Chapter Three(1)

Chapter Three Mechanisms Relating to Application of Conflict Rules
Section One Classificatie-questions :
• 1. Generally, what are the two stages in which choice of law is done? • 2. What is meant by classification? Is classification something peculiar to private international law? • 3. Purpose of classification?
1.The lex fori It is generally accepted that classification is done by reference to the lex fori. This statement, however, needs to be qualified ( i.e., flexibility is needed). CASE De Nicols V. Curlier (1900). A French couple married in France without contract and therefore their rights as to property were, under French law, subject to the system of community of goods. They came to England where they acquired a domicile of choice. The husband became a naturalized British subject, amassed a large fortune, and died having made an English will by which he disposed of his property.
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Example
Re Martin (1990). A French spinster resided in England made a holograph will in French which was valid according to French law. She set up a business in England and married a French refugee professor. The business was carried on in the joint names for many years until the husband returned to France. The wife did not return to France but died in England. At the date of her death she was domiciled in France. The question arose as to whether her will was revoked by marriage. This would depend on whether the relevant law was that of England ( the lex domicilii at the date of the marriage) or of France ( the lex domicicilii at the date of death). • Find out the possible legal categories that might be fitted into Held: The question appertained to matrimonial law, not testamentary law, and consequently the will was revoked since English law applied. (If the judge allocates the cause of action to a matrimonial question, it directs to the lex domicilii at the date of the marriage; if to a testamentary question, it directs to the lex domicicilii at the date of death )
I. The concept:
It is generally accepted that choice of law is done in two stages: (a) Classification or characterization of the cause of action. (b) The identification of the relevant system of law by means of a connecting factor.
III. The law Governing Classification
By reference to what legal system should the court classify the cause of action ? Case Study E.g. A, an Englishman, while in France entered into a contract of marriage with B, a French spinster. He intended to marry her and settle in France but later changed his mind and returned to England. B sued him in England for breach of promise to marry. Under French law the cause of action would be regarded as tortious whereas in English law it is contractual. Should the English court look upon the matter as tortious or contractual? There are three possible solutions: (a) The lex fori. (b) The lex causae. (c) Principles of analytical jurisprudence and comparative law.
In the first stage of this process, or classification, the court allocates the cause of action before it to an existing category (putting a certain case into a certain pigeon-hole ). This having been done, it will then be easy for the court to find the corresponding attribution which contains a connecting factor, by means of which the court can identify the applicable law.
• Classification is not something peculiar to private international law. All systems of knowledge, whether legal or otherwise, are based on classification in one form or another. In law it is common in both the internal and external law of any legal unit. • Classification is necessary for both domestic case and a case involving a foreign element. In a purely domestic case, the judge ,without having to give the matter much thought, distinguishes between an action in tort and one in contract, or between a question of succession and one of criminal law. • * Where there is a foreign element, the question of classification may often be of importance and difficulty because foreign legal concepts may not so easily fit into the established categories of the lex fori.
Examples of classes/categories
• A few of the classes or categories which are often relevant in private international law cases: status; capacity; contract; tort; marriage; divorce; substance; procedure; succession. • Case • * Re Wilks (1935). W died domiciled in Ontario leaving a block of shares in an English company. The English administrators wished to postpone the sale of the shares and the purpose of the summons was to decide whether they could do so by virtue of the Administration of Estates Act 1925, s. 33(1). Under the law of Ontario they would have no right to postpone. • Questions of succession to movables are governed by the lex domicilii at the date of death and questions of administration are governed by the law of the place where the relevant property is situated ( the lex situs). Held: The power to postpone was a matter of administration not succession, and therefore English law applied. The administrators could therefore postpone the sale of the shares.