ILICAN, JULIOUS CAESAR C.

Conflict of Laws Assignment No. 3

I. Personal law theories in determining one’s personal law

Answer:

The different theories of Personal Law are the following:

1. The Nationality Theory or Personal Theory

It is the theory by virtue of which the status and capacity of a person is

determined by the law of his nationality or his national law.

The personal law of an individual is his national law. This theory is

mostly by civil law countries like the Philippines where the identity and legal
position of their citizens are guaranteed by a consistent application by their
national laws on status and family relations wherever they may go.

Laws relating to family rights and duties, or to status, condition, and

capacity of persons are binding upon citizens of the Philippines even though
abroad.

2. The Domiciliary Theory or Territorial Theory/ Lex Domicilli

It is the theory by virtue of which the status and capacity of a person is

determined by the law of his domicile.

Adopted mostly by common law countries with population consisting of

different nationalities. Their unity may be achieved by adopting the law of their
domicile.

3. The Situs or Eclectic Theory

It is the theory which views the particular place or situs of an event or

transaction is generally the controlling law.

There are two (2) kinds of participation of the individual concerned.

First, Active if the person acts voluntarily, the governing law is the law of the
actual situs of the transaction or event. Second, Passive when the effects of
the act are set forth or determined by law, the governing law is the law of the
legal situs (i.e. the domicile of the individual concerned).
II. Categories in Conflicts of laws

A. Status and Capacity

Status is the place of an individual in society, and consists of personal

qualities and relationships, more or less permanent, with which the state and
the community are concerned. It includes the civil status of a person (whether
he is single, married, widowed, or divorced); whether he is a minor or has
reached the age of majority; whether he has the capacity to enter into various
transactions. It also includes his name, sex, and has profession in certain
(whether he is a lawyer or a doctor, or a judge or an appellate justice)

Capacity, on the other hand, is only part of one’s status and may be
defined as the sum total of his rights and obligations.

Under our Civil Code, there are two (2) kinds of capacity:

a) juridical capacity (passive capacity)-which is the fitness yo be the

subject of legal relations; and

b) capacity tto act (active capacity)- which is the power to do acts with
effects,

A baby has juridical capacity, but it has no capacity to act.

B. Marriage

Answer:

Of all domestic relations, marriage is the most important. The validity of

marriage contracted in one State may be at issue in another State in cases of
annulment, actions for support and custody of children, proceedings involving
legitimacy of children, tax cases, divorce suits, inheritance problems, or criminal
prosecution for bigamy.

C. Status of Children

Answer:

The conflict rules in determining legitimacy of children are the following:

a. If the parents are of the same nationality, their common personal law,
whether their national law or the law of their domicile, will be applied.

If the parents are of different nationalities, the personal law of the

father governs.

b. In the Philippines, since we follow the nationality theory, the common

national law of the father governs.
D. Wills, Succession and Administration of Estate of Deceased Persons

Answer:

There are two (2) theories or systems in determining the proper law for the
transmission of successional rights, the unitary or single system, and the split or
scission system.

Under the unitary or single systems, only one law determines transmission of
real as well as personal properties. In countries following the nationality theory like
the Philippines, the national law of the deceased governs the transmission of both
real as well as personal properties, while in common law countries or countries that
follow the domiciliary theory, it is the law of the domicile of the deceased that
governs.

Under the split or scission system, which England and the United States
adopt, succession to real property is governed by the lex situs, while succession to
movable or personal property is governed by the law of the domicile of the
deceased the time of his death.

There are two kinds of validity when we talk about validity of wills. First, the
extrinsic validity, which deals with the terms and solemnities in the making of wills,
which include the age and testamentary capacity of the testator and the form of the
wlll. The second is Intrinsic validity, which concerns itself with the order of
succession, the amount of successional rights each heir gets, and such other
matters that fall under the terms “substance” as distinguished from “forms and
solemnities, “ of wills.

The conflicts rule on the administration of estate of deceased persons are the
following:

a. By “administration” is meant the process of determining and realizing the

assets of a deceased person, the payment of the debts of the estate, and the actual
distribution of the residue to the fheirs.

b. Like probate, administration is procedural in nature. Therefore, it is the lex

fori that governs, not the law that determines how the estate of the deceased is to be
distributed.

c. In charge of the administration is an executor (if none is appointed by the

testator in his will) an administrator with a will annexed (one who is appointed by the
court if there is a will but no executor is designated therein) or an administrator (if
tnere is no will, the court appoints an administrator of the estate of the deceased.

d. The executor is qualified, and the administrator of the estate is appointed,

by the country where the deceased was domiciled at the time of his death; or if he
was a non-domiciliary, the country where his properties are found.
 e. The rights, powers and duties of the executor pr adminmistrator are
coextensive with the territorial jurisdiction of the court that qualified or appointed him.

f. Administrator granted in the country of the deceased’s last domicile is called

principall domiciliary administration, administration in other countries where the
deceased also left properties is called ancillary administration.

E. Property

Answer:

Almost all legal systems adopt the lex situs or lex rei sitae. i.e. the law of the
place where the property is located or situated, with respect to real property.

F. Contracts

Answer:

G. Torts

Answer:

H. Crimes

Answer:

I. Business Associations