RULE OF LEX SITUS – UNDER PRIVATE INTERNATIONAL LAW
INTRODUCTION
The rule of lex situs, the question of choice of law arises when a dispute involving one or more parties concern foreign element in it. The lex situs determines the ability to convey and to accept or hold an interest in land as well as in a chattel. But the reference of this principle to movables has not been so firm in most of the countries. Most of the authors find that since movables were subject to the personal law of the owner, capacity was also governed by the law of the domicilli. Lex situs exclusively governs the formalities of transactions creating, modifying, or terminating real rights, as opposed to the contract promising a transfer.
The requirements of the lex situs may be complied with at any place by an act, which, on the other hand, may mean nothing under the law of such place. The private international law of property i.e. rule of lex situs is a large topic as it covers several topics, including transactions inter vivos and devolution of property upon death, future debts, securities and shares etc thus it can pose a difficult question about the relationship between jurisdiction and applicable law, and between property and the law of obligations.
CONCEPT OF LEX SITUS AND JURISDICTION
The lex situs rule defined by Morris as “The sovereign of country where it has absolute control over the land within its dominions, where his courts are alone entitle to exercise its jurisdiction over such land”.[1] The private international law of property is a large topic as it covers several topics, including transactions inter vivos and devolution of property upon death. It can pose a difficult question about the relationship between jurisdiction and applicable law, and between property and the law of obligations.
English private international law has universally accepted the characterization of property into movables and immovable`s. Rights over immovable are governed by the lex situs rule, rights over the movables are not necessarily governed by [2]that law. Even under the Indian private international law property is classified into movable and immovable. Movables are further classified into tangible and intangible.
Under the English law it is rule that English court will not take up jurisdiction for the determination of the title or right to possession of foreign land. This rule is derived from EFTA state, from article 2(4) of Brussels I and other rules in Lungano convention. The given rules gives exclusive jurisdiction in proceedings related to matter which have their object rights in rem in immovable or movable property ,to the courts of the country in which property is situated.
The law of situs under the private international law rules potentially applying renvoi, and secondly determining the law of the situs might involve an examination of foreign rule applicable to a domestic situation. But nevertheless there a certain circumstances under which English court have jurisdiction over cases which require determination of matters pertaining to immovable property situated at foreign land. These include cases where determination of property deals with question of title incidentally in a personal claim against a defendant or a claim of will or divorce over which English courts have jurisdiction.
Supreme Court of the United States said in 1869, the law of the situs of land conveniently determines descent, alienation, and transfer, and the effect and construction of conveyances. For the purpose of the private international law lease creates an interest in the immovable and is subject to law of situs.[3] Thus under the rule of lex situs the question of choice of law arises when a dispute involving one or more parties concern foreign element in it.
ESSENTIALS
The situs of a property can be determined as follows – Chooses in action i.e. where the property generally situate in the country where it can be
- properly recoverable or where the rule of lex situs can be enforced The rule of lex situs applies where the land is situated[4]
- Subject to exception hereinafter mentioned, a chattel situate in a country where it can be
- found any time.
Certain Exceptions are there to this rule of Lex situs as follows:- A merchant ship sometimes can deemed to be situate at her port of registry
- A civil aircraft may sometime deem to be situating in its own country of registration.
- The Tolten case[5]
- an English admiralty action was allowed against the owners of the ship “Tolten” which had struck and damaged a foreign pier.
[1] Dicet, Morris and Collins, Conflict of laws, sweet and Maxwell, 15th Ed., 2018.
[2] Re Hoyels (1911) 1 Ch 179.
[3] Freke v. Carbery, (1873) LR Eq 461.
[4] Proctor v. Frost, 89 NH 304.
[5] Landry v. Lachapelle, (1937) 2 DLR 504.
Author: PRANJALI PANDYA,
Damodaram Sanjivayya National Law University, Visakhaptnam,