Lex Loci Celebrationis and Summary of Conflict of Laws

 

Persons 11: Lex Loci Celebrationis and Summary of Conflict of Laws (lexinmotion)

Art. 17 of the Civil Code provides that, “The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed.” - this paragraph introduces the concept of lex loci celebrationis - or in plain English, law of the place of the contract. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed.

A short provision under Art. 804 of the Civil Code: “Every will must be in writing and executed in a language or dialect known to the testator.” - may be used to the question as to whether a proxy marriage held in Mexico is valid in the Philippines

An oral will is not valid under Philippine law because of the express provision of 804.

Another example is Art. 808 of the Civil Code; this provision requires that if the testator who is making the will is blind/cannot read, the law requires that the will should be read to him twice. (First read: one of the witnesses; Second read: notario publico)

Art. 815 of the Civil Code provides that, “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.” 

“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.”

When a person chooses to or is required by law to execute an act before the diplomatic or consular officials of our country and the execution of the act must happen abroad, then by way of exception, the solemnities of Philippine laws have to be observed.

“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.”

The third paragraph is a reiteration of our previous discussion on Art. 26 of the Family Code. There is a law prohibiting an act in the Philippines then the act cannot be given legal effect in the Philippines even if the act is valid there as such. (The absolute divorce in the case of Minoro Takahashi and Juliet Moran was obtained by both the Japanese husband and the Filipina wife.)

The Supreme Court lays down the prohibition on absolute divorces on Filipino spouses, even if they are obtained abroad. The Supreme Court ruled that, “for the Philippine courts to recognize and give recognition or effect to a foreign decree of absolute divorce between Filipino citizens could be a patent violation of the declared public policy of the state, specially in view of the third paragraph of Art. 17 of the Civil Code that prescribes the following:

Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, 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.

Even more, the grant of effectivity in this jurisdiction to such foreign divorce decrees would, in effect, give rise to an irritating and scandalous discrimination in favor of wealthy citizens, to the detriment of those members of our polity whose means do not permit them to sojourn abroad and obtain absolute divorces outside the Philippines.

 

The law of the forum means the law of the place where the conflict of law question is raised.

Mobilia sequuntur personam - a Latin maxim which means movables followed the person

Under this principle, personal property is governed by the law of the person, or more accurately, the movable is governed by the law of the owner. If the owner is bound by the law of his domicile, then the movables have to be governed by the law of the domicile.

Filipinos’ personal properties are governed by Philippine law by express provision of Art. 16 of the Civil Code.

Lex loci contractus - the law of the contract between the parties

The nature, construction or interpretation of the contract and its validity is determined by the law of the contract or lex loci contractus

-       Generally applied between two persons who are not from the same state

-       The law of the contract between two parties can be validly agreed upon and in this case it is called lex loci voluntatis

-       It can also be the contract that is implicitly or explicitly intended by the parties to a contract

Lex loci intentionem, their contracts specifically provides that in case of conflict it is the law of Singapore that will be applied.

Concept of Renvoi - means that a court in one jurisdiction will dismiss the case there and refer it to the case of another state because the law of the other state should be the applicable law.

 E.g. Two Filipinos suing each other in California. Because of lex loci rei sitae, the court of California passes the case from the US to a regional trial court in Bukidnon; that is called single renvoi.

If the regional trial court in Bukidnon refuses to hear the case and refers it back to California, then this is called double renvoi.

Case of Aznar vs. Garcia