conte CALL Pies if Gis Gl EAR BIBRARY Diliman, Quexdn TH& CHARACTERIZATION PROBLEM ; 1939) VEY OF THE CHARACTERIZATION PROBLEM ~. 3IN TRe CONFLICT OF LAWS * WAS Part [ Pasvious STATEMENTS OF THE Paostey Nationality Ua uw of the pbe+ of performance ture this ope way. Th: countries diff. also on the qucctios of #hat cosututes Immovable ane what movatie property, o the meaning oi \ capacity,” “form,” “ substance,” procedure,” and in their definition \ of vanous other i:rms upon which the apphcatioa of the fcreign law de- -\ pends. The questioa thus presenting itself is what law s to determine | the meaning of the above terms. The problem relerred to bas given the real Goncers Es contiveatal writers and ts gencr-liy discussed by them under the 5 ‘ ‘ 27 Tiles Lorre has Saforied at ass bis he the subject bare ben akderably modified usce rio, bet bla arucie Mert ss mined ss belog be enty rmeat of bis views swailabie to the publi- gusidauen” *samibeain248 HARVARD LAW REVIEW {Wot 52 equivocal meaning, which may be interpreted in different ways by different individuals or different systems of law. Lorenzen.clab- ‘nates a number of these examples. 2h the case of domicil/’the \, question may arise before a New York court whether a citizen of New York, formerly domiciled therein, has lost his New York domicil and become domiciled in France. “Should the New York ‘courts determine the question of domicil solely with reference to their ow law or should they enquire into the French law of domicil? ” Xpe importance of this question is evidenced by the fact that the@efinitions of domicil given in the vyo systems. of law muy differ greatly. Similarly with the questips(of nationality. Avy umber of countries may claim the same persoa as a -a or sub- ject at the same time, and he may be the national of cach one of them by its own municipal law.’ What law is to determine the nationality of the proposids for the purposes of a given case? The i=partance of nationality appeces not only from its obviow: signifi~ ‘cance, but also from the fact that many coursies use it as the test for the erzozal law, zoveruing suc matters as status and capac- ity, in the conflict of laws To illustrate the necessity of determining the exact meaning of “the place sifounenae Lorenzen gives the following nice ex- ample Suppose a contract msde by correspondenc> between New ‘York end Leningrad, the offer being nade at the former place, and the acceptance mailed at the latter, Undes these circumstances the law of New York sas the contract is mgee in Russia; the lav of Russia says that the place of contracting is New York. Tt may be that both countries agree that the law of the place of cortracting governs the validi:y of the contract, but what is tne law of the Place of contracting, the law of Russia, or the law of New York? Similar difficulty may arise with the question what is the place of perfor of a coritratt. Again the place where a tort is vv . committed Is generally accepted as the deciding tactor for we a of law, but is by no means clear in cases where the physical = Gast sausing the harm takes place in one state and the effects re- Sulting therefzom occur beatae The law classifies interests ir. pripiesty according to whether, ~ the property is movable of immovable; and for ver-ain purposes movable properly may be Tegarded as immovable, or ice versa. Different rules of conflict of laws may apoly to the t:#o different ca esi irks tos01 THE CHARACTERIZATION PROBLEM 149 categories. What testis to be used for deciding into which eate- ery given property is to fall? Spfitance and prectuure provide another pale of categories vi betweea which a court may bave 1 decide, Common-law coun- tries generally regard 8 statute of limitations as belonging to pro- =. cedure. Ekewbere the limitation may be deemed to affect the cub { stance. Suppose a contract made in France, under the law of which . the action is barred, and suit orought in New York, under the Taw: * of which the actios is not barred. Which law shall determioc the ‘question whether the action may be maintained? jf, other state 2s going to the substance or capacity, is the sorum to_ hold the will valid or not when its conflicts pile are thar capacity :° governed by the personal law, and formality by the law of the & place where the will is execued? Lorenzen gives two further =. eaamples. whether the rights of a surviving wigow sic w he re s=° garded as o-longing to the law of succession or to the Icw oj mate- monial propert;; and whether aa act Geac in a contineuial coun- try is a dvil or commercial act (2prcial rules often attaching to the latter; < 28 - The‘keneral theoris3) by various continental writers Téreciecn next explains. Bartin, whose article * in 189; was the < first to attract genera! attention, “ maintains that whenever the ication of the interaal law of the forum_or that of another Juridical relatino- ly in agreement with Bartin's conclurier: Feaching them, are Buzzatt), Diera, and Kah a250 WARVARD LAW REVIEW ton 5 fon the other hand, is quoted as maintaining the view that * the law governing the legal relationship rust control also its qval(| fication.” ]'Te pretend that one is applying the foreign lfw ap- propriate {5 some legal relationship, and at the same time to apply the characterization of that relationship adopted by, the domestic law rather than that adopted hy the te layw,fs-ta deny the decision that the foreign law applics| Thirdly. ; ‘Lorenzen refers to the view, held in differeat forms and Jitta, that solution should be sought by an replicas wot pot OF the'law of the forum. nec of the foreign law exclusively, but of general international principles. No attempt will be made for the present to examine these views critically, beeaus> the object of this section I5 to review the statements of the characterization problem alresddy made in Anglo-American literature, in order to_ discover just_what the prublemis albabout, before any attempt is made to dscide what tu do about It The secona half of Lorenzen’s article is devoted to considering the attitude of English and American courts when they have Leen faced with disputed qualifications. Rules appear to have eme=gels , in ceriain types of cases, Whether property is movable or.im- movable is determined by the law of the situs ‘The meaning of the term damicil 'xs been settied tu be thai aitrbuted to %t by the fortim, The question what is the fe=/oci comtractus of a cnatract Completed by correspondence has 30t conte tp, but Lotenzen has re doubt that the law of ths iarasn controls. Capacity end for- salty are Heise sid to be deternined by the law of the forum, ‘v. Ogden® is cited in support of this proposition hen concludes: In view of the above cases it may be asserted that according to Ansle- American law the qualification of legal trarcactions as well as the defni- domicil,”* the law of the place of contracting,” and of the oi “ points of contact ” are Sprecped In general by the sriely interoal ta (pi the forum, the principal exception to the rule being that the character ‘Of property as movable or immovable is controlled by the law of the si This conciusion is also the unly one that i¢ Anerican thenry of the contict of laws. This Test statement is supported by a considerable discussion 1 ie Anglo-American theory of the conflict of laws Tea] haeS,. aad THE CHARACTERIZATION PROBLES oa * Loventen rejects the territorial theory, and, finding that the toreign ta never t when the forum sees fit, concludes that tha uaihonionae ehh the application of the foreiga la ~ depends must similarly be determined by the law of the forum. | » Alter ove has read Lorenten’s statement of the qualifications Problem, is it clear what the problem is all about? We mzy best answer this question by asking.(o further questions, ind seeing if we can find the answers to them: —__ 4 1, What does the judge do when he“ qualifies "7 " a, What is it that is “quslified "? “ \ yj From Lorensen’s statement at the beginning of his article, the is, 52) answers wonld appear to be as follows: 1: When the judg: “qualifies” he determines the meaning to'/ be yiven tu one of the terns above discussed such aa “ domicil, “place of coutvacting,” etc. : 2. That which is “ qualified "is the term of doubtful meaning, aud after it has been qualified Its correct or approntiate meaning eee ‘fos Saw! It should be observed, however. that the way in which these ‘questions present themselves to the court is not ene of decermina- tioa of the meaning of terms. The judge ashs in practice not “wnat is the meaning of domicil? ” but was this man domiciled in state X?” Similarly, he asks not “‘ what is the meaning of ‘Place of contracting? ” but “ what was the place where this con- tgact was made?" (This is not to deny that the latter question may involve the former, but it is impurtant to observe the way in +. which the question arises, for a reason that will appear shortly.) Two of Lorenzen’s other examples were whetiver the rights of the suzs!ing widow Lelong iu Live law of succession ur the iaW of *+ mairimonial property, an’ whether the scatute of limitations be~ ©. longs to substance of procedure, The way in which these ques- tons present themselves to the judge is as follnws “T this wemaw to fo om 8815 the rales of matrimon‘al property or the cul nyse eee ses en ie ae sap f succession? bs (5) Is the 1ule of ia that lapse of time prevents recovery a <> Tule of substance o- procedure? * ee cess the stack metnad s+ vsinz the ywestish ik unimpariant wbat Wieson ssw. IeTeremt Ispen of aesiony, AEST7s: Hakeaxo (uw REVTEM (Wat as The importance of considering how the question aries now ap- pears. It Is true that Io all four cases the underlying question 1s one of the meaning of term: That is, as it were, che eommon denominator of all Gt them— But the immediate problems pre- sented In the determinations that the judge has to make are of dif : ferent kinds. Thus in the case of the widow's clair om her bus- + band’s death, the question to be decided is the juridicad-na’ are of the problem presented to the court: if it {s decided to fall {nto the category of matrimonial property then one set of conflicts rules wil! apply; if the category of succession is selected, then another set of conflicts rules will be available. : ‘The two cases involving the meaning of * domicit" and “place” of contracting” prosent a different problem: here the juridica! nature of the question presented has been ascertained before “ domicit” or “place of contracting " becomes relevant. Let us assume a case of successicn to movables of a propositus who di-d in France leaving securities in New York New York law says that succession sliall be governed by the law of the domicil, and the quesuon arises whether the decedent was Gomicaled in France. ‘The deiermination of (he furidical nature of the problem pre- sented to the court as succession has made available the conflicts ruie that succession is governed by the la of the domicil; doraveil is then tke (“point of contact "which ecrablishes a connection with some foreign system of law Similarly with “ the place of con- tracting "> the juridical nature of the p.oblem as contract has al- ready deen determined, and the rules reiating to contracts made available; bui the juage still has to locclize the “ point of con- tact” whicn the confiicts rule Jesignat=s, namely “ the ploce of contracting.” In the case about the statute of limitations the problem is dif- ferent again; here the juridical nature of the problem przsented to che court has already becn determined to be contract. Conse- catly cer are sealtable for its solution ine ding (et us assume) hat the validity of the contract and the ee of the resultant obligation ar= governed by the law of the place of contracting, and the procedvral requirements for enfarce- meu.ure governed by tne law of the forum. The question whetheryv’ limitation of actions relates to substance (and so is governed by the law of the place of contracting) or procedure (and so is gov- ain conflicts cule: nai1999] THE CHARACTERIZATION PROBLEM. 183 erned by the law of the forum) therefore voncerns the application of the conflicts cules already decided to ‘e applicable. ‘The three classes of cases which these instances MMustrate will correspond to the there stages which take place in the determlaa-r v tion of any conflict of laws question: . 1. Determination of the juriaical nature of the problem pred, -_/ Senter to the court, ¢.g., “This is a contract.” When this deter-~ mination has heen made, then the conflicts rules appropriate to the legal category selected will be availabie for the solution of the problem’ IL Selerticn of the appropriate connecting facior, eg,“ This contract was made in France.” IHL Delimitation of the preper law, egg“ The French aw governing substance does not include limitation as a question of substance; the English law governing procedure docs incdude Umltation as a quesiion of procedure.” * Tt now appcars thot what the judge does when he “ qualities ** varies according tothe stage he periorms the profess. at Stage I he characterizes aig cual situation, { Stage II , the characterizes ogtain particular facts, ena at Stage Ei he de~ limits rules of lew. “Thus one cannot give any single answer tn the. ‘question “ what does the judge du when lie * qualifies’? ” Loren- zen fails to expleia that in bis various examples tne judge is called on to“ qualiiy ” quite different things. It is true that Lorenzen gives Some indicatiun of being conscious that diferent things are ‘qualified on different occasions, because in one place he speaks of having to decide the “preliminary question” and in another of * the definitions cf . . . points ef contact But hi: The Garition of Clas Acation © Qulifiation™) i= Pyivala Talernaiional Cae bun oh FEL Gr+ i939 T#5 CHARACTERIZATION PROBLEM ass 5 Beckett's first class, however, also includes determinations of V/ +\-domicil and of place of contracting, which,’ as was pointed cut * above, differ in their nature from determinations of the juridiea! ature of the problem prescated for Solution because the latter pre- ceae, and the former follow, the selectior of the conflicts rule. ‘This dStinction, however, is mot made by Beckett. He includes : in his first class of cases both the determination of the Juridical - ~~ _- of the problem presented for solution and the determination ~~ f the connecting factor. On his view they both come under the \fncad of “ the application to a given set of facts of concep:ion of = ‘Private International Law.” es “It was ttated nbove that after the judge bas characterized the ot question presenied '0 bins in a certain way (Stage I) and selected the appropriate connecting factcr (Stage IT), be must then de- Aimit the proper law made applicable, deciding, ¢.2.. how much of ) the foreign law applic» tc substance, and how much of the law : of the forum to procedure (Stage III), Beckett divids: into two classes the cases that may avise at this ied age Le (b) Classification of rules or insticutions oF the interual L-~ of 7 ihe forum. : (€) Classification of rules or institutions of foreign internal law. ‘The usefulness of this division & not very clear, as the process per- formed in both cases is the same, namely the application and delimitation of the Iaw already determined to be appiscable; and the method of classification is the same, namely, or Becket?’s view, - »y Priaciples of analytical jurisprudence. : | ‘ 1 ar Nee Slion of his Private International Law (+935), Dr. a statement of the characterization zrublem, adopt- ing, Se term “ classification,” > eince there is _{reatment in the second edition, iscussiot. of Chesh're's view: will be postponed until later, Tro year: after Cheshire's frst (Characterisation in the Con jt of Laws (1 Eaetoe views are cxpcrased le Falconbridge. Crafic! of Lave!> Erampler 2} Character * 309) 43 Can, B. Rev. 243. As appears trom this article, | aca mach in Falcontridge for his snatysis 2HARVARD LAW REVIEW : ts probabiy-the best“£Catgment in English of the 3 characterization problem,_Falconbridge was the first 10 =a) : bumsell with the questioy row the disputed characterizations arise, : before attempting to dedde how to resolve the disputes when have arisen. Thus he begins" - (One purpose of this article is to suggest that the Court’s inquiry should 7 : ellect, Uf not forr=ally ot explicitly, be divided into three stages 01% ; : These stages may, for convenience, be briefly designated as Gharacter luaion,Sdecion, 2nd Application "the charateraticn of the sims . ~or a oie the selection of the proper law, and the application of the } 73. a ; 2 es stagts are substantially the same -s the three stages / ove as (4) the determinaticn of the juridical nature} j= j of the problem, (27th selectiun of the approprizie connecting py factor, and (3) the delimitation of the proper Lave."* : . {| Unde: hi: heading “ I. Chavacterization of the question,” Fal | | |coatricge discusse= such questions as capacity and_formality, \ substance and procedure, status and capacity, marital property | jand success, sitcce.sion and adn: Imovables. “1£ Selsctioy 1¢ proper law: tne tor ” discusses dosnicil, place of con:racting, and sites of a ‘hing. ta Application of the proper ‘aw," the cense in which the «= lpropertrwand We characleresions are applied is developed. = [While the application of his method to certain cases seems open t0- 4.0 Jquestiou, "the racthod itself is wholly praiseworthy. — - Almost simel ly with the publicaticn of Falconbridge's - views, Mr. epi ‘published an acticle devoted principally" 19 The only important diderence te vate le that Falconbridge calla the second |, tage “acetion oF the proper lay,” whereas I call t~ selection of the connecting i = factor” Sully “peaking, there bre apna two dltinct step of stages favolved eee ‘mere, The juigr must first velect of localize the connecting acter, chen choose the braper Liw Nota, 1m wil involve no dilcaky, bat ft & at this sage (at the m may ate. Thay if the con is the proper law the * ternal law ° 0: Frat, wt =the cs, tocading the Fined conilats rules? Cj. Grewedd, Servos & ai8) 64 Haw L Bev aeeg 2s oe, Fa 8 Fhe Pace ol Cis: atom im Pfote Tater tes Neon etn: fg. dammicil) U nad Low (gyn) ty Boeagyg)) 1 THE CHARACTERIZATION PROBLEM 757 to considering how problems of classification arise in the course vf the solution of comflict of laws cases, rather than to a detailed discussion of the method.of solving them once they have arisen. ‘Unger outlides the three ‘Stages In the solution of a conflicts case, distinguishing them with slightly different terminology. Thus what Falconbridge calls" the connecting factor ” Unger calls“ the elements of introduction.” What Falconbridge calls ** the appli- cation of the proper law” Unger calls" delimitation of the por- tions of law applicable by virtue of the reference contained in the * rules of Private International Law.” Further, where Fa'son- bridge. spoke of “characterizing” both questions of fact and rulesof law, and Beckett and Cheshire applied the term “ classify ” to both stages, Unger speaks of “characterizing” questions of fact, and “ classifying” rules of law. Exceptional brevity and clarity permit Unger to convey his statement to th -eader with greater ease than Faleobbridge’s more comprehensive treatment, but his statement is substantially similar ussion,“* although using differen distinction between the three / Cheshire mentions first the case of selecticn of the connecting fac tor, auxd calls this “ classurication of a ruie of Private International Law ifself,” because the selection and application of the cunnect- ing factor foim part of the application of the rule of Private Inter- naticual Law. . The chc-acterization of the. question, veferred to above as;Stage 1, Cheshire calls “ primary slastification,” aud describes as “ the correct legal cate- gory.” ‘The third stage of application and delimitation of, the ‘Proper law: calls “ iBcation,” and de- scribes as “the, eds WEAN EH aE ict eE ni determined alter the proper terminology, 1 Sages ferent treatment that must be accorded to questions of classification” and “secondary classification.” best that has yet been given* By adaptation minology, imary characteriz.788 TARVARD Law REVLEN * Wel se performed at the first stage (characterization of the question pre- ‘sented for determination) and “ secondary characterization” for the process performed at the third stage (application and de- limitation of the proper law). The process of selection of the con- vecting factor, performed at Staze II, will be referred to in those words. * "Pant II. Svosesrep Metions or Sovonion Vv co em be remembered, takes the view that with two ¥v~ le tions the law of the forum should determine di ri ations if Se authority of preceszat; similarly with the determination of for. / mality or capacity. For the exception that the nature ot eeper i 5 movable or immovabie should be de:ermined by the 1070 / situs, lie is again able to quote authority. But his mein argument { “E Based' on genera! *heory. He points out that, subject to thr | slight aad very general social ieuce. If, therefore, the a of ie Hy ‘solely on the will of the forum, the characte ization from which the pplication of the foreign Law results must similarly depend on the will of the forum. On this ground, he con-Judes ‘that disputed characterizations should be determined by the iaw of che forum? E Other reasons are given for reaching the sarce conclusion, [tis = suid: “that the international theory is idealistic and not in accord“: with reality i: obvious+-amtagain = the intern: Of Jaws rests a) most whol! SStOR. disputed characterization should he sieternsi law governing the trancaction is re: shatiit is only after determining the characteriza isable:o : he 9 cd by the ted for the reason Hoa that the judge y 11ruil THE CHARACTERIZATION PROULEM 19 letermine Ube characterization. Uy the process of elimination: - ited views, Lorenzen is left with his conclusion that the law of the forum must be decisive This reasoning, however, is less persuasive than at first appears. On the basis of precedent, It i= established that domicil, in English and American law, Is to be determined by the law of the foruns,"* and that the nature of property should generally be determined by the law of the situs. Whether Ogden v. Ogden, on the other hand, constitutes acceptable authority for the proposition uhat the deter- mination of what is capacity o formality should be docided by the law of the forum is by no means so clear. {t is quite true that the case was decided un te basis of such a rule; but the recul: of the decision was that a woman was held to be married in England to a Frenchman douiciled in France who by French law was pot oniy not her husband but als legally married to somebody else, It is hardly necessary to say that this decision is nc very generally discredited,"* and 27 writer should hesitate long beiure fostering his view cn a Gecision such as this. ‘As for Lorencen’s argurren* on principle: although the forum ould legitimately refuse to adopt any characterization other then its own, it Goes not follow thet it should do su. As P-ofessor,Gris- wold observes in connection with the renvoi: “ Alter all, what is conflict of laws, untess it is a science (or telling a court when it should cast asice iis own rule in favor of one that is prele abroad? "We mest look icoier eopderstions Tear the fact That the forum “ always applies its own law to the case””**in order tc decide whether that should b+ its purely internal lave, or should include some foreign element; and if it shou! include some foreizn element, the question still remains open ywnether that should in- clade some foreign characterization. If it can be prope= to adopt the foreign characterization in deter the nature of property Jr a revel stuation doraict may twice be a connecting fe foccign taw aod then batk tw te tocel Lim. 1 the jugs of the forum acer: the ~elerence ick (0. his vn aw he will by Wuing so vundy We iortian deta ne of the connecting facie... Cf. eecisom of the Cour de Causation, March 7, 1433, 1 parted in (ig38) Rotrettt Revv'e oe Daoir lartenstioxa: Pant 145, 1 Thoweh not by Professor Beale: See s Brats. Comruict or Laws (1 SY Reaval Revisited (ig3h) sr Fase, L. Rev. 1365, 1278. 3% Cook; Logical ant Legal Bases of the Conf of Lares (1934) §} Yor= be J 357, 465,de eee ee Bastin, Aiminjon, Piilet and Niboyet. The main reasons he gives tor. rejecting their “ composite view ” are the fellowing: (1) This dheory more than any other would Tead to conflicts of shiarsete 00) A, 2. Cysiebie coh Laws Gg) vo Mi the sminre * $e eu! Ci, ser 1yaj Loxwmas ox Vers DE auies ve Uy tae Peepesre Feascuse Ex Masrikae DEC OSPLITS ors Lois (vpa$) 68 et are, tia et as ‘of tne internal lav of the forum teads in practice to the most arbl- teory results. In support of this contention Beckett quotes the aromalous situation produced in Ogden v. Ugden, siready referred tu. I cleart, does ret follow from the fact that Enalizh rules relating to consent to marry are charecterized 25 {urmailties oy English aw that French rules relating to consent to marry should be similarly characterized when meterial to un Eng!sh con2ict of Saws decisinn, (4) Laerly, Beckett points out that the method ot characteriz- “ ing by the purely interna: law of Lhe forum completely: breaks { down when there exists nc lastitrition of the internal Taw inary | 1 way corre:panding to the instiuuizon of the foreign law under .un- siceration. The “ interna! law of the forum theorf™ being thus rcjected, Beckett then rejects also the “ foreign law theory ” for the reasons Ns already noticed, namely that it is arguing in a circle to characterize by the applicable foreign law when the applicability of the foreign Taw depends on the pric: determination of pe Searutel Sacte terization; and that no solution Is possible when either-one.of two systems of forelgn law may be applicable, and-the.cholee between them depends on the characterization to be made, AMéckctt therefore sugcests that the propec. principle is charac: erlzatiot un the basis of analytical jurisprudence and compara: tive Jaw," aul he offers these reasons in support af his view: (24 The rules of conttict of tuws are rules to cnable the jedg= (9 decide questions as between different. systems of internal law. ‘They must therefore be suitable for ‘appreciating the character of “ules and institutions of “all legal systems. “Classification ts * Rabel, 3). (iager Revue, ee Le [19339 Zerrec ™ [tanja) Rrviste fratiava 189; C937 ties Hebi yas) 19.820 DL Rre gt0) ¥ ‘765 HARVARD LAI REVIEW (ol. 52 simpl un Interpretation or application of the rules of Private Tmternational Law in a concrete case and the conceptions of these Toles mest, therefore, be cenceptions of an absolutely general Thavacter,”” ‘This general character, necessary for the comparison Of cules of different legal systems, cannot be obtained from the ot Sonat law of any one eyatem, but only from “analytical juris, pedence, that general sclence of law, based on the results of the (2) Tn many cases adge must characterize his own internal law. He cannot, it is said, interpret It in terms of itself, and so, must have recourse to some more general princi outside it, these principi: can only be those of general Jurlsprudenc® The way In which the judge should apply the principics of analytical jurisprudence is further explained as follows: (a) Even analytical jurl-pradenre may have sometning of @ national character, and consequently the judge will follow the Haeas of bis own CLUNLKY with regard to anaiyUicai ie apace. TE) where general sorisprudence for some reason eam Eive no answer, the judge will follow the peinciples of his own law (c) ‘The judge will follow an r=press direction of hisown law with regard to the spiere of application of a rule of the internal Jaw of the forum (¢.g., that his starute of limitations is procedural). ‘He will not, however, regard that as a basis for analogy in decid- ing other cases (c-g., by holding that foreign statutes of limita tions *re procedural), Lut may consider it a special rule based pon special reasons pecullar to his own country and affording little or ne evidence of the prcner conceptions of analytical ju prudence. The third part of Beckett’s article, entitled ** classification in prectice” considers vari i the Erglish that have iavolr These are divided. as as poi “The firat Chasxenibraces both these whch jon and cases of selection. of Une ¢ ‘The conctusion which I draw is that in this fags of'case a court must always apply the conceptions of the fox fori and rhuit disregard the conceptions of foreign faws on these z that one pede 0 Pie niakes sm exception to ers ss tase wi) ber opti‘ol THE CHARACTERIZATION PRONLEM 76s ‘a the characterization to be adopted; then, it is sald, the forum. should adopt their common characterization rather than its own. Secondly, Beckett deals with “classification of the internal law “ of the forum.” He illustrates what he considers the wecessity of having regard to considerations and concepts outside those of the purely internal law of the forum, particularly in cases involving the determination that distinguisties between substance and proce- dure. Thirdly, he ciscusses "classification of rules of foreign law,” in which he gives as his general principle: “In classifying rules and institutions of foreign law, full application should be given to M. Bartia’s second principle that, once it is oscertained thai a given foreign law applies, x inet be cpplied in foto wath alt its relevant subsiciary Classifications.” But the following quali- fication is made: “.;. an English cout . . . should, and 7 think would, attach great weight to the foreign cias:‘fy.ation of its own rule, but Tdo not think that it is bound by it if it finds it to be Becxets has ~ade a consider avle eantribuition to the search fer a: adequate methad of solution for the characterization problem, but nis demovstration of the fallacies of other views is more con- vincing than the asservion of his own. His ex=mination of the “ in- ternal Jaw of the forum theory” has admirably pointed out the difficulties which it raises and fails to solve. But after he has stated his own view in terms cf analytica! jurisprudence and com- parative lnw, he then tells us that all “cases not involving any characterization of a rule or institution of internal law” must be determined by the law of the forum. His «xception thus seems to include all cases of primary characterisation and of selection cf the coonecting factor, but Beckett does nut realize how large this exception is. He then goes on to say that when the foreign law has been choses as applicable it, chi:tacterization should prima sacie be f the three stag-s in the salution of a conflicts question noted above Consequently the ascertion of his own view is neither entirely coberent nor very definitive. On the other hand, he seems funda- mentaly right in emphasizing that the concepts for character ization must be provided by the confiict of laws rather than the internal law of the forum. Nevertheless, the traditional method of thought of tire common-lav courts in determining the concepts of conflict of laws is noi ‘n terms of analytical Jurisprudence and comparative law. VI = “Aiter drawing =1teation to tne necessity of kucwing witat is b-- ing characterized. Faivabriage observes with regard 10 Beckett's “ comparative iaw view _ eaten 2 basis of comparative iart would seers to re- 7 di-2 Jaws, He espouses wie © ical law" view as against the torial theory " ot tized richts ” view; pierre the interrelation of haricicrizatiomand thé renvol-prablei : OO right. Zaieonee EB CHARACTERIZATION PROBLEM 769 criticizes the attiiude of the Conflict of Las ws Restatement, But having dealt in the first part of his article with those types of cases which, in my opinion, represent the mast real problems at the third stage, Falconbridge makes o mention of them here. . VIL The main part of Unger’s article is concerned with “ classifi- cation “ (in his meaning of the term), /.¢., secondary character- ization. Ilad his article not appeared Letween the dais» of Fal- vonbridge’s two instailments, one would think that Ung-r was writing to show that Falconbridge’s conception of Use process of characterization inv: !ved in application of the proper Ins: was too narrow. Unger makes tho same point that I wish to emphasize, namely that characterizations of rules of law are performed after the proper law has been selected, and so ase governed by different principles froin those governing charucterizations of the question presented to the court hy the factuzt situation of the case. he writes: If it should be found that the engagement [of a contract to marry] #25 entered into in France, English Private Internatiouat Law woul: direct application of that portion uf French law which deais with the fornll- ties of a wontract. Now the problem of the delimitation of that portion of French law — the problem of classification — would arise. It usually becomes acute with regaid te a perticular rule of the legal system ora cemed. ‘The question normally is whether « given rule of either English car foreign Ix is to be considered az belonging to that portion of Exglish o> foreign taw tc which the court has been referred by its Private Inter- national Law. ‘The court has to delimit the Freuch law in order to find out just how much of Frencit !aw relates to formalities, and delimit English ‘0 find out inst how much of English law relates 1. larly with regard to parental consent for marriage Unger points out thet an English court, having determined znat Capacity is guverned by the law of the domicil, should enquire how much of the French lair (if tie propositus fs domiciled in France? relates tz espacity, and how much of the English law jo formality. Whather aneavision of the French Code relates to eat ew pce ule of aw ir i3 fesse ined proce‘lure.a MARU AR EW wet re ihe 5 mine the function nerformed by it within the system “f law to which it belongs and to consider it in relation to what is described by Bartin os ‘Vesprit de la régle de droit international privé." ” Unger thus seems to agree that characterization of rules of law an properly be performed only in accordance with the characteri- zation adopted by the proper law, or lex c ready chosen. Unger also suggests some sort gta made " between the intecral law of the forum and compal as tby criterion for Primary characterization, namely Characterlagara en the basis of the analytical framework oi the lex fori, It is true that this avoids the charge of inapplicability in cecfain cases rightly brought against the strictly interna? law of the (orurs: st also avoids tne charge of impractical vagueness brought agains: =-aly.ical j prudence and comparative law. Whether it represents tne best solution. however, remairs doubtful’* In eny case Vnger hs: greatly helped the quest for soiuticn of the characterization prod- tem by the clarity of his statemcat, and the 2st i which he puts the argument that “ secondary ciaratierizat o ‘* dassification ” (to use his term) of rules of law must be segarded as a process of delimitation of the proper law already chosen as applicabie to the case before the court. Vvul Cheshire’s method of stating tie problem, as was noted atavs, is not materially different from, though perhaps ic is less clesi than that of Falconbridge and Unger. On the question of solution of the characterization problem Cheshire comes out squarely in favor of two rules: (1) “ Primary classification " must be decided b: (2) “Secondary classification ” ception, be deadea by the éex cer y the lex fori. only ihe azsivticul namewors Lot the ov * taled proviviens ret be featewnk at Bo cichetass Bees * somoTHE CHARACTERIZATIUS CKOALLM ‘This fest rule Cheshire explains us follows: «4+ this primary question of classification must of necessity be de- cided according to the lex Jeri, ic,, it is the English judge slone wha, by maklog his own analysis of the issue, must determine iis true nature ant Assign IL to its correct legal category. It fs linpossibie to classify azsord- ing Uo the Iaw that is ultimately to govern the legal relationship, for unt Ube process of clessifieation is complete the legal relationship Is unkecwn. If the ta which Is finally to regulate the matter (ic, the lex causae) Aepends upon clatsiGeatioa, aow can a classification be made according Uthat law?” Jt may seem arbitrary to apply the /ex jor] exclusively, bet each system of Private International Law is based upon ite own in- + digenous system of clanification, and it is no more justifiable to abandoa this than it is to abander: its rules for the choice of lar ** MW “Tin: reason fur tne second rule is: once tt has been established that by the Private In'crnational Lo-v of Eaglanci a foreign iegal system Is the appropriate !aw 12 govern the whote of a particular transacon. it Is only logical 19 2: fans law shall nenceforth govern the matter in every respect. ‘ie rule other- wice is to stuitif; Une English ruies for the choice of law. Li the court has alveadv decided that English law is inapplicabie. since all the facts ‘aral vents concerning the matter are connected with country X, why should it discard just that one part of the law of X which comprises the ules of classification? « “Th= “ one important exception” to the second rule is that no foxeizn classification shall be alle-ved to defeat am English rule of procedure. The reason for the exception {is that no court can be expected to disregard one cf its well-established procedural rules Weseiy because the particular action happens to contain = foreign element. Cheshire’s second rule, however, may be restated to. avoid the necessity of an exception. The various aspects of a case are governed by diflereni systens of law; eg., where sai is bought in England 02 an oral contract made in France and the necessuy of a writiig becomes rélevant, there will be 0 oae oc= yarnsee “The English conilicts rules refer io two syste: ‘ French taw to goverti. questions of substance and-Eng! Foeern questions of prvcedure, ~ Che French characterization of French rules sliould be adopted and the English charactetization: of Enslish niles. Ths. Chrshire’s second role could be ¢ ress772 ' 7 UARVARD LAV REVIEW “ Secondary cha; ‘ already Shee imalon shoulil be decided by the proper law law applicable to — derstanding‘ proper law” to mean the proper Cheshire fneludes Separate aspect of the question. of four types: ( under primary classification determinations ae 1) succession Or marital rights, (2) testamentary matrimonial law, (3) administration or succession, and (4) Capacity or formality (as in Ogden v. Ogden — the question of Pareatal consent for marriage). Under secondary classification are apparently included, infer alia, ules requiring certain types of Contracts to te in writing, rules of limitation of actions, and the classification of property into muvable and immevable.* In this respect Cheshire has improved on Falconbridge’s treatment by Gealing with the requirement of contracts to be in writing, and limisation of actions as secondary rather than pritary classifica~ tiens. For the reasons already given it would appear that the determination whet: a rule of law relates to capacity 97 for- mality should similarly he included as seco:dary classification. ‘On the other hand, it seems more proner to treat the classification of property into movable and immovable as primary classification, ecause different rules relate to movaiies and immovabics, aud it is impossible for the judge to knew which rule to apply watil he has made this determination. J If we cre left with the two rules that ¢timary characterization should be governed by the /ex fori, and sge6ndary characterization by the proper law already chosen as applicable, and understand the latter rule in the sense explained, we have the equipment to decide all questions on a satisfactory basis. Cheshire does not expressly deal witls the question. whether the /ex fori means the strictly internal law of the forum, but it would seem from his treat- ment that he does not iran it in that sense, ‘The internal law of the forum being inadequate and the foreign !3w impracticable for primary characterization, it seems that we are led to the con- clusion that this process should be performed by the vonflict of laws of cach country according to ihe cuncepts which it indige- nously works out for itself. [Vou 3 AL A. Rohertson. Haresap Law Sentoor # Cheshire writes of the classifration mi nreietts fal u ‘rity apeahton, Beef cane of shal we have alia primary calsatleg” But