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Article 9 Article 9 - allows to take or make use of other sources.

What is
- This governs the situation when the situation is obscure or the important there is, THE COURT SHOULD NOT DECLINE
law is insufficient. There is actually absence of the law capable TO RENDER JUDGMENT. It is not an option for them to
in the given fats of the case, because human problem is so many decline on rendering judgment.
and varied that it cannot possibly be addressed by the existing
law. Because of the complexity of human society and human Article 10
relation, so are are human problems, we cannot expect that all
human problems can be addressed by present laws. - provides a rule where there is doubt as to the application and
interpretation of a law. Not all laws are perfectly crafted, in most
So what is the court supposed to do if in the gien problem the cases those are susceptible to various interpretation, these
facts of the case, there is really no law applies squarely to facts various interpretations could lead to doubts, as to which is the
of the case. Is the court supposed to refuse to render judgment correct and proper interpretation of the law.
because there is no law applicable?
This may be addressed by Article 9 of the Civil Code. It So what is the court supposed to do when there is doubt, it
provides that no court or judges should decline to render in case entertains doubts as to the application of the certain law?
of absence or obscurity of insufficiency of laws. So the question - By virtue of Article 10, the court, in the case of doubt
is, how is the court of the judges supposed to render judgment should presume right and justice to prevail. If the court has to
and serve the ends of justice when there is no law applicable or interpret a particular provision of a law, it should always bear in
where the law is obscure or when the law is insufficient? When mind that the purpose of a particular law is right and justice.
this happens, when the facts of the case cannot squarely So its decision, its interpretation and its application of
addressed by the existing law, the court may resort to sources, so particular law should be guided by sense of justice of what is
decisions can be based not only on laws and jurisprudence but right and what is just.
on some other secondary sources. But this only applies in the
absence of law or in cases when there is obscurity and Karen Salvacion vs Central Bank of the Philippines
insufficiency in the law.
Facts: This involves abduction and rape of a 12 year old by a
What could be this other secondary sources: foreigner, a visiting foreigner, an Italian. During the pendency of
1. The court may refer to opinions of writers and authors. the trial for the criminal case, the accused (foreigner) jumped
Their opinions carry weight, opinions of experts, the bail and evaded prosecution. And so the family of the victim file
opinion for certain matter, they will be resorted by the a separate civil action for damages arising from the same act or
court in rendering judgment. omission resulting of the crime. After the due trial of the
2. The court may also refer to decision in other but similar proceeding, the court rendered judgment in favor of the victim
or related cases. and awarded the victim certain amount as damage arising from
For example, the facts of the given case are not the crime.
exactly the same but similar to the facts to the other case When the decision sough to be enforced by the sheriff. The
and the Supreme Court had already rendered a decision in sheriff went to the China bank because the accused had maintain
so far in that other but similar case is concerned. The court a bank account there, the sheriff attempted to serve a notice of
may take effort in the decision in that other but similar garnishment for the satisfaction of the monetary judgment
case. Maybe the court may say “okay the decision in the rendered by the court in favor of the victim.
other case will be applied in this case” --- that can be done. The China Bank supported by the Central Bank refused to
3. Or the court may refer to decisions of foreign courts release the deposit pursuant to the provision of RA 6425
especially in this jurisdiction in the Philippines. otherwise known as “Foreign Currency Deposit Act” Both the
“We are fan of the justice system of the justice system China Bank and the Central Bank were uniform in their position
of the US. We are fan of, especially on novel question, we that the bank cannot be or the bank account of the accused
are fan of referring to jurisprudent, decisions decided by cannot be touch because pursuant to the provision of RA 6425
the courts of the US. So I would not be surprised be that foreign denominated foreign bank deposit are completely
surprised if done day someone will question the and absolutely confidential. It cannot be subject to garnishment,
constitutionality of the Family Code, requiring marriage to attachment or execution by the express provision of the law.
be solemnized between male and female. Someone would A literal application of RA 6425 would certainly defeat the
be bold enough to question the constitutionality of it judgment of the court to prejudice and victim because there is
provision. I would not be surprised if our courts will take no way by which the judgment can be enforced and there is no
cue on the decision of the Supreme Court on the matter way the victim and her family can collect the judgment of the
because Supreme Court of the United States has already court.
spoken on the matter. Any law that limits marriage to male
and female is unconstitutional. However, on the other So how did the Supreme Court resolved the issue:
hand, the culture of the Philippine society can also make Whether or not the provision of RA6425 can be or
difference. You will understand that our society is not as applicable to the case as to defeat the execution of the
liberal and matured as the society in the US. monetary judgment rendered in favor of the victim.
But my point is, our courts may always refer to Ruling: The Supreme Court ruled on Article 10 of the Civil
jurisprudence or decisions rendered by other courts on Code, the Supreme Court said when there is doubt as to the
SIMILAR CASE. application and application of the law, the court should presume
that the law making body intended right and justice to prevail.
So what was right and what was just under the given but a matter of custom - to use the middle name, the surname of
circumstances. According to the Supreme Court, what is right our mother as our middle name.
and just is for the child to be allowed to collect. That is the only ISSUE: Whether or not the adopted child be allowed to
way she can be given justice and right can be served on the part use the surname her biological mother as her own middle name
of the victim. in the absence of law that governs the use of middle name.

How did the Supreme Court justify or uphold the justice and How did the Supreme Court addressed this issue.
right in the decision of the case, Article 10 and so the Supreme HELD: The Supreme Court take cue from Article 10 of
Court went beyond the literal language of the provision of the the Civil Code. The Supreme Court said that there is doubt in
RA 6425. the application or interpretation of the law. So based on Article
TAKE NOTE: that the language of RA 6425 is so categorical 10, the court should now presume that the law making body
that foreign currency dominated deposits are actually and intended right and justice to prevail.
absolutely confidential and cannot be subject to garnishment and
attachment but the Supreme Court went beyond the the language How did the Supreme Court arrive in that decision?
or the literal language in order to serve and achieve what is right - Again, it inquired into the purpose of the adoption of the
and justice. law, it is said that the obvious purpose is that the adoptive law is
to elevated the status of the illegitimate children to the status of
But how did the Supreme Court justify that? the legitimate children, so as the equipt them to all the rights and
- the Supreme Court said, they had inquired to the purposed of privileges that legitimate child is enjoying.
RA 6425 and the objective sought by the legislature in enacting Under our custom, legitimate children use the surname of
the RA6425. It comes out that purpose of RA 6425 is their mother as their middle name, so the Supreme Court said, if
ECONOMIC. The intention being to encourage foreign the purpose of the adoption law is to level the playing field
depositors and investors to put in their money to the Philippines between the legitimate and illegitimate child, so that the
so that it can held make Philippine economy boost. There will illegitimate child be granted the same rights and privileges being
be enough money flooding the Philippine market for the benefit enjoyed by the legitimate child. It would not serve its end of
of the Philippine economy. So obviously, in order to serve as the justice if the illegitimate children, now the adopted children,
as a come-on to foreign depositors and lenders. The framers of now considered to be legitimate should not be allowed to use the
the law made that deposit absolutely confidential to serve surname of their mother as their middle name,
certain security to the prospective depositors. So the only way to achieve the justice and right is to allow
The intention of the law is to protect the prospective foreign the adopted child to enjoy the same privileges enjoyed by the
lender and depositors, it is not intended to protect transient legitimate and that is to use also the surname of their mother as
visitors who merely stay in a period of time in the Philippines their middle name.
because o that is the case, our country will have temporary
deposits and that will not serve that purpose o improving the Even if there is no law or specific law that governs that
economy. particular problem, the Supreme Court still able to render justice
And so in the end, the Supreme Court said, the provision of RA pursuant to Article 9 or 10 of the Civil Code.
6425 cannot be applied in the case, as to protect the accused to
prejudice the victim. Article 14 (Conflict of Laws)
In the end the Supreme Court said, justice and serve served only
by allowing the sheriff to collect and ordering the bank to Article 14 in relation to Article 2 of the Revised Penal Code,
release the deposit to satisfy the monetary judgment. Article 15, 16, 17 of the Civil Code ---- these are all called the
conflict of laws rules in the Philippines.
Christensen vs. Aznar- Garcia
This is actually a separate subject, private international law
This case involves a petition of adoption filed by the and conflict of law, a separate subject in your third year! (edi
illegitimate father to adopt his illegitimate daughter. After due wow hahahah)
proceeding, the trail court granted the petition for the adoption
but the problem was the name approved by the court is without It is said that a state is a country of laws. Society exist because
middle name, only the first name and the family name of the of laws but every sate has its own set of laws. That is the
adopting father. universal truth, that every country has its own set of laws and
But the father was not satisfied, the father wanted that the every set of laws is consist of two parts:
adopted daughter should also bear the surname o the her 1. The purely internal law
biological mother just as any legitimate daughter is allowed 2. And the so called conflict of laws rule
under the law. So the father went all the way up to the Supreme The conflict of laws rule are laws or rule that governs cases
Court insisting that her adoptive daughter should be allowed to involving foreign element so there is, if in case is invested with
use the surname of the mother as her middle name. foreign element, resolution of which will entails the application
The problem here is, and it was the predicament which of various laws of various countries. ---- that case is deemed to
confronted the trial court was that in our jurisdiction, there is be a case involving foreign element and therefore the resolution
really absence of a law that governs that use of middle name. of the case falls for the application of conflict of laws rule.
What we have in our civil code is the law governing the use of
surname but not the middle name. While it is rue that we usually But if on the other hand, the case is not invested with foreign
use the middle name for our name, this is not a matter of law, element but by parties of Filipinos, the contract is entered into in
the Philippines and the subject matter of the contract is located
in the Philippines, no foreign element is involved. This, is purely So, Generality therefore refers to the subject of our Penal
government by the internal law of the Philippines. Laws regardless of the nationality, so long as they are here in
our territory they are covered under our Criminal Law.
WHAT IS A CONFLICT OF LAWS RULES ON CRIME
Distinguished this from Territoriality Principle. They are
Our conflict of rules on crime is that stipulated or not the same. While Generality focuses on the subject, the
prescribed by Article 14 of the Civil Code and Article 2 of the people governed by Criminal Laws. Territoriality focuses on the
Revised Penal Code. jurisdiction over crimes committed. Now, under
Article 14 enunciates the principle of Generality and TERRITORIALITY PRINCIPLE, Philippine Courts has
Article 2 of the Revised Penal Code enunciate the Principle of Jurisdiction over crimes committed within the Philippine
Territoriality as a general rule and the rule of Protected Theory territory. So our court’s authority to try, prosecute and convict
as way of exception. offenders is limited only within our territorial jurisdiction. If a
crime is committed abroad, as a general rule under this principle
What is Generality, Territoriality and Protective Theory in our courts have no jurisdiction to try the offender.
Criminal Law?
That is why if a Filipino already married in the Philippines
Article 14 of the Civil Code provides that the penal laws and goes to Hongkong and despite the existence of his first marriage
those of public safety shall be obligatory upon those who contracts a subsequent marriage in Hongkong. The crime of
sojourn in the Philippines subject to the principle of public bigamy was committed in Hongkong outside of the Teritorrial
international law and treaty stipulation. jurisdiction of the Philippines, therefore when that Filipino
citizen who contracted second marriage in Hongkong comes
It is the principle of generality - this means to say that who ever back, he cannot be arrested and prosecuted before the Philippine
is in the Philippines whoever sojourns in the Philippines court because of the Principle of Territoriality. Because
regardless of nationality as a general rule is government the jurisdiction is coterminous with the territorial jurisdiction of the
criminal laws of the Philippines. court where it sits judgment of the case. So generally the
Principle of Territoriality, our courts can only exercise
Example: If a German comes here in the Philippines and visit jurisdiction over crimes committed within our territory. But
here girlfriend and then the German raped the Filipina that’s only the general rule because Article 2 of the Revised
girlfriend, the German cannot invoke as a defense that Penal Code provides for EXCEPTIONS. Article 2 (Revised
he cannot be held liable because he is a German citizen. Penal Code) enumerates 5 instances where our courts exercise
Under Article 14 of the Civil Code, it provides that jurisdiction over crimes even if committed outside of the
whoever is sojourning regardless of his nationality shall territory of the Philippines. It says in Article 2 that “The
be governed by the criminal laws of the Philippines. It is provisions of this code “Revised Penal Code” shall NOT only
mandatory to all, hence his nationality cannot be a be enforceable within the territory of the Philippines but also
defense. That is why it is called the principle of outside of its territory against those: “and then it is enumerated
generality because criminal law applies to all WHO there” (the exceptions here are consistent with the Protective
SOJOURN generally. Theory under Criminal Law)

The only exception are cases which are govern by the Principle What’s PROTECTIVE THEORY?
of Public International Law and treaty stipulation.
Under this principle the State who’se interests is prejudice
Example: Obama comes here in the Philippines and committed a by the crime has jurisdiction to try the offender and impose
crime - It is a crime but pursuant Public International penalty. While Territoriality Principle, the country within
Law, head of the states are immune of criminal who’se territory the crime is committed exercises jurisdiction.
arrest or prosecution in a country.
So, among the theories on Criminal Laws on Conflict of Laws
Example: Ordinary Filipino law committed the same crime as what we have here in the Philippines is Territoriality as a
committed by Obama - he can he arrested and prosecuted and general law and Protective theory as an Exception.
convicted in his country.
Another exception is person may be immune criminal What are these Exceptions pursuant to Protective Theory in
prosecution and arrest in a country pursuant to some provision Criminal Law?
of treaty stipulation.
- Those who commit an offense while in Philippine Ship
Example: US Bases Agreement (US - PH Agreement) or Airship. (Philippine Ship or Airship is considered to be an
= immunity of criminal arrest and prosecution in extension of the Philippine territory)
favor of military service men who commit crime within the
base. - Those who shall counterfeit or forge Philippine
currency or coin or obligation and securities. (So if a Filipino
The Principle of Generality does not apply if principles of works in Thailand counterfeits Philippine money there. If he
Public International Law or some Treaty Stipulations returns to the Philippine, He can be prosecuted. It is no defense
specifically providing the exceptions. to say that he did the counterfeiting outside the territory of the
Philippines because pursuant to the Protective Theory it is the pirates of the waters of Mindoro within the territorial sea of the
INTEREST of the Republic of the Philippines which was Philippines. From Mindoro, the Pirates brought the vessel to
prejudice by the act of counterfeiting its currency coin) Singapore and while in Singapore the pirates with the assistance
of other offenders in Singapore transferred the Petroleum
-Those who shall be guilty of any act in connection with product from the Phil Vessel to another Vessel. Subsequently the
the introduction of counterfeit or forge of coin or obligations pirates and other one involve in the crime where apprehended in
or securities. (So one may not be the one responsible for the the Philippines and prosecuted and after trial got convicted. One
forging and counterfeiting of Philippine obligations and of those convicted was a foreigner. A singaporean citizen who
securities, but he is guilty of acts in connection with attempting was convicted as accomplish. He was convicted but disatisfied
to bring in counterfeits and forge to the country. That is still of the judgment he appealed to the Supreme Court and in trying
cognizable by Philippine court even if the act is committed to get himself off the hook the Singaporean, He argued that the
outside of the territory) judgment of the Philippine Trial Court againts him is VOID for
LACK OF JURISDICTION because his participation occured
only in Singapore which is beyond the Territorial Jurisdiction of
-While being an officer or employee should commit any the Philippines invoking obviously the Principle of Territoriality.
act in exercise of his/her function. (So if Mayor Mike Rama
goes to US and with one reason or another pundles a breast of a How did the Supreme Court HELD:
beautiful sexy US citizen of a country. He cannot be prosecuted One, while the participation of the accused (alien) occurred
here in the Philippines because it was not done in the only in the waters of Territory of Singapore. It cannot be denied
performance of his functions. If however he did commit a crime that the crime started in the Philippines and completed in
while exercising his official function, that would be prosecutable Singapore. The participation of that alien though admittedly
even if committed outside our territory if he comes back. occurred only in Singapore is PART and PARCEL of the entire
Take NOTE: Not all public officials or employees can be Criminal Process. So he’s participation in Singapore cannot be
prosecuted under this provision only those who are incumbent separated from the entire criminal act which started in the
and the crime was committed in the exercise of his official Philippines. Therefore, pursuant to the subjective territoriality
function. Hence if the crime is committed in their personal principle of criminal law. Our court exercise jurisdiction over
capacity this provision does not apply) him even if act was committed beyond the Territorial
jurisdiction of this court.
-Those who shall commit any of the crimes defined
under Book 2 Title 1 of the Revised Penal Code or the So- Other than that, there are actually two justifications cited
called crimes against National Security or the Laws of by the SC in upholding the jurisdiction to try the alien offender.
Nation. (Treason, Proposal and Conspiracy to commit The accuse was prosecuted and accused for the charge of
treason, Espionage, Correspondence with hostile country, the crime of PIRACY and it is one of the crime defined as part
violation of neutrality, flight to an enemy country, Piracy) the crime committed against National Security and the Laws of
Nation which is an exception to the Principle of Territoriality. So
Take Note: that the Principle of Territoriality contemplates even if his involvement took place in Singapore under this
of two theories: principle he can still be tried and convicted by Philippine Court.
-SUBJECTIVE TERRITORIALITY
PRINCIPLE OBJECTIVE TERRITORIALITY PRINCIPLE
-OBJECTIVE TERRITORIALITY The Reverse. Under this theory crimes that started abroad
PPRINCIPLE but continued and completed in the Philippines may be tried by
out courts. So it doesn’t matter where the crime started so long
The ideal scenario which calls for the Territoriality as it continued and completed in the Philippines. Philippine
application in Criminal Law is when the crime; all the acts of court exercise criminal jurisdiction over the offender and over
execution are committed within the territory of the Philippines the crime. This was precisely the principle applied in the case of
then it is a No-Brainer that the crime is cognizable by the
Philippine Court. (U.S vs. BULL)
But a little complication may arise if “The acts of This involve the prosecution for violation of a Special Law
executions took place in some other countries and some other that mandates human treatment of animals. This is a law that
acts took place in the Philippines. Like the crime started abroad requires individuals who transport carabaos and similar animals
and completed in the Phlippines or Vice-versa.” to provide proper safety measures to ensure the safety of the
animals while in transit. The accused here Mr. Bull was the
How do you now apply the Principle of Territoriality? Captain of the Vessel which transported the animals from
So we have, SUBJECTIVE and OBJECTIVE Formosa. But when they arrived Philippine waters, they got
arrested and prosecuted before Philippine court. One of the
SUBJECTIVE TERRITORIALITY PRINCIPLE? arguments raised by the accused is the matter of Jurisdiction. He
This espouses the Principle that crimes started in the said that, the alleged crime was committed when the animals
Philippine even if completed abroad will still be under the were made to board the vessel while still in Formosa (Taiwan).
criminal jurisdiction of our courts. This was the Principle So jurisdiction is lodged in the Taiwan Court and not in the
applied in the case of Philippine Court.
(People Vs. Tulin)
In people Vs. Tulin, a Philippine Vessel was ceased by the HELD: But the Supreme Court said, while it may be true
that the crime started in Fromosa. It cannot be denied the the legal capacity should be determined by the Laws of Russia. That
crime was a CONTINUING OFFENSE when the crime was in assuming US adheres to domiciliary theory. But that’s not our
Formosa and enter the Philippine territory. So even if it started concern. Our concern is what the theory we adhere to in our
abroad it is still deemed committed within Philippine territory country. As what I said, our country adhere to the theory of
and pursuant to the Objective Principle territory, our court can Nationality theory - so if the issue is about status, condition,
therefore exercise jurisdiction over him and over the crime. family right and duties it should be determined by Philippine
So it doesn’t matter where it started and where it ended. So Law insofar as Filipinos are concerned. So if you are a Filipino
long as Philippine jurisdiction is a part of the crime our court you are married in the Philippines you go to Hongkong. You’re
exercise Territorial jurisdiction. status there is married in accordance with Philippine Law. If you
are a Filipino married here, you go to Hongkong, you cannot
QUESTION: What if the Foreign Court would like to then obtain a divorce in Hongkong against your Filipina wife
INTERVENE and take over the case? and even if you applied for divorce an such divorce was granted
ANSWER: We don’t care about Foreign Courts. If they would in Hongkong. That divorce decree obtain by Filipino abroad
like to prosecute the same offender in their own country that’s may not be validly recognized here in the Philippines because
not anymore our business. That’s not our concern. In sofar as we that is a matter of status and status insofar as Filipinos are
are concern, the only question that we need to ask is Whether we concerned is always governed by the Philippine Law and in the
have jurisdiction. Philippines divorce is not recognized.
As to wether they can Intervene, the answer is NO.
Because we are superior over our own territory. The general Take Note: Article 15 expressly mentioned FILIPINOS
rule is the Laws generate their authority from the State. Evry ONLY. “shall be binding upon citizens of the Philippine” It
nation’s Law or Laws is effective only within its Territory. Our does not say Foreigners, so obviously the literal language or
Laws do not take effect in another country in the same manner Article 15 limits only to Filipinos. Insofar as Filipinos, we are
that US laws, Russian Laws do not take effect in this country so always governed by our Philippine Law wherever we may go on
they could not intervene legally in any judicial proceeding that matters concerning Family rights and duties, status, condition
we have here. and legal capacity.
But ofcourse there are ways to Intervene. One of it is
POLITICAL INTERVENTION, they may do it through a So the question is does Article 15 extends to foreigners? So
diplomatic process like what we did with respect to Mary Jane that foreigners also insofar as our jurisdiction is concerned
Veloso that was convicted in Indonesia. We never intervened in issues concerning the family rights duties, status, conditions and
their Judicial Process there other than providing here maybe legal capacity should also be determine by their respective
with Legal Assistance but we never intervened in their process national laws?
until she got convicted. Presidnet Aquino not Interceded
requesting the President of Indonesia to spare the life of Ms. There is no Law in the Philippine sthat expressly provides
Veloso. That’s the most that we could do in the same manner that Foreigner should also be governed by the nationality theory.
that that’s the most the other country can do in so far as Judicial Obviously, we Filipinos, we adhere to the nationality theory by
process is concerned. So each county is superior in each own virtue of Article 15. But Article 15 expressly and literally limits
border. So our concern is NOT whether they can intervene or only to Filipino citizens. So the question is does that apply to
whether they can prosecute. Our only concern is whether in our foreigners? So that if a Foreigner comes here. Two Foreigners
own laws we can or we cannot prosecute. same sex marriage.

Article 15. Laws relating to family rights and duties or to Example: Ms. Gonzaga is married in Brazil to another woman.
status, conditions, or legal capacity of persons shall be They are married there legally because Brazil recognizes same
binding upon citizens of the Philippines although living sex marriage. They are all Brazillian citizen and they come here.
abroad. Are we also bound by Law to recognize them as Lawful spouse
when we do not recognize same sex marriage?
NATIONALITY THEORY - Article 15 enunciates the If Nationality theory covers foreigners, then logically they
nationality theory. It provides that insofar as the person’s family are legal spouse because by virtue of their own country in Brazil
rights and duties, his status, his conditions, his legal capacity; he they are legally married to each other. If we are to apply the
should be govern by his or her own National Law. Meaning the nationality theory in Article 15.
Law of the country wherein he is a national. That’s the personal If two Filipinos, lets say Ms. Gonzaga a Filipina and she
law of the individual insofar as Philippine jurisdiction is has a Filipina girlfriend and they go to Brazil and obtained same
concern. sex marriage there and valid in Brazil. They come back here.
Are we to recognize them as Lawful Spouse? DEFINITELY
DOMICILIARY THEORY - other countries adheres to NOT. Because article 15 syas, they are governed by Philippine
another Principle. Others agree to domiciliary theory. For them Lawin matters of status, conditions, legal capacity and family
personal Laws are determined by the individuals domicile. So rights and duties. And beung Filipinos, Philippine Law apply
for example in the U.S, the issue of status, capacity, conditions and under Philippine Law - we do ot recognize same sex
pursuant to their domiciliary theory. These are issues that have marriage.
to be determined by the laws of the country to which their
citizens are domiciled. So pursuant to this rule even if the Again, does Article 15 apply to foreigners as well? The
individual is a US citizen but he is domiciled in Russsia, any answer is YES. This was already settled in the old case of;
issue so as to his family rights and duties, status, condition and
Recto vs Harden Philippines. Although it may considered valid in Russia. The
Facts: Claro Recto was engaged by Mrs. Harden as her lawyer Filipino is governed by the Philippine law on his legal capacity
in connection with her intention to file a divorce against his and being 16 years old, he is minor even if he is of age under
husband in the US. The purpose was to protect the interest of Russian laws.
Mrs. Harden in the conjugal partnership. In the contract, Mrs.
Harden undertook Atty. Recto certain stipulated amount of Interesting Issues in recent years;
Attorney’s fees. But despite Atty. Recto’s services Mrs. Harden (1) validity of same sex marriage
refused to pay and so Atty. Recto was constrained to go into Ms. A, entered into a same-sex marriage comes to the
court in order to collect the attorney’s fees. One of the defenses Philippines. She applied an insurance policy that in case of
interposed by the Hardens was that the contract which stipulates death, her lawful spouse is the benificiary - $1M insurance
the attorney’s fees is void because it was entered into in policy. In case she dies, there might be issues as to the capacity
connection with the divorce. And so since the contract has of her spouse to get the benefits because it says there ‘lawful’
something to do with the divorce and since divorce is not valid spouse. And to consider a lawful spouse, our courts will have to
in the Philippines,it follows that the contract is void and cannot consider the validity of same sex marriage. How do we solve
be enforced. this?
Issue: WON the contract that stipulated the attorney’s fees is (2) Change of gender pursuant to some surgical or other
valid? scientific operations.
Held: (1) Contrary to the allegations of the Hardens, the - in some countries it is allowed
contract entered into by Atty. Recto and Mrs. Hardens is not for - in the Phil, sex is determined by birth and can never be
the purposes of divorce. The contract was entered into to protect changed regardless of physical and surgical transformation.
the rights Mrs. Harden in their conjugal properties while the Case: A person born male but he grow up he realized that
divorce proceedings is pending in the US. he is a female. He went to court and ask his gender and name be
(2) [important part of the decision in so far as we are concerned] changed from male to female. The SC disagreed saying - gender
A part from the fact that the contract was not really for divorce, is determined by birth. By examination of the physical
it is established that Mrs. Esperanza and her husband are both characteristics [particularly the penis and the xxxxxx] Once it is
America citizens. Their personal law is governed by the law of determined, that’s it! Immutability of sex. So, surgical operation
the (their) state. Under the US law, divorce is valid, therefore, does not work in the Philippines but in other countries it is a fact
assuming that the contract enter into was that of divorce, it is of life.
still valid upon them because of their citizenship. They are For us who study law, how are we suppose to solve issues
govern by American laws which recognizes divorce. regarding same-sex marriage and sex change?
If Filipinos are involved, it is governed by Philippine laws,
TAKE NOTE: In this case, SC made a reference to Art. 15 of the hence, resort to Art. 15. So if a Filipino undergoes a surgery in
Civil Code. In holding that in so far as the matter of divorce is Korea can never be recognized in the Philippines. And this is
concern, Mrs. Harden and her husband is govern by their with regards with the present laws. There is no law in the
national law. It is thus obvious, that in our jurisdiction, the Philippines that authorizes the change of gender by that
principle of nationality does not only govern Filipinos but also procedure.
foreigners. And so when a foreigner comes here and there is But what happens if a foreigner comes here, born female
issue as to their status, capacity, condition, family rights or changed into male recognized as valid in their country. What
duties, this should be resolved not by Philippine laws even if happens if he comes here and enters into a contract, are we to
the case is filed in our courts but on their respective national say that he is not a ‘he’ because he is a ‘she’?
laws. These are very interesting questions because this is a world
where multi-racial transactions are emerging, how are we
Another example (1): suppose to treat them?
If a Spaniard comes here enters into a contract with a
Filipino and there is issue whether a Spaniard is capacitated to Two Schools of thought regarding the issues above;
enter into a contract, she being 15 years old and in Spain 15 (1) Consistent with Art. 15, this issue should be solved in favor
years old are capacitated, then her capacity to enter into a of Nationality Theory.
contract is govern by her national law. Even if under our law, - So same sex marriage, so long as they are both foreigners
she is still a minor. So the Filipino cannot argue that the and it is recognized in their country, we are not to judge them.
contract cannot be inforced because it is not valid due to the That is a personal affair between them and their country. We
minority of the other party, under the Philippine law. So long as cannot judge them on the basis of our laws.
he is of age according to her own law, that should be respected - There are so many cases involving this issue. This is the
in so far as our courts are concerned. reason that divorce is recognized in the Philippines in so far as
foreigners are concerned. It is against our laws and public policy
NATIONALITY THEORY: Governs the ‘Legal Capacity’ of a but the SC recognized the validity if divorce in so far as
person in ordinary contracts. foreigners are concerned.
Van Dorn vs. Romillo
Example (2) Facts: A Filipina and an American contracted marriage. After
In the same manner that when a Filipino enters into a some time, they got divorced in the US but somehow, after the
contract abroad, in Russia wherein 15 is the age of majority. divorce was obtained, the husband came back to the Philippines
And here is a Filipino enters into a contract in Russia, she is 16 and discovered her wife’s flourishing business he filed a case in
years old. The contract cannot be recognized as valid in the court asking for an order allowing him to take management of
the business. Claiming that the business is conjugal and as a (2) Secondary school of thought
husband, Upton (the American) is entitled to the management of The 3rd paragraph of article 17 of CC which provides:
that said business. In trying to convince the court to rule in his
favor, he argued that while a divorce decree was already “Prohibitive laws concerning persons, their acts or
obtained in the US, that decree in so far as the Philippine courts property, and those which have for their object public
are concerned is not valid. Because it is against public policy of order, public policy and good customs shall not be
the Philippines, hence, in the eyes of the this country he is still rendered ineffective by aws or judgments promulgated, or
the husband of Alice (the Filipina). Therefore, being a husband, by determinations or conventions agreed upon in a foreign
h should be allowed to manage a conjugal property. country.”
Held: While it is true that divorce is not allowed in the
Philippines the prohibition against Filipino citizens. Since Upton This paragraph 3 of article 17 of CC Initiate the principle
is an America, he is governed by his national law which is US that in our country our laws is superior on matters of laws
law. In US divorce is valid. And so the divorce decree is valid in concerning public policy, public order, morals and customs our
so far as Mr. Upton is concerned. Take note that the SC refuses policy, our morality is suppose to be superior than foreign laws,
to decide as to the validity of the divorce in so far as the Filipina foreign judgment and determination or foreign conventions. In
is concerned. It only made the ruling that he (Upton) is bound other words, when there is a conflict between our policy and
by the divorce decree obtained in the US. Hence, the Philippine policy of other country, our policy is suppose to be the one to
court recognizes divorce in so far as the foreigner is concerned prevail. This the ruling of the case of Bank of America v.
and the justification is the nationality theory. American Realty Corp.

Imelda Pilapil vs. Judge Ibay-Somera Bank of America v. American Realty Corp
Facts: A marriage took place between a Filipina and a German Facts:
national. After some time, the German obtained a divorce in
Germany. But after the divorce decree was final, the German  This case involve a international bank which is doing
filed a criminal case of adultery against the Filipina wife when business in the Philippines. It extended loans in 3
he realized that even during their marriage, the wife cheated on corporations base in Panama but when the borrowers failed
him. He argued that the divorce decree has no legal effect in the to pay the loan they entered into structuring agreements
Philippines because divorce is against public policy. and the third party mortgagor came into the picture the
Issue: WON the German husband have the legal capacity to American realty corporation (not one of the borrowers)
initiate the complaint because in Philippine laws only an agreed to constitute a real estate mortgage over which
offended spouse can initiate a case for adultery or concubinage. parcels of land in the located in the Philippines to
Held: By virtue of the nationality theory, the German husband is guarantee the payments of the loans granted to the 3
governed by his own national law. Under German laws divorce borrowers. But then again the borrowers failed to pay the
is valid. And so, in so far as the German husband is concerned, loan so the American Bank Instituted a suit against the
the divorce is valid consistent with nationality theory. borrowers two cases in Hongkong and two cases in
England against the borrowers collection of the loan.
CONCLUSION: Consistent with Nationality Principle which  But during the pendency of this four cases, the same bank
regards to same sex marriage and sex change, it is valid for initiated a foreclosure proceedings over the real estate
anyway they are foreigners. mortgage constituted by American realty corp. The the
If we can recognize divorce as valid in so far as the foreigner is property was foreclose.
concerned, why can’t we recognize same sex marriage or sex  When American bank realty corp learn the foreclosure it
change? file a complaint against the damages against the bank.
THESE ARE ALL ISSUESABOUT POLICIES personal to the According to American realty corp contentions, it was
individual concern. wrong for the bank to foreclose the real estate mortgage
because it already instituted collections suits against the
Questions; borrowers in foreign countries in Hongkong and England
A. What if (in a reverse situation) the Filipina filed a case which invoking a policy in our country prohibiting the
of concubinage? (Pilapil vs. Ibay-Somera) splitting single cause of action.
Answer: The divorce decree is only valid so far as the  We have a rule in the philippines when the rights is
foreigner is concerned and not the Filipina. It is unfair. If it were violated that gives cause of action to the aggrieved party
Imelda filed the complaint, she will have the legal capacity. but the remedies available
B. What happens if the persons has two-gender? 1. Simple collection suit.
In the case of Republic vs.Cagandahan 2. Foreclose the mortgage
A child born with both organs. The rule that gender is constitute to guarantee the payments
determined by birth cannot be applied since there is two gender. of the loans.
This is a matter personal to the individual concern. He should  Either remedies is intended to collect the obligations but
be allowed to make a choice when he is already capable or of under our policy prohibiting the splitting single cause of
age. And so Jennifer chose to be a male. action the creditor is not suppose to avail this two
As oppose to Republic vs. Silverio remedies. He can only choose either of the two remedies
The child was born with one gender, cannot be changed because mentioned. If the borrowers chooses the collection he is
it is immutable. deemed to waived the foreclosure. If the creditor or lender
chooses the foreclosure he is deemed to abandoned the against public policy , and morality and therefore hold up in
collection (this is the policy of philippine laws). courts in Philippines.
 On the other hand the bank argue on the basis that,
base on the contracts between the parties the loan But this case is never been settle. Practical advice by Atty T.
agreements between the bank and the borrowers the law is..... It depends on which sides you are own. Take the positions
applicable is the law on England ( which in the law of where you are ask to do.
England it is not prohibitive to a creditor pursue both
remedies at the same time) thus, the bank says that the Additional case to have a deeper understanding of the
philippine law prohibiting the splitting single cause of nationality theory is under the case of Paula Llorente v. Alicia
action does not apply in this case but rather the England Llorente Gr. No. 124371 November 23, 2000
law.
 Conflict of law issue
Issue: W/N philippine law will apply or english law on that
part? The undisputed facts:
Held:  A filipino is listed as member of philippine navy, prior to
The SC ruled that, it maybe true that the law applicable is the outbreak of the war, he is ask to take station in the
the laws of England on the basis as it was stipulated in the United States and left his wife Paula which latter he
contracts. Which under the said contract it should be the obtained American citizenship. After the war, he is allowed
english law will govern.But then again the SC argue that even to take vacation to his family in the Philippines.
though english law will apply in so far as the contract stipulated Unfortunately , he was devastated to learn that his wife
but this will not apply in this case because this is against the Paula(the bitch) is pregnant and was living together with
policy of the Philippines . The policy of the Philippines is his own brother.
prohibiting the splitting of single cause of action.  Then lorenzo returned to the US and bound to never
reconcile to paula. Then again he returned to the
In short this ruling is pertain to: Philippines and found new love to Alicia and they get
1. When there is conflict between a foreign law and philippine married. During the existence of the marriage of his second
law on matters of policy, morality, public order and etc. Our law wife, Lorenzo executed the will bequeath all his estate to
should not be render nugatory rather our law shall prevail over his second wife but before the proceedings could be
other laws or other foreign judgment/policy. terminated, Lorenzo died. :(
 It was after the death of lorenzo, Paula resurfaced and
insist that the properties of Lorenzo should be adjudicated
The same principle is upheld in the case of; to her as she being the lawful wife. Paula argue, that the
Cadalin v. POEA. divorce decree obtained by Lorenzo abroad cannot be
Common law conflict recognize as valid in the Philippines.
Fact. Ruling of SC:
 Cadalin involves multiple labor complaints file by The Sc ruled with the establish evidence that at the time
Filipino contract workers who landed jobs in some country of when Lorenzo obtained the divorce decree against Paula,
middle east and one of this country is Bahrain.which there Lorenzo was already a naturalized American citizen. Being
benefits are not given to them. So when laborers return to the governed by his national law (laws in the United States) which
Philippines, they filed a multiple suits against the employers divorce is valid, then the divorce decree obtained by Lorenzo is
and the agency. valid. Therefore, his marriage between Alicia the second is also
valid.

Issue: whether or not it is the Bahrain law on prescription of Be noted that the issue of dual citizenship can only be
action based on Amiri decree or the Philippine law on relevant only by the view point of the third party/third state. It
prescription that shall be the governing law. is enough that individual is Filipino , if it establish then there is
no question about that.. I.e child born Filipina mother, American
Held. father born in the US. In the Philippines`we adhered by blood
SC Ruled that, it maybe true that the contract of the parties the but in the US they adhered jus soli. It is not a question whether
law applicable is the laws of Bahrain where it performed. The he is a Filipino or American in our country however dual
one year Prescriptive period provided in Amiri decree cannot citizen is relevant for example when for he goes to the country
applied in this case because it is contrary to our protection of of china the third state question his citizenship called effective
labor. The SC ruled that it must be the the 3 year prescriptive national.
period shall applied in this case as provided under the labor
code. If its about public policy, our laws, policy should prevail.

Note: Going back to case of the validity of same sex


marriage or sex change cannot be valid in our country precisely
because it is against our public policy and morality . Just
because same sex marriage is validly recognize in other country
it doest mean it recognize in the Philippines simple because its