Classification by the Site in the Conflict of Laws
| Published date | 01 January 1963 |
| Date | 01 January 1963 |
| DOI | http://doi.org/10.1111/j.1468-2230.1963.tb00695.x |
| Author | J. A. Clarence Smith |
CLASSIFICATION
BY
THE SITE IN THE
CONFLICT OF LAWS
THE contexts in which it is necessary to classify property for the
purpose of choosing the governing law are relatively restricted.
The classic situation is the transfer of property by succession, land
going to the heir selected by the law of the site, and goods going
according to the law of the deceased’s domicile: succession here
includes also the formal and substantial validity of a will and the
liability to taxation of such a transfer. The problem could also
arise in the past on
a
question of what rights (if any) a husband
had in his wife’s property, but there is no other situation in which
this classification is a necessary preliminary to the choice of law.’
There is, however, another and quite distinct context to which
these categories are relevant, namely the so-called security of
transactions, for title to land is acquired with greater difficulty
against its owner’s will, and with stricter formalities even with
his consent, than
is
the case with title to goods.2 But in this case
the law of the site,
or
fictitious site, of the property governs
whatever may be the type of the property: classification is not
necessary for the choice
of
law. The obvious solution to this
problem is that the law of the site should classify as part of the
decision already referred to it,s and no more need be said of this,
except to notice that it is
no
argument for a reference to the law
1
It
is occasionally relevant to a choice of
jurisdiction--tfustralian
Mutual
Prooident Society
v.
Gregory
(1908)
5
C.L.R. 615; and now
Re
Trepca
Minrs
[1960]
1
W.L.R. 1273 (C.A.).
2
This includes acquisition by prescription and also (for instance) the seizure
for the benefit of creditors of property in the reputed
”
(therefore not the
real) ownership of the bankrupt: an early English case is
Ez
p. Rucker
(1834: Rev.Bankr.1,
1
Mont.
&
Ayr.
480,
where the question was whether
an
equitable mortgage of land in Antigua included the slaves
on
the land as
“affixed to the freehold” by a local law of 1692, or whether slaves. as
personalty and of the reputed ownership of the mortgagor, were available to
the unsecured creditors.
Pace
Dicey (7th ed., p. 496) and Schmitthoff
(3rd
ed., p.
46)
this case had nothing to do with a
deoise
of land in
Jamaica:
those were the facts of
Newlands
v.
Chalmers,
a Privy Council case of 1815
cited in the Scottish decision of the same name,
11
S.
65, 66. The court in
Rucker’s
case held the slaves to be realty and therefore not susceptible
of
reputed ownership; and although the decision was upset on appeal-Ez
p.
Borrodaile,
re
Rucker
(1835: Lds.Comrs.),
2
Mont.
&
Ayr.
3OE-there was
no
disagreement with the principle: the reason was that the mortgage itself
was defective.
3
Batiffol,
8.
509.
Robertson.
Characterisation.
pp. 205212. introduces an
rinnecessary complication by insisting that for this purpose anything
‘’
immo-
bilised
’*
by the law
of
one country and then in fact moved to another should
be classified as movable. It probably would be
so
classified, but the decision
must be left to the law of the second country, for there would he little
security of transactions if the practical validity
of
any transaction were to
llepend on the possibility of action being brought elsewhere and a different
classification applied.
16
JAN.
1963
CLASSIFICATION
BY
SITE
IN CONFLICT OF
LAWS
17
of the site when classification is necessary before the governing
law can be chosen. that
in
an English court
the preliminary classification of property is in fact to be made by
the law of the site (unlike any other classification), but subject to
the qualification that the categories, wherever the site, are the
civil lam categories of immovable and movable.
The reference to the law of the site is of respectable antiquity
';
but the qualification that the categories must be movable and
immovable first saw the light in a footnote to the first
(1844)
edition of
Jarman
on
Wills,"
referring particularly to English
leaseholds which he thought should be classified for purposes of
the Conflict of Laws as immovables and not as personalty. The
learned author gave no authority for this view, and his only
reason was that foreign laws
so
classified property.' Jarman's
later editors did not change his text
or
his footnote, but they
added their
own
disapproval; and by passing Lord Kingsdown's
Act in
1861
in terms of personalty and not of movables Parliament
might be thought expressly to have repudiated the suggestion.
Lord Selborne, however, in
1873
found it useful, and explained
it
by saying that England had taken its lam on such matters from
the civilians who made that distinction: this is an attractive
explanation, but its application involves knowing what the civilians
mean by these words, and what it was that they left to the law
of the site.
Only one other judicial attempt has been made to find a reason
for preferring the continental categories, and with singularly
unfortunate results. was a
mortgagee's right under a legal mortgage on Ontarian land, a right
which is personalty by the law common to England and Ontario.
The decision-that its disposition by will was caught by the
Ontarian Mortmain Law-was not based
on
classification, but
there was argument on the point, and the judges considered that,
if it were necessary to decide, then such rights were immovable.
Both Cozens-Hardy
lo
and Farwell
L.JJ.ll
doubted the expediency
It
is commonly and confidently said
The right in question in
Hoyles'
case
4
5
6
7
8
9
10
11
Dicey, 7th ed., Rule 83, following Falconbridge,
Selected
Essays,
p. 441;
Cheshire. 5th ed.. pp. 429-432;
Wolff.
2nd ed.. pp. 502-506. and, on
p.
504:
"
I'nder English law there is not even
a
doubt that this solution is correct."
It was well established in the time
of
Boullenois-Obseraations,
ii, 60-and
6ee alfio Pothier,
Works,
2nd ed.,
Vol.
111,
p.
528,
Treatise on Communautd,
s.
85.
At p. 4. This first edition is said in the preface to be founded on the
author's edition of
Powell
on
Deoises
(1827), but that work contains no
mention of this point.
Perhaps an early example of shame
at
what is often thought to be the
technical artificiality of English law; but it is submitted there is nothing
shameful in classifying
property
according to its significance for its owner.
Freke
v.
Lord Carbery,
L.R.
16 Eq. 461.
Re Hoylea, Row
v.
Jagg [1911]
1
Ch. 179
(C.A.).
At
p.
183.
At
p.
185.
To continue reading
Request your trial