[ G.R. No. L-554. April 09, 1948 ] 80 Phil. 604
[ G.R. No. L-554. April 09, 1948 ]
HAW PIA, PLAINTIFF AND APPELLANT, VS. THE CHINA BANKING CORPORATION, DEFENDANT AND APPELLEE. D E C I S I O N
FERIA, J.:
Plaintiff-appellant instituted this action in the Court of First Instance of Manila against the defendant-appellee, China Banking Corporation, to compel the latter to execute a deed of cancellation of the mortgage on the property described in the complaint, and to deliver to the said plaintiff the Transfer Certificate of Title No. 47634 of the Register of Deeds of Manila, with the mortgage annotated therein already cancelled, as well as to pay the plaintiff the sum of P1,000.00 for damages as attorney’s fees and to pay the costs of the suit. The cause of action is that the plaintiff’s indebtedness to the China Banking Corporation in the sum of P5,103.35 by way of overdraft in current account payable on demand together with its interests, has been completely paid, on different occasions, from October 7, 1942, to August 29, 1944, to the defendant China Banking Corporation through the defendant Bank of Taiwan, Ltd., that was appointed by the Japanese Military authorities as liquidator of the China Banking Corporation. Upon having been served with summons the defendant-appellee China Banking Corporation made a demand from the plaintiff-appellant for the payment of the sum of P5,103.35 with interests, representing the debt of the said appellant, and in the answer it set up a counter claim against the plaintiff-appellant demanding the payment, within 90 days from and after the date Executive Order No. 32 on moratorium, series of 1945, has been repealed, of said amount due from the latter to the former by way of overdraft together with its interests at the rate of 9 per cent per annum to be compounded monthly, and the additional sum of P1,500 as attorney’s fees and the costs of the suit. After the hearing of the case, the trial court rendered a decision holding that, as there was no evidence presented to show that the defendant China Banking Corporation had authorized the Bank of Taiwan, Ltd., to accept the payment of the plaintiff’s debt to the said defendant, and said Bank of Taiwan, as an agency of the Japanese invading army, was not authorized under the international law to liquidate the business of the China Banking Corporation, the payment has not extinguished the indebtedness of the plaintiff to the said defendant under article 1162 of the Civil Code. The court absolved the defendant China Banking Corporation from the complaint of the plaintiff, and sentenced the latter to pay the former the sum of P5,103.35 with interests within the period of 90 days from and after the above mentioned Executive Order No. 32 had been repealed or set aside, and ordered that, if the plaintiff failed to pay it within the said period, the property mortgaged shall be sold at public auction and the proceeds of the sale applied to the payment of said obligation. The plaintiff appealed from the decision to this Court. The appellant’s assignments of error may be reduced to two, to wit: First, whether or not the Japanese Military Administration had authority to order the liquidation or winding up of the business of defendant-appellee China Banking Corporation, and to appoint the Bank of Taiwan liquidator authorized as such to accept the payment by the plaintiff-appellant to said defendant-appellee; and second, whether or not such payment by the plaintiff-appellant has extinguished her obligation to said defendant-appellee. (1) As to the first question, we are of the considered opinion, and therefore hold, that the Japanese military authorities had power, under the international law, to order the liquidation of the China Banking Corporation and to appoint and authorize the Bank of Taiwan as liquidator to accept the payment in question, because such liquidation is not a confiscation of the properties of the bank appellee, but a mere sequestration of its assets which required the liquidation or winding up of the business of said bank. All the arguments to the contrary in support of the decision appealed from are predicated upon the erroneous assumption that the liquidation or winding up of the affairs of the China Banking Corporation, in order to determine its liabilities and net assets to be sequestrated or controlled, was an act of confiscation or appropriation of private property contrary to Article 46, section III of the Hague Regulations of 1907. The provisions of the Hague Regulations, section III, on Military Authority over Hostile Territory, which is a part of the Hague Convention respecting the laws and customs of war on land, are intended to serve as a general rule of conduct for the belligerents in their relations with each other and with the inhabitants, but as it had not been found possible then to concert regulations covering all the circumstances which occur in practice, and on the other hand it could not have been intended by the High Contracting Parties that the unforeseen cases should, in the absence of a written undertaking, be left to the arbitrary judgment of military commanders, it was agreed that “Until a complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of international law, as they result for the usages established among civilized peoples, from the laws of humanity, and the dictates of public conscience.” Before the Hague Convention, it was the usage or practice to allow or permit the confiscation or appropriation by the belligerent occupant not only of public but also of private property of the enemy in a territory occupied by the belligerent hostile army; and as such usage or practice was allowed, a fortiori, any other act short of confiscation was necessarily permitted. Section III of the Hague Regulations only prohibits the confiscation of private property by order of the military authorities (article 46), and pillage or stealing and thievery thereof by individuals (article 47); and as regards public property, article 53 provides that cash funds, and property liable to requisition and all other movable property belonging to the State susceptible of military use or operation, may be confiscated or taken possession of as a booty and utilized for the benefit of the invader’s government (II Oppenheim, 8th ed. section 137; 320 & 321, War Department; Basic Field Manual, Rules of Land Warfare FM 27-10). The belligerents in their effort to control enemy property within their jurisdiction or in territories occupied by their armed forces in order to avoid their use in aid of the enemy and to increase their own resources, after the Hague Convention and specially during the first World War, had to resort to such measures of prevention which do not amount to a straight confiscation, as freezing, blocking, placing under custody and sequestrating the enemy private property. Such acts are recognized as not repugnant to the, provisions of Article 46 or any other article of the Hague Regulations by well-known writers on International Law, and are authorized in the Army and Navy Manual of Military Government and Civil Affairs not only of the United States, but also in similar manuals of Army and Navy of other civilized countries, as well as in the Trading with the Enemy Acts of said countries. Hyde in his International Law chiefly as interpreted and applied by the United States, Vol. 3, 6th ed., p. 1727, has the following to say:
“In examining the efforts of a belligerent to control in various ways property within its domain that has such a connection with nationals of the enemy that it may be fairly regarded as enemy property, it is important to inquire whether the attempt is made to appropriate property without compensation, divesting him not only of title, but also of any right or interest in what is taken, without prospect of reimbursement, or whether those efforts constitute an assumption of control which, regardless of any transfer of title, is not designed to produce such a deprivation. The character of the belligerent acts in the two situations is not identical. To refer to both as confiscatory is not productive of clearness of thought, unless a loose and broad signification be attached to the term ‘confiscation.’ The point to be noted is that a belligerent may in fact deprive an alien enemy owner of property by process that are not essentially confiscatory, even though the taking and retention may cause him severe loss and hardship. Recourse to such non-confiscatory retentions or deprivations has marked the conduct of belligerents since the beginning of the World War in 1914. They may perhaps be appropriately referred to as sequestrations. The propriety of what they have involved is, therefore, hardly discernible by reference to objections directed against confiscatory action as such, and must be tested by other means or standards. “A belligerent may fairly endeavor to prevent enemy property of any kind within its territory (or elsewhere within its reach) from being so employed as to afford direct military aid to its foe. Measures of prevention may, in a particular case, assume a confiscatory aspect. In such a situation the question may arise whether those measures are, nevertheless, excusable. It is believed that they may be, and that they are not invariably unlawful despite the absence of efforts to compensate the owners.”
And in the footnote of the same page, said author adds:
“This analysis differs sharply from that of those who would regard almost all uncompensated deprivations of property as essentially confiscatory, and as, therefore, internationally illegal because of the further assumption or conclusion that confiscatory action must inevitably be so regarded. Belligerent States have not, however, generally acted on such a theory. They have in fact proceeded, especially since 1914, to exercise varying degrees of control over vast amounts of enemy private property by strictly non-confiscatory processes from which they have felt no sense of legal obligation to abstain. In so doing they have been creative of relatively fresh practices which logic has ordained and war terminating treaties have sanctioned. Thus it happens that proper estimation of the place of confiscation of enemy private property in the law of nations has become of less importance than formerly, because both of the reluctance of States—and notably of the United States to have recourse to it, and of their preference for non-confiscatory measures exemplified in sequestrations as a desirable and sufficient means of utilizing such property.”
And Oppenheim in his International Law, Vol. 2, 6th ed., by Lauterpacht, says:
“But the desire to eliminate the financial and commercial influence of the enemy, and other motives, presently led in most States to exceptional war measures against the businesses and property of enemies, which, though not confiscation, inflicted great loss and injury. Sometimes these measures stopped short of divesting the enemy ownership of the property; but in other cases the businesses or property were liquidated, and were represented at the close of hostilities by nothing else than the proceeds of their realization, often enough out of all proportion to their value. In the Trading with the Enemy Act, 1939, provisions was made for the appointment of custodians of enemy property in order to prevent the payment of money to enemies and to preserve enemy property in contemplation of arrangements to be made at the conclusion of peace. “The readjustment of rights of private property on land was provided for by the Treaties of Peace. The general principles underlying their complicated arrangements were that the validity of all completed war measures was reciprocally confirmed; but that while uncompleted liquidations on the territories of the Central Powers were to be discontinued, and the subjects of the victorious Powers were to receive compensation for the loss or damage inflicted on their property by the emergency war measures, the property of subjects of the vanquished Powers on the territories of the Allied and Associated Powers might be retained and liquidated, and the owner was to look for compensation to his own State. The proceeds of the realization of such property were not to be handed over to him, or to his State, but were to be credited to his State as a payment on account of the sums payable by it under the treaties.”
In paragraph 143 (p. 313) of the same work, Oppenheim states that “Private personal property which does not consist of war materials or means of transport serviceable for military operations may not be as a rule seized”. It is obvious that the word “seized” used therein signifies “confiscated” in view of the above quoted paragraphs, and therefore when Oppenheim says, in the footnote to said passage, “Nor may the occupant liquidate the business of enemy subject in occupied territories,” he means “confiscate” by the word “liquidate”. Ernest K. Feildchenfeld in his “The International Economic Law of Belligerent Occupation (1942)” supports the foregoing conclusion of Hyde, when he says that “According to Article 46 of the Hague Regulations, private property must be respected and cannot be confiscated. This rule affords protection against the loss of property, through outright confiscation, but not against losses under lawful requisition, contribution, seizure, fines, taxes, and expropriation” (Par. 208, p. 51). And later on he adds: “A complete nationalization of a corporation for the benefit of the occupant could not be anything but a permanent measure involving final effects beyond the duration of the occupation. There is no military need for it because the same practical results can be achieved by temporary sequestration” (par. 385, p. 107). Martin Domke in his Trading with the Enemy in World War II, pp. 4 and 5, speaking of Warfare on Economic and military fronts, says that “Freezing Control is but one phase of the present war effort; it is but one weapon on the total war which is now being waged on both economic and military fronts. Coupled with Freezing Control as a part of this nation’s program of economic warfare are to be found export control, the promulgation of a Black List, censorship, seizure of enemy-owned property, and financial and lend-lease aid to allied and friendly nations. As to Japan, no official information is available as yet on steps taken by the Japanese Government. As a Commentary of April 11, 1942, points out, the Japanese Trading with the Enemy legislation enacted during the last war against Germany might throw some light on the views adopted by Japan in this matter.” The sequestration or liquidation of enemy banks in occupied territories is authorized expressly by the United States Army and Navy Manual of Military Government and Civil Affairs F. M. 2710 OPNAV 50-E-3, which, mandatory and controlling upon the theatre commanders of the U. S. forces in said territories, provides in its paragraph 12 the following:
“Functions of Civil Affairs Officers.—In the occupation of such territories for a considerable period of time, the civil affairs officers will in most cases be concerned with the following and other activities: “1. MONEY AND BANKING.—Closing, if necessary and guarding of banks, bank funds, safe deposit boxes, securities and records; providing interim banking and credit needs; liquidation; reorganization, and reopening of banks at appropriate times; regulation and supervision of credit cooperatives and other financial agencies and organizations; execution of policies on currency fixed by higher authority, such as the designation of types of currency to be used and rates of exchange supervision of the issue and use of all types of money and credit; declaration of debt moratoria; prevention of financial transactions with enemy occupied territory.”
The civil affairs officers are concerned, that is, entrusted with the performance of the functions enumerated above, when so directed by the chief commander of the occupant military forces. Not only the United States Army and Navy Manual of Military Government and Civil Affairs but similar manuals of other countries authorize the liquidation or impounding of the assets of enemy banks or the freezing, blocking and impounding of enemy properties in the occupied hostile territories without violating article 46 or other articles of the Hague Regulations. They do not amount to an outright confiscation of private property, and were put into effect by the Allied Army in the occupied hostile territories in Europe during World War II. The Combined Chiefs of Staff, in their Directive of May 31, 1943, on Military Government in Sicily, Italy, addressed to the Supreme Allied Commander, Mediterranean Theater, ordered:—"(h) An Allied Military Financial Agency under the control of the Military Government shall be established with such sub-agencies as considered necessary,” “(i) Military authorities on occupying an area shall immediately take the following steps: ‘(1) All financial institutions and banks shall be closed and put under the custody of the military forces’,” (2) a general moratorium shall be declared. (j) * * * all papers of value, foreign securities, gold and foreign currencies shall be impounded with receipts granted to recognized owners, (k) “The Allied Military Financial Agency or any appointed agency by the MG will take into immediate custody all foreign securities and currencies, holding of gold, national funds and holdings of Fascist organizations for deposit.” (Appendix on American Military Government, its Organization and Policies, by Hajo Holborn, 1947, pp. 116, 117.) The Combined Directive of April 28, 1944, for Military Government in Germany Prior to Defeat or Surrender, provided that the Allied Forces “Upon entering the area of Germany will take the following steps and put into effect only such further financial measures as they deem to be necessary from a strictly military standpoint, (b) “Banks should be placed under such control as deemed necessary by them in order that adequate facilities or military needs may be provided and to insure that instructions and regulations issued by military authorities will be fully complied with.” (c) “Pending determination of future disposition, all gold, foreign currencies, foreign securities, accounts in financial institutions, credits, valuable papers, and all similar assets held by or on behalf of the following, will be impounded or blocked and will be used or otherwise dealt with only as permitted under licenses or other instructions which you may issue: (1) German national state, provincial and local governments and agencies and instrumentalities thereof.” (4) “Nazi party organizations including the party formations, affiliates and supervised associations, and the officials, leading members and supporters thereof; and (5) Persons under detention or other types of custody by Allied Military authorities and other persons whose activities are hostile to the interests of military government” (Holborn, supra, p. 141). In the Allied Directive of June 27, 1945, to the Commander in Chief of the United States forces of occupation regarding the military government of Austria, the Commanding General of the United States forces of occupation in Austria, serving as United States member of the Allied Council of the Allied Commission for Austria, was authorized, subject to agreed policies of the Allied Council to close banks, insurance companies, and other financial institutions for a period long enough to introduce satisfactory control to ascertain their cash position and to issue instructions for the determination of accounts and assets to be blocked under paragraph 55 which authorized him to impound or block all gold, silver, currencies, securities accounts in financial institutions, credits, valuable papers, and all other assets falling within the following categories: a. Property owned or controlled, directly or indirectly, in whole or in part, by any of the following: (1) the governments, nationals or residents of the German Reich, Italy, Bulgaria, Rumania, Hungary, Finland and Japan, including those of territories occupied by them; (3) the Nazi Party, its formations, affiliated associations and supervised organizations, its officials, leading members and supporters; (4) all organizations, clubs or other associations prohibited or dissolved by military government; (5) absentee owners, including United Nations and neutral governments; (7) persons subject to arrest under the provisions of paragraph 7, and all other persons specified by military government by inclusion in lists or otherwise, (Holborn, supra, p. 192). On the other hand, the provisions of the Trading with the Enemy Acts enacted by the United States and almost all the principal nations since the first World War, including England, Germany, France, and other European countries, as well as Japan, confirms that the assets of enemy corporations, specially banks incorporated under the laws of the country at war with the occupant and doing business in the occupied territory, may be legally sequestrated, and the business thereof wound up or liquidated. Such sequestration or seizure of properties is not an act for the confiscation of enemy property, but for the conservation of it, subject to further disposition by treaty between the belligerents at the end of the war. Section 12 of the Trading with the Eenemy Act of the United States provides that “after the end of the war any claim of enemy or ally of an enemy to any money or other property received and held by the Alien Custodian or deposited in the United States Treasury, shall be settled as Congress shall direct.” The purpose of such sequestration is well expounded in the Annual Report of the Office of the Alien Custodian for a period from March 11, 1943, to June 30, 1943. “In the absence of effective measures of control, enemy-owned property can be used to further the interest of the enemy and to impede our own war effort. All enemy-controlled assets can be used to finance propaganda, espionage, and sabotage in this country or in countries friendly to our cause. They can be used to acquire stocks of strategic materials and supplies * * * use to the enemy, they will be diverted from our own war effort. The national safety requires the prohibition of all unlicensed communication, direct or indirect, with enemy and enemy-occupied territories. To the extent that this prohibition is effective, the residents of such territory are prevented from exercising the rights and responsibilities of ownership over property located in the United States. Meanwhile, decisions affecting the utilization of such property must be made and carried out. Houses must be maintained and rents collected; payments of principal and interest on mortgages must be made for the account of foreign debtors and foreign creditors; stranded stocks of material and equipment must be sold; patents must be licensed, business enterprises must be operated or liquidated, and foreign interest must be represented in court actions. The number of decisions to be made in connection with property is in fact multiplied by a state of war, which requires that productive resources be shifted from one use to another so as to conform with the requirements of a war economy. The defendant-appellee, China Banking Corporation, comes within the meaning of the word “enemy” as used in the Trading with the Enemy Acts of civilized countries, because not only it was controlled by Japan’s enemies, but it was, besides, incorporated under the laws of a country with which Japan was at war. Section 2 (1) of the Trading with the Enemy Act of Great Britain provides that the expression “enemy” means: “any body of persons (whether corporate or incorporate) carrying on business in any place, if and so long as the body is controlled by a person who, under this section, is an enemy.” The control test has also been expressly adopted in the French Trading with the Enemy Act. The Italian Act regards as enemies “legal persons when enemy subject have any prevalent interests whatever in them.” The Decree of the Dutch Government-in-exile of June 7, 1940, also adopted the control test by including in the term enemy subjects “legal persons in which interest of an enemy state or enemy subjects are predominantly involved.” (Domke Trading with the Enemy Act, pp. 127-180.) In the United States, the Trading with the Enemy Act has not adopted the control theory. But section 2-a of the said Act says that the word enemy shall be deemed to mean any “corporation incorporated within such territory of any nation with which the United States is at war.” And the same definition is given to the word “enemy” by the Trading with the Enemy Act of the above named countries. The British Act in section 2 (1) defines as enemy “any body of persons constituted or incorporated in or under the laws of a state at war with his Majesty,” it being immaterial that they are under the control of allied or neutral stockholders. Similarly the French Act regards as enemies, corporations incorporated in conformity with the laws of an enemy state. The decree of the Dutch Government-in-exile on June 7, 1940, considers as enemies legal persons “organized or existing according to or governed by the law of an enemy state.” The German Act of January 15, 1940, I section 3 (1) 3, deems enemies all corporations, “the original legal personality of which is based on the laws of an enemy state.” The Italian Act of 1938, section 5, regards corporations as enemies if they are enemy of nationality under the law of the enemy state. So too the Japanese Act, Chapter 1, No. 25, deems enemies “all corporations belonging to enemy countries.” (See Martin Domke, Trading with the Enemy Act in World War II, pp. 120-122.) Section 3-A of the Trading with the Enemy Act of the United Kingdom of September 5, 1939, as amended up to April 1, 1943, provides that “Where any business is being carried in the United Kingdom by, on behalf of, or under the direction of, persons all or any of whom are enemies or enemy subjects or appear to the Board of Trade to be associated with enemies, the Board of Trade may, if they think it expedient so to do, make * * *; “(b) an order (hereinafter in this section referred to as a winding up orders) requiring the business to be wound up;” and section 14 (c) of the same Act (that obviously makes it applicable to enemy territories occupied by the United Kingdoms armed forces) provides that “His Majesty may by Order in council direct that the provisions of this Act other than this section shall extend, with such exceptions, adaptations and modifications, if any, as may be prescribed by or under the order * * * (to the extent of His Majesty’s jurisdiction therein) to any other country or territory being a foreign country or territory, in which for the time being His Majesty has jurisdiction.” (The Trading with the Enemy Act in World War II, p. 481, by Martin Domke.) Section 5 (b) of the Trading with the Enemy Act of the United States provides that “during the time of war or during any period in which national emergencies declared by the President, the President may under any agency that he may designate or otherwise and under such rule and regulation as he may prescribe,” and “any property or interest of any foreign country or national thereof shall vest, when, as, and upon the terms, directed by the President, in such agency or person as may be designated from time to time by the President, and upon such terms and conditions as the President may prescribe, such interest or property shall be held, used, administered, liquidated, etc.” and section 6 (e) of the same Act provides that “any payment, * * * of money or property made to the alien property custodian hereunder shall be a full acquittance and discharge for all purposes of the obligation of the person making the same to the extent of same * * * and shall in case of payment to the alien property custodian of any debt or obligation owed to an enemy or ally of enemy, deliver up any notes, bonds, or other evidences of indebtedness or obligation, * * * with like effect as if he or they, respectively, were duly appointed by the enemy or ally of enemy, creditor, or obligee.” It is evident that the Trading with the Enemy Act of the United States, like that of the United Kingdom or Great Britain above quoted, and those of other countries, may be applied and enforced in a hostile territory occupied by the United States armed forces, because section 2 of said Act provides “That the words ‘United States’, as used herein, shall be deemed to mean all land and water, continental or insular, in any way within the jurisdiction of the United States or occupied by the military or naval forces thereof.” After the liberation of the Philippines during World War II, properties belonging to Japanese Nationals located in this country were taken possession of by the Alien Property Custodian appointed by the President of the United States under the Trading with the Enemy Act, because, although the Philippines was not a territory or within the jurisdiction or national domain of the United States, it was then occupied by the military and naval forces thereof. Of course it is obvious that the obligations assumed by the United States, in applying the Trading with the Enemy Act of the United States to properties within her national domain, is different and distinct from those arising from the application thereof to enemy properties located within the hostile territory occupied by her armed forces. In the first case, Congress is untramelled and free to authorize the seizure, use, or appropriation of such properties without any compensation to the owners, for although section 2 of the Trading with the Enemy Act provides that “at the end of the war any claim of any enemy or of an ally of enemy to any money or other property received and held by the alien property custodian or deposited in the United States Treasury shall be settled by Congress,” the owners of the properties seized within the national domain of the United States are not entitled to demand its release or compensation for its seizure, but what would ultimately come back to them, might be secured, not as a matter of right, but as a matter either of grace to the vanquished or exacted by the victor, for the case is to be governed by the domestic laws of the United States, and not by the Hague Regulations or International law (U. S. vs. Chemical Foundation, Inc., 272 U. S. 1; United States vs. S. S. White Dental Manufacturing Company, 274 U. S., 402). While in the latter case, when properties are sequestrated in a hostile occupied territory by the armed forces of the United States, Congress can not legally refuse to credit the compensation for them to the States of the owners as payment on account of the sums payable by said States under treaties, and the owners have to look for compensation to their States, otherwise, they would violate article 46 of the Hague Regulations or their pledge of good faith implied in the act of sequestrating or taking control of such properties. It is to be presumed that Japan, in sequestrating and liquidating the China Banking Corporation, must have acted in accordance, either with her own Manual of the Army and Navy and Civil Affairs, or with her Trading with the Enemy Act, and even if not, it being permitted to the Allied Nations, specially the United States and England, to sequestrate, impound, and block enemy properties found within their own domain or in enemy territories occupied during the war by their armed forces, and it being not contrary to the Hague Regulations or international law, Japan had also the right to do the same in the Philippines by virtue of the international law principle that “what is permitted to one belligerent is also allowed to the other.” Taking into consideration the acts of the Japanese Military Administration in treating the private properties of the so-called enemy banks, it appears evident that Japan did not intend to confiscate or appropriate the assets of said banks or the debts due them from their debtors, and thus violate article 46 or any other article of the Hague Regulations, it is true that, as to private personal properties of the enemy, freezing, blocking or impounding thereof is sufficient for the purpose of preventing their being used in aid of the enemy; but with regard to the funds of commercial banks like the so-called enemy banks, it was impossible or impracticable to attain the purpose for which the freezing, blocking and impounding are intended, without liquidating the said banks and collecting the loans given by them to hundreds if not thousands o£ persons scattered over the Islands. Without doing so, their assets or money loaned to so many persons can not properly be impounded or blocked, in order to prevent their being used in aid to the enemy through the intervention of their very debtors, and successfully wage economic as well as military war. That the liquidation or winding up of the business of the China Banking Corporation and other enemy banks did not constitute a confiscation or appropriation of their properties or of the debts due them from their debtors, but a mere sequestration of their assets during the duration of the war for the purposes already stated, is evidenced conclusively by the following uncontroverted facts set forth in the briefs of both parties and amici curiae: (1) Out of the sum of about P34,000,000 collected from the debtors by the liquidator Bank of Taiwan, the latter paid out to the depositors or creditors of the same bank about P9,000,000; and it is common sense that this last amount should not have been disbursed or taken out of the said amount of about P34,000,000 had it been the intention of the Japanese Military Administration to confiscate this amount collected by the Bank of Taiwan. (2) The members of Chinese Associations were permitted to withdraw from their deposits with the China Banking Corporation a considerable amount of money which was paid out of the sum collected from the debtors of said bank, in order that they may pay the contribution legally exacted from them by the military occupant in accordance with article 51 of the Hague Regulations. And this showed the intention of the belligerent occupant not to confiscate the bank’s assets and to act, at least in this respect, in accordance with said Regulations; because otherwise the Japanese Military Administration could have properly required the Chinese to pay the contribution out of their own funds, without diminishing or reducing the amounts collected by the Bank of Taiwan from the debtors of the China Bank. (3) The collection of the aforementioned debts from the bank’s debtors, as well as the payment of withdrawal by the depositors, were regularly entered into the books of said Banks, so that after liberation they could easily determine the respective amounts and the persons who had made the payments, which enabled all said banks to reopen and continue their business; and the regular keeping of said books would have been unnecessary or useless, were it the intention of the military occupant to close definitely the enemy banks and appropriate all their resources. (4) There was absolutely no reason for confiscating the funds of the banks collected from their debtors, because by sequestrating or impounding their assets or funds after the latter had been collected from their debtors, the principal purpose of preventing the possible use of the funds of the banks in aid of Japan’s enemy was completely accomplished. Absolutely no other benefit could be derived by Japan from confiscating or appropriating the payments made in Japanese war military notes to the enemy banks by their debtors, because the Japanese Government could have them at will without cost, except that of the ink, paper and labor necessary for printing and issuing them. (5) The annual report, 31st December, 1945, of the Chartered Bank of India, Australia & China (pp. 11-12), which had a branch in Manila liquidated by Japanese Military authorities as one of the enemy banks, clearly shows that the liquidation of said branch was a mere sequestration, impounding or control of its assets, and not a confiscation or appropriation thereof during the occupation by the Japanese. It says that during the enemy occupation the cash balance of our Branches were seized, their assets realized and repayment of varying amounts, but up to 100 per cent in one Branch at least, made to depositors. Said report reads, in its pertinent part, as follows:
“I informed you, when commenting upon the Balance sheet figures, for the year ending 31st December, 1942, that we had reason to believe that accounts of some of our occupied Branches had been partly or wholly liquidated, and that the liquidation of such accounts would ultimately bring about shrinkage in both Assets and Liabilities in the Balance Sheet figures. The information now in our possession and the various changes in the Balance Sheet figures to which I have referred above, confirm the correctness of this statement, for during the enemy occupation the cash balances of our Branches were seized, their assets realized where possible, and repayment of varying amounts, but up to 100 per cent in one Branch at least, made to depositors. Even so, the business of the offices of the Bank which remained under our own control throughout the war has steadily increased and has offset to a great extent decreases brought about by the partial liquidation of Branches which were in Japanese control.” (Italics ours.)
It is obvious that the fact that Japanese Military authorities failed to pay the enemy banks the balance of the money collected by the Bank of Taiwan from the debtors of said banks, did not and could not change the sequestration or impounding by them of the bank’s assets during the war, into an outright confiscation or appropriation thereof. Aside from the fact that it was physically impossible for the Japanese Military authorities to do so because they were forcibly driven out of the Philippines or annihilated by the forces of liberation, following the readjustment of rights of private property on land seized by the enemy provided by the Treaty of Versailles and other peace treaties entered into at the close of the first World War, the general principles underlying such arrangements are that the owners of properties seized, sequestrated or impounded who are nationals of the victorious belligerent are entitled to receive compensation for the loss or damage inflicted on their property by the emergency war measures taken by the enemy, through their respective States or Governments who may officially intervene and demand the payment of the claim on behalf of their nationals (VI Hackworth Digest of International Law, pages 232, 233; 11 Oppenheim, sixth edition, page 263). Naturally, as the Japanese war notes were issued as legal tender for payment of all kinds at par with the Philippine peso, by the Imperial Japanese Government, which in its proclamations of January 3, 1942, and February 1, 1942, “takes full responsibility for their usage having the correct amount to back them up” (See said Proclamations and their official explanation, O. T. IMA Vol. 1, pp. 39, 40), Japan is bound to indemnify the aggrieved banks for the loss or damage on their property, in terms of Philippine pesos or U. S. dollars at the rate of one dollar for two pesos. (2) The second question is, we may say, corollary of the first. It having been shown above that the Japanese Military Forces had power to sequestrate and impound the assets or funds of the China Banking Corporation, and for that purpose to liquidate it by collecting the debts due to said bank from its debtors, and paying its creditors, and therefore to appoint the Bank of Taiwan as liquidator with the consequent authority to make the collection, it follows evidently that the payments by the debtors to the Bank of Taiwan of their debts to the China Banking Corporation have extinguished their obligation to the latter. Said payments were made to a person, the Bank of Taiwan, authorized to receive them in the name of the bank creditor under article 1162, of the Civil Code. Because it is evident the words “a person authorized to receive it,” as used therein, means not only a person authorized by the same creditor, but also a person authorized by law to do so, such as guardian, executor or administrator of estate of a deceased, and assignee or liquidator of a partnership or corporation, as well as any other who may be authorized to do so by law (Manresa, Civil Code, 4th ed. p. 254.) The fact that the money with which the debts have been paid were Japanese war notes does not affect the validity of the payments. The provision of article 1170 of our Civil Code to the effect that “payment of debts of money must be made in the specie stipulated and if it is not possible to deliver such specie in silver or gold coins which is a legal tender,” is not applicable to the present case, because the contract between the parties was to pay Philippine pesos and not some specifically defined species of money. The Philippine peso and half-pesos including the Philippine Treasury Certificate was and is the legal tender in the Philippines under section 612 of the Administrative Code, as amended by Act No. 4199. As well stated by the Supreme Court of the United States in Knox vs. Lee and Parker (Legal Tender Cases, 12 Wall., 457-681, 20 Law. ed., 287). “The expectation of the creditor and the anticipation of the debtor may have been that the contract would be discharged by the payment of coined metals, but neither the expectation of one party to the contract, respecting its fruits, nor the anticipation of the other, constitutes its obligation. There is a well-recognized distinction between the expectation of the parties to a contract and the duty imposed by it. Aspdin vs. Austin, 5 Ad. & BL (N. S.) 671; Dunn vs. Sayles, Ibid. 685; Coffin vs. Landis, 46 Pa. 426. Were it not so, the expectation of results would be always equivalent to a binding engagement that they should follow. But the obligation of contract to pay money is to pay that which the law shall recognize as money when the payment is to be made. If there is anything settled by decision it is this, and we do not understand it to be controverted.” (Knox vs. Exchange Bank of Virginia, 12 Wall., 457; 20 U. S. Supreme Court Reports, 20 L. ed., 287, 311.) In said case it was held that the Legal Tender Acts of Congress which made the treasury notes legal tender for payment of debts contracted before and after their passage were not inappropriate for carrying into execution the legitimate purpose of the Government. And this Court, in Rogers vs. Smith Bell (10 Phil., 319), held that “A debt of 12,000 pesos created in 1876 can now (1908) be paid by 12,000 of the Philippine pesos authorized by the Act of Congress of March 2, 1903, although at the time the loan was made which created the debt, the creditor delivered to the debtor 12,000 pesos in gold coin.” The power of the military governments established in occupied enemy territory to issue military currency in the exercise of their governmental power has never been seriously questioned. Such power is based, not only on the occupant’s general power to maintain law and order recognized in article 43 of the Hague Regulations (Feilchenfeld says in his treatise on International Economic Law of Belligerent Occupation, paragraph 6), but on military necessity as shown by the history of the use of money or currency in wars. As early as the year 1122, during the siege of Tyre, Doge Micheli paid his troops in leather money which he promised to redeem when he returned to Venice (Del Mar, Money and Civilization, 26), and when Frederick II besieged Milan he also used leather money to pay his troops, as well as in payment of wages (id. 33). When the French forces occupied the Ruhr in 1923, they finished the printing of some Reichsbank notes in process and issued them. (Nussbaum, Money in the Law, note 6, 158-59.) The British during the Boer War issued receipts for requisitioned goods and made such receipts readily negotiable, an arrangement very similar to the issuance of currency (Spaight, War Rights on Land, 396). During the American Revolution, the Continental Congress issued currency even before the issuance of the Declaration of Independence, when the territory controlled by Congress was field in military occupation against the then legitimate 3rovernment. (Dewey, Financial History of the United States, 37-38; Morrison and Commager, Growth of the American Republic, 207; Nussbaum, op. cit. supra note 6, 172-173.) The Confederacy issued its own currency in Confederate territory (Thorington vs. Smith, 8 Wall., 1) and also in northern areas occupied from time to time during the war. (Spaight, op. cit. supra, note 19, 392.) The Japanese issued special occupation currency in Korea and Manchuria during the Russo-Japanese War of 1905. (Takahashi, International Law Applied to the Russo-Japanese War, 1908, 260-61; Spaight, op. cit. note 19, 397; Ariga, La Guerre Rossu-Japanese, 1908, 450 et seq.) The British also issued currency notes redeemable in Sterling in London at a fixed rate of exchange, in their occupation of Archangel during and after the first World War. (White, Currency of the Great War, 66; League of Nations, Currency After the War, 100.) During the World War II, the Germans had been using a variety of occupation currencies as legal tenders on a large scale, the currency initially used in most occupied areas being the Reichskroditkassa mark, a paper currency printed in German and denominated in German monetary units, which circulated side by side with the local currency at decreased rates of exchange. And the Allies have introduced notes as legal currency in Sicily, Germany and Austria. The Combined Directive of the combined Chief of Staffs to the Supreme Allied Commander issued on June 24, 1943, directed that the task forces of the U. S. will use, besides regular U. S. coins, yellow seal dollars, and the forces of Great Britain will use besides British coins, British Military Notes (BMA), to supplement the local lire currency then in use (Hajo Holborn, American Military Government, 1947, pp. 115, 116). The Combined Directive for Military Government in Germany, prior to defeat or surrender, of April 28, 1944, directed the United States, British and other Allied forces to use Allied military mark and Reichsmark currency in circulation in Germany as legal tender and the Allied Military Marks will be interchangeable with the Reichsmark currency at the rate of Allied Mark for Reichsmark; and that in the event adequate supplies of them were not available, the United States forces will use Yellow seal dollars and the British forces will use British Military Authority (BMN) notes. (Holborn, op. cit. supra, p. 140.) And the American Directive on the Military Government of Austria of June 27, 1945, ordered that the United States forces and other Allied forces within Austria will use only Allied Military Schillings for pay of troops and other military requirements, declaring it legal tender in Austria interchangeably with Reichsmarks at a rate of one Allied military schilling for one Reichsmarks. (Holborn, op. cit. supra, p. 192.) In the above cited case of Thorington vs. Smith, the Supreme Court of the United States said:
“* * * While the war lasted, however, they had a certain contingent value, and were used as money in nearly all business transactions of many millions of people. They must be regarded, therefore, as a currency, imposed on the community by irresistible force. “It seems to follow as a necessary consequence from this actual supremacy of the insurgent government, as a belligerent, within the territory where it circulated, and from the necessity of civil obedience on the part of all who remained in it, that this currency must be considered in courts of law in the same light as if it has been issued by a foreign government, temporarily occupying a part of the territory of the United States.”
According to Feilchenfeld in his book “The International Economic Law of Belligerent Occupation,” the occupant in exercising his powers in regard to money and currency, may adopt one of the following methods according to circumstances: (1) When the coverage of the currency of the territory occupied has become inadequate as found in several Balkan countries during the War of 1914-18, and “the local currency continues to be used, an occupant may reorganize the national currency by appropriate methods, such as the creation of new types and supplies of coverage” (paragraph 272). (2) The occupant may, and not infrequently, use his own currency, in the occupied region. But this method may be found inconvenient if the coverage for their national currency had already become inadequate, and for that reason authorities are afraid of exposing it to additional strain, and for that reason an occupant may not replace the local currency by his own currency for all currency for all purposes, and enforce its use not only for his own payment but also for payments among inhabitants (paragraph 285). (3) Where the regional currency has become inadequate and it is deemed inadvisable by the occupant to expose his own currency to further strain, new types of money may be created by the occupant. Such new currency may have a new name and may be issued by institution created for that purpose (paragraph 296). This last method was the one adopted by Japan in this country, because the coverage of the Philippine Treasury Certificate of the territory occupied had become inadequate, for most if not all the said coverage have been taken to the United States and many millions of silver pesos were buried or thrown into the sea near Corregidor, and Japan did not want to use her national currency, and expose it to additional strains. But be that as it may, whatever might have been the intrinsic or extrinsic worth of the Japanese war-notes which the Bank of Taiwan has received as full satisfaction of the obligations of the appellee’s debtors to it, is of no consequence in the present case. As we have already stated, the Japanese war-notes were issued as legal tender at par with the Philippine peso, and guaranteed by Japanese Government which takes full responsibility for their usage having the correct amount to back them up (Proclamation of January 3, 1942). Now that the outcome of the war has turned against Japan, the enemy banks have the right to demand from Japan, through their States or Government, payments or compensation in Philippine peso or U.S. dollars as the case may be, for the loss or damage inflicted on the property by the emergency war measure taken by the enemy. If Japan had won the war or were the victor, the property or money of said banks sequestrated or impounded by her might be retained by Japan and credited to the respective State of which the owners of said banks were nationals, as a payment on account of the sums payable by them as indemnity under the treaties, and the said owners were to look for compensation in Philippine pesos or U. S. dollars to their respective States. (Treaty of Versailles and other peace treaties entered at the close of the first world war; VI Hackworth Digest of International Law, p. 232.) And if they cannot get any or sufficient compensation either from the enemy or from their States, because of their insolvency or impossibility to pay, they have naturally to suffer, as everybody else, the losses incident to all wars. In view of all the foregoing, the judgment appealed from is reversed, and the defendant-appellee is sentenced to execute the deed of cancellation of mortgage of the property described in the complaint, and to deliver to the plaintiff-appellant the Transfer Certificate of Title No. 47634 of the Register of Deeds in Manila with the annotation of mortgage therein already cancelled, without pronouncement as to costs. So ordered. Moran, C.J., Paras, Pablo, and Bengzon, JJ., concur.