McGILL
LAW JOURNAL
VOLUME 10
MONTREAL, 1964
NUMBER 1
CONFLICTS OF LAW AND PROPERTY
Ian F. G. Baxter*
Introduction
The sale of a chattel may contain relations: (i) between the seller
A and the buyer B; (ii) between B and creditors of A, or A and
creditors of B; (iii) between B and previous owners.’ Property rights
and obligations may arise through contract and other events, e.g.
change of possession or formalities for completion of title. Property
law contains the interweaving of legal categories: (a) the contractual
relationship between A and B, which (apart from situations such as
jus quaesitum tertio) involves only these parties; (b) property ques-
tions which may or may not depend upon the contract and which
may involve third parties.
The ownership of land or a chattel is characterised by the right
to enjoy the res by possession; other kinds of property may be
associated with an “indispensable instrument”, 2 of which a bearer
* Professor, Osgoode Hall Law School.
1 Cf. Vinding Kruse (1958) 7 Amer. J. of Comp. L., at p. 500.
2 See American Restatement, Security, s. 1; Paton, Bailment in the Common
Law (1952), at p. 354. Cf. in regard to “titolo di credito”, Cavaglieri, II Diritto
Internazionale Commerciale (1936), at p. 338; “Esse si riconnettono al possesso
di un documento che anzich , com’6 di consueto, avere una funzione meramente
probatoria et non avere nessuna connessione necessaria col rapporto guiridico, di
cui attesto semplicemente l’esistenza, assume funzione costitutiva nel senso che
la sua presenza 6 condizione necessaria per l’esistenza del rapporto stesso. Docu-
mento e dirito sono compenetrati; il diritto, per cosi dire, si materializza nel
titolo. Chi ha il documenta, et solo chi a il documento, ha il dirritto.” See also
Pellizzi, studi sui titoli di credito (1960) p. 19 et seq. “El titulo de crddito es
un documento que Ileva incorporado un derecho, en tal forma, que el derecho va
intimamente unido al titulo y su ejercicio esti condicionado por la exhibicion del
documento; sin exhibir el titulo, no se puede ejercitar el derecho en 61 incorpo-
rado.”: Cervantes Ahumada, Titulos y Operaciones de Credito, (3rd ed. 1961)
at p. 18.
McGILL LAW JOURNAL
[Vol. 10
bond or bearer bill of exchange are examples. Other forms of incor-
poreal property are more loosely associated with physical instru-
ments, or not at all as in the case of a loan of money by oral agree-
ment. Association with a physical thing may be for different reasons
–
the sale of a car as compared with the transfer of a bearer bond.
In the first, possession of the document is an incident in the enjoy-
ment of the property, and may or may not be required for the transfer
of title; in the second, delivery is the mode of transfering title. Most
legal systems require that property be transferred by some ostensible
process, usually involving delivery of the res itself, or something
which can be associated with it. But in neither case will the physical
thing be the essence of the legal concept of property. It has been said
that the “object of the law of property is to provide a secure foun-
dation so far as the law can do it, for the acquisition, enjoyment and
disposal of wealth.” o Property of all types should be considered as
value.4 The internal law of a country, for practical reasons, may take
into account differences in the physical forms and associations of
property, for example, as regards the machinery for transfer of title
or the creation of a security. Private international law should be
careful not to over-emphasize these differences and should remember
the essentially common purpose of property. The Quebec Civil Code
states that ownership is the right of enjoying and disposing of things
in the most absolute manner,, provided that it is lawful, and the
French Civil Code defines property as the rights of enjoyment and
alienation.5 According to Maine,6 the “Roman distinction between
the Law of Persons and the Law of Things –
though extremely
convenient is entirely artificial.” The ‘materials’ of the law are
concepts and relations –
rights, duties and the like, these being
different in content and in scope, some applying vis-A-vis all other
3 Lawson, Introduction to the Law of Property, (1958), at p. 2.
4 Cf. De Castro, Direito Internacional Privado (1956), Vol. 2 at p. 143, “Dens
nao sao as coisas, mas os valores que se podem obter das coisas: bens sao
realidades juridicas. Assim como as pessoas nao existem na realidide material,
como s~res vivos, assim as bens sao realidades conceitua is, criacoei do espirito,
que se vein superpor a situagoes realmente existentes.”
4
5 Art. 406 (Quebec) and Art. 544 (France). The Spanish Civil Code is: “La
propriedad es el derecho de gozar y disponer de una cosa, sin mis limitaciones
que las establecidas en las leyes,” Art. 348. Mexican Civil Code, art. 830. Art. 58
of the Soviet Civil Code is comparable: see Gsovski, Soviet Civil Law (1949),
Vol. 2, at pp. 69-70. Communist theory regards property as a source of power
and command, associating it with public law: Renner, The Institutions of Private
Law and their Social Functions (Kahn-Freund)
(1949) at p. 105 et seq.
GAncient Law (1861) at p. 214.
No. 1
CONFLICTS OF LAW AND PROPERTY
persons, some only to a limited class or to an individual.- It has been
argued that private international law should emphasize facts, because
the conflict problem is to ascertain from them the applicable set of
concepts and relations.”
The comparative law of property shows variety in principles,
concepts and terminology. Concepts may exist in one system and not
at all in another. The Common Law mortgage of goods involves a
transfer of title in security without necessarily a delivery of posses-
sion to the creditor. The law of another jurisdiction may require
possession by the creditor for the creation of a security.9 Public
registration or notice of a right may be needed to preserve it against
certain parties. There are also variations in terminology. Term X
may exist in jurisdiction J, but have no equivalent in J2, or there
may be degrees of equivalence. J2 may have to determine its attitude
to a right in J1.10 These problems arise mainly in regard to subsequent
purchasers and creditors. Terms such as “title”, “property”, “owner-
ship”, “possession” have a more or less universal connotation, but
even these can be ambiguous.” Quebec law and French law link
possession and title.’ 2 Exchange of possession of a chattel or a doc-
uiment may produce a transfer of title by the law of J1. Lack of
uniformity between legal systems, whether as to modes of acquisition
and transfer of rights or as to terminology, is less marked in com-
mercial law than in some other branches. This is due to the historical
influence of the law merchant, 3 and the demands of international
trade. There have been some attempts at international agreement
affecting commercial property.
7 Cf. Falconbridge, Conflict of Laws (2nd ed., 1954), at pp. 603-4. Cf. Batiffol,
Traiti El4mentaire (3rd ed., 1959), at s. 527; “Une syst~matisation satisfaisante
du droit priv6 n’oppose pas les ‘biens’ aux ‘personnes’ mais l’objet des droits au
suiet des droits.”
8 E. G. Rabel, The Conflict of Laws (1945), Vol. 1, at p. 46.
9 E.g. Scottish law, Stair’s Institutes, I, 13, 14; see also the French Civil Code,
art. 2076; Code de Commerce, art. 92. In s. 92 of the Soviet Civil Code, the
transfer of movables to the creditor is contemplated under zalog (“mortgage”),
subject to certain exceptions
involving identification or earmarking of the
security property.
10 See Rigaux, La Thdorie des qualifications (1956) at pp. 270-271.
11 Hume, A Treatise of Human Nature, Book 3, Part 2, Sec. 3. Possession is
defined in Art. 2192 of the Quebec Civil Code.
12Art. 2268, Quebec Civil Code; art. 2279 French Civil Code. The American
Uniform Commercial Code (1958), Art. 2, Part 4, sec. 2-401 relates (in general)
the passing of title to delivery of the goods or an appropriate instrument.
13 Some think that a new ius commune commercium may develop, at least among
the countries of the European Communities: Bdrmann (1920) 12 Revue Inter-
nationale de Droit Compard, at p. 50 et seq.
McGILL LAW JOURNAL
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Fundamentals of Property
Perhaps the archaic form of property was community ownership. 14
The institution of private property involves the creation of protected
interests. “Les hommes donnent A leur vie comme but essentiel ]a
conqu~te de ]a richesse et ils s’autorisent de l’incertitude de ]a morale
pour ne pas se pr6occuper de la 16gitimit6 de la conqu~te. L’esprit
capitaliste marque profond6ment la soci6t6 moderne. L’acquisition
des biens est pour beaucoup de gens le but exclusif de l’activit.” 15
It is necessary to avoid mere repetition of political and legal dogma,
for it has happened in this subject, that “writing has been so full
of ideological cant (whether capitalist, socialist, or communist in
bent) that we do not accurately see whither the law is tending.” 10
From the policy point of view, it is a different question if a court of
X is asked to consider the claim of A to land in X (as a local law
problem), or if the same court has to deal with the recognition of a
similar claim in Y, a claim which might or might not be valid by the
law of Y. If X has no concept of private ownership of land within
its own boundaries, it may yet feel that it can recognize a right of
private property in Y, arising by that system. Because X does not
have the concept, in its internal system or interprets it differently,
it does not follow that it should refuse to recognize its operation
with respect to other systems. The policy questions are different.
Examples of Property Situations
Consider some situations regarding property conflict of laws.
These tend to group themselves around (a) ownership; (b) posses-
sion; (c) rights exceeding those of an ordinary creditor, such as
security or “privilege”. The original acquisition of ownership is not
often of concern in private international law. The typical ingredients
for transfer of title are (i) the effect of a sales contract; (ii) deliv-
ery of the property or of a document; (iii) the carrying out of
prescribed formalities, e.g. registration, endorsement. Policy is con-
cerned that the transfer will not deceive those who may later attempt
to deal. The law of X may have to consider, in relation to a sale in
Y of goods there, whether it is important that the ingredients which
14 Maine, op. cit., at p. 214 says that group ownership is the “really archaic
institution”. See his discussion at p. 221 of co-ownership in Russian villages, and
Recopilacion de Leyes de los Reynos de las Indias (1943), Vol. 2, Book 6, Title 4
(Consejo de la Hispanidad) as to South American Indians. See Jolowicz, Histor-
ical Introduction to the Study of Roman Law (2nd. ed., 1954) at p. 140; and
Plato, Laws, Book 5, 737 C et seq.
15 Ripert, Les Forces Criatrices du Droit (1955), at p. 192.
16 Paton, Text Book of Jurisprudence (2nd ed., 1951), at p. 441.
No. I
CONFLICTS OF LAW AND PROPERTY
would have been required by the law of X for such a transfer were
not present in all detail, or whether, for example, it should be enough
that the law of Y was observed and that it involved publicity to
obviate the risk that a prospective subsequent dealer with the property
would be misled. On the one hand, the law of X may, in its rules of
private international law, limit itself to concepts and modes of trans-
fer of title which are substantially the same as those of its internal
law. This does not necessarily mean applying the lex fori as such,
but it does imply an attitude on the part of X of not wishing to go
beyond its (internal) legal ideas. But X may be receptive to the
language and ideas of other jurisdictions in appropriate circum-
e ) happen
stances, for example, by deciding that if events (el, e2 –
to a res in Y the title is transferred from A to B, although (e,, e2
) would not have had the effect by the internal law of X if the res
-en
had been located there. Again the internal law of X may require
registratioon for effective transfer of title, but X may recognize as
valid a transfer in Y, where there is not such registration. For con-
venience, these two attitudes will be referred to as “‘exclusive” and
“receptive” policies. It has been said that the “primitive idea that
jurisdiction implies the applicable law, or in other words that a court
can apply only the rules prescribed by its hierarchic superior, univer-
sally prevailed in ancient times, until about 1200 the genial equitable
conception was introduced that the more convenient and useful law
should furnish the rule of decision conformably to the nature of the
case… In formal theory, the notion that a local court is confined
to its domestic legislation for international as well as domestic
purposes reverts in this respect to the status quo ante 1200.” 17 On
this view, the private international law of X should be generally
receptive to legal events and solutions elsewhere. It might be argued
that X is one of an “ordre de syst~mes”; and should have regard to
this in its private international law.’ s
Possession enters into property law as a mode of enjoyment and
as a factor in relationships such as transfer of title or the creation
17 Yntema (1957), 35 Can. Bar Rev. at pp. 721-2.
18 Cf. Anzilotti, Scritti de Diritto Internazionale Privato (1960), Vol. 3, at p.
227, “Cosicch6, le regole di diritto internazionale privato, che troviamo sancite
dalle leggi dei singoli stati, non hanno, in s considerate, n6 una ragion d’essere
n un valore intrinseco eguale alle regole di diritto interno; perch6, mentre queste
trovano nell’ organo da cui derivano ]a ragione necessaria e sufficiente dell’ esser
loro, quelle sono semplicemente una parte di un ordine giuridico piji vasto, e non
si possono intendere ed ammettere se non in relazione a questo ed al suo processo
storico di, formazione,” Cf. Batiffol, Aspects Philosophiques du Droit Interna-
tional Privi (1956), sec. 7 et seq.
McGILL LAW JOURNAL
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of a security. Conflict of laws is mainly concerned with the second.
The difficulties in defining possession are much the same every-
where. 19 We are more concerned with title or security than with pure
questions of possession.
Security Rights
(i)
Some security rights are founded on title and some on possession,
some on contract, some arise by force of law, some give priority
over all unsecured creditors, some only over certain creditors, some
affect the title of subsequent purchasers, and so on. There are trans-
actions which are not securities in form, but are commonly used for
financing.2 0 There are two types of problem:
the claims and
priorities of creditors, (ii) A buys property on which B has already
a security interest. Most countries give A some protection, if he gave
value and was in good faith, but the kind of protection may vary.2 1
The distinction between the two situations may be more in form
than in substance. A claim for priority in a particular asset may be
made by D as a security holder or as purchaser in good faith, there
being a practical difference where the asset is greater in value than
the secured debt. The important question is the priority standing of
a given security –
holder or subsequent purchaser, against other
claims. In the security situation, the court may have to ascertain
priorities as between different interests; some of these interests may
have been created outside the jurisdiction and have no counterpart
in the law of the forum. The questions which arise may be described
as “single interest problems” and “multi-interest problems”, and
policy considerations may not be the same for the two types.
19 Consider for example, the completion by delivery of a transaction on a bill
of exchange, when the bill is lost after posting. See Falconbridge, Banking and
Bills of Exchange (6th ed., 1956), ch. 41, as to the Canadian and English position.
In the Common Law systems, the concept of possession relates to physical things:
Brown on Personal Property (2nd ed., 1955), at p. 19 et seq., Paton, op. cit., at
p. 9, see footnote 2. But in some Civil Law systems, the meaning appears to be
wider, including “…. . la jouissance… d’un droit…”; French Civil Code, art.
2228; Cf. the Spanish Civil Code, art. 430. See, however, the Swiss Civil Code,
art. 919. Of. Plato, Theaetetus, 197B as to possession of things and qualities.
20 The conditional sale, in North America, for example, is in the form of a sale
analogous to the hire-
with reservation of title until payment of the price –
purchase in Britain. See Brown, op. cit., at p. 246 et seq., footnote 19.
21 Cf. French Civil Code, art. 121; Morandi~re, Rodiire and Houin, Droit Com-
nercial (1959), Vol. 2, at p. 43, and the anglo-saxon conception of purchaser for
value in good faith and without notice; Falconbridge, op. cit., at p. 622 et seq.,
se footnote 7.
No. 1
CONFLICTS OF LAW AND PROPERTY
Contract and Property
An inherent difficulty in this branch of private international law
is the over-lap between the law of contract and the law of property.’2
Contract helps to create many property rights. It may be difficult,
if not impossible, to separate the contractual and property aspects.
Since all contracts do not involve property issues and vice versa, the
tradition has been for the private international law of the two areas
to develop separately. In contracts, the proper law is frequently used
and in the case of property the law of the situs. The characterization
(“qualification”) of such problems can be intrinsically difficult.
There is an over-lap of a similar kind in the validity of marriage,
since the status arises from exchange of promises, and here the
answer has been to set up special rules..2 3 Some matters affecting
sale transactions are associated with the agreement as well as with
the property –
e.g. recission, implied terms, conditions and war-
ranties, passing of risk.24 Cheshire has stressed the contractual as-
pects, applying the lex actus to a variety of situations. 25 Others have
distinguished between contract and property; for instance, an agree-
ment to transfer title as compared with the transfer itself.2 6 In cer-
tain situations, the title of the transferee may be determined by the
contract.2 7 It may not be an adequate solution to say that the rules
of contract shall apply when the problem is mainly concerned with
the contractual aspects –
for these aspects may be too interwoven.
The transfer of certain abstract property may be, in substance, only
an agreement, or a declaration by a transferor, –
there being no
physical property or indispensable instrument.2 8 Even here, there
are questions more connected with property than contract, e.g.
priorities, execution. 29 The traditional theory is to have to determine
22 Cf. French Civil Code, arts. 1101 and 544. It has been suggested that French
writers, because of the nature of French internal law, do not always distinguish
the contract-property duality. Zaphiriou, Transfer of Chattels in Private Inter-
national Law (1956), chap. 5.
23 See Baxter, (1961) 39 Can. Bar Rev., at p. 311 et seq.
24 Zaphiriou, op cit., chaps. 9 and 10 pp. 94-96 and 141, considers that these
should be governed by the proper law of the sale agreement, but not so the rights
of an unpaid seller. See Re Hudson Fashion Shoppe [1926] 1 D.L.R. 199 at p.
203 per Riddell J. A. to the effect that the “lex loci contractus governs as to
goods sold in one country and taken into another so far as the ownership of
property and its results are concerned.”
25 Private International Law (5th ed., 1957), at p. 438 et seq., 446.
26 Rabel, op. cit., at p. 34, see footnote 8.
27 Cf. French Civil Code, art. 1138
28 For example, an equitable assignment for a debt or a declaration of trust
in the anglo-saxon systems.
29 Dicey, Conflict of Laws (7th ed., 1958), at p. 557, and Rules 90-92.
McGILL LAW JOURNAL
[Vol. 10
with which category the issue is most closely connected. In a matter
of any complexity (because there are many of border-line cases)
this process is unsure.
It may be argued that there should be rules for different issues
and different kinds of contracts. 30 On this basis there could be special
rules for sales contracts or for all contracts related to property. The
difficulty would be that a large group of contracts would be excep-
tions to the general rule. A connecting factor in the “property rules”
(for example, the situs of the goods) might be an element in the
determination of the proper law.
In the English case of Kahler v. Midland Bank 31 “contract rules”
were applied rather than “property rules”. In 1938, the plaintiff
made a bailment of bearer securities with the Zivnostenka Bank in
Prague, for safe custody. England was the situs of the securties. In
1939 the Czechoslovakian bank wrote to the defendants in London
asking them to accept custody of the securities and not mentioning
the title of the plaintiff. The plaintiff, to facilitate his departure
from Czechoslovakia at the beginning of the war, signed documents
depositing the securities in the control of the Bohemian Bank (which
succeeded to the rights of the Zivnostenka Bank). To the plaintiff’s
claim for delivery, the defendants replied that they held the securities
for the Bohemian Bank and that by the currency legislation of
Czechoslovakia it would be illegal for that bank to release them to
the plaintiff since he was a “currency foreigner”. This defence
succeeded in the House of Lords, because “the proper law [of the
contract between the plaintiff and the Zivnostenka Bank] is the law
of Czechoslovakia” and “the court of this country [England] will
not compel the performance of a contract if by its proper law per-
formance is illegal. And it follows that it must be admitted as a good
defence in an action of detinue that the bailor, whose bailee is sued,
is entitled to deny possession to the plaintiff because it is illegal to
give him possession.” 32 The basic issue was whether under the
contract “the appellant had against the Bohemian Bank an immediate
right of possession, or whether his right of possession was governed
by the Czech currency restriction laws… “33 The title of the plain-
30 Cf. Ehrenzweig (1959) 59 Col. L. Rev. at pp. 773, 1171. Where the parties
have not made an explicit choice, different presumptions may affect the deter-
mination of the proper law. See Baxter (1957) 35 Can. Bar Rev. at p. 698.
3′ [1950] A.C. 24; Mann, The Legal Aspect of Money (2nd ed., 1953), at p. 374
the Law (1950), at pp. 467 and 542; Zaphiriou,
et seq., Nussbaum, Money in
op. cit., chap. 8, footnote 23.
32 At p. 27 per Lord Simonds. There was found to be no contract between
Kahler and the Midland Bank.
33 At p. 35 per Lord Normand.
No. 1
CONFLICTS OF LAW AND PROPERTY
tiff was not challenged, only his right to recover possession from a
sub-bailee.3 4 The result was that, because of restrictive legislation
in Czech law (the proper law of the original bailment) an English
court refused to allow the owner of property in England to regain
possession of it from an English sub-bailee holding it for safe custody.
If the issue had been regarded as concerned with “property” rather
than with “contract”, the applicable law would, no doubt, have been
English law as the law of the situs, and the Czech legislation being
no part of that law, would not have barred an immediate right to
possession. The House of Lords held that the Bohemian Bank could
not lawfully deliver, ergo neither could its bailee, the Midland Bank.
It is true, of course, that where a chattel has been bailed for safe-
keeping, re-delivery to the bailor will represent performance of the
agreement. But bailment is an operation on property 5 There may
be no consideration; and if so, there is no contract in the Common
Law systems. The transaction has an irresolvable duality.36 How can
a selection be made? in Kahler it was done by neglecting the property
aspects.
The loan of a book on an understanding that it will be returned
before a certain date, involves property and contract. The lender
.can enforce the agreement and claim damages for non-fulfilment, or
the borrower (founding on possession) can sue a third party for
damage to the book.3 7 The disposal of a case may depend on the
classification of rights and obligations –
this classification is an
exercise in definition and grouping. Suppose the forum applies the
proper law to contract questions and the lex situs to property ques-
tions. The proper law of the sale agreement is Soviet law and the
goods are located in France. Is the accidental loss of the goods to be
grouped with the rights and liabilities of the “contractual” set or
the “property” set? The passing of risk may be agreed inter partes
and is also related to the property. The goods are at someone’s risk
even when the sale agreement is invalid. The risk when determined
by the agreement affects the rights of the property owner. It is a
situation where simultaneous inferences can be made and logic does
not prefer one inference to another.
.4 Paton, op. cit., at pp. 45-47, footnote 2.
35 “Possession is essentially an interest in the law of property –
indeed from
a purely analytical point of view, bailment is more analogous to a lease than a
contract, in the sense that a property interest less than ownership is transferred.”
Paton, op. cit., at pp. 30-31, footnote 2.
36 See p. 46 per Lord Reid.
37 The Winkfield, [1902] p. 42.
McGILL LAW JOURNAL
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Property and Choice of Law
Characterization as “contract” or “property” saves the rules from
being ineffective. Historically, apart from use of the lex fori, one of
the earliest ideas in the western systems, was to refer property
matters to a personal law.3 The principle has still some vigour at
the present time.3 9 The original meaning of “property” was some-
thing “proper” to a person.40 In a property matter, the law of the
place where the person came from might be applied. 41 By the exclu-
sion of foreigners from the ius civile,42 everyone was subject to a
law with which he should have been familiar.43
Supplementary rules or a supplementary system have attractions
where a cosmopolitan empire, a community of states or a federation
of one sort or another is involved. In a dispute between A and B
about title, let the rule of the forum X be that questions on title are
decided by the personal law. The personal law of A is Y and B is Z.
A supplementary rule might be (i) to prefer Y to Z or vice versa
for some reason; (ii) to apply a different conflict rule where Y and
Z differ; or (iii) to use a system of internal law to which both parties
are subject only when X does not equal Y. Most of these methods
involve the application of a law with which at least one of the parties
has a connection. The choice of the lex situs may be artificial. Con-
sider, for example, a sale of goods made in London between an
English and Danish firm. 44 The goods are raw materials due to be
processed in Denmark and sold in the United States. The sellers are
38 See, for example, Dicey, op. cit., at p. 456 et seq., footnote 29; Zaphiriou,
op. cit., chap. 4, footnote 23; Lalive, The Transfer of Chattels in the Conflict of
Laws (1954), chap. 3; Story, Conflict of Laws (8th ed., 1883), chap. 9; Lando,
(1957) 6 Am. J. of Comp. L. at p. 1; Espinola, Do Direito Internacional Privado
Brasileiro (1943), Vol. 2 at s. 172; Cavaglieri, op. cit., at p. 341, footnote 2;
The Commercial National Bank of Chicago v. Corcoran (1884), 6 O.R. 527;
Castel, Private International Law (1.960) at p. 161; Cheshire, op. cit., at p. 438,
footnote 25; Sill v. Worswick, (1791) 1 H.B. 1, 690; Lorenzen, Selected Articles
on the Conflict of Laws (1947) at pp. 144-5; Ehrenzweig, Conflict of Laws
(1962), at p. 617 et seq.
39 Cf. The Spanish Civil Code, art. 10; “Los bienes muebles estAn sujetos a In
Icy de Ia naci6n del proprietario.”
40Cf. Mufioz, Comentario al Codigo Civil de Espaiia (1953), at p. 346. The
Greeks used the same word for being and property: Jones, The Law and Legal
Theory of the Greeks (1956), at p. 202.
41 See Niederer,
(1960) 49 Rev. Crit., at p. 147 et seq.; Yntema,
(1953) 2
Amer. J. of Com. L. at p. 300 et seq.
42 Buckland and McNair, Roman Law and Common Law (1952, ed. Laws on)
at p. 25.
43 Cf. Baxter, (1961) 39 Can. Bar Rev., at p. 347.
44 Cf. J. H. Rayner and Co. v. Hambro’s Bank, [1943J K.B. 37.
No. 1
CONFLICTS OF LAW AND PROPERTY
produce dealers who bought the consignment of goods in Hamburg
from a German merchant whose agents in India had acquired them
in connection with the insolvency of an Indian producer. The goods
have been loaded on a Greek ship. at an Indian harbour. An action
is brought in an English court as to who has title.
Personal or Territorial Approach
The main objection to personal law as a general choice of law
rule in property matters, is that in certain cases it must be supple-
mented to make it work and cannot solve the problem with one “bite
of the cherry”. If we pass from a “personal” rule to a “territorial”
rule, a person’s whole property may not be located in one jurisdiction.
Choice of law which depends on the personal law of an individual
is not enough in a dispute between people with different personal
laws. If choice of law depends on location, this will lead to an
“atomised” set of answers where a man’s property is in various
jurisdictions, or to uncertainty where goods are in transit. There
are three means of escape from the dilemma: (i) to be wholly “per-
sonal” and to introduce supplementary rules or a supplementary
system where necessary; (ii)
to be “territorial” for transactions
other than general transfers of property, for example, on death or
bankruptcy and in these cases to be “personal”; (iii) to be neither
“personal” nor “territorial” but to use some other basis. In modern
times, the prevailing answer is the second – uti singuli being related
to the lex situs and uti universitas to the personal law (nationality
or domicile). Story favoured the view that movable property should
be governed by the personal law of the owner. He contended that
the lex situs would produce difficulties in regard to things in transit
and also ” –
any sale or donation might be rendered inoperative
from the ignorance of the parties of the law of the actual situs at
the time of their acts.” 45 He thought that the doctrine was created
for reasons of utility, although he admitted that it had many
exceptions.
Is situs easier to ascertain than personal law? In regard to im-
movables, location will be in no doubt –
unless the land is across
a jurisdictional boundary. The location of a tangible movable is
normally clear, but a chattel in transit will be indefinite as to situs.
It may be possible to associate the situs of an intangiblewith a
tangible, e.g. a document. Otherwise the situs of an intangible will
be an artificial* extension of the meaning of the term. The personal
45 Op. cit., at p. 537, footnote 38. The modern law in the United States favours
the lex situs even reference capacity; see 15 Corp. Juris Sec., s. 16d.
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law varies between jurisdictions, (a) some use nationality and some
domicile: (b) these concepts have various interpretations, e.g. the
English Common Law theory of domicile as compared with the con-
tinental European or United States’ theories. 4 The weakness of the
personal law, for uti singuli, is its lack of uniformity and its
insufficiency.
There is substantial agreement in modern systems in favour of
the lex situs as the principle choice of law rule in regard to uti singuli.
This applies to Civil Law systems, including Latin America, and
Common Law systems.47 Similarly, the rule as to general transfers
of property, for example, on death or bankruptcy is the lex per-
sonalis. The location of the situs is determined by the lex fori.48
Article 6 of the Quebec Civil Code applies the laws of Lower Canada
to immovables in the jurisdiction and the law of the domicile of the
owner to movables, subject to certain qualifications in favour of
the laws of Lower Canada. An argument for the lex situs is that it
provides a focal point upon which to base choice of law. A property
question may involve not only immediate parties but creditors and
subsequent purchasers. It may be thought desirable, therefore, to
relate the conflict rule to something more objective than the personal
law of the purchaser.49
“Specialization” and Choice of Law
If lex situs is the general rule, does it apply to capacity? The
Common Law approach seems to be to regard capacity as an aspect
of validity, whereas the continental European countries treat it
4G See discussion of this in (1961) 39 Can. Bar Rev. at p. 304, et Beq.
47In re Anziani, [1930] 1 Ch. 407, 420; Dicey, op. cit., at p. 495 et seq., foot-
note 29; Falconbridge, op. cit., chap. 9, footnote 7; Niboyet, Traiti de Droit
International Privd Frangais, Vol. 4 at s. 1191; Espinola, op. cit., at s. 174
footnote 38, for a comparative survey; Arce, Derecho Internacional Privado (3rd
ed., 1961), at p. 182; Savigny, Private International Law (Tr. Guthrie)
(1880,
2nd ed.), at p. 174 et seq.; Rabel, The Conflict of Laws (1958), Vol. 4 at p. 30;
Lalive, op. cit, at p. 90; Italian Civil Code, Art. 12; Greek Civil Code, Art. 27;
Corpus Juris Sec. s. 18. Cf. the new Polish Projet de loi sur le droit international
(1962) 51 Rev. Crit. at p. 189. As to the Russian position before
privg (1961),
and after the revolution, see Makarov, Pricis de Droit International Prive d’aprhs
la legislation et la doctrine Russe (1932), at pp. 271-277. Ehrensweig, op. cit.,
footnote 38, at p. 607 et seq. As to the dilemma of determining whether Article 6
of the Quebec Cicil Code is to be interpreted literally or whether there is room
for application of the lex rei sitac to moveables, see Johnson, Conflict of Laws
(2nd. ed., 1962), chap. 14; Castel, Private International Law (1960), p. 161.
48 Dicey, op. cit., at p. 502, footnote 29.
49 Cammell v. Sewel, (1860) 5 N. & H. 728; Blenain v, Debono, [1924] A.C. 514.
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CONFLICTS OF LAW AND PROPERTY
mainly as an aspect of status governed by the lex personalis.50 To
refer capacity to the lex personalis, and other questions on validity
to the lex situs, would seem to increase the complexity of the choice
of law rules without compensating gain. In framing choice of law
rules, it is important to consider how far specialization should be
introduced –
“is it desirable to subject a transaction to a single law
as regards all its aspects or is it preferable to split the transaction
into various questions and subject
these various questions
to
different laws.” 51 Generally, in the interests of simplicity, it
is
desirable to keep to a minimum the number of rules in a set of choice
of law rules governing a class of transaction. “Specialization” multi-
plies the chances of doubt in regard to placing issues in conceptual
categories –
for example, whether an issue relates to “capacity” or to
“validity”. It should be avoided* unless there are strong counter
reasons based on justice or public policy.
Acquired Rights
The English rule seems to be that validity, whether related to
form or to substance, is governed by the lex situs. There may be
involved (a) the creation of a right or (b) the content and incidents
of a right. If a res is moved from X to Y, there are various alter-
natives, for example, (i)
that the property right is terminated,
perhaps because the law of Y regards its creation as invalid; (ii) that
the right continues, but the meaning and consequences are now
given by the law of Y; (iii) that the property right is not terminated
and the meaning and consequences remain those given by the law
of X. These alternatives may arise whether X or Y or neither is the
forum.
There is a general feeling that property rights acquired in one
country should be respected in another. As a theory, this has been
criticized on the ground that it is uncertain; that it tends to rigidity
because the consequences of a juridical situation would remain subject
to the law under which it occurred, thus taking insufficient account
of futire events; that respect for acquired rights should be an out-
come of the application of conflict rules and not an independent,
fundamental principle of private international law. 52 The Montevideo
Congress adopted a principle that rights acquired in one country
should be respected in another to which the property has been
moved, subject to compliance
the second country with any
in
.0 Zaphiriou, op. cit., at p. 75, footnote 23; American Restatement at s. 255.
51 Zaphiriou, op. cit., at pp. 66-67.
52′
.. Batiffol, op. cit., at s. 318, footnote 7, on the theory of Pillet.
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conditions of substance or form required by its law for the acquisition
or conservation of the rights in question.53 Niboyet states that
t6 acquis dans un certain pays en vertu des
“Lorsqu’un meuble a
dispositions de la lex sitae: et qu’il vient ensuite A 6tre transport6
dans un autre pays, on doit reconnaltre les droits de l’acqu~reur, d~s
l’instant oii, d’apr~s cette lex 6itae, il a obtenu un droit incommutable.
Le principe de l’efficacit6 des droits, bien connu de nous veut qu’il en
soit ainsi.” 54 It has been said that respect for acquired rights is a
corollary of the theory of sovereignty and is based on fairness and
justice. 55 There are at least overtones of acquired rights theory in
Common Law systems and writings. 56 It has been said of the
American Restatement in this field that it “purports to be a system,
and as such has a theory, viz., that the conflict of laws exists for
the recognition and enforcement of foreign-created rights; and from
that theory it deduces most of its specific rules.” 57 Respect for foreign
rights seems to show a desire for something with more moral appeal
than the mathematical objectivity of some choice of law theories.
The Situs of an Intangible
Intangibles may be divided into those which have an indispensable
instrument and those which do not.58 Certain of the former resemble
chattels in that operations on the title are performed by doing some-
thing with the physical instrument. So, by an extension of reasoning,
the situs of the property can be taken as the situs of the instrument.
In dealing with other kinds of intangibles, the fiction is more
strained.59 Certain kinds of shares are of this kind, made out to a
53 Espinola, op. cit., vol. 2 at s. 183, footnote 38, expresses a preference for the
rule formulated by a meeting of the Institute of International Law at Madrid in
1911: that acquired rights should be respected on the movement of property, but
that, for reasons of public policy, the second country might require compliance
with certain conditions having regard to the interests of third parties.
54 Op. cit., at s. 2279, footnote 47; Cf. Cours do Droit International Privdi
Frangais (2nd ed., 1949) sees. 611-2.
55 “Le respect des droits acquis s’impose donc en droit international comme
corrolaire du respect des souveraines 6trangres. I1 ne s’impose pas moins au
nom de la s6curit4 des particuliers. II ne faut pas compromettre la situation des
titulaires de droits en remettant sur le tapis des questions d~jh liquid6es. S’il en
6tait autrement, la soci6t6 deviendrait un nid A chicane.” Savatier, Gours de
Droit International Privi (2nd ed., 1953) at sec. 304.
56 Falconbridge, op. cit., chap. 2, footnote 7.
5 7 Willis, (1936) 14 Can. Bar Rev. at p. 2.
58 Footnote 2 supra.
59 It has been extended by the curious doctrine that the status of marriage
“savours of a res”; Salve8en v. Administrator of Austrian Property, 1927, S.C.
(H.L.) 80, 92; [1927] A.C. 641, 662.
No. 1
CONFLICTS OF LAW AND PROPERTY
named party and not to bearer, the title being completed, for
example, by registration in the books of the company. What meaning
is to be given to the location of such a share? In New York Life
Insurance Company v. Public Trustee 60 the court approved Dicey’s
statement that “Debts or choses in action are generally to be looked
upon as situate in the country where they are properly recoverable
or can be enforced.” According to Atkin L. J. in the same case,
although a debt, for example, “is not a matter of which you can
predicate position; nevertheless, for a great many purposes it has to
be ascertained where a debt or chose in action is situated, and certain
rules have been laid down in this country which have been derived
from the practice of the ecclesiastical authorities in granting admin-
istration, because the jurisdiction of the ecclesiastical authorities was
limited territorially.” 61 The fictional situs of an intangible is, there-
fore, a concept of greater generality than an aid in solving choice
of law problems.
Intangibles vary considerably in type. It is proposed in Dicey that
an ordinary debt due should be located where the debtor resides and
so where it can be enforced; a debt due on a deed or other specialty
is situate at the place where the deed itself is from time to time;
a judgment debt is located where the judgment is registered; bearer
securities where the document is to be found; shares “where, as
between the owner for the time being and the company, they can be
effectively dealt with according to the law under which the company
is incorporated”; rights of action in contract or tort where the
action to enforce can be brought; interests in estates and trusts,
where the trustees reside, since it is there that the rights can be
enforced; a share in a partnership where the business is located.62
In Brown, Gow, Wilson v. Beleggings,63 wartime decrees of the Nether-
lands Government declared that property of German nationals belong-
ed to the state. By this law the ownership of shares in a company
Uo [19351 2 Ch. 101, 109.
61 Ibid., at p. 119.
62 Op. cit., at pp. 504-8, footnote 29; Royal Trust Company v. Atty.-Gen. for
Alberta, [1930] A.C. 144, 150. As to application of the lex solutionis to cheques,
Niboyet, op. cit., at s. 1306, footnote 47; Batiffol, op. cit., at s. 549, footnote 7;
Cavaglieri, op. cit., at p. 380, footnote 2; Arminjon, Precis de Droit International
Priv6 Commercial (1948), at s. 142; Falconbridge, op. cit., at pp. 498-505, foot-
note 7. Cf. article 1152 of the Quebec Civil Code as to the place of payment of
debts. Rivard, Le droit sur les 8ucces8ions dans la Province de Quebec (1956),
p. 149 et seq., considers this article consistent with the rule that an ordinary
debt is located where the debtor resides. The table as to the situs of various
choses in action at p. 182, op. cit., is similar to the Common Law rules.
63 [1961] O.R. 815.
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located in Ontario, were ordered
incorporated and situate in the Netherlands, which were held in trust
for Germans, was transferred to the Netherlands Government, and
the bearer certificates,
to be
cancelled. The question was whether Ontario should recognize this
transfer and what was the applicable law. It was decided that the
Netherlands had the right to expropriate the shares, because it was
there that the company was incorporated and had its “si~ge social”.6 4
The question of situs may require a different approach depending on
the kind os issue involved, e.g. tax, succession, expropriation.”5 The
judgment in the Brown, Gow case stressed that a distinction should
be made between a share as an abstraction and the related instrument
or certificate. The transfer of a bearer share requires (i) delivery of
the associated instrument and this must be effected where it is
located; and (ii) the right to dividends and participation in the free
assets on dissolution are logically associated with the seat of oper-
ations. Some characteristics can be associated with one jurisdiction
–
and the rest with another –
the siege social. So, the validity of the transfer of a bearer security
might not be dealt with in the same way as expropriation.
the location of the instrument –
The Concept of Situs
Situs can be given a meaning for any kind of property, by think-
ing of it, not as the location of an object, but as the place where
property rights can be enjoyed or made effective. With this meaning
a res may have more than one situs at the same time.
A “lex proprietatis” would be similar (in certain respects) to
the proper law of a contract, if where the parties have not indicated a
choice of proper law if the selection is made on the basis of the
system most closely associated with the contract and the issue before
the court. In the case of property, we would seek the “centre of
gravity” of a set of rights and obligations –
i.e. where they have
functional effect. A set of property rights may have more than one
locus –
e.g. a document or physical object for transfer; a “siege
social” for expropriation. Determination of the lex proprietatis means
the establishment of sub-categories –
and the introduction of
‘specialization”. 66
The lex situs was originally associated with jurisdiction, and
there an important question is whether the court can make an
64 Baxter, (1962) 40 Can. Bar Rev., at p. 193.
65 [1961] O.R. 815, 833 et see., see footnote 63.
66 Footnote 51.
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CONFLICTS OF LAW AND PROPERTY
effective judgment. There are opportunities for this if the defendant
or property relevant to the action are within its territory. It is often
suggested that the lex situs is convenient and logical as a choice of
law rule because the property is within the territory and control of
the courts of the situs. G7 Let X be the situs of a chattel and let two
issues arise about it, one in the courts of X and one in the courts of Y.
Both X and Y decide that they have jurisdiction. Y should have
other means of making its judgment effective than by territorial
control of the chattel (if its decision to assume jurisdiction has been
reasonable) and so whether the law of X or some other law is
applied in Y to determine the issue, Y should still be able to make
some effective judgment. There has not been much attention given
either by the courts or in the literature to clear and logical policy
reasons for the lex situs in choice of law. The influence of jurisdic-
tional considerations has been great. In the example given, the best
way to obtain possession of the chattel would be to raise an action
in X. A successful action in Y may give a remedy other than delivery
of the chattel. Solutions may be possible in Y which are not possible
in X –
for example, the defendant may be resident in Y and have no
connection with X, except by reason of the situs of the chattel. It
depends on the jurisdictional rules of X and Y and the effective
operation of their courts in the situations in which they find them-
selves.68 The territorial influence is strong in land law, and histor-
ically, land law has had great effect on the development of all branches
67 Cf. Goddrich, Handbook of the Conflict of Laws (3rd ed., 1949), at p. 153.;
“The goods which are the subject of the transaction are within the territorial
jurisdiction of a certain state; its law should control dealings with them.” In Re
Schneider’s Estate (1950), 96 N.Y.S. (2d.), it was said of the lex situs rule that,
“The primary reason for its existence lies in the fact that the law-making and
law-enforcing agencies of the country in which the land is situated have exclusive
control over such land.” If another court “is thrust into a position where it is
obliged to adjudicate the same questions concerning the title to that land –
it
should be guided by the methods which would be employed in the country of situs.”
68 The general propositions are that the laws of a country have effect only
within its boundaries; and that no country by its laws can directly bind property
out of its territory, or bind persons not resident therein: Companhia de Mocanz-
bique v. British South Africa Company, [1892] 2 Q.B. 358, 395. Cf. French Civil
Code, arts. 14 and 15; Bourdon v. Oris, Cours d’appel de Roien (2d. ch. civ.)
3rd March, 1961, (1962), 51 Rev. Crit, 127.
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of property law.60 For this and other reasons, substantial weight
seems to have been given to the element of control over the property. 70
If certain solutions of a property issue can only be made effec-
tively in X (the situs), what influence should this have on Y’s choice
of law policy? What would be the advantages of adopting there the
lex situs as a basic choice of law rule? If this were done, the solution
in Y should be the same as the solution in X. There are two possible
benefits from this: (i) uniformity of solutions, and (ii) a party who
had obtained a favourable decision from a court in Y may wish to
bring further claims or seek other remedies. A party may find it
convenient to have a title recognized not only by the country of the
forum, but also by the country of the situs. It may be desired to use
the title in the latter country at a future time. These ideas are
connected with a general policy in favour of “international” uni-
formity of title. Again, the influence of land law has been consider-
able, for if a person litigates in Y in regard to land in X, the most
useful decision, from his point of view, might be one in which the
courts of X would acquiesce. 71
Decisions of the Courts
The English cases show conflicting preferences for the lex ,itus
and the lex actus. “As to personal chattels, it is settled that the
validity of a transfer depends, not upon the law of the domicile of
the owner, but upon the law of the country in which the transfer
takes place.” 72 The illustrations to support this were (a) the execu-
tion in England of the goods of a foreigner in a house in England
tenanted by an Englishman; (b) the sale of goods of a foreigner in
England in market overt. In both cases, it was said, an English court
would apply English law, which is not merely the lex actus but also
the lex situs and the lex fori. The underlying policy is not clear –
it may be only a preference by an English court for English law.
is only a court of the
country in which land is situated that can effectively grant any remedy enforce-
able in rem or give a judgment or make an order directly affecting the title to
land or the possession of land; and while it is not clear that there is any rule
of international law by which a court having jurisdiction over the defendant
would be prevented from entertaining proceedings with respect to foreign land
merely on the ground that the procedings would be ineffective as regards the
land, English courts do not assume jurisdiction to deal directly with the title to
or the possession of foreign land, and do not, or ought not to, adjudicate on any
matter with regard to which they cannot give an effective judgment.”
69 Cf. Falconbridge, op. cit., at p. 611, footnote 7: “It
70 In some cases (e.g. shares in companies) the residence of the defendant and
the situs as place of incorporation and the si~ge social may coincide.
71 The courts of Y should not accept jurisdiction in a dispute about foreign land.
72 Alcock v. Smith, [1892] 1 Ch. 238. 267.
No. I
CONFLICTS OF LAW AND PROPERTY
There are statements that a good title acquired in one country should
be good anywhere; 73 that a valid disposition of a movable by the law
of its location at the time should be universally recognized! 4 In
Cammell v. Sewell, Cockburn, C.J. based his judgment on there
having been a good contract to transfer, valid in the foreign juris-
diction, and no good reason present for not recognizing its validity.7
It
is difficult to know whether the foreign acquired rights were
recognized because there seemed no reason not to, or whether they
were recognized because they had been acquired as a result of apply-
ing a conflict rule.7 6 In the second alternative” the choice of law rules
ought to have independent policy justification.
In his disgenting judgment, Byles J. said, “I admit, if there be a
judgment in rem founded on a recognized law, and pronounced by
a competent tribunal of the country where a movable chattel then
is, that that judgment determines and changes the property every-
where and between all persons…
77 This involves the question of
recognition of at least some of the effects of a foreign judgment,
in this case the transfer of title.. The theory seems to be that legal
issue should be allocated out “internationally” from the point of
view of the conflict rules of the forum. English law has been attracted
by this conceptJ s French and other European systems concentrate
on linking issue and applicable law. ,The recognition of a foreign
acquired right, such as a title, and the recognition of a foreign
judgment on title, are different questions, and their superposition
can lead to curious results. Suppose that a transfer of title is valid
by the law of J,, (the nationality of the transferee). This transfer
is recognized in JP, where the choice of law rule is the national law
of the transferee. A judgment is now given by a court in J, (the
situs of the property) that the transfer of title was invalid. JP
considers JB
to be the competent jurisdiction and it recognizes the
foreign judgment. So a title once valid in JP becomes invalid there.
This is due to the use of both a choice of law principle and a juris-
dictional principle.7 9
‘3 Simpson v. Fogo, (1862) 1 H & M. 195, 222.
74 Cammell v. Sewell, (1860) 5 H & N. 728, 744-5.
7S Cf. with the principle of “efficacit6 des droits acquis.” Footnote 54.
TO Cf. Dicey, (6th ed., 1949) at p. 11.
77 At p. 751.
7.8 Baxter, (1961) 39 Can. Bar Rev.. 301 at pp. 323-325.
79 Similar confusion can arise in the recognition of annulment decrees in the
anglo-saxon systems. The validity of a marriage depends on choice of law rules,
whereas the recognition of a foreign annulment is said to depend on a jurisdic-
tional principle. Kennedy (1957) 35 Can. Bar Rev., at p. 647. So a marriage
formerly regarded as valid in one country by the choice of law rules, may later
be invalid there by the recognition of a foreign judgment in a court of competent
jurisdiction.
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Change of Situs
A sale by A to B of property in X which is valid there, may be
invalid in Y where the property is later moved, or vice versa. Some-
times a non-owner may effect a transfer of title –
for example, in
regard to the doctrines of holder in due course, mercantile agent
or market overt. These hold in certain jurisdictions but not in others,
or there may be -different forms of the doctrine. Which lex situ
should govern in these cases, the situs at time T1 or the situs at time
T2 ? The title to goods may pass at different times in different juris-
dictions on the same facts. In the English Sale of Goods Act, in the
case of specific or ascertained goods, the title passes when the
parties intend it to do so, the intention being derived from the terms
of the contract, the conduct of the parties and the circumstances of
the case.80 In an unconditional contract for the sale of specific goods
in a deliverable state, the title will pass when the contract is made,
even if neither delivery nor payment have taken place.81 There is a
comparable situation under article 1472 of the Quebec Civil Code and
article 1583 of the French Civil Code.82 Sale of goods legislation in
the Common Law systems does not provide that “En fait de meubles,
la possession vaut titre.” S3 Italian law connects the passing of title
and the completion of the contract.84 In other European continental
systems, delivery is necessary for the passing of title.8s
A transfer of property is a combination of, (a) an agreement to
change the ownership, creating rights inter partes and (b) a transfer
‘.o Halsbury, 3rd ed., Vol. 34, Part. 3.
81 Cf. Sale of Goods Act, R.S.O. 1960, c. 358, s. 19.
S2 See also article 1138. Cf. Swiss Code des Obligations, art. 185. According to
art. 377 of the Mexican Commercial Code, the passing of risk is linked to the
completion of the contract (see Rodriguez), Derecho Mercantil, (4th ed., 1960),
Vol. 2, at p. 15; in the Greek Civil Code, it is linked to delivery, art. 522. As to
the Brazilian position see de Oliveira Andrade, Da Compra e Venda, (1960),
Part 1, Chap. 3.
83 French Civil Code, art. 2279.
s4 Civil Code, art. 1470; “La vendita 6 il contratto che ha per oggetto il tras-
ferimento della proprieth di una cosa o il transferimento di un altro diritto verso
il corrispettivo di un prezzo.” In Belgian Law, “Par le seul fait du consentement
des parties, le transfer de propridtd est accompli. Tel est du moins le cas, lorsque
la chose vendue est un corps certain.” Frdricq, Traitd de Droit Commercial
Belge (1947), Vol. 3, at p. 65; Belgian Civil Code, art. 1583.
85 Cf. Lalive, op. cit., at p. 91, footrote 38. The difference originated, no doubt,
in the Roman distinction between contracts consensu and re. Buckland, Manual
of Roman Private Law (1928), 251; Jolowicz, Historical Introduction to Roman
Law (2nd ed., 1954), 298; Gloag on Contract (2nd ed., 1929), 14. In Communist
systems there is a tendency to say that property does not pass in transactions
analogous to sale but only the management of the publicly owned article of pro-
perty: Gsovski, oi’. cit., Vol. 1 at pp. 448, et seq., footnote 5.
No. I
CONFLICTS OF LAW AND PROPERTY
of title affecting the interests of third parties. It is desirable that
third parties can ascertain the time of passing of title with reason-
able certainty.86 If this time derives from a contract, a third party
may be’uncertain. Some systems emphasize the contractual element
in transfer of ownership: others emphasize the property element.
The difference between the points of view is not so radical as might
appear. The main consideration in any system is that the passing of
title should be regulated in a simple, clear and reasonable fashion.
,This, may be achieved by making it depend on the intention of the
parties; on a physical act of delivery; or on other things. Uniformity
in solving these problems has not been achieved, and so, from the
conflict standpoint, we acquire a modus vivendi. If P acquires title
by the law of X, which is the lex situs, will that title be retained on
the acquisition of a new situs in Y, if the facts which led to title in
X would have been insufficient for transmission of title by the law
of Y? Will Yrecognize a title validity acquired by the lex sitis but
based on different rules and policy from those applicable in the
internal law of Y? If so, it should be because other policy considera-
tions override the effect of the ordinary (internal) thinking on sale
and property matters. The resulting solution is produced by a policy
which is partly “internal” and partly “private international”. The
converse situation is where no title passes by the lex situs, but would
have passed by the other system. One way of resolving this question
is to apply the lex situs both in time and in space –
if a res has a
situs in X from time T, to time T2 and in Y from time T2 to time T.3,
the law of X can be applied to events in the interval (T1 – T2) and
the law of Y to events in the interval (T_ – T) .37 Extension of the
conflict rule to time as well as to space reduces the certainty of its
operation because there may be doubt not only as to the spatial
situs but also, in regard to continuing events which do not fall exclu-
sively within either (T1 – T2) or (T 2 – TO. Any such rule will be
subject to public policy.88
86. See comparative discussion by Vinding Kruse, footnote 1, on the English
rules and the American Uniform Commercial Code.
87 The Polish Projet de loi sur le droit international privg (1961), art. II (2)
provides “La creation, le transfert ou l’extinction des droits reels sont soumis A
la loi de l’Etat sur le territoire duquel le bien sur lequel ils portent se trouvait
au moment oii s’est produit le fait entramnant les effets juridiques en question”:
(1962), 51 Rev. Crit., at p. 191. The Polish Private Interprovincial Law of 1926,
art. 8, merely provided that possession and iura in rem should be determined by
the law of the place where the property is situated.
88 “En principe, c’est la loi de la situation du meuble A la date oi s’est produit
une cause d’acquisition qui determine les effets de cette operation. Encore faut-il
que cette loi n’ait pas un caract~re politique contre lequel nous serions fond6 A
r~agir pour la d~fense de la morale ou de notre ordre public”: Lerebours-
Pigeonni~re (7th ed., Loussouarn, 1959), s. 472.
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(Vol. 10
Acquisition of Title
In the Scottish case of Todd v. Armour,8 9 it was said that a “bona
fide purchaser for value is an especial favourite of the law, and the
utility and policy of the rule that protects his possession are parti-
cularly applicable when the purchase is made openly in the ordinary
course of business, and with due circumspection, of any common
article of commerce.” An Irish farmer sued a farmer in ,Scotland
for delivery of a horse, alleging that it had been stolen. The defender
had bought the horse in Scotland from a man who had purchased it
in Ireland in market overt. By Irish law, this title was good unless
there had been prosecution of the thief to conviction within six
months, which had not been done. By Scots law, theft was a vitium
reale which could not be removed. The court decided in favour of the
defender. A similar question arose in the English case of Vammell
V. Sewell.9o A cargo was shipped by Russian merchants on a Prussian
ship to England. There was a shipwreck in Norway and on the re-
commendation of surveyors the cargo was sold there in the best
interests of ship and cargo. The purchaser acquired a good title by
Norwegian law. The court recognized this title as valid in England.
In both cases, a title had been acquired by the lex situs when the res
was there, and the new location recognized the title. The protection
of buyers in good faith and for value involves a distribution of loss
between two parties both in good faith –
for example, in a purchase
from a thief or in a purchase from someone who appears to have
authority to sell. 91 Some systems emphasize protection for the inno-
cent buyer: others support the original owner. In the two cases
mentioned, and in many others, “internal” policy is offset by a
“private international” policy which is, in general terms, a wish
to avoid “limping” titles.92 A comparable situation is where S sells
goods in Germany, but delivery has not been given. The goods are
transferred from Germany to France where title would pass by
French law. The law of the situs at the time of the alleged transfer,
89 1882, 9 R. 901, 907 per Lord Young. See also McKenna v. Pricur and Hope,
[1925] 56 O.L.R. 389, 2 D.L.R. 460; Phoenix Assurance Co. v. Laniel, (1926)
59 O.L.R. 55.
90 (1860) 5 H. & N. 728.
91 E.g. the mercantile agent: Baxter, The Law of Banking (1956), at pp.
218-222.
92 By analogy with term “limping” marriage (matrimonium claudicans) as
used in family law.
No. I
CONFLICTS OF LAW AND PROPERTY
i.e. German law, can be applied rather than French law, on the basis
that the lex situs should be applied in time and space 3
A disputed question in French law is the application of articles
2279 and 2280 of the Civil Code. “Consid~rons, par exemple, un
meuble acquis A l’6tranger a non domino qui n’est pas devenu d’apr~s
la loi 6trang6re la propri~t6 de l’acqu~reur. Celui-ci l’introduit en
France: il pourra opposer en revendiquant la r~gle frangaise ‘en
fait de meubles possession vaut titre.’… En effet la loi frangaise
attache des consequences de droit au seul fait de la possession: il
suffit donc que la possession soit exer6e en France pour que la loi
frangaise joue: c’est l’application de ]a loi nouvelle aux faits post6-
rieure A son entree en vigueur.” 94 On this view, the “internal”
policy has the strong influence.9 5 The policy considerations may be
different where the purpose of the sale is to transfer goods from
one country to another.
Choice of Law and Situs
In the Common Law systems, the endorsement and delivery of a
bill of lading effects symbolic delivery of the goods to the endorsee
or the bearer, if the endorsement is in blank. 8 The settlement of an
export-import transaction such as a c.i.f. sale, is by a sale of docu-
ments, and a credit is usually available against an acceptance or
payment.9 7 Other documents, “receipts”, “warrants” and the like
may be negotiable (or quasi-negotiable)
in some jurisdictions.
03 Cf. Falconbridge, op. cit., at p. 454 et seq., footnote 7; Zaphiriou, op. cit.,
at p. 164, footnote 23, and at p. 175: “The acquisition of a proprietary right is
governed by the lex situs of the chattel at the time of the alleged acquisition but
if this chattel is removed to another -country and is there further transferred
the validity of this further transfer is governed by the lex situs of the chattel
at that time”; Niboyet, Traiti, Vol. 4, at p. 373; Batiffol, op. cit., at ss. 504-506,
footnote 7, uses the phrase, “conflits mobiles”. Cf. as to analogous questions on
bills of exchange, Cavaglieri, op. cit., at p. 347-8, footnote 2. Cf. Re Hudson
Fashion Shoppe Ltd., (1926) 7 C.B.R 68, 80, [1926] S.C.R. 26; Cline V. Russell
(1908) 2 Alta. L.R. 76; Century Credit Corp. v. Rickard, (1962) 34 D.L.R. (2d)
(on Dicey’s Rules 86 and 88).
94 Batiffol, op. cit., at s. 505, footnote 7′.
90See, however, Niboyet, Traiti, Vol. 4, at s. 1209. See generally on this subject,
Ehrenzweig, op. cit., footnote 38, at pp. 626-634.
96 Falconbridge, Banking and Bills of Exchange (6th ed., 1956), at p. 175.
Baxter, op. cit., at pp. 190-1, footnote 91; as to the position in French Law, see
Niboyet, Traitg, Vol. 4, at s. 1308 et seq.
97 See Baxter, op. cit., chap. 16, footnote 91, and authorities referred to there:
as to French law see Stoufflet, Le Cridit Docunmentaire (1957), at p. 17 et seq.;
Marais, Dze Cridit Confirmd (2nd ed., 1953), at p. 15 et seq.; Cordier, TraitW
docnmentaire et crdit documentaire (1959), at pp. 62-63.
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In an international sale, the situs may be transitory. The goods
may be in J1, the seller, the bill of lading and the confirming bank
may be in J2 and the buyer in J 3, the purpose being to ship the goods
to J 3 for processing and distribution there. J, may have a different
type of legal system from J 2 and J3, yet if the law of the situs at
the appropriate time is applied, the validity of the buyer’s title may
depend on the law of J1, although all the operations determining
the transfer of title (apart from the issue of the bill of lading) have
taken place in J 2 or J3 . The English rule, as stated by Dicey, is that
the transfer of a tangible movable which is valid and effective by
the proper law of the transfer (lex actus) and by the law of the
place where the movable is at the time of the transfer, is valid and
effective in England. 98 If there is invalidity by both of these laws,
the transfer is invalid in England. Where the lex actus and the lex
situs do not coincide, the lex situs is preferred, except perhaps
where the situs is casual or unknown. There is a possible ambiguity
in the meaning of lex actus; it may refer to the proper law of the
contract to transfer or to the proper law of the operations for the
transfer of title. In the example, the question of transfer of title
might be said to have closest connection with J 2, (a) because the
seller was a national resident there; (b) because the bill of lading
was located there and also the machinery for financing the sale. J2
might be regarded as the proper law of the transfer from the pro-
perty point of view. But J.. might be the proper law of the sale
contract (perhaps because it had been made there).”9 In an export-
import transaction possession may pass while the goods are in transit
on board ship, and the sale may be completed (by transfer of doc-
uments against price) after the goods have perished. 100 So the move-
ment of title, or the completion of the sale may have little or no
contact with the situs of the goods. There are various possibilities
for choice of law in the case of a res in transit, such as the place of
dispatch, the locus at the time of change of title, the law of the flag;
the destination; the place of major contact (i.e. the lex actus of the
transfer) .101
The situs of a chattel as the physical locus at a point of time is
attractive because it can often be ascertained simply and precisely.
On the other hand, apart from possession, it may not have much
98 Op. cit., Rule 87, footnote 29.
99 The validity of the bill of lading would be another issue.
100 Manbre Saccharine Company, Ltd. v. Corn Products Company Ltd., [1919]
1 K.B. 198.
101 Zaphihiou, op. cit., ch. 8, footnote 23; Niboyet, TraitM, Vol. 4, at s. 1307,
et seq.
No. 1
CONFLICTS OF LAW AND PROPERTY
connection with the legal relations and concepts of internal law. The
delivery of a chattel, on a sale or gift, and recovery or enforcement
in the case of an intangible –
are main operations in the transition
of legal rights. Hence, there is an argument for a homogeneous
concept of situs applicable both to tangibles and intangibles. This
concept would be that the situs of a res is the place where it is able
to be possessed, if capable of enjoyment by possession, or if not,
where it is lawfully recoverable or able to be enforced. With such
a definition (in a sale or a gift) the situs is usually the place of
exercise of the fundamental use or enjoyment of the property rights,
which nearly always coincides with the physical locus in the case of
a chattel –
the differences being where the physical locus is casual,
or in transit, and in these cases, the sits would be the place of des-
tination. The change, however, introduces into the theory of situs
a cohesion that is lacking at the present time.
Assignments and Bills of Exchange
On choice of law for assignments Dicey distinguishes, (i) assign-
ability, (ii) intrinsic validity, (iii) priorities, (iv) attachment or
garnishment.10 2 The first two should be governed by the proper law
of the assignment, the third by the proper law of the debt, and the
fourth by the lex situs of the debt. An assignment is valid as to
form if valid by the lex actus.
The English Bills of Exchange Act, 1882 contains special rules
on conflict of laws.’ 0 3 Formal validity depends on the law of the
place of issue or the place where the supervening contract was
made. 10 4 The interpretation of the drawing, endorsement or accep-
tance is determined by the law of the place where the contract was
made. The duties of the holder as to presentment for acceptance or
payment and as to protest or notice of dishonour “are determined by
the law of the place where the act is done or the bill is dishonoured.”” 5
So the lex actus is the basic principle as to operations of a bill of
exchange. 10 6 There have been discussions as to whether one should
distinguish as to choice of law rules, between nominate and bearer
102 Rules 89-92, footnote 29.
103 Falconbridge, op. cit., chap. 14, footnote 7.
104 S. 72 (1).
105 S. 72 (3).
106 Simile the Bustamente Code and the Italian view.
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negotiable instruments, and analogize the latter with chattels.107 A
bearer instrument is never quite a chattel. Subject to proof, the
obligation continues if it is lost or destroyed. But this does not happen
on the loss or destruction of a chattel.
Negotiable instruments of commerce should have certainty ex
facie. “The reason is –
and it is equally applicable to all negotiable
instruments –
that it would greatly perplex the commercial trans-
actions of mankind, and diminish and narrow their credit and nego-
tiability, if paper securities of this kind were issued out into the world
encumbered with conditions, and if the persons to whom they were
offered in negotiation were obliged to inquire when these uncertain
events would be reduced to a certainty.” 108 This principle has a wider
application than the mode of payment to which it referred. It is a
major attraction of such instruments that the legal obligations can
be ascertained from inspection. A bill of exchange may circulate and
a present holder may be in doubt as to where a previous contract was
made. The interpretation or validity of the bill is then doubtful unless
investigation is made into the history of the instrument.
A Canadian or an English bill of exchange need not specify a
geographical location in order to comply with the minimum require-
ments. 0 9 It must name or indicate the drawee with reasonable
certainty.1 0 Some legal systems require specification of place of
107 “Per quanto riguarda invece la trasmissione dei titoli al portatore, il Diena
ravvisa quell’ incorporazione del titolo coll’ obbligazione, che consentirebbe para-
gonarlo ad una cosa mobile e quindi di dichiarare che la legge competente a rego-
lame i modi di trasferimento sarA quella stessa che vale a disciplinare la tras-
missione dei diritti reali sulle cose mobili, cio6 ]a lea rei sitae. Alla stessa legge
fa capo l’Arminjon, derivano dalla natura dei titoli al portatore la loro soggezione
alla legge della situazione per cio che concerne i diritti, di cui possono essere
l’oggetto, e la trasmissione di tali diritti salva una certa parte da fare alla legge
del domicilio del debitore per le stesse ragioni, per cui questa legge va applicata
in materia di mobili uti singuli.” Cavaglieri, op. cit., at p. 341, footnote 2. Cf.
Arminjon, Pricis de Droit international Privi Commercial (1948), 269: “Pour
justifier l’application de cette dernihre loi, M. Diena observe que l’obligation
reprdsentde par le titre s’y incorpore de sorte que la revendication du titre peut
6tre assimil~e a celle d’un meuble corporel, opinion que nous avons rdfute. Si
toutefois, ajoute cet auteur, entre le moment oa le porteur a acquis le titre et
celui oi
t6 transport6 sur un autre
territoire, l’action ne pourralt 6tre intente que si elle est admise par la loi du
lieu oA l’acquisition a
t6 faite et en vertu de laquelle le porteur peut invoquer
un droit acquis.”
il exerce laction en revendication, le titre a
108 Story, Bills of Exchange (3rd ed., 1853), at s. 46.
109 Bills of Exchange Act, R.S.C. 1952, c. 15, s. 27; Bills of Exchange Act,
1882, s. 3.
110S. 6. (U.K.), sec. 20 (Can.).
No. I
CONFLICTS OF LAW AND PROPERTY
payment.”‘ There has been some support for the place of payment as
a choice of law determinant, for example, in the Geneva Conventions
and in French law, and in appropriate systems this would produce
greater simplicity and precision than locus regit actum.”1 2 The main
argument in favour of the latter is based on the theory of the
independence of the contracts on a bill of exchange. On the other
is in connection with the payment and enforcement of
hand, it
negotiable instruments that most questions arise. Also by application
of the lex actus, different contracts (e.g. endorsements) on the same
bill might have to be dealt with by different systems of law. Formal
requirements are usually referred to the lex actus –
on the footing
that parties will execute an instrument in J, according to the law of
that place, and it would be illogical to examine the form by the
internal rules of J 2 .11. According to Falconbridge, “In the case of
documents such as bills and notes, the negotiability of which may
depend on their form, and which are likely to be transferred to
in
subsequent holders who may be ignorant of the circumstances
which they were originally signed and issued, or transferred to
earlier holders, a conflict rule referring all matters of formalities
to the place of issue, or the place of making of each subsequent
contract on the bill or note, would seem to be justifiable. In the case
of other commercial contracts, however, it is not so clear that for-
malities should be governed exclusively by the law of the place of
contracting.” 11 But a person interested in a bill which has been in
circulation, may not be able, by inspection, to determine where a
particular contract was made and so, whether it is valid. These con-
siderations do not apply to an ordinary commercial contract where
the document does not circulate as property.
There is substantial uniformity in the laws of different countries
on bills of exchange, cheques and promissory notes, although there
111 For example, France, Code de Commerc4, art. 110(5); Switzerland, Code
des Obligations, art. 991(5); Federal Republic of Germany, Bills of Exchange
Act, art. 1 W.G.; Spain, Codigo de Comercio, art. 444; Mexico, Ley General de
Titulos y Operaciones de Credito, art. 76(5); Brazil, Lei No. 2044 of 31st
December, 1908, art. 3 requires only designation of the person who is to pay:
See Mendonga, Tratado de Direito Comercial Brasileiro (6th ed., 1960), Vol. 5,
s. 616; Belgium, a bill of exchange may be invalid for failure to mention the
place of payment, (Fredericq, op. cit., Vol. X, s. 33, footnote 84); Portugal,
Codigo Comercial, art. 282, Coelho, LiVoes de Direito Comercial (1943), Vol. 2(2),
s. 22; U.S.S.R., Gsovski, op. cit., Vol. 1 at p. 475, footnote 5.
112 Batiffol, op. cit., at s. 549, footnote 7.
113 Cf. discussion on the analogous question of the formal validity of a mar-
riage; Baxter, (1961) 39 Can. Bar Rev. at p. 314 et seq.
114 Op. cit., at p. 322, footnote 7, Cf. as to assignments: Republica de Guatemala
v. Nunez, [1927] I K.B. 669; Re Anzioni, [1930] 1 ch. 407.
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(Vol. 10
are some differences. 115 By the Canadian and English statutes a bill
“of itself, does not operate as an assignment of funds in the hands
of the drawee available for the payment thereof.” 116 There is no
theory of “provision” as in French law.117 Nor is the theory of the
aval developed in the Common Law as in the Civil Law systems. 118
The anglo-saxon concept of a holder in due course is not identical
with the French rules which exclude personal defences against a
remote party “A moins que le porteur, en acqu~rant la lettre, n’ait
agi sciemment au d6triment du d6biteur.” 119 In the Common Law
system a forged or unauthorized endorsement does not transmit
title. 20 But in French law, a title may be obtained in such a case,
for example, by virtue of art. 120 of the Commercial Code, if there
is a continuous chain of endorsements. In the United States and in
other jurisdictions, the certified cheque has an explicit place in the
legislation; in Canada it is freely employed in practice but ignored
in the legislation; in Great Britain, this kind of cheque is obsolete.
These differences are most likely to be critical in regard to payment
or enforcement of the instrument.
A remote party should be able to take a negotiable instrument
and rely upon it ex facie for information as to his rights. In partic-
ular, he should be able to know by examination if, and how, he can
obtain payment. The lex situs could be applied to bills of exchange
as a choice of law rule if “situs” is refined (as suggested above) as
the place where the property is intended to be possessed (if capable
of enjoyment by possession) or otherwise, where it is lawfully
recoverable or able to be enforced. On this basis, the lex situs would
be a general rule for all property (uti singuli), formal validity
being an exception since people normally follow the local formalities
of the place of creation or execution and it might be inconvenient
to apply the rules of another jurisdiction. In the case of bills of
exchange, cheques and promissory notes, the lex actus could be
applied to formal validity where the instrument indicAtes the place
of making the contract or obligation; otherwise the lex sitws.
115 Rabel, op. cit., Vol. 4, at pp. 132-3, footnote 47, for a summary of the main
differences.
116 S. 127 and S. 53(7) respectively: see Baxter (1953) 31 Can. Bar Rev. 1131.
117 French Commercial Code, art. 116.
11s Gallagher v. Murphy, [1929] S.C.R. 288.
119 Art. 121; Cour de cassation (Chambre commerciale) 26th June, 1956 (J.C.P.
1956, II 9600, note Roblot).
120 Canadian statute, ss. 49 and 50; English statute, s. 24.
No. I
CONFLICTS OF LAW AND PROPERTY
The “Multi-Interest” Problem
Emphasis so far has been on “single-interest” problems. “Multi-
interests” may not all have the same situs.
In North Western Bank v. Poynter, Son and Macdonalds,121 the
pledgors of a bill of lading contracted to sell a larger quantity of like
goods to third parties and the pledgees returned the bill of lading
to obtain delivery of the goods and to sell on their behalf. An action
of multiple-poinding was brought as to the proceeds of sale. The
fund was in Scotland and the parties were domiciled in England. In
the circumstances, the pledge was lost in either system of law. Lord
Watson said “when a movable fund, situated in Scotland, admittedly
belongs to one or other of two domiciled Englishmen, the question
to which of them it belongs is prima facie one- of English law, and
ought to be so treated by the courts of Scotland.” 122 Lord Herschell,
L.C. said, “A transaction between a merchant in England and a bank
in England, and the rights which arise out of that transaction,
cannot, as it seems to me, fall to be determined by anything but the
law of England…” 123 This is a fairly old case, perhaps overem-
phasizing domicile, but it can be argued that English law was the
system most closely connected with the pledge and the law by which
the parties would have wished the distribution of the fund to be
governed. By English law a pledgee obtains “a special property in
the res pledged”, i.e. a right of possession coupled with a power of
sale on default.12 4 There is no implied right of sale by Scottish law.”-3
A pledge is a security interest, constituted by delivery of a bill of
lading or of the goods, and in the present case the issue was between
the financing bank and a general creditor of the pledgor as to the
proceeds of sale due by the purchaser. The issue was one of priorities,
the “multi-interests” all belonged to English firms.
In Simpson V. Fogo,126 a British ship was mortgaged in England
and remained in possession of the mortgagor who sent her to New
Orleans. There the ship was attached by another creditor of the
mortgagor. A Louisiana court refused to recognize the title of the
British mortgagee. The ship was later bought to England where the
Louisiana judgment was disregarded and the mortgagee was allowed
to assert his claim. The plaintiff had a good title by the lex loci
contractus, the lex fori, and the law of the domicile of the parties.
1211894, 22 R. (H.L.) 1; [1895] A.C. 56.
122 At p. 12 and p. 75.
123 At p. 6 and p. 66.
124 Paton, op. cit., at p. 353, footnote 2.
125 Bell, Principles, at s. 207; Duncan v. Mitchell, 1893, 21 R. 37.
126 (1863) 1 H. & M. 195.
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By “comity of nations” the title of the mortgagee had universal re-
cognition –
although a security where the debtor remained in pos-
session was not possible by the local law of Louisiana. 1 27
Whereas in Fogo the ship was brought to England, in Liverpool
Marine Credit V. Hunter 128 the issue was an order in equity res-
training creditors from suing on bonds by mortgagees to release a
ship in Louisiana. Lord Chelmford, L.C. considered that transfer
of personal property should be governed by the law of the owner’s
domicile.
, Ci
In “multi-interest” issues two questions are not always distin-
guished. Suppose the forum has to consider claims by creditors, C1,
C, has a valid security S. by the law of J,, and 0 q has a
C2-
security S. by the law of J.. Will the forum recognize S, and Sq
as effective security rights? If the forum recognize both Sp and Sq,
the next question is – what are the priorities between S. and S0 .
The forum may recognize foreign security rights which do not exist
in its local law. Then it may have to adjudicate priorities involving
“alien” securities.
In Quebec, the “privilege” is a preference which a creditor has
over other creditors, and according to the French Civil Code it may
be of a personal nature or it may attach to property.12 9 Niboyet tends
to the view that a security right should be territorial, at least where
there is a strong connection between it and execution. 13 0 “Aucun
privilege ne peut naitre sur un meuble situ6 en France en dehors de
ceux que reconnait la loi francaise, et sans que ne soient satisfaites
les conditions qu’elle impose, soit en qualit6 de loi applicable au r6-
gime des biens, soit en tant que loi de police destin6e A prot~ger le
commerce juridique ou les intrcts des tiers. La comp6tence de ]a
lex sitae est un vritable dogme en cette mati~re. 131 According to
Lerebours-Pigeonni~re “Ne sera pas sanctionn4 dans le pays de la
situation actuelle le droit r6el acquis A l’6tranger qui ne reconnait pas
]a loi de la nouvelle situation, ou que ]a nouvelle loi subordonne A des
conditions permanentes qui ne se trouvent pas remplies. Ainsi une
127 Pp. 222-3. Cf. Ehrenzweig, op. cit., footnote 38, at p. 623.
128 (1867) L.S. 4 Eq. 62, L.R. 3 Ch. 479. See also Hooper V. Gumm, (1867)
L.R. 2, Ch. 282.
129 The Quebec Civil Code, art. 1983 et seq., and the French Civil Code, art.
2100 et seq. Art. 2102(4) of the French Code gives a “privilege special” to an
unpaid seller while the goods are in possession of the buyer, and a right to
retake the goods in certain circumstances. As to the general subject of security
rights in Quebec, see Castel, The Civil Law System of the Province of Quebec
(1962), pp. 138-142 and bibliographical references therein.
130 op. cit., Vol. 4, s. 1194, footnote 47.
131 S. 1219. Also ss. 1218. 1220 and 1221.
No. 1
CONFLICTS OF LAW AND PROPERTY
hypoth~que mobili~re constitu6e A l’6tranger ne pourra 6tre exerc~e
sur le meuble en France.” 132
Unwillingness to recognize foreign acquired security rights may
be more than nationalistic emphasis and distrust of other ideas. The
idea of title is universally understood (in substance), but foreign
security rights may be obscure to the forum, and priorities difficult
to assess.
Are there underlying similarities among security concepts which
would provide a basis for understanding, sufficient for recognition
and general rules of priority assessment? The maxim qui potior est
tempore, potior est iure can be applied whether or not the securities
were all created within the jurisdiction. The lex situs when the
security was constituted can be applied to ascertain validity. If these
were the only rules, there would be no real difficulty in working out
priorities among a mixed set of foreign and local security interests.
There are situations, however, which call for qualification of the time
–
priority rule. Otherwise, there would be opportunities for con-
cealing the existence of securities to the detriment of subsequent
purchasers or borrowers. If A is negotiating for a loan from B and
offers a chattel X which is then in the possession of C, it is apparent
that C may have a security over X. Various steps are taken (by
internal law) to prevent a debtor from appearing to hold an unen-
cumbered title by being in possession. One way is to permit only
securities accompanied by a change of possession or transfer of
documents of title (and to exclude the mortgage). In Common Law
countries, in the case of the mortgage and the conditional sale (or
the hire-purchase agreement), subsequent purchasers and lenders
are protected by laws regarding public registration or the like. Ques-
tions of policy are involved, and the protection of subsequent parties.
The significant time may be the registration of the security interest
so that there is a mixture of public policy and statutory formalities.
–
These aspects will be related either to the law of the forum, as regards
policy –
a forum will normally use its own principles of public policy
or to the lex actus in regard to whether formalities, such as regis-
–
tration, have been carried out in a valid manner. It is not logical
for the forum to attempt to apply the public policy of a foreign
jurisdiction, or for it to apply to a question of formal validity, the
law of a jurisdiction other than the lex actus. Formalities such as
registration may have a bearing on priorities, and failure to register
may result in reduction to the status of an ordinary creditor or loss
of preferential rights.
132 Op. cit., s. 472.
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Can the Lex Fori Be Used
As a Basic Choice of Law Rule?
Would a conflict rule that the validity of a security interest should
be determined by the lex fori be unjust or inconvenient? As far as
land is concerned, because of jurisdictional rules, almost inevitably
the forum will be the situs and the place where a security has been
created and where registration, etc., must be carried out. In com-
mercial transactions regarding movables, A on taking a security
over a chattel in one jurisdiction might be surprised to find that
another jurisdiction (where the chattel has been brought) did not
recognize the security. On the other hand, B, also dealing with the
chattel, may be aggrieved to find the chattel subject to a security
that does not exist in his law.
There are reasons, in the property field as in others, why the lea’
for-i should be preferred as a choice of law rule. It is the law best
known to the court. A judgment by the lex fori is likely to be more
in conformity with the spirit of the local law. Public policy is a final
check on solutions of conflict problems, and a solution by the conflict
rules which is unacceptable to the public policy of the forum can
be rejected, and the lex fori applied in lieu. 133 This is an indirect
corrective –
the principles of public policy are usually not too
clearly defined and there may be a tendency towards a frequent
application of public policy, indicating really a preference for the
local law as against foreign law selected by the choice of’ law rules.
Bias toward the lex fori is not narrow-minded, nationalistic of paro-
chial, as it is described by protagonists of “internationalism”
in
private international law. It is based on common sense. A judge
applying foreign law is groping in a strange system – with experts
pulling him different ways. These difficulties may not trouble text
writers, but they are important in the just disposal of cases. A court
should apply the lex fori unless there is a sound reason based on
justice and common sense for choosing the law of a foreign country.
Somewhat different considerations apply if the issue is whether to
recognize a foreign judgment, because there, the court must decide
whether it will “bend” its own internal solution into line with the
foreign judgment – or whether it will reject the foreign judgment
-the main reason in favour of “bending” being the desirability of
uniformity and the avoidance of “limping” titles.
Can the lex fori be applied to all questions in property conflicts?
Such a principle would be easily understood; any dispute would be
133 Baxter, (1961) 39 Can. Bar Rev., at pp.307-311.
No. I
CONFLICTS OF LAW AND PROPERTY
settled by the local law of the court where the action was raised, by
judges trained and experienced in that law. It would avoid the arid
formalism of traditional choice of law rules. If we were to begin
with a tabula rasa, a case could be made for the lex fori. The argu-
ments in’favour of the lex situs as a choice of law rule, are related
to jurisdictional considerations. 134 Let A raise an action against B
in Jf involving a question of title to a res situated in J,. J- should
not assume jurisdiction unless it can give some remedy effective
within its own boundaries. It does not follow that because the judg-
ment in Jf was not in accordance with the law of J,, that it will not
be recognized in J. There is a failure by writers in this field, and
by the courts, to distinguish clearly between four questions to which
different principles and policy may apply, namely (a) jurisdiction;
(b) choice of law; (c) recognition of foreign judgments; (d) uni-
formity of laws. Questions as to formalities, ceremony, requirements
as to execution, registration, etc., by their nature, may be beyond the
scope of the lex fori. Parties in J, cannot always be expected to
observe .forms -required by the law of J 2. Apart from resort to the
lex actus on these grounds, it is possible for J,
to apply its own
concepts and principles (wherever the facts may have occurred) to
determine if there has been a valid sale, gift or security interest (as
the case may be). Then, if A bought a res in J, and brought it to J f, the
questions for Jf would be (i). did A observe any formalities required
by J, as to transfer of title; (ii) does the transaction (otherwise than
as to form) give A a title by the rules and policy of Jf ? Application
of the lex situs, does not of itself prevent “limping” titles. The inci-
dence of “limping” titles is decreased by uniformity among legal
systems.
Reduction of Limping Titles
The relevant conflict rules are part of ,the commercial law, apd
although merchants nowadays may not expect that law to be such
as they themselves can understand and apply, they expect that their
legal advisers will give (in most cases) a direct and confident opi-
134 “In the laft resort only officials appointed by the lex situs can lawfully deal
with the res litigiosa, and therefore any adjudication by other courts which pur-
ported to affect proprietary rights therein would be a brutum fulmen.” Dicey,
6th ed.; p. 562.
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nion. 133 It is in the interests of business that (in general and subject
to exceptions such as forgery) it should be possible to take documents
of title, negotiable instruments, etc., at their face value and that a
title once validly acquired, be valid everywhere. In particular, the
business man will wish to avoid the necessity of making a tedious,
difficult and sometimes impossible investigation into the prior history
of the title –
such as the circumstances under which a previous
holder acquired a negotiable instrument.
“Limping” titles would be avoided if all countries had the same
relevant rules of law. Many of the differences in the commercial field
are not large, but represent tenaciously held policy attitudes. With
goodwill and common sense, a “world” commercial code developed
from existing systems should not impose substantial changes on
business life, after an initial period of adjustment. The benefits of
a universal code would be great and in keeping with the concept of
the law merchant. The obstacles depend almost entirely on the pre-
judice of lawyers and politicians for their own systems. Sensible
yielding is required by local policy that has hardened through the
ages, but which on dispassionate examination may not be so vital.
But as things are, we cannot anticipate elimination of “limping”
titles by a dramatic increase in uniformity of law.
“Limping” titles could be reduced by greater uniformity of choice
of law rules; so that if J1, J2 –
J,, all apply the lex situs to the
validity of title, and have a similar interpretation of situs, there will
be a high probability that validity of title will be decided in the
same way in the ‘n’ jurisdictions. Many countries now use the lea!
situs as a fundamental choice of law rule in property conflicts. Situs
has attained a special place as a choice of law determinant, not so
much due to its intrinsic merits, as to history aided by frequent
repetition of often superficial arguments by textwriters and judges,
and by its embodiment in codes. So, the question is not simply:. which
choice of law determinant would be most reasonable and just in a
particular jurisdiction? We have in existence a uniformity of law
situation with regard to property choice of law rules, and since inter-
135 “If all lawyers were made doctors overnight, they would flock to the dissec-
ting rooms, for I am sure that they would prefer corpses to live patients. The
lawyer starts, for example, by telling himself that he construes contracts so as
to ascertain the intentions of the parties; but before long he has invented canons
of construction and other rules which make things easier for himself but much
more difficult for the parties who do not know the rules. The Sale of Goods Act
is, I suppose, the custom of merchants as developed by lawyers, but developed to
such an extent that most of it is now as strange to the average business man as
the laws of contract bridge would be to the player who first thought of whist.”
Devlin, J., (1951) 14 Mod. L. Rev. at p. 251.
No. I
CONFLICTS OF LAW AND PROPERTY
national security of titles is a desirable objective, we should take
this into account. At this stage in the historical development of
private international law, it is reasonable to take advantage of the
uniformity which exists in the use of situs. On the other hand, were
it ever decided by all countries to adopt a private international code
for property, formulated, e.g. by a Commission of the United Nations,
the lex fori might be preferred. At present, the best policy is to
anchor choice of law rules to situs. It is not a delicate, metaphysical
theory that is needed, but clear and sensible rules, so that lawyers
can advise their clients with accuracy and confidence.
Conclusion
What code of private international law for uti singuli would one
suggest for country J? Situs, as the basis for single interest problems,
should be given a special definition (consistent with the true nature
of property as value, enjoyment and use). It should be taken as the
place where a function can be performed, namely the taking of pos-
session where appropriate, or the exercise of the relevant rights, such
as the receipt of interest, the transfer of title, the redemption of a
bond, the presentation of a promissory note for payment. A title or
an interest should be valid, if valid at the material point of time by
the law of a situs.136
Supplementary rules will be needed to cover
the exceptional case where two or more parties to a dispute have
(simultaneously) a valid title at the material time by the law of a
situs. The supplementary rules can be based on “centre of gravity”.
The valid execution of formalities such as registration would be
referred to the law of the place where the formalities were attempted.
Having regard to what has been said above, because of the difficulties
of assessing priorities among a mixed collection of interests, security
rights should be recognized if validly created by the law of a situs
unless public policy provides a good reason for rejection in a particular
case, and determination of priorities should be by the lex fori.
Consider an intangible which is enforceable in more than one
jurisdiction, for example, an international bond issue by country J3
136 An attempt has been made in the American Uniform Commercial Code, ss.
9-102, 103, to give precision to the idea of situs by rules governing property such
as book-debts, mobile goods (e.g. cars owned by a car rental agency), “incoming
goods already subject to a security interest,” and “general intangibles.” The
result is a rather artificial scheme which may be justified in the circumstances,
because the main interest is inter-state conflicts and the Code is premissed on
uniform acceptance of its provisions. If an adaptation of Section 9 of the Code
were developped in a Canadian province, the pre-existence of a large regional
uniformity to the south might justify acceptance of the substance of ss. 9-102
and 103 in the Canadian province.
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where the bonds are redeemable in J1, J2, or J.3, at the option of the
holder. The question may be whether a statute of J7 affecting pro-
perty in that jurisdiction, will apply to these bonds, and this may
really amount to an interpretation of the J1 statute – what property
was intended to come within its scope. Suppose it to be a taxing
statute: did the legislators in J1 intend to bring within the taxation
net a bond issued in J3, let us say to a national of J2 domiciled there,
the bond being redeemable in J1, J2, or Js? This problem is not really
one of choice of law, but of statutory interpretation.13
It is possible
to have a choice of law problem, where, (with our definition) the
situs is in J, and J2. Let the issue be whether there has been a trans-
fer of title A-B of a res, having a situs both in J1 or J2. It would seem
reasonable (as indicated above) for Jf to consider a transaction valid
if it is valid by the law of a situs.
Both contract and property issues may be involved simultaneously
and there may be no obvious way of preferring one set of rules to
the other. Let the issue be whether a sale contract is valid and
(depending on this) whether the A-B transfer of title has occurred.
Assume, this time, that J1 is the proper law of the contract, that J2
is the situs, and that the contract is invalid in J, but the title transfer
is valid in J2.138 One approach would be for Jf to devise rules of charac-
terization to cover this situation, such as that the court should classify
the issue as “contract” if the contract aspect seem to be more domi.
nant than the property aspects, or something of that sort. A simpler
way is to apply the same kind of reasoning as for multi-valued situs
problem. There are two available solutions (in J, and J2) one for
and one against validity. We can, again, prefer the “valid” solution.
Supplementary rules are only needed for the exceptional case of a
simultaneous plurality of valid titles among the disputants. This very
unusual siutation can again be solved by “centre of gravity” rules.
For reasons that have been discussed, it does not seem necessary
or logical to have general recognition of foreign property judgments.
If events happen which give rise to a property issue, this produces
137 This was made clear in Smith v. Livesque [1923] 3 D.L.R. at p. 1063. Duff,
J. referred to the question of determining situs for the purpose of probate juris-
diction and considered the essential element to be that the “subjects in question
could be effectively dealt with within the jurisdiction.” This was quoted with
approval by Lord Dunedin in the Privy Council: Brassard V. Smith, [1925] A.C.
371, 376, [1925] 1 D.L.R. 528 at p. 532 and in Brown, Gow, Wilson v. Beleggings,
[1961] O.R. 815, at p. 833. See also Industrial Acceptance Corporation V. LaFlam-
me, [1950] O.R. 311; English v. Donnelly, [1958] S.C. 494.
138 In practice, the proper law will often be either the lex loci contractus or the
lex loci solutionis. With the definition of situs used here, the lex situs and the
lex loci solutionis will tend to coincide.
No. I
CONFLICTS OF LAW AND PROPERTY
(at least theoretically) an immediate “attitude” in all jurisdictions.
If we have jurisdiction J1, J2, Jn and an event with property impli-
cations, then when that event happens, by the law of each of the J’s,
legal consequences (variation of legal rights) have or have not taken
place. At this stage we do not have a judgment of a court, but we
can form an opinion on the law. Later, there may be a judgment in
one of the foreign jurisdictions, but the forum should abide by its
own solution of the problem (determined according to the applicable
choice of law rules).
In so formulating our code for a hypothetical jurisdiction, we
arrive at fairly simple rules. We distinguish between single-interest
and multi-interest problems, so that, for example, in a question as
to the validity of A’s title, the lex situs is applied, whereas in an
assessment of priorities (including consideration of foreign security
interests) the applicable law is the lex fori. The concept of situs
is defined in the way that has been indicated. The formal validity is
according to the law of the place of execution or attempted execution.
Some will find this scheme over-simple. But the purpose of law is
to solve disputes, not to give intellectual pleasure.
