C

CLASSIFICATION /QUALIFICATION CHARaCTERIZATION

INTRODUCTION / NEED FOR CLASSIFICATION

Legal systems work on the basis of categories. It is necessary for many purposes to
put an issue into a particular box. In many instances, the categorization will be so
obvious as to be automatic. A buyer's claim against the seller that the thing he
bought does not work as it is supposed to, is so obviously a contractual issue that
any court or lawyer dealing with it would not even refer to the classi fication
process before turning to the law of contract to seek the solution. In every matter
the conceptual categories of the domestic legal system are identified and then only
we proceed further. Sometimes it is done subconsciously. Or in other words every
legal system arranges its rules under different categories which must form the basis
of a plaintiff's claim. These categories may be concerned with tort, contract.
property, status, succession, etc.

However in cases involving foreign element takes on an added dimension as

domestic law may regard the case as falling into one legal category but the relevant
foreign law believes it to belong to a different one. Also an action may fall under
more than one category. Or when some cases do not fit into any of the standard
categories operatingi domestic law.
So in the conflict of laws, it is necessary to review the domestic categories to
assess their suitability for dealing with foreign ideas and institutions.

To take a simple example, every society has a concept of marriage for its own
domestic purposes. That concept may be very technical and specifie including, for
example, rules about the age at which parties can marry, listing the prohibited
degrees of marriage, regulations for the conduct of marriage ceremonies etc. Or
suppose a long standing cohabit relationship between a man and a woman is
terminated by disagreement. What, if any, are the rights of the parties? The first
question one would have to ask is, are the parties married? Or are they in a form of

Thus any court, which assumes jurisdiction over a case involving some foreign element is first
required to determine whether a given factual situation gives rise to rights. or imposes
obligations, or creales a legal relation or an institution or an interest in a thing. The basie
question is: in reference to which law the court is going to characterize the factual situation so
that it is able to reach a socially desirable and
just result? And without answering this question
the court can proceed no further.
 C2
contractual relationship? Now, it is obvious that different societies are going to
have different attitudes to these questions and, unless it is intended to exclude
foreign marriages altogether, some accommodation must be found for foreign ways
of doing things. At the same time, however, a domestic systen will not want to
give up all controls and will be reluctant to take a completely laissez faire atitude
and simply say 'whatever goes for marriage in a foreign country will be accepted
here. Between restricting marriages entirely to the domestie concept and the
anything goes' policy, there is a position which will preserve the lundamental
interests of the recognizing system and yet show proper respect or loreign
institutions.

The extension of the domestic categories, which every system of conflict

adjudication demands, requires a solution of these fundamental issues.

task is the same, the manner of doing it, both in domestic and conflict law,
The
different. In a conflict case, much depends on how the issue is classified or
is

characterized. Is it an issue of breach of contract or the commission of a tort?

Choice of law depends upon the qualification problem. If the problem is answered
on the basis of the law of the forum, one law becomes applicable; if it is answered
on the basis of the lex causae, another law determines the solution of the case.
This may be labeled as 'classification of the cause of action'. Once this has been
determined, the next stage is to ascertain the goverming law which, as we have
seen, depends on some connecting factors, such as the lex situs, the lex loci delicti.
the lex domicili, and so forth. These factors link the issue to a legal system. At this
stage, a second type of classification has to be done in order to identify the legal
characteristic of a particular rule. For instance, in English conflict of laws, capacity
to marry is governed by the law of each party's ante-nuptial domicile., and formal
validity of a marriage is governed by the law of the country where the marriage is
celebrated. Is the issue of parental consent classified as a rule of capacity or formal
validity? 2

This question may arise in a different scenario; for instance, a contract between an
English employer and a French employee made and to be performed in France.
The applicable law to the contract is French. In an action
court for brcach of this contract, the
brought in the English
English court will apply French law so long as
these rules are rules of substance and not
procedure. The latter is subject to English
law. However, problems may arise as to whether a
as a rule of substance or
particular rule is to be classified
procedure. This type of classification may be labeled as
classification of a rule of law'.
 So summing up characterization may be
required in r mny rise in

Characterization of the fact situation

Characterization of the connecting factor."

Characterization of the rule of law'

In reality there will be only a few decisions in which a court has heen eearly
confronted with the necessity of choosing between the qualilication ol the fonn
and a
qualilication which would be different under the ex
cuxe

How is this question

be determined?
to
The crucial question, therefore, is how does the Domestie court classily? Is the
classification made according to internal law? It is obvious that the classification
process is very crucial to the outcome of cases. There is a lack of agreement as to
what it is that is to be classified and how it is to be elassificd. The problem of
characterization is one of the most difficult in the conflict of laws, there has been
very great debate and confusion right at the start of the inquiry as to what it is that
is characterized. Is it a 'legal issue', a 'legal relation', 'a legal claim', 'a legal
question', 'a factual situation', the "facts of a case', or "the rule of Indian (or
foreign) laws"? Various solutions have been propounded.

It may be regarded by one law as preenting a question of contracts and by the other law as a
question of torts or property, by one law as a question of matrimonial property and by the other
law as a question of succession, by one law as a question of succession and by the other law as a
question of administration., or whether certain property is movable or immnovable, or in which
they differ on questions of capacity and form ete.
A choice-of-law rule of the forum may determine legal relations by reference to the law of
domicile, the law of the place of contracting. the law of the place of pertormanee, ot the law ot
the place where the tort is committed. The terms "domicile," "plaee of contracting." "place o
performance." or "place of the wrong" are here connecting factors. The law of the lorum and the
foreign law involved may have the same comeeting factons in their systems of the ('ntlict o
Laws but different meanings may be attached to them.
Done after the applicable foreign law has been selected by the law of the forum. lere again the
law ofthe forum and thc forcign law may entertuin dillerent views as to wlhether a prov isim
the foreign law is be
to regarded as saubstantive or procedural, a decision upon whieh the
applicability of different laws may depend.
humwnientun au the buala uf lor tori

tix wan
JNaesl
hy the Gemman and Freneh
writers, Kahn and Bartin. Both
Aahn anl antin voehulod tat no
unilom solution conclusion on the basis
of
mle nt law nt natima voudd he fond which would
answer the above
and that vah linnun wld
hiave to lenl with them on the hasis of its
problems
own internal

Auvonding thi» thuvory the

should characterize the issue and
court
law in aumlanee with the foreign rules of
vatogories
theit nearest analogy in the court's
of its own domestic law, in accordance with
dlomestie law.
mply in whon a vourt is called upon lo characterize a rule ol
institutiou, a legal relationship or some factual situation of a
foreign law, an
foreign country, it
must detemine it on the basis of
characterization made in its internal law. provided
there exisNN a cormesponding rule, institution,
legal relationship
in the internal law.
In sueh
case no
corresponding rule, legal relationship or institution exists in the
domestic law, it stouled be determined on the basis
of the closest analogy available
in its intemal law.

Onee the cont has determined that the law

applicable is of a particular country or
lace, then the court should apply that law as it is applied in that country or place.

The basis of suwh characterization based on lex fori is: the

estriet soverwignty, for the
sovereign's own willingness to
its own application of foreign law. Thus, when a domestic court is
seired of a case having toreign element, the extent of the limitation on the
application of
doestic law, by its very nature, has to be determined on the basis of the internal law of
the
firm As it is vuluuntary willingness ot own country, no foreign law can determine. much less
dictate, this limitaton, nor can the oreign law determine or suggest that a factual situation. or
juridical elationship belongs to, or does not belong to, a particular category. If not so then.
trvign law will be superior and the law of the sOvereign would be relegated to an inferior status.
ln other wods it the toreign law is allowed to determine in what situations it is to be applied, the
law ot the fvm would lose all control over the application of its own contlicts rules. and would
'nw longer bhe master in its on home ll may also result in imposing a wider or narrower
obligaticn whwh the lorum ay not like to accept in case the toreign law gives a wider meaning
tua given tactal situation or juridical relationship.
Another basis ut vharacterization on the basis of lex fori is the ground of practicality also as the
Judye being traiwed in the laws of the forum, eannot but decide the issue on the basis of the rules
f the lonum.
 C5
and it should also adopt any
subsidiary characterization as might be
the law of that country or
place. suggested by
Thus, in an English court, a French rule
should be characterised as requiring parental consent to marriage
its
pertaining to formalities, since English law regardsso
own rules regarding parental consent.

Exceptions to Bartin's formulation

(a) whether the property is movable immovable

or or
qualification of rights
affecting tangible property is to be characterized on the basis of the lex situs
(b)when a contract is entered into by correspondence the governing law would
be determined by reference to that law which
postpones its formulation
longest.

Objections/ criticisms

Its application may result in a distortion of the foreign rule and render it
inapplicable in cases in which the foreign law would apply it. and vice versa.
Wolff and Beckett state a logical application of the theory would result in an
English court, through classifying a French rule in a manner dillerent lrom
that in which it is classified in its country of origin, not merely relusing to
apply French law when according to French ideas i should be applied. but
also applying French law in cases where, according to French ideas. that law
is not applicable at al.
Moreover, if there is no close analogy in the domestic law (as there is no
analogy in English law to the
matrimonial property regime known to foreign laws) the theory does not
work or leads to most undesirable results. In those eases where there is no
similar or identical rule to the foreign rule the theory entirely fails both on
theoretical and practical grounds."
.Lastly, proponents sometimes seem to suggest that it is facts alone which
have to be classified, but this is not so; it is lacts which are presented as
issues in the light of a foreign law.

Bartin states a counter in this regard: When the foreign rule or institution is so alien to the idea
of the forum as to deny any analogy with any rule or institution of the forum. then the juudpe
should refuse to apply it on the ground of publie poliey. Ilowever in doing so Bartin has
unnecessarily widened the ambit of public policy on the only ground that it is totully alien.
 if the forum is interested in a case
courts of the forum should follow a
only insofar as it is the place of trial, the
states or countries concerned. qualification agreed upon by the foreign

Thus Bartin's theory might lead to the

indulgences in mechanical jurisprudence but
also to socially most undesirable results and
distorts foreign rules and institutions.

There canbe little doubt that classification of the

cause of action is in
effected on the basis of the law of the practice
forum..But, since the classification is
required for a case containing a foreign element, it should not necessarily be
identical with that which would be
does not mean the
appropriate in a purely domestic case. The term
strictly internal law of the forum, but a wider concept which
needs to be worked out for
purposes of the Conflict of Laws

Cases involving foreign institutions entirely unknown to the internal law

In Re Bonacina a foreign contract
unsupported by consideration. The contract,
being governed by the foreign law and valid there, was enforced in England. If the
court had applied the strictly internal law, whlch
required that a contract be
supported by consideration the fact-situation presented could not have been
characterized as a contract. Unger holds, therefore, that it is sufficient if the case
falls within the "analytical framework" of the
legal system of the forum.
In the case of DeNicols v. Curlier. A French
couple came to reside in England. At
the husband's death, the widow claimed one-half of all the
property acquired by the
husband during the marriage, including the property
her claim on the French matrimonial
acquired in England, basing
property regime. No such property regime
was known to the internal
English law. The House of Lords felt that the French law
should control and, in so holding, recognized a
foreign institution whlch did not
exist in lingland and so could not fall within the framework of the
law therefore concludes that, insofar as the
English internal
characterization of foreign legal
situations is determined by the lex fori.
 C7
CLASSIFICATION BY THE LEX CAUSAE
1his was proposed by
Despagnet nd Wol.
characterization should be etNected by adopting the According this thery,
to

law. In the words of Wolff categories of the povening

"every legul rule tukes its clasnification fron the lega
system to which it belongs. lmplying lndian law classificn ndian leyal
French law classifies lF'rench rule, and Gierman law classifies (icrman
rules
rules. A
domestic coirt examining the
applicability forcign rule will have to lake into
of
consideration as to how the foreign classificntion of that
and failure to do so implies not particular thing is done
looking at the forcign
law at all.
Despapnet state
that when a judge drawing
inspiration from his own law decides that a forcign law
should be applied, he must be understood as
applying such law o lar a» it
organizes and regulates such relationship and to disregard his decision will be
equivalent to non-upplication of the law to which the juridical relationship was
primarily subject. For example if the national law has made the issue to be related
to essential validity can it be characterized as formal depending on the law of the
forum? If so are we really applying the law which should govern the capacity. The
classification given to a juridical relationship produces all subsequent juridical
consequences.

There are serious objections to this theory

First, this is superficially convincing but it is arguing in a circle to say that the
foreign law governs the process of characterisation before the process of
characterisation has led to the selection of the appropriate legal system. The whole
purpose of characterization is to discover what law governs the issue. To say that
the governing law dictates the process of characterization is to argue in a circle, for
how we can know what the governing law is until the process of characterization is
completed. Cheshire states if the law which is to finally regulate the matler
depends on classification how can a classification be made according o that law
and it can lead
to a vicious circle. Where the application of theloreign
law depends
upon determination of the preliminary question then under those circumstances it is
impossible to decide the preliminary question by the law governing the transaction
itself.
Secondly, if there are two possible forcign laws to govern the matter, and they
characterize lhe issue differently, which is to be adopted by the Indian court? ín
fails to explain why one is to be preferred to the other.
Thirdly it may be added that the adoption of this theory could compel the adoption
of idiosyncratic foreign characterization, such as a rule of country A law that a
person of country A can only be validly married if he or she goes through the
ceremony before a Country A priest, wherever in the world the ceremony takes
place. A court may have to resort to public poliey to avoid the consequence of an
 invalid marriage ifa
Country A
policy should be very person marries in India without a
criticized for
sparingly used in conflict of laws, the priest. As public
requiring such an
exception. theory can be
Case representing an exanmple of the
Re Maldonado 's Estate process
Facts a
domiciled in Spain who died intestate
woman
and without living
relatives. She left movable in
property England and this was claimed by both
the Spanish Government and
the British Crown. This in turn
whether it was a depended upon
question of succession to movables (in which case the
Spanish rule would apply) or whether it raised a
question hona vacantia
(ownerless property), in which case it would be covered
of

to by the rule that title

property is governed by the lex situs, and this would lead to the
application of English law. The Court of Appeal held that since, under
Spanish Ilaw, the Spanish state succeeded to the property as the 'final heir. it
was entitled to the movables in
England. The property was never ownerless
with the result that the English rule never came into the
picture

CHARACTERIZATION ON THE BASIS OF ANALYTICAL

JURISPRUDENCE AND COMPARATIVE LAW

The international lawyer,

Beckett and the author of the
WE
encyclopacdia of
comparative conflict of laws, Ernst Rabel urged the courts to approach the task of
classification in accordance with the principles of analytical
jurisprudence
and
comparative law. Beckett, said that conflicts rules should use 'conceptions of
absolutely general character', and that these conceptions are borrowed from
analytical jurisprudence, that general science of law, based on the results of the
study of comparative law, which extracts from this study essential
general
principles of professedly universal application and not principles based on, or

8The basis is that rules of conflicts of laws are to enable the

judges decide questions between
to
different systems of international law and must be applied as render them suitable for
to
appreciating the character of rules of all legal systems and conception of these rules must be an
conception of an absolutely general character. it is a mistake to assume that the sole background
of a choice-of-law rule is the material law of the forum. Each
international law are designed, in his view, to bring about international
country's rules of private
of the forum and that of all other countries, which can be attained
harmony between the law
abstract notions than the concrete institutions
only on the basis of more
of any particular country
 C1
applicable to, the legal system of one country only. Notwithstanding great
diversities in the legal institutions of civilized countries, Rabel contends, they
generally resemble each other sufficiently to permit the creation of more abstract
notions which are valid for all national legislations

Objections
The problem is that such an approach may make one wiser as to the
differences between legal systems but it provides little guide as to how the
task of classification is to be accomplished. Few universal principles are
would be
disclosed by analytical jurisprudence and comparative law which
Morris as
of assistance in this area. It is termed as superficially altractive by
and less
judicial technique in conflict case should be more cosmopolitan
insular than in domestic cases.
tradition of the
Such an approach would be at variance with the pragmatic
common law and there is no evidence of it having been endorsed in any

decided case.
In any event, it might require parties to spend more time producing evidence
it is
of law which would add to the expense of the litigation and
foreign
vague and impracticable. This
would require a supernatural class of judges
it.
with decp knowledge of comparative law and capable of applying
Also though comparative law may disclose similarities between legal
which it is hardly capable of
systems, it may also disclose differences,
resolving; thus, it may show that requirements of parental consent
to
marriage pertain to formalities in some systems or to capacity in others, bu
be
this does not tell us how in the case before us these differences are to
settled.
Rabel admits that the method of comparative law will not resolve the
the
problem of qualification in those cases where the differences between
legislations are so great that it is impossible to set up a compromise between
the opposing points of view.

However, a variant of this theory has found some favor with the courts which has
said that characterization must be done with a "broad internationalist spirit
Cascs
Re Cohn
A mother and her daughter, domiciled in
Germany, were killed by the same bomb
in an air-raid on London. lt could not be shown which died first and which
survived the other. The choice of law rule for succession issues is that of the law ol
the German law. By that law the daughter's estate could only
domicile, here
succeed under her mother's will if she survived the mother. There is an English
rule by wvhich a younger person is presumed to have survived the older where they
die together. Uthwatt J held that this rule was not one of evidence but of substance
and so did not apply as English law was not the applicable law. The correspondine
deemed o have died
provision olf German law, by which the two were
so applicable by
the
Simultaneously, he held part of the law of inheritance and
of succession and then
choice of law rule. Thus, he categorized the issue as one
within thal calegory.
held that the question presented by German law came
German rule came
whether the
Another way of looking at the matter is to ask the
rule. One way of determining
within the seope of the English conflict of laws whether
conflict of laws rule is to identify its purpose and then inspect
scope of the and r e a s o n s for that
within or without the policy of
the foreign rule in question falls
choice of law rule.

two fold characterization

/ via media approach
Theory of
to draw distinction between
lawyer, JD Falconbridge, sought
a
The Canadian is
and classification by the lex c a u s a e . This approach
classification by the lex fori classification
referred to as the via media. According to Falconbridge,
sometimes classification by the
The first stage is a preliminary
requires a two stage process. international law; thereafter. the
line with its own rules of private
lex fori. in context 1o
should be classified within their
own particular
appropriate leges causae
resolution of the problem before the
determine whether they provide an acceptable
court.
of the legal category
The first stage, task for the lex fori, is to define the scope
a

nature of the question requiring a

decision is
and the process by which the juridical
as lex c a u s a e is unknown
until primary classification is
determined, This is so

not being those of the domestie legal system

but of
done. Aiso the categories are
will be unable to make
its international law because otherwise the judge
private
provision for any rule or institution of foreign law not having counterpart in
internal law. The two exceptions for primary characterization to be governed by
lex fori are
 C)|
whether the property is
movable or immovable or qualification
affecting tangible property is to be of rights
the courts of the forum characterized on the basis of the lex situs
should follow
potentialy applicable foreign
a
laws where the
qualification agreed upon by Iwo
foreign states or countries concerned. qualification is same by the
And the second stage is to examine the
relevant foreign rule in its own context( so
through lex causae) to see whether it can be fitted into the legal category in
question. il is delimitation and application of the proper law. Also this slage
whether matter is rocedural should be governed by lex causae.

Also if here is one lex causae then lex causae will characterize in secondary
characterization. If more than one lex causae then at this stage also lex fori should
characterize.
Falconbridge was the first writer to suggest that the problem of qualification
in
should be considered in connection with each of the different stages presented
the solution of a Conflicts problem

The problem remains whether or not questions of qualification which may arise
after the foreign law has been chosen by the lex fori should be referred to the
foreign law ( lex causae)It goes without saying that if the qualification problem
merely involves the application of the foreign internal law, the foreign law should
control. The law of state X, which has been chosen by the law of the forum as
governing a contract or tort, necessarily governs any subsidiary question relating to

such contract or tort; for example, whether a particular contract is to be regarded as

a loan or deposit, or whether the master is responsible for the torts of his servants
and what is meant by master and servant in that connection.

Objection
According to the proponents of the secondary classification theory. if the
law of the forum says that the statute of limitations is substantive and the
law governing the contract says it is procedural, the action would be
maintainable, even though it is not brought within the time prescribed by
either law. The statute of limitations of the forum would be applicable only
1o contracts governed by the law of the forum and the foreign statute of
limitations, being procedural, would be disregarded. as the courts do not
 C2
enforce the
should procedural laws of another
regard the burden of country. 1orum If the law of the
where the proof as substantive
and the law of the
wrong was committed should stale
theoretically be no law applicable to the regard it as
procedural, there
burden of proof. Results like would
would seem
sufficient to prove the
unsoundness of
these
the secondary
classification theory.
Also it has been
criticized as artificial, unreal and too mechanical. Also
agreement where primary classification end and secondary starts. no
Secondary sphere is expanded too much then it is an invitation to all inherent
problems of Renvoi. Alsothe distinction adds to the complexities ol the
problem.

A fifth apprpach to classification is that advocated by Sir Ouo Kahn Freund:

sometimes alluded to as the "enlightened lex fori'the theory holds that it is
unrealistic to expect an internationally agreed set of concepts. Instead,the lex fori
should develop its own particular concepts for use in conflict cases and, in doing
systems. This
so, should pay regard to classification within other foreign legal
where the distinction
approach is already adopted in England in property law,
rather than the domestic
between movable and immovable property is employed
Another example would be in the
distinction between real and personal property.
law of contract, where
an agreement should be supported by consideration
the domestic requirement that
cases.
has been modified in appropriate

Some other cases

were as follows: In l898 amarriage was celebrated in England

Ogden v. Ogdm domiciled Frenchman,
between Sarah, a domiciled Englishwoman, and Philip, a
who was 19 years of age. In 1901 this

marriage was annulled by a ground that the consent of Philip's

French court on the
been obtained as required by French law. Philip
surviving parent had not
in France. Sarah thereupon, in 1903,
subsequently married a French woman
dissolution of her marriage with Philip on the
instituted a suit in England for the
suit was dismissed for want ol
ground of his adultery and desertion. This
in France. In l904 Sarah, describing
jurisdiction because Philip was domiciled
The problem arises in classification by lex causae also. Also in classification of connecting
law may mean a reference to its internal
factor also. This is so as the reference to the governing
law or to the whole of it.
 CI3
herself as a widow, married Ogden, a domiciled
Ogden obtained an annulment of the
Englishman, in
England. In 1906
their marriage Sarah
marriage on the ground that
the time of
at
was married to Philip. The case is
because of the
problem of qualification principally of interest
involved in it and the decision that
requirement parental consent to the marriage was
of the
to be
characterized as a part of the formalities, so that
the
and Philip was
validly contracted from the English pointmarriageof
between Sarah
view. The ultimate
question is whether French or English law is to be
of
parents. The answer to the question applied to the matler of consent
parents is to be characterized as depends upon whether the consent ot
law of the lorum must decide forappertaining
to capacity or lorm. This
question the
itself. If the English judge were to submit to the
French view in thissituation and
regard French
from the English point of view it is a matter of provision
a as of capacily when
one

form, he would, Cheshire points

as
out in the above
quotation, apply a law which is considered inappropriate by the
law of the forum. He would
apply French law because of the French
characterization when he should apply English law according to the
characterization.
English