BOOK REVIEWS
Essays on Private Law: Foreign Law and
Foreign Judgments
Ian F. G. Baxter
University of Toronto Press, Toronto, 1966, pp. vi, 210.
In this book Professor Baxter presents as chapters, seven essays,
four of which he published separately in the Canadian Bar Review
and the McGill Law Journal in the period from 1961 to 1964. The
impact of their thesis is markedly increased by the unified presen-
tation. In them the author advocates a radical reformation of the
existing body of law known as Conflict of Laws. He says in his
preface that he has chosen the essay form since it provides a much
greater choice of weapons and a more open advocacy of law reform
than a standard work for practitioners and students.
Although he has avowedly not written a text book, his essential
first step toward criticism and advocacy of improvement was to ex-
pound the present state of the law and this he has done with more
discernment and clarity of expression than is found in some of the
standard works. This is especially evident in his treatment of choice
of law problems. Only occasionally does he lapse into inept use of
terms, such as “jurisdiction” to designate both “power to decide” and
“a legally independent unit of territory”, and “system of law” to
mean “body of law”.
The first chapter discusses jurisdiction, and the second, choice of
law. In them the author raises and explores, in his words, the “two
important questions with which this book is concerned: (a) whether
a court ought to hear an issue submitted to it, and (b) if so, by what
system are the rights and duties of the parties to be measured ?” He
argues that the two questions are different, with different consider-
ations of policy, but that they have not always been kept distinct by
judges and text-writers and that jurisdictional language and theories
have consequently infiltrated discussion of choice of law with dele-
terious results.
After developing his new groundwork of jurisdictional concept
and policy and the foundational principle for his new set of rules for
No. 3]
BOOK REVIEW
choice of law, the author refrains from a detailed elaboration of his
law of jurisdiction and devotes himself with particularity to: (a)
diagnosing the ills of the existing body of choice of law principles
and rules and (b) prescribing his curative reforms. This he does in
chapters entitled [3] Renvoi as a Symptom, [4] The Interpretation
of Written Obligations, [5] Property, [6] Recognition of Status in
Family Law, and [7] Recognition of Foreign Corporations. He says
that in the fields both of jurisdiction and choice of law his proposals
are not intended to be a worked-out blueprint for law but are meant
to be merely “suggestions put forward as direction indicators for a
re-design of the rules on foreign law and judgments with reference
to a system of private law”. In chapter [8] Conclusion, he gathers
together the principal “suggestions” that he developed in the previous
chapters.
In the common law system the concepts that are grouped together
under the title Conflict of Laws were chiefly developed during the
nineteenth century and the first part of the twentieth. Although
derived in part from Roman and Dutch sources, their formulation
was largely influenced by historically grounded English ideas and
the approach and techniques of analytical jurisprudence. Derived by
remorseless deduction from the fundamental doctrines of territorial
application of law and vested rights, many rules have been aimed at
achieving logical consistency and predictability of results with little
or no regard for the demands of justice and social policy. The con-
sequence, during the sociologically oriented second third of this
century, has been a continuous controversy that has been described
by Professor David A. Cavers as “marked by persistent tension be-
tween the quest for simple rules designed to yield uniform, predictable
rules of law and the effort to develop principles capable of producing
choices that would be meaningful in terms of the interests of the
parties and the states involved.”
One of the most radical contributors to the controversy has been
Professor Albert A. Ehrenzweig of the University of California.
Professor Baxter has adopted the approavh, basic principle, and
method of Ehrenzweig. His approach as quoted by Baxter, is that
modern courts have before them the task of moulding “a new common
law of convenient jurisdiction from case to case, by trial and error”.
The approach to choice of law is essentially similar. The basic princi-
ple postulates the dominance of the forum in both jurisdiction and
choice of law. Under this principle the basic questions are, “Why
should the forum not accept jurisdiction?” and “Why should the lex
fori not be applied?” The method by which to find the answer to
the first question, when there has been no consent to the local juris-
McGILL LAW JOURNAL
[Vol..i13
diction, is to consider in each case such things as “convenience
factors”, “inadequacy”, and public policy, with an over-riding dis-
cretion sufficient only to ‘enable the courts to operate their rules of
jurisdiction in a fair and flexible manner. The method proposed for
reaching an answer to the second question rests upon the principle
claimed to be foundational for a new set of rules for choice of law,
that is, that “the forum should apply its own standard law to an
issue coming before.its courts, unless there is good reason for ap-
plying the principles of (foreign) solution.”
In this book the author confines his discussion of jurisdiction
almost exclusively to’the question of whether the courts of the forum
should or should not adjudicate and provides no systematic treatment
of the true conflict of laws problem, that of recogniition by the courts
of the forum of the exercise of jurisdiction by the courts of foreign
states. Perhaps the intended inference is that this problem is to be
solved by some device resembling the so-called reciprocity doctrine of
Travers v. Holley. An elucidation of his proposed method of treating
this aspect of the subject would be helpful.
As mentioned earlier, most of this book is concerned with choice
of law. It provides a cogent and critical analysis of existing case law,
mostly of the British Commonwealth, with the purpose of determining
in each of the topical areas explored what the criteria should be for
determining whether or not the court of the forum when dealing
with the merits should modify or supplement its standard law by
adding a rule constructed in imitation of an appropriate foreign rule.
Although a reader may not accept the principle advocated by the
author as foundational nor the method as correct, a great deal of his
analysis ‘and criticism is constructively useful for thos’e of us who are
content to adhere to established basic principles while engaged in
empirical reform designed to reconcile what Professor Elliott E.
Cheatham has delineated as the policies of local law, the policies of
interstate and international systems, and the competing policies of
predictability through rules as contrasted with justice in the particu-
lar case.
Now that the urgent need for a sustained program of large-scale
law reform has become more widely recognized, there is an even
greater need than hitherto for works by teachers of law of the sort
under review. Law reform commissions and other agencies may be
about to supply some of the financial support for adequate research.
It is to be hoped that a sufficient portion will be used by legal scholars
for testing the practicality of the results of their research in books
by the results of equally thorough research into the functioning of
law in the day to day life of the community. Only by a careful evalua-
No. 3]
BOOK REVIEW
509
tion of each in the light of the other can there be any real assurance
of useful reform. Legal theory of whatever variety must be brought
into a substantial measure of harmony with enlightened common
sense and the changing circumstances of community life.
A knowledge of the relevant literature and structure of both civil
law and common law has equipped Professor Baxter to guide his
readers through familiar territory in a vehicle mounted on an un-
familiar theory and operated by unfamiliar methods. To follow his
clear but sometimes intricate trail is a stimulating experience. His
book is a welcome Canadian addition to creative legal scholarship.
Horace E. READ,
Sir James Dunn Professor of Law,
Dalhousie University.
The Trust and Corresponding Institutions
in the Civil Law
Christian de Wulf
Published as volume 10 of the Collection sponsored by the Centre Interuniversitaire
de droit comparg, Bruxelles, Etablissements Emile Bruylant (1965);
Pp. 197. 400 Belgian francs (paper); 680 B.F. (leather).
There has certainly been a need for a comparative study of that
series of civil law institutions which corresponds to the trust mecha-
nism of Anglo-American law. It is, of course, generally realized that
there is no single generic concept in the civilian tradition which, to
use the phrase of Professor Limpens in his Foreword to this work,
has served, like the trust, as “maid of all work” over the centuries;
where the civil law has generally had to find a contractual or pro-
prietary relationship, the Anglo-American tradition has relied on a
third pillar and resolved problems in terms of a trust relationship.
This study, written by a Belgian attached to Ghent University, but
dealing principally with French experience in the traditional droit
civil and a number of individual French legislative enactments, is an
interesting addition to the growing literature in this field; while not
without defects –
occasional stylistic inelegancies are a small source
of annoyance and the absence of an index is much to be regretted –
it is on the whole a provocative study of a complex subject.
Although the author maintains that his study is primarily intended
for common law lawyers, it will be of no less interest to civilians
interested in retracing to their historical origins some of the fun-
damental characteristics of the droit civil which, for a variety of
economic, political, social as well as technically legal reasons, has
not been able to produce a unified concept of trusteeship out of the
many disparate “trust-like” relationships it does possess. In addition
to the all-important exercise of situating these various factors in an
historical perspective, Dr. de Wulf undertakes a critical analysis of
certain technical features of the trust, and the corresponding civilian
institutions, which he has judged especially significant or repre-
sentative of each tradition.
Dr. de Wulf makes no effort to analyze the operation of those
fragments of trust which, in one civilian jurisdiction or another
such as Scotland, Quebec, Louisiana or South Africa,1 have been
lReferences to Scots law
(p. 67-8 respecting “apparent” ownership) and
South Africa (p. 107 on the doctrine of “tracing”) are wholly incidental.
No. 3]
BOOK REVIEW
“received” and, in different ways, “naturalized” with varying de-
grees of success. Nor does he offer the reader a treatise on the
English or American -laws of trusts. He attempts –
and, for the
principal part of his work, with considerable success –
to outline
the essential characteristics of the functioning of the system of trusts
and then to explain origins and workings of a number of apparently
disconnected civilian institutions which reply to the same end. His
conclusion, and one can hardly contest it, is that the trust is more
efficient and flexible than the series of corresponding techniques
available in civil systems to solve analogous problems.
To reach this conclusion the author has divided his study into
two distinct parts. The first, entitled a “vertical” analysis, where
his treatment is most successful, consists of an examination of the
incidence of trusteeship on the rights of third party acquirers of the
trust property and on those of the general creditors of the trustee
and the beneficiary of the trust. In the second part, entitled a “hor-
izontal” analysis, various uses of the trust are examined: the
“family” function (creation of life and other terminable interests;
discretionary, protective and spendthrift trusts) ; the trust and “social
life” (charitable trusts, voluntary associations) ; and the “trust and
commerce” (debenture, voting and investment trusts). In each case
the corresponding French institution –
the fiducia, the substitution
fidgicommissaire, donation sub modo, the fondation or special French
legislative intervention designed to meet a particular need –
is also
examined and, more often than not, found wanting. This Part, how-
ever, is less successful than the first if only for the reason that the
range and complexity of these different aspects of the trust and the
parallel civilian institutions is far too considerable to be really mean-
ingfully discussed in a series of sketches to which only some 65
pages, or about one-third of the whole work, -are devoted.
The treatment given in Part One to the internal functioning of
the trust, and in particular to the positions of third party acquirers
of trust property, the general creditors of the trustee and the measure
of protection necessary for the beneficiary, is undoubtedly the most
instructive. The examination of the English system of notice and the
French system of registration, the differing rules respecting apparent
title, documentary and oral evidence serve as background for an
interesting chapter on the English doctrine of “tracing” trust prop-
erty into its product and the corresponding French technique of
subrogation r6eZle. The English and American legal evolution of this
complex technique, whereby it is possible to identify the property of
the trust even though it may have passed through a successive number
of transactions, is of great interest to civilians; and while it may
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McGILL- LAW JOURNAL
[Vol. 13
not always assure a perfect equilibrium between the rights of the
beneficiary, the trustee and the latter’s creditors, it is, of course, the
great characteristic of the Anglo-American trust system. The potential
of the concept of subrogation, as a tool available to French civil law
in this respect, has not been developed in modern doctrine, and prob-
ably constitutes the greatest, though surely not an insurmountable,
obstacle to the functioning of trusts in a civilian context. The ultimate
fear, of course, is that a developed concept of subrogation would run
counter to the well-established classical French philosophy of unite
du patrimoine.
The particular usefulness of a comparative study of this kind for
those in a jurisdiction like Quebec is obvious. It is true that various
fragments of a law of trust are to be found scattered throughout
the Quebec legal system: the substitution fiddicommissaire plays this
role in part, the “trusts” of C.C. 869 and 964 have been extended, and
somewhat completed, by the addition of C.C. 981a et seq.: the Special
Corporate Powers Act, R.S.Q. 1964, ch. 275 provides an essential
tool for the modern corporation and financing; and the dispersed
provisions relating to tutors, curators, executors and other adminis-
trators, in the Trust Companies Act, R.S.Q. 1964, ch. 287 and else-
where, and the circumstance (now exceptional) where the husband
regains the right to administer the private property of his wife
(C.C. 1298), –
these are all parts of the total mosaic of what might
be called, but with some hesitation, the “Quebec law of trusts”. But
the absence of a general directing principle or philosophy covering
this wide sphere of relationships is to be regretted. The present period
of reflection upon the basic institutions of the civil law, preliminary
(it is hoped) to what will be intensive legislative reform, is certainly
the occasion to consider the possibility of further extension or adap-
tation of the trust principle. Whether this development should take
the form of a propridt6 fiduciaire, which would most logically find
its place within the Civil Code itself, or whether it might be more
happily expressed in terms of juristic personality in distinct statutory
enactment, are ultimately political rather than purely technical
questions. The study by Dr. de Wulf has enriched the literature
which must be considered on these matters.
John E.C. BRIERLY,
McGill Faculty of Law.
