on such a
ground is permitted by way of an exception made on account of the particular
subject-matter of a class of contracts;
d) the fact that the defendant carried on business within the territory of the State of
origin, unless the action arises from that business;
e) service of a writ upon the defendant within the territory of the State of origin
during his temporary presence there;
f) a unilateral specification of the forum by the plaintiff, particularly in an invoice.
(5) A legal person shall be considered to have its domicile or habitual residence
where it has its seat, its place of incorporation, or its principal place of business.
(6) This Protocol shall not prevail over present or future Conventions which, in
relation to special fields, provide for any of the grounds of jurisdiction specified in
Article 4.
(7) This Protocol applies subject to the provisions of existing Conventions relating
to the recognition and enforcement of foreign judgments.
(8) In Supplementary Agreements concluded in accordance with Article 21 of the
Convention on the Recognition and Enforcement of Foreign Judgments in Civil and
Commercial Matters, States Parties to those Agreements will not regard a court as
possessing jurisdiction when it has proceeded on one or more of the grounds of
jurisdiction specified in Article 4, unless it is necessary to do so to prevent a denial
of justice to a litigant.
(9) The present Protocol shall be open for signature by every State which has signed
the Hague Convention on the Recognition and Enforcement of Foreign Judgments in
Civil and Commercial Matters.
It may be signed and ratified by every State which is a Party to the Convention, and
the instrument of ratification shall be deposited with the Ministry of Foreign Affairs
of the Netherlands which shall give all necessary notifications.
It shall enter into force on the sixtieth day after the deposit of the second instrument
of ratification.
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
For every State which ratifies it subsequently it shall enter into force on the sixtieth
day after the deposit of the instrument of ratification.
A denunciation of the Convention entails the denunciation of the Protocol.
In witness whereof the undersigned, being duly authorised thereto, have signed this
Protocol.
Done at The Hague, on the first day of February, 1971, in the English and French
languages, both texts being equally authentic, in a single copy which shall be
deposited in the archives of the Government of the Netherlands and of which a
certified copy shall be sent, through the diplomatic channel, to each of the States
represented at the Tenth Session of the Hague Conference on Private International
Law, and to Cyprus, Iceland and Malta.
1993 Convention in Respect of Inter-Country Adoption
CONVENTION ON PROTECTION OF CHILDREN AND CO-OPERATION IN RESPECT OF
INTERCOUNTRY ADOPTION
(Concluded 29 May 1993)
The States signatory to the present Convention,
Recognising that the child, for the full and harmonious development of his or her
personality, should grow up in a family environment, in an atmosphere of
happiness, love and understanding,
Recalling that each State should take, as a matter of priority, appropriate measures
to enable the child to remain in the care of his or her family of origin,
Recognising that intercountry adoption may offer the advantage of a permanent
family to a child for whom a suitable family cannot be found in his or her State of
origin,
Convinced of the necessity to take measures to ensure that intercountry adoptions
are made in the best interests of the child and with respect for his or her
fundamental rights, and to prevent the abduction, the sale of, or traffic in children,
Desiring to establish common provisions to this effect, taking into account the
principles set forth in international instruments, in particular the United Nations
Convention on the Rights of the Child, of 20 November 1989, and the United Nations
Declaration on Social and Legal Principles relating to the Protection and Welfare of
Kirsten DB Habawel-Vega
Children, with Special Reference to Foster Placement and Adoption Nationally and
Internationally (General Assembly Resolution 41/85, of 3 December 1986),
Have agreed upon the following provisions -
CHAPTER I - SCOPE OF THE CONVENTION
Article 1
The objects of the present Convention are -
a) to establish safeguards to ensure that intercountry adoptions take place in the
best interests of the child and with respect for his or her fundamental rights as
recognised in international law;
b) to establish a system of co-operation amongst Contracting States to ensure that
those safeguards are respected and thereby prevent the abduction, the sale of, or
traffic in children;
c) to secure the recognition in Contracting States of adoptions made in accordance
with the Convention.
Article 2
(1) The Convention shall apply where a child habitually resident in one Contracting
State ("the State of origin") has been, is being, or is to be moved to another
Contracting State ("the receiving State") either after his or her adoption in the State
of origin by spouses or a person habitually resident in the receiving State, or for the
purposes of such an adoption in the receiving State or in the State of origin.
(2) The Convention covers only adoptions which create a permanent parent-child
relationship.
Article 3
The Convention ceases to apply if the agreements mentioned in Article 17, sub-
paragraph c, have not been given before the child attains the age of eighteen years.
CHAPTER II - REQUIREMENTS FOR INTERCOUNTRY ADOPTIONS
Article 4
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
An adoption within the scope of the Convention shall take place only if the
competent authorities of the State of origin -
a) have established that the child is adoptable;
b) have determined, after possibilities for placement of the child within the State of
origin have been given due consideration, that an intercountry adoption is in the
child's best interests;
c) have ensured that
(1) the persons, institutions and authorities whose consent is necessary for
adoption, have been counselled as may be necessary and duly informed of the
effects of their consent, in particular whether or not an adoption will result in the
termination of the legal relationship between the child and his or her family of
origin,
(2) such persons, institutions and authorities have given their consent freely, in the
required legal form, and expressed or evidenced in writing,
(3) the consents have not been induced by payment or compensation of any kind
and have not been withdrawn, and
(4) the consent of the mother, where required, has been given only after the birth of
the child; and
d) have ensured, having regard to the age and degree of maturity of the child, that
(1) he or she has been counselled and duly informed of the effects of the adoption
and of his or her consent to the adoption, where such consent is required,
(2) consideration has been given to the child's wishes and opinions,
(3) the child's consent to the adoption, where such consent is required, has been
given freely, in the required legal form, and expressed or evidenced in writing, and
(4) such consent has not been induced by payment or compensation of any kind.
Article 5
An adoption within the scope of the Convention shall take place only if the
competent authorities of the receiving State -
a) have determined that the prospective adoptive parents are eligible and suited to
adopt;
Kirsten DB Habawel-Vega
b) have ensured that the prospective adoptive parents have been counselled as may
be necessary; and
c) have determined that the child is or will be authorised to enter and reside
permanently in that State.
CHAPTER III - CENTRAL AUTHORITIES AND ACCREDITED BODIES
Article 6
(1) A Contracting State shall designate a Central Authority to discharge the duties
which are imposed by the Convention upon such authorities.
(2) Federal States, States with more than one system of law or States having
autonomous territorial units shall be free to appoint more than one Central
Authority and to specify the territorial or personal extent of their functions. Where a
State has appointed more than one Central Authority, it shall designate the Central
Authority to which any communication may be addressed for transmission to the
appropriate Central Authority within that State.
Article 7
(1) Central Authorities shall co-operate with each other and promote co-operation
amongst the competent authorities in their States to protect children and to achieve
the other objects of the Convention.
(2) They shall take directly all appropriate measures to -
a) provide information as to the laws of their States concerning adoption and other
general information, such as statistics and standard forms;
b) keep one another informed about the operation of the Convention and, as far as
possible, eliminate any obstacles to its application.
Article 8
Central Authorities shall take, directly or through public authorities, all appropriate
measures to prevent improper financial or other gain in connection with an
adoption and to deter all practices contrary to the objects of the Convention.
Article 9
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
Central Authorities shall take, directly or through public authorities or other bodies
duly accredited in their State, all appropriate measures, in particular to -
a) collect, preserve and exchange information about the situation of the child and
the prospective adoptive parents, so far as is necessary to complete the adoption;
b) facilitate, follow and expedite proceedings with a view to obtaining the adoption;
c) promote the development of adoption counselling and post-adoption services in
their States;
d) provide each other with general evaluation reports about experience with
intercountry adoption;
e) reply, in so far as is permitted by the law of their State, to justified requests from
other Central Authorities or public authorities for information about a particular
adoption situation.
Article 10
Accreditation shall only be granted to and maintained by bodies demonstrating
their competence to carry out properly the tasks with which they may be entrusted.
Article 11
An accredited body shall -
a) pursue only non-profit objectives according to such conditions and within such
limits as may be established by the competent authorities of the State of
accreditation;
b) be directed and staffed by persons qualified by their ethical standards and by
training or experience to work in the field of intercountry adoption; and
c) be subject to supervision by competent authorities of that State as to its
composition, operation and financial situation.
Article 12
A body accredited in one Contracting State may act in another Contracting State only
if the competent authorities of both States have authorised it to do so.
Article 13
Kirsten DB Habawel-Vega
The designation of the Central Authorities and, where appropriate, the extent of
their functions, as well as the names and addresses of the accredited bodies shall be
communicated by each Contracting State to the Permanent Bureau of the Hague
Conference on Private International Law.
CHAPTER IV - PROCEDURAL REQUIREMENTS IN INTERCOUNTRY ADOPTION
Article 14
Persons habitually resident in a Contracting State, who wish to adopt a child
habitually resident in another Contracting State, shall apply to the Central Authority
in the State of their habitual residence.
Article 15
(1) If the Central Authority of the receiving State is satisfied that the applicants are
eligible and suited to adopt, it shall prepare a report including information about
their identity, eligibility and suitability to adopt, background, family and medical
history, social environment, reasons for adoption, ability to undertake an
intercountry adoption, as well as the characteristics of the children for whom they
would be qualified to care.
(2) It shall transmit the report to the Central Authority of the State of origin.
Article 16
(1) If the Central Authority of the State of origin is satisfied that the child is
adoptable, it shall -
a) prepare a report including information about his or her identity, adoptability,
background, social environment, family history, medical history including that of the
child's family, and any special needs of the child;
b) give due consideration to the child's upbringing and to his or her ethnic, religious
and cultural background;
c) ensure that consents have been obtained in accordance with Article 4; and
d) determine, on the basis in particular of the reports relating to the child and the
prospective adoptive parents, whether the envisaged placement is in the best
interests of the child.
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
(2) It shall transmit to the Central Authority of the receiving State its report on the
child, proof that the necessary consents have been obtained and the reasons for its
determination on the placement, taking care not to reveal the identity of the mother
and the father if, in the State of origin, these identities may not be disclosed.
Article 17
Any decision in the State of origin that a child should be entrusted to prospective
adoptive parents may only be made if -
a) the Central Authority of that State has ensured that the prospective adoptive
parents agree;
b) the Central Authority of the receiving State has approved such decision, where
such approval is required by the law of that State or by the Central Authority of the
State of origin;
c) the Central Authorities of both States have agreed that the adoption may
proceed; and
d) it has been determined, in accordance with Article 5, that the prospective
adoptive parents are eligible and suited to adopt and that the child is or will be
authorised to enter and reside permanently in the receiving State.
Article 18
The Central Authorities of both States shall take all necessary steps to obtain
permission for the child to leave the State of origin and to enter and reside
permanently in the receiving State.
Article 19
(1) The transfer of the child to the receiving State may only be carried out if the
requirements of Article 17 have been satisfied.
(2) The Central Authorities of both States shall ensure that this transfer takes place
in secure and appropriate circumstances and, if possible, in the company of the
adoptive or prospective adoptive parents.
(3) If the transfer of the child does not take place, the reports referred to in Articles
15 and 16 are to be sent back to the authorities who forwarded them.
Article 20
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The Central Authorities shall keep each other informed about the adoption process
and the measures taken to complete it, as well as about the progress of the
placement if a probationary period is required.
Article 21
(1) Where the adoption is to take place after the transfer of the child to the
receiving State and it appears to the Central Authority of that State that the
continued placement of the child with the prospective adoptive parents is not in the
child's best interests, such Central Authority shall take the measures necessary to
protect the child, in particular -
a) to cause the child to be withdrawn from the prospective adoptive parents and to
arrange temporary care;
b) in consultation with the Central Authority of the State of origin, to arrange
without delay a new placement of the child with a view to adoption or, if this is not
appropriate, to arrange alternative long-term care; an adoption shall not take place
until the Central Authority of the State of origin has been duly informed concerning
the new prospective adoptive parents;
c) as a last resort, to arrange the return of the child, if his or her interests so
require.
(2) Having regard in particular to the age and degree of maturity of the child, he or
she shall be consulted and, where appropriate, his or her consent obtained in
relation to measures to be taken under this Article.
Article 22
(1) The functions of a Central Authority under this Chapter may be performed by
public authorities or by bodies accredited under Chapter III, to the extent permitted
by the law of its State.
(2) Any Contracting State may declare to the depositary of the Convention that the
functions of the Central Authority under Articles 15 to 21 may be performed in that
State, to the extent permitted by the law and subject to the supervision of the
competent authorities of that State, also by bodies or persons who -
a) meet the requirements of integrity, professional competence, experience and
accountability of that State; and
b) are qualified by their ethical standards and by training or experience to work in
the field of intercountry adoption.
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
(3) A Contracting State which makes the declaration provided for in paragraph 2
shall keep the Permanent Bureau of the Hague Conference on Private International
Law informed of the names and addresses of these bodies and persons.
(4) Any Contracting State may declare to the depositary of the Convention that
adoptions of children habitually resident in its territory may only take place if the
functions of the Central Authorities are performed in accordance with paragraph 1.
(5) Notwithstanding any declaration made under paragraph 2, the reports provided
for in Articles 15 and 16 shall, in every case, be prepared under the responsibility of
the Central Authority or other authorities or bodies in accordance with paragraph 1.
CHAPTER V - RECOGNITION AND EFFECTS OF THE ADOPTION
Article 23
(1) An adoption certified by the competent authority of the State of the adoption as
having been made in accordance with the Convention shall be recognised by
operation of law in the other Contracting States. The certificate shall specify when
and by whom the agreements under Article 17, sub-paragraph c), were given.
(2) Each Contracting State shall, at the time of signature, ratification, acceptance,
approval or accession, notify the depositary of the Convention of the identity and
the functions of the authority or the authorities which, in that State, are competent
to make the certification. It shall also notify the depositary of any modification in the
designation of these authorities.
Article 24
The recognition of an adoption may be refused in a Contracting State only if the
adoption is manifestly contrary to its public policy, taking into account the best
interests of the child.
Article 25
Any Contracting State may declare to the depositary of the Convention that it will
not be bound under this Convention to recognise adoptions made in accordance
with an agreement concluded by application of Article 39, paragraph 2.
Article 26
(1) The recognition of an adoption includes recognition of
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a) the legal parent-child relationship between the child and his or her adoptive
parents;
b) parental responsibility of the adoptive parents for the child;
c) the termination of a pre-existing legal relationship between the child and his or
her mother and father, if the adoption has this effect in the Contracting State where
it was made.
(2) In the case of an adoption having the effect of terminating a pre-existing legal
parent-child relationship, the child shall enjoy in the receiving State, and in any
other Contracting State where the adoption is recognised, rights equivalent to those
resulting from adoptions having this effect in each such State.
(3) The preceding paragraphs shall not prejudice the application of any provision
more favourable for the child, in force in the Contracting State which recognises the
adoption.
Article 27
(1) Where an adoption granted in the State of origin does not have the effect of
terminating a pre-existing legal parent-child relationship, it may, in the receiving
State which recognises the adoption under the Convention, be converted into an
adoption having such an effect -
a) if the law of the receiving State so permits; and
b) if the consents referred to in Article 4, sub-paragraphs c and d, have been or are
given for the purpose of such an adoption.
(2) Article 23 applies to the decision converting the adoption.
CHAPTER VI - GENERAL PROVISIONS
Article 28
The Convention does not affect any law of a State of origin which requires that the
adoption of a child habitually resident within that State take place in that State or
which prohibits the child's placement in, or transfer to, the receiving State prior to
adoption.
Article 29
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
There shall be no contact between the prospective adoptive parents and the child's
parents or any other person who has care of the child until the requirements of
Article 4, sub-paragraphs a) to c), and Article 5, sub-paragraph a), have been met,
unless the adoption takes place within a family or unless the contact is in
compliance with the conditions established by the competent authority of the State
of origin.
Article 30
(1) The competent authorities of a Contracting State shall ensure that information
held by them concerning the child's origin, in particular information concerning the
identity of his or her parents, as well as the medical history, is preserved.
(2) They shall ensure that the child or his or her representative has access to such
information, under appropriate guidance, in so far as is permitted by the law of that
State.
Article 31
Without prejudice to Article 30, personal data gathered or transmitted under the
Convention, especially data referred to in Articles 15 and 16, shall be used only for
the purposes for which they were gathered or transmitted.
Article 32
(1) No one shall derive improper financial or other gain from an activity related to
an intercountry adoption.
(2) Only costs and expenses, including reasonable professional fees of persons
involved in the adoption, may be charged or paid.
(3) The directors, administrators and employees of bodies involved in an adoption
shall not receive remuneration which is unreasonably high in relation to services
rendered.
Article 33
A competent authority which finds that any provision of the Convention has not
been respected or that there is a serious risk that it may not be respected, shall
immediately inform the Central Authority of its State. This Central Authority shall be
responsible for ensuring that appropriate measures are taken.
Article 34
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If the competent authority of the State of destination of a document so requests, a
translation certified as being in conformity with the original must be furnished.
Unless otherwise provided, the costs of such translation are to be borne by the
prospective adoptive parents.
Article 35
The competent authorities of the Contracting States shall act expeditiously in the
process of adoption.
Article 36
In relation to a State which has two or more systems of law with regard to adoption
applicable in different territorial units -
a) any reference to habitual residence in that State shall be construed as referring
to habitual residence in a territorial unit of that State;
b) any reference to the law of that State shall be construed as referring to the law in
force in the relevant territorial unit;
c) any reference to the competent authorities or to the public authorities of that
State shall be construed as referring to those authorised to act in the relevant
territorial unit;
d) any reference to the accredited bodies of that State shall be construed as
referring to bodies accredited in the relevant territorial unit.
Article 37
In relation to a State which with regard to adoption has two or more systems of law
applicable to different categories of persons, any reference to the law of that State
shall be construed as referring to the legal system specified by the law of that State.
Article 38
A State within which different territorial units have their own rules of law in respect
of adoption shall not be bound to apply the Convention where a State with a unified
system of law would not be bound to do so.
Article 39
(1) The Convention does not affect any international instrument to which
Contracting States are Parties and which contains provisions on matters governed
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
by the Convention, unless a contrary declaration is made by the States Parties to
such instrument.
(2) Any Contracting State may enter into agreements with one or more other
Contracting States, with a view to improving the application of the Convention in
their mutual relations. These agreements may derogate only from the provisions of
Articles 14 to 16 and 18 to 21. The States which have concluded such an agreement
shall transmit a copy to the depositary of the Convention.
Article 40
No reservation to the Convention shall be permitted.
Article 41
The Convention shall apply in every case where an application pursuant to Article
14 has been received after the Convention has entered into force in the receiving
State and the State of origin.
Article 42
The Secretary General of the Hague Conference on Private International Law shall at
regular intervals convene a Special Commission in order to review the practical
operation of the Convention.
CHAPTER VII - FINAL CLAUSES
Article 43
(1) The Convention shall be open for signature by the States which were Members
of the Hague Conference on Private International Law at the time of its Seventeenth
Session and by the other States which participated in that Session.
(2) It shall be ratified, accepted or approved and the instruments of ratification,
acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the
Kingdom of the Netherlands, depositary of the Convention.
Article 44
(1) Any other State may accede to the Convention after it has entered into force in
accordance with Article 46, paragraph 1.
(2) The instrument of accession shall be deposited with the depositary.
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(3) Such accession shall have effect only as regards the relations between the
acceding State and those Contracting States which have not raised an objection to its
accession in the six months after the receipt of the notification referred to in sub-
paragraph b) of Article 48. Such an objection may also be raised by States at the time
when they ratify, accept or approve the Convention after an accession. Any such
objection shall be notified to the depositary.
Article 45
(1) If a State has two or more territorial units in which different systems of law are
applicable in relation to matters dealt with in the Convention, it may at the time of
signature, ratification, acceptance, approval or accession declare that this
Convention shall extend to all its territorial units or only to one or more of them and
may modify this declaration by submitting another declaration at any time.
(2) Any such declaration shall be notified to the depositary and shall state expressly
the territorial units to which the Convention applies.
(3) If a State makes no declaration under this Article, the Convention is to extend to
all territorial units of that State.
Article 46
(1) The Convention shall enter into force on the first day of the month following the
expiration of three months after the deposit of the third instrument of ratification,
acceptance or approval referred to in Article 43.
(2) Thereafter the Convention shall enter into force -
a) for each State ratifying, accepting or approving it subsequently, or acceding to it,
on the first day of the month following the expiration of three months after the
deposit of its instrument of ratification, acceptance, approval or accession;
b) for a territorial unit to which the Convention has been extended in conformity
with Article 45, on the first day of the month following the expiration of three
months after the notification referred to in that Article.
Article 47
(1) A State Party to the Convention may denounce it by a notification in writing
addressed to the depositary.
(2) The denunciation takes effect on the first day of the month following the
expiration of twelve months after the notification is received by the depositary.
Where a longer period for the denunciation to take effect is specified in the
Conflict of Laws AY 2017-2018 2nd Sem Atty. Ron P. Salo, LLB, LLM
notification, the denunciation takes effect upon the expiration of such longer period
after the notification is received by the depositary.
Article 48
The depositary shall notify the States Members of the Hague Conference on Private
International Law, the other States which participated in the Seventeenth Session
and the States which have acceded in accordance with Article 44, of the following -
a) the signatures, ratifications, acceptances and approvals referred to in Article 43;
b) the accessions and objections raised to accessions referred to in Article 44;
c) the date on which the Convention enters into force in accordance with Article 46;
d) the declarations and designations referred to in Articles 22, 23, 25 and 45;
e) the agreements referred to in Article 39;
f) the denunciations referred to in Article 47.
In witness whereof the undersigned, being duly authorised thereto, have signed this
Convention.
Done at The Hague, on the 29th day of May 1993, in the English and French
languages, both texts being equally authentic, in a single copy which shall be
deposited in the archives of the Government of the Kingdom of the Netherlands, and
of which a certified copy shall be sent, through diplomatic channels, to each of the
States Members of the Hague Conference on Private International Law at the date of
its Seventeenth Session and to each of the other States which participated in that
Session.
4. Various Cases
5. Chesire & North’s Private International Law, North & Fawcett, 13th
Edition (2004)
6. Conflict of Laws, Coquia & Aguiling-Pagalangan (2000)
Handbook on Conflict of Laws, Sempio-Diy (200
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