conflicts report

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PROPERTY Jessa Mariz R. Fernandez 4D

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Conflicts Report

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Page 1: Conflicts Report

PROPERTY

Jessa Mariz R. Fernandez4D

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Real property as well as personal property is subject to the law of the country where it is situated. (Art. 16, NCC)

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The very nature of immovables - their IMMOBILITY

Wolff: ‘Immovables are part of the country and are so eternally and closely connected with it that all rights over them have there their natural center of gravity’

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If land ownership were to be determined by the personal law of the actual owner, THE LAW GOVERNING RIGHTS OVER A PIECE OF LAND WOULD CHANGE WITH EVERY CHANGE OF OWNERSHIP

This would result in confusion

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1. The capacity to take and transfer immovables;

2. Formalities of the Conveyance;

3. Essential validity and effects of the transfer;

4. Interpretation and effects of conveyance;

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5. Validity and effect of mortgages and other encumbrances;

6. Marital interests in land;

7. Equitable interests in land.

What is the scope of the lex situs rule on IMMOVABLES?

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1. Article 16, par. 2 of the New Civil CodeThe national law of the person whose succession is in question, not the lex situs, determines the order of succession, the amount of successional rights, and the intrinsic validity of testamentary provisions.

 Article 1039 of the New Civil Code

Capacity to succeed is also governed by the national law of the deceased

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2. Issue is the rights and liabilities of the parties between themselves as a matter of contractual obligation,

3. The validity and effect of the obligation which the encumbrance secure --- determined by principles applicable to contracts generally

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4. When the situs of the movable at the time of the transfer was insignificant or accidental;

5. The issue involves consideration – may be determined by the law of another state which has real interest in applying its law.

6. The question is the validity of a contract to transfer an immovable --- determined by the proper law of the contract.

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Great increase in the amount and variety of personal property not connected with the person of the owner (Report of Sen. Tanada)

Owner of the movable is presumed to have his right subjected to lex situs (Savigny)

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CHOSES IN POSSESSION

CHOSES IN ACTION

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There are many kinds if movables that do not have fixed situs, like those that are usually in motion or have changing situs, or

Intangible personal properties like rights and shares of stock in corporation which, because they have no material existence, do not have material or tangible situs.

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They were given ARTIFICIAL or CONSTRUCTIVE situs.

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1.VESSELS, in view of their inherent mobility are governed by:

a. Public Vessel - Law of the Flag

b. Private Vessel - Law of the Country or Place of Registry.

Docked in a foreign country – Law of Depot

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2. GOODS IN TRANSIT are governed as follows:

GOVERNING LAW

As to liability for loss, destruction or deterioration of goods in transit

Law of destination

Validity and effect of seizure of goods in transit

Law of the place where the goods were seized

Disposition or alienation of goods in transit

Law of the contract between the parties

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CHOSES IN ACTION SITUS

1. DEBTS

a. Involuntary transfer or assignment of a debt (garnishment)

b. Voluntary assignment or transfer of credits

c. For taxation purposes

d. Administration of debts

Place where the debtor may be served with summons which is usually his domicile.

Proper law of the contract

Law of the debtor’s domicile

Law of the place where the debtor’s assets are located

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CHOSES IN ACTION SITUS

2. NEGOTIABLE INSTRUMENTS

a. Negotiability of the Instrument

b. Validity of the transfer, delivery or negotiation

Law governing the rights embodied in the instrumente.g. Phil. Check = Phil. Law will apply

Law of the place where the place where the instrument is at the time of the transfer

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CHOSES IN ACTION SITUS

3. CORPORATE STOCKS

a. Sales of corporate stocks

b. Sale of corporate shares as between parties

c. Taxation in dividends received by corporate shares

Law of the place of incorporation

Law of the contract

Law of the place of incorporation

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CHOSES IN ACTION SITUS

4. FRANCHISES Law of the state that granted them

5. GOODWILL OF A BUSINESS, And TAXATION

Law of the place where the business is carried on

6. PATENTS, COPYRIGHTS, TRADEMARKS, TRADENAMES AND SERVICE MARKS

In the absence of a treaty, protected by the state that granted or recognized them

Parties of the Union C0nvention for the Protection of Industrial Properties

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ISSUES: 1. Is the Roppongi property divested of its nature as property of public dominion?

2. Is the Roppongi property governed by Japanese laws pursuant to the doctrine of lex situs?

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HELD 1. No. As property of public dominion, the Roppongi lot is outside the commerce of man. It cannot be alienated.

The purpose is not to serve the State as a juridical person, but the citizens; it is intended for the common and public welfare and cannot be the object of appropration.

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The fact that the Roppongi site has not been used for a long time for actual Embassy service does not automatically convert it to patrimonial property. Any such conversion happens only if the property is withdrawn from public use.

A property continues to be part of the public domain, not available for private appropriation or ownership until there is a formal declaration on the part of the government to withdraw it from being such.

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2. We see no reason why a conflict of law rule should apply when no conflict of law situation exists. A conflict of law situation arises only when:

a. There is a dispute over the title or ownership of an immovable, such that the capacity to take and transfer immovables, the formalities of conveyance, the essential validity and effect of the transfer, or the interpretation and effect of a conveyance, are to be determined; and

b. A foreign law on land ownership and its conveyance is asserted to conflict with a domestic law on the same matters. Hence, the need to determine which law should apply.

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The issues are not concerned with validity of ownership or title.

There is no question that the property belongs to the Philippines.

The issue is the authority of the respondent officials to validly dispose of property belonging to the State. And the validity of the procedures adopted to effect its sale. This is governed by Philippine Law.

The rule of lex situs does not apply.

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ISSUE: Does the Philippine court have jurisdiction over the Holy See?

HELD: The right of a foreign sovereign to acquire property, real or personal, in a receiving state, necessary for the creation and maintenance of its diplomatic mission, is recognized in the 1961 Vienna Convention on Diplomatic Relations (Arts. 20-22). This treaty was concurred in by the Philippine Senate and entered into force in the Philippines on November 15, 1965.

In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and administrative jurisdiction of the receiving state over any real action relating to private immovable property situated in the territory of the receiving state which the envoy holds on behalf of the sending state for the purposes of the mission. If this immunity is provided for a diplomatic envoy, with all the more reason should immunity be recognized as regards the sovereign itself, which in this case is the Holy See.

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ISSUE: Whether or not the dollar deposits of Greg Bartelli are exempt from garnishment

HELD: No.  The Offshore Banking System and the Foreign Currency Deposit System were designed to draw deposits from foreign lenders and investors. It is these deposits that are induced by the two laws and given protection and incentives by them.

 The foreign currency deposit made by a transient or a tourist is not the kind of deposit encouraged by and given incentives and protection by said laws because such depositor stays only for a few days in the country and, therefore, will maintain his deposit in the bank only for a short time.

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Respondent Greg Bartelli, as stated, is just a tourist or a transient. He deposited his dollars with respondent China Banking Corporation only for safekeeping during his temporary stay in the Philippines.

Thus, the dollar deposit of respondent Greg Bartelli is not entitled to the protection of Section 113 of Central Bank Circular No. 960 and PD No. 1246 against attachment, garnishment or other court processes.

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The application of the law depends on the extent of its justice.

It would be unthinkable, that the questioned Section 113 of Central Bank No. 960 would be used as a device by accused Greg Bartelli for wrongdoing, and in so doing, acquitting the guilty at the expense of the innocent.

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THANK YOU !