PROPERT
Y
Jessa Mariz R. Fernandez
4D
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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What is the scope of the lex situs
rule on IMMOVABLES?
5. Validity and effect of mortgages and
other encumbrances;
6. Marital interests in land;
7. Equitable interests in land.
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1. Article 16, par. 2 of the New Civil
Code
The 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 debtors
domicile
Law of the place where
the debtors assets are
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located
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 instrument
e.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
Law of the place of
incorporation
b. Sale of corporate shares
as between parties
Law of the contract
c. Taxation in dividends
received by corporate
shares
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
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Properties
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
conveyance is asserted to conflict
domestic law on the same matters.
the need to determine which law
apply.
and its
with a
Hence,
should
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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 !
